20170109 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA 't \ DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 170 OF 2016 SULEIMAN KHAMISI AMOUR ....................... APPLICANT VERSUS EULLALIA BAMBAMBA ............................... RESPONDENT RULING MKASIMONGWA, l In the Resident Magistrates Court of Dar es Salaam Region at Kisutu, one EULLALIA BAMBAMBA filed a Misc. Cause No. 230 of 2014 against SULEIMAN KHAMIS AMOUR praying the court, inter alia/ for an order that SULEIMAN KHAMIS AMOUR should return the child one FATIMA ISABEL SULEIMAN AMOUR to her, she being the mother; custody and maintenance of the said child. On the 25th of November, 2015 the court delivered its ruling in the matter granting the Respondent with reliefs sought. The ruling was delivered in the absence of the then Respondent one SULEIMAN ) KHAMIS AMOUR, who however became aware of it by the 26th of November, 2015 when Mr. Kamazima Idd (advocate) wrote, for and on behalf of M. A. Ismail & Co. Advocates, a Law Firm which represented the Respondent, an administrative letter to the Registrar of the High Court requesting the court to exercise its supervisory and revisional powers by calling and examining the record and proceedings of the case for purposes 1 of satisfying itself as to the correctness, legality or propriety of any decision or order and as to the regularity of the said proceedings. The Respondent (in the cause before the lower court) also approached the court below with a Chamber Summons by which he applied for an order of the court staying execution of its Ruling and Order delivered on 25 th November, 2015 in Misc. Cause No. 230 of 2014 pending determination of an application for revision by the High court. Later, acting on the advise given by his later engaged advocate, the applicant came with this application for extension of time in which to appeal against the contested Ruling. He did that on discovering that an appeal would be the proper way to challenge the decision contested and that he is out of time within which to appeal. The application is brought by a filing a Chamber Summons under Section 14 (1) of the Law of Limitation Act [Cap. 89 R. E 2002) and Section 95 of the Civil Procedure Code [Cap. 33 R. E 2002] and it is supported by the Affidavit of the applicant. The Respondent on the other hand filed a Counter Affidavit. Both the Affidavit and Counter Affidavit were, respectively, adopted in the submissions made by Mr. Abubakar and Mrs. Tenga the respective learned advocated for the Applicant and Respondent. In his submission Mr. Abubakar, contended that following the ruling of the lower court, the Applicant did not sleep on his nights. This is evidenced by his subsequent acts. He wrote a letter seeking for this court's intervention on the matter, and then filed an application for stay of execution of the orders of the lower court. He eventually came to this court with this application. He added that the contested decision leaves a lot to 2 be desired. According to the decision, the court decided on the custody of the marriage issue without stating on the status of the marriage. The error can be rectified by this court by appeal. Mr. Abubakar added that powers to extend time are purely discretional on its own merits. Where the decision of the court intended to be challenged is tainted with irregularities, as it was held in the case of KYELA VALLEY FOODS LTD V/S THE REGISTRAR OF THE TITLE AND TWO OTHERS, the irregularity of the decision constitutes a sufficient cause that warrants for extension of time. Mr. Abubakar also referred the court to the decision in the case of RUHIT SHAH V/S EXIM BANK (T) LTD MISC. COMM. APPL. NO. 120 of 2016 in which extension of time was granted on ground that the applicant was not informed of the date of delivery of the judgment. The learned counsel also referred the court to the decision of the court in the case of MOHAMED MWILIMA V/S HALIMA CHIPAKA, MISC. CIVIL APPLICATION NO 63 of 2014 where an application for extension of time was granted on ground that the decision of the lower court could not be left untouched. Based on the submission and authorities cited ML Abubakar prays the court that it grants this application. On the other hand Mrs. Tenga submitted to the effect that the applicant supports his application by giving reasons that he did not sleep on his rights as there were attempts to have the contested decision/order vacated and that he was only made aware by his advocate that the time for appeal has been expired. According to Mrs. Tenga the reasons for extension of time to file appeal are will settled. An attempt to obtain a necessary order does not constitute a ground which justifies extension of 3 time. Suffice it to say here that the Applicant has not given sufficient reasons for failing to appeal within time. She referred the court to the decision in the case of HELLEN JACOB V/S RAMADHANI RAJABU (1996) TLR ... where time could not be granted for the reason that the Applicant was busy complaining to various institutions for that did not constitute a sufficient reason. Mrs. Tenga agrees with Mr. Abubakar that granting an order extending time is in the discretion of the court. In order to exercise such powers, the court must be told sufficiently the reasons for the delay as it was also held by the Privy Council in the vase of RAKMA V/S KUMAR SAMI (1965) IWLR at P.12. As to the irregularity of the decision which is contested Mrs. Tenga contended that, it has been stated that the decision grants custody of the child without stating on the status of the marriage between the parties. She submitted that the law, that is Section 125 of the Law of Marriage Act as well as Section 37 of the Law of the Child Act, is to the effect that matters concerning the custody of children may be determined without touching the status of the marriage. Mrs. Tenga prays the court that it dismisses this application with costs. By way of rejoinder Mr. Abubakar distinguishes the case of HELLEN from this at hand. He said, whereas the applicant for extension of time in Hellen's Case was complaining to Chama Cha Mapinduzi (CCM) Offices and Minister for Home Affairs, in this matter the Applicant complained to the High Court so that it invokes its supervisory powers. He reiterates his prayer to have this application bee granted. 4 That is all from the parties. It is clear from the pleadings and submissions that the Applicant is aggrieved by the decision of the Resident Magistrate's Court at Kisutu in Misc. Cause No. 230 of 2014 which was delivered on 25/11/2015 in the absence of the Respondent (Now Applicant). Being aggrieved by the decision, the Applicant intends to challenge it by appeal. As he is caught by time he has brought this application seeking for an order extending time within which to appeal. It is settled now that the powers of the court to extend time in which a party should take a step in the procedure are discretional. That is, it depends on the circumstances of each case. I agree that, irregularities in the decision contested; and the fact that the party was not informed of the date of the decision; and that in the opinion of the court the decision contested cannot be left untouched each constitutes a ground from extension of time. In this matter the Applicant shows that the decision contested was delivered in his absence. I understand from the contention that he was not informed of the date of the decision. He impresses the court therefore that, that fact constitutes the ground for extension of time. With due respect, failure to inform the party of the date of decision constitutes ground for extension of time in which to challenge the decision only where it is shown that the applicant became aware of the decision after the period prescribed for challenging it either by Revision of Appeal has elapsed. In this matter, the Applicant became aware of the decision within a day that is within 24hrs of the decision. Under such circumstances the fact that he was not informed of the date of decision does not constitute a ground for extension of time for appeal. 5 ' ' It is alleged again that the decision the applicant intends to appeal against is tainted by irregularities. In his submission, Mr. Abubakar contended that the same does not provide for the status of the marriage. Although it is so the court however, it went in deciding on the custody of the child. I comprehend from this submission that unless the court decides on the status of the marriage, no order as to the custody of the child can be made. It also leads me to understand that custody of the child can be ordered only where the marriage has been dissolved. This is not how the law provides. Section 125 (e) of the Law of Marriage Act [Cap. 29 R. E 2002] reads as follows:- "The court, may at any time, by order, place an infant in the custody of his or her father or his or her mother or where there are exceptional circumstances making it undesirable that the infant be entrusted to either parent, of any other relative of the infant or of any association the objects of which include child welfare" My Understanding to this provision of the law is that, the court has powers to order for the custody of a child at any time. It is not necessary that the order for custody of a child should follow a pronouncement on a status of the marriage by the court. It is not irregularity therefore to order for the custody of child without stating on the status of the marriage by the court. As such this cannot be a ground for extension of time in which to appeal. Last,. there is proof of the fact that the appellant upon noticing the decision of the court in the matter and since he was aggrieved he wrote a letter on the same date he became aware of the decision, to the court authorities so that they may consider calling the record of the lower court; 6 examine it and where necessary, revise the proceedings. I must admit that sometimes this way had moved the court to do what is requested for. However in other situation this way had not moved the court to revise proceedings of the lower court. In this matter the court authorities were silent. It can be presumed under such a situation that the applicant should have thought of another way of moving the court and he should follow it. Six days of the decision the applicant sought for an order staying the decision. In June, 2016, this matter was instituted. In the circumstances of this matter that the court authorities which sometimes could act on administrative complaint letters to call and examine records of the lower court was silent, the delay in filing the appeal in my view is accounted for. As a result, I grant leave to the applicant to file the appeal out of time. · The Appeal should be filed within 30 days from the date the certified copy of this ruling is availed to the applicant. E.J.~~a JUDGE 9/1/2017 7 Date: 9/1/2017 Coram: Mkasimongwa, J. For the Applicant: Mr. Kulita Mussa For the Respondent: Absent C. C. Court: Ruling delivered in chambers this 9th day of January, 2017 in the presence of Mr. Mussa Kulita, Advocate for the Applicant and in the absence of the Respondents. :::::::,..,~'- .• •.\, .,,\ '- -~\ -:.i,,1 E.JQ~a .-;_ j; tvJ.: JUDGE J:;, J ,./ 9/1/2017 * ~~---••I~,,.,,.?',,;1? 8