20070823 TZCA Dar es Salaam

1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 5 OF 2007 .,/ CHARLES MARWA WAMBURA •••••••••••••.•••••••••.••.••••.••.••••••••• APPLICANT VERSUS NATIONAL BANK OF COMMERCE ..................................... RESPONDENT (NOW CONSOLIDATED HOLDING CORPORATION) (Application for Extension of time from the decision of the High Court of Tanzania at Dar es Salaam) (Mroso, l.A,Nsekela,J.A, And Kaji l,A.) Dated the 13th day of :October, 2006 in Civil Reference No. 26 of 2005 RULING . rd 17TH & 23 August, 2007 MSOFFE, J.A.: Before me is an application by way of notice of motion. It is I I supported by an affidavit sworn by Charles Marwa Wambura, the applicant. The court is being moved for an order that it:- be pleased to extend time within which the applicant may lodge for a review this court's decision· dated 13th day of October, 2006 I I 2 I I I i ~ between CHARLES MARWA WAMBURA and I the NATIONAL BANK OF COMMERCB (NOW I , I I I CONSOLIDATED HOLDING CORPORATION). ,: \ .1 I A brief historical backgroun~d giving rise toi this application is instructive. The applicant was employed . by theI National Bank of Commerce which has now bee~ succeeded byl the Consolidated Holding Corporation. He filed several cases in the \High Court against his employer. One was before :Mapigano, J. atd another before 1 Ihema, J. He appealed to this Court against the ~ecision by Ihema, J. On 16/4/2003 this court dismis~ed the appeal vi~e Civil Appeal No. ·i I 3 of 2002. Feeling aggrieved by the decision of this court in the : I above mentioned Civil Appeal NoJ: 3 of 2002 he ~esired to have it I I reviewed by this same court but ;as late to apply for review. On I ', 26th March, 2004 he filed an application (Civil Application I No. 36 of . : I 2004) before a single judge of this ·court seeking e~largement of time I . to file his application for review. Ramadhani, J.A. \(as he then was) dismissed the application on 17th \october, 2005. i Dissatisfied, the applicant applied for a reference to: this court from the decision of the I I I I I I I I - -' . 3 I single judge of this court. Two grounds .were I given for the reference and these were:- . I 1. That the decision which was given b~ Hon. Ramadhani, . J.A was a result of improper records which do not confirm I (sic) with the records of Appeal. I I 2. That the learned Justice of Appeal did not consider that : I being a layman in law· I had to look for legal aid before I filing the review within the specified time and in the mean I time I had no any one '.to direct me to dorrect documents, I I which shows (sic) tha.t I was attendtd by a particular lawyer. : j : I On 13/10/2006 the reference was dismissed vide [ivil I Reference No. 26 of 2005. Aggrieved, the applicant desired to h,ve the decision of 13/10/2006 reviewed by this same court but was late to apply for I review. Hence on 22/1/2007 he lodged this applic~tion . I seeking leave to file his application for review out of time. II It is not in dispute that the decision tihe subject of the I intended review was given on 13/10/2006, as al~eady stated. On I I I .11 I I - . I ~- 20/10/2006 the applicant wrote a letter to the Chief Justice. 1 1 I requesting that the decision of the court dated 13/10/2006 be · I I referred to a Full Bench of five Justices • for re-cclmsideration. I In a , I letter dated 29/12/2006 information was comr,unicated to the ' 1 , I applicant that the Chief Justice found no legal circumstances I i ' warranting the constitution of a Full Bench of fivf Justices. In the ; letter the applicant was advised ' that he should\ have applied for , I I review of that decision if he strongly believed tha~ the principles set , I in the case of Principal Secretary, Ministry \of Defence and · I National Service V Devram P. Valambhia, Civil Reference No.9 I I of 1991 (unreported), applied tb his case. ctonsequently, I this ' I application was filed on 22/1/2007, as already stated, I which was 24 . I days after the communication from the Chief Justice and 101 days I after the decision of 13/10/2006 in• Civil Reference ~o. 26 of 2005. I I I I The essence or spirit behind this application is best , I I captured by the averments under paragraphs 3, 4 and 5 of the1 I affidavit in support of the application. The paragraphs read as follows:- 5 I 3. That I was not satisfied with the said decision of this court consequently I made a reference to HIS LORDSHIP, THE CHIEF JUSTICE OF TANZANIA for his decision. Copy of the said letter of application dated f 20 th October 2006 is appended here to and marked CMW - 3 collectively forming part of this Affidavit. i 4. That on perusal of the said letter by' HIS LORDSHIP I THE CHIEF JUSTICE, advised me to ~ome in this court by way of application for review. 4 letter with Civil i reference No.26 of 2005 dated 29/12~2006 received by me on 15/01/2007 advising the same i appended hereto and marked CMW-2 forming part of this Affidavit. 5. That failure to make the application for review within 60 days from 13th day of October was not caused by negligence but it was caused by the circumstances and reason stated in paragraphs 3 and 4 her~in above. 6 As already observed, this is jan application fpr enlargement of Ii I time to apply for review of a d~cision of the ~ull court. In Civil Reference No. 26 of 2005 this cou~Ii stated:- I "In an applicatiJn for enlargemlent of I, I time the court essenJially considers w,hether Ii I the reasons advancedj to explain away the failure to do that whidh ought to tiaJ been l1 I done within the given t/ime have merit. I Put in II I' , 1 another way, in such an application the court 11 I looks at the reasons g+n for the delay to see I. < t if they provide an accceptable excuse. The I court does not, at this stage, conside\ r the II merits or otherwise of~ the case which ,would 11 ' r be filed if extension of tiime is granted". I JI I I The law is now settled that rn application f9r review ought to be filed within 60 days from the ~ate of the deci~ion sought to be i I I - reviewed. The crucial question iSI whether the. a~plicant has given ! I I : I I I I 7 - I I I sufficient reasons to explain away the delay in filing the intended . I review within time. In explaining away the delay the applicant has reiterated the I I contents of his averments unde~ paragraphs · 3, I 4 and 5 of his affidavit. In the process, he urged that he thouJht the letter was I enough to move the Court for a re~iew; and that He could not move ,: . I the Court with the letter and a fonrnal application for a review at the i same time. With respect, the applicant ought to Ihave known that under Rule 45 (1) of the Court Rules 1979, subject to sub-rule 3 thereto and to any other rule allowing informll application, all I I applications to the Court are by motion. The only instance where a party could move the court by writing is under! Rule 57(1) in a reference from a decision of a single judge. The~efore, it was not i I open to the applicant to think that the letter to the. Chief Justice was an application for a review. Indeed, the applicant oughtl to have knowt further that by writing to the Chief Justice he was: in effect seekin6 an extra-judicial , I 8 -. solution to his cause. Much as he was entitled to sJek assistance he ought to have made sure that time did not run againlt him. This was important because "the period of !,imitation does Lt stop running I while an intending litigant is pursuing the remedy extra-judicially"- 1 ' i I 1 Israel Solomon Kivu o V Wai"a ni Lan oi ahd Another C.A.T ; , I Civil application No. 35 of 1993. I ~ay add here thar, even assuming that it was legally open to the applirant to seek redless by writing to the Chief Justice, he has not given any explanation : s to why he had to take another 24 days to file this applic~tion after the communication by the Chief Justice! All in all, much as it was not ' necessary to seek redress from the Chief Jusrice, as already I observed, the end result was that this application vJas filed 101 days ! ' ' after the decision sought to be reviewed was given. In my view, this I ·I I was an inordinate delay, and the applicant has not advanced sufficient reasons to explain away the failure to lod!e the application within the period of 60 days. I At the hearing of this application the applicant came up with - . I yet another point. That where there is a point. of law touching the 9 illegality or otherwise of the decision :sought to be challenged, that is ,1 I I , a point of law of sufficient importande to enlarge tinie under Rule 8. In support of the principle, the. applicant citel the case of I Valambhia (supra). In his view, th: point of law in this matter is an illegality in Civil Appeal No. 3 of 12002 where ttre were three 1 grounds of appeal and yet the court !onsidered only ttwo grounds. I I In his submission, the applitant admitted that he did not canvass the above point of law lefore RamadhJni, J.A. in Civil . f I Application No. 36 of 2004. In simi!:ar vein, the point was not raised I j in Civil Reference No. 26 of 2005. rtdeed, in the Ci ii Reference only l1 two grounds were given for the reference, as demonstrated above, I I and the above point was not one oflthem. , i In Civil Reference No. 26 of 005 this court r~stated the legal position governing a reference. ThJ court said:- . " ... in a reference the lourt usually confines itself to the substance of the matters lhich I I 10 I were before the single judge to see if I the I decision of the single judge can be faulted1'. If so, since the alleged illegality was not canvassed in/ the application before Ramadhani, J.A. and in the Civil Reference th~ subject of the I intended review, it is too late in the day for the applic:ant to raise the I point at this stage as a basis for extending time to filk a review. I I I am satisfied that no sufficient reason has b~en advanced to persuade me to enlarge time for filing an application :for review. The application is dismissed with costs. : I I I DATED at DAR ES SALAAM this 23 rd day of Aug~st, 2007. I I J. H. MSOFFE I JUSTICE OF APPEAL I I I certify that this is a true copy of the original. I I < 04 I '.', . -4\ I. ,. TUSI I . ~.\ . ' ~1 DEPUTY REGISTRAR I N .-: . I .....____ . .•·· I I I I I