20060614 TZCA Dar es Salaam1

. I IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 43 OF. 2006 CHINA HENAN INTERNATIONAL CO-OPERATION GROUP CO. LTD . ..... ~ ........................... APPLICANT VERSUS SALVAND K.A. RWEGASIRA ..............'......................... RESPONDENT 1: (Application for extension of time from the decision of the High Court of Tanzania at Bukoba} I (Luand~, J.} 1 l./_,"'!:..., '1 dated the 7th day of December, 2004 ;.J ' in Civil Case No. 5 of 2003 RULING 24 May & 14 June 2006 '\ MUNUO, J.A.: The applicant, through the servites of Mr. Rweyongeza, learned 'I _.advocate, seeks extension of time under Rule 8 of the Court Rules.to • ---· ii •. I fil_~ .P refetence against the decision_ of a ~ingle j~dge in Civil ·~- Applic~tion No. 11.~f of 2004 before Nsekela, J.A. A reference, Civil ,. .I \ • II ' Reference No. 22 of 2005 was indeed preferred by the applicants but it was stnick out by the Court on the 21 st day of March, 2006 as reflected below: 2 ',. In essence, --- the co·urts shall adm.inister I : substantive justice wittout undue regard to technicalities. In this case, as a!ready indicated the circumsta~ces are such that we can hardly glean any el~ment of technicalities· . ! . involved. The role of rulfs of procedure i,n the administration of justice~ is fundamental; .As stated by Collins M.·R\ in Re Coles · and Ravenshear (1907) 1 KB 1 rules of procedure I are intended . to be that of handmaids rather than mistresses. That it is, their function :1is to facilitate the administratibn of justice. H,ere, the omission in citing thJ proper provisioh of the rule relating to a refe~ence and worse .still the error in citing a. wropg and inapplicable rule in support of the application is not in bur view, a technicality fallint within the scope l . and purview of Article 1~7A (2) (e) of the Constitution. It is a mattet which goes to the ( ) very root of the matter J_. We reject the contention that the error las technical. .,.-- Consequently, the a~plication being· .incompetent .1s struck out wit.I h costs. 3 Consequent to the above decision of the Court, the applicant filed the present application seeking extension of time to reinstitute the reference against the decision of the single judge. Counsel for the applicant submitted that the application for leave to appeal had been filed within time but it was the omission to cite the provisions of law under which it was brought which rendered it incompetent which is why the applicant brought the present application to be able to pursue the matter. He cited the cases of Essaji and Others versus Solanki (1968) EA 218 at Page 224; and D.T. Dobie (T) Ltd. versus Phantom Modern Transport (1985) Ltd. in which the Court referred to the case of Cropper versus Smith (1884) 26 Ch. D. 700 at Page 710 wherein Lord Brown observed that - It is a well established principle that the object of courts is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with 4 their rights --- I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought not to correct, if 'it can be done without injustice to the other party. Courts do not exist for the sake of indiscipline but for the sake of deciding matters in controversy. Stressing that the omission to cite the provision of law under which Civil Reference No. 22 of 2005 was instituted was neither done fraudulently or in bad faith but out of human error, counsel for the applicant prayed that extension of time be granted as prayed in the Notice of Motion. The Respondent opposed the application. He complained that the applicant has been engaging delaying tactics to pre-empt execution and thence deny him the fruits of the decree. He also complained that the mining plots in dispute have been vandalized so he is suffering substantial losses. He urged the Court to dismiss the application for extension of time for want of sufficient ground. 5 . . The issue is whether there is sufficient ground to grant extension of time. From the affidavit deponed in support of the application and the submission by counsel for the applicant, I am satisfied that the omission to cite the provision of the law under which Civil Reference No. 22 of 2005 was filed was neither fraudulent nor done in bad faith. It was indeed a human error which can be corrected by extending time. Under Rule 8 of the Tanzania Court of Appeal Rules, 1979, I grant extension of time by 14 days from today, the intended Civil Reference to be filed by or before the 29th June, 2006. DATED at DAR-ES-SALAAM this 14th day of June, 2006. E.N. MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. .,,- - ·;' .,,:::&~~ YIKA) \·:;,::11·-:, REGISTRAR 1 ;, ......... I i