20150415 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 182 OF 2014 CPL JULIUS MKANYEKO NYAMHONGA .....................................APPLICANT VERSUS 1. THE PERMANENT SECRETARY MINISTRY OF } 'Of DEFENCEAND NATIONAL SERVICE , 2. THE ATTORNEY GENERAL OF TANZANIA ....... RESPONDENT (Application for extension of time to file Revision from the decision of the High Court of Tanzania at Dar es Salaam) {Makuru, J) dated the 17th day of May, 2010 in Civil Case No. 432 of 2001 RULING 23 rd March & 15th April, 2015 KAIJAGE, J.A.: Initially, the applicant herein was a plaintiff in High Court Civil Case No. 432 of 2001 in which he claimed payments in respect of ration allowance, service pension, gratuity and a lumpsum pension, among other reliefs. Upon hearing a preliminary point of objectio·n raised by the defendants, now the respor,:idents herein, the Hig_h Court (Makuru,.. J.) in her ruling dated 17/05/2010 dismissed the said suit for being time barred. Undaunted, the applicant unsuccessfully applied for review of that ruling under Order XLII of the Civil Procedure Code. In its subsequent ruling dated 15/03/2011, the High Court (Makuru, J) found the latter application for review devoid of merit and, 1 consequently, dismissed it with costs. 1he applicant was aggrieved. Vide Civil Appeal No. 83 of 2011, he appealed to this Court against the said ruling of the High Court dated 15/03/2011. On 17/02/2012, this Court struck out that appeal for being incompetent. Still determined tb have both rulings of the High Court dated 17/05/2010 and 15/03/2011 reversed by way of revision, the applicant filed the present application. The present application is by notice of motion brought under rule 10 of the Tanzania Court of Appeal Rules, ?009 (the Rules). The Court is being moved for a substantive order that " time . within which to file an ' application for revision of the proceedings/ rulings and drawn orders of the High Court (Makuru/J} dated 17/05/2010 and 15/03/2011 in Civil Case No. 432 of 2001/ be extended. "The application is supported by the applicant's sworn affidavit and it is predicated upon the following grounds:- (i} That the delay in filing the intended revision was caused by the applicant's move . of pursuing the matter by way of an appeal. (ii) That the intended revision shall raise serious legal issues which ought to be determined by this Court. At the hearing of the application, the applicant appeared in person, unrepresented. Mr. Vicent Tangoh, learned Principal State Attorney, appeared for the respondents. 2 When the application was called on for hearing, the applicant simply adopted, without more, the grounds for relief sought in the notice of ' motion and what is stated in both his supportive sworn affidavit and the written submissions. Consistent with the first ground for relief in the notice of motion, the reason behind the applicant's delay in filing the application for revision within a period of sixty (60) days prescribed under rule 65(4) of the Rules isexplicitly found in paragraph 10 of his affidavit which reads:- "10. That I have been advised by my counsel to apply for leave of the Court to extend time within which to file an application for revision of the proceedings/ rulings and orders of the High Court in.· Civil Case No. 432 of 2001/ because the available time .of sixty d<!ys expired when I was pursuing an appeal which/ unfortunately, was struck out on technical reason beyond my comprehension ,n my capacity as a layman. // Indeed, the reason for striking out, by this Court, of the applicant's appeal against the decision in a ruling of the High Court dated 15/03/2011 is correctly stated thus in paragraph 8 · of the applicant's affidavit:- , " That on. 17/2/2012 _the Court of Appeal struck out my appeal on ground that I have no right of appeal against the decision of the High Court rejecting an application for review....... // 3 ' Submitting orally in response to the applicants main reason for his delay in applying for revision within the prescribed 60 days period, the learned Principal State Attorney maintained that good cause has not been shown by the applicant to justify an extension of time sought in the notice of motion. He gave three reasons. The first was that the applicant belatedly brought the present application for extension of time on 22/10/2014 long after this court had struck out, on 17/02/2012, his purported appeal against the decision in a ruling of the High Court dated 15/03/2011. With all deserving respects, I am in coniplete agreement with the learned State ·Attorney. Intending applicants are enjoined, under rule 65(4) of the Rules, to lodge applications for revision within sixty (60) days from the date of the decision sought to be revised. As hinted above, it is averred in paragraph 8 of the applicant's supporting affidavit that he de.layed in filing the intended If ' ~ .. ,, ' application for revision because he was pursuing an appeal before this Court against the ruling of the High Court dated 15/03/2011 of which he is desirous to file an application for revision out of time. Curiously, the applicant took more than nineteen (19) months to lodge the present application for extension of time on 22/10/2014. There is nothing in the applicant's supporting affidavit and his written submissions accounting for such inordiQate delay. 4 The stance taken by this Court has always been that in an application for extension of time, the applicant has to account for everyday of the delay. (See, for instance, BARIKI ISRAEL Vs THE REPUBLIC; ' - Criminal Application No. 4 of 2011 · and SEBASTIAN NDAULA Vs GRACE RWAMALA; Civil Application No. 4 of 2014 (both reported}. In this case, a nineteen (19) months period of delay having not been accounted for, it cannot be said that good cause has been shown to warrant the exercise of this Court's discretion in favour of the applicant under rule 10 of the Rules. I have also found merit in the. second reason put forward by the learned Principal State Attorney. On this, his reasoning is built upon the fact that the applicant's suit was dismissed by the High court in its appealable ruling dated 17/05/2010. On my part, I accept that the present application seeking for an extension of time within which to file an application for revision of an appealable decision of the High Court cannot validly attract the exercise of this Court's discretion under rule 10 of the Rules. The law is now settled that except under exceptional circumstances, a party to the proce:dings in the High Court _cannot invoke the revisional jurisdiction of the Court as an alternative to its appellate jurisdiction. (See, for instance, TRANSPORT EQUIPMENT LTD Vs DEVRAN VALAMBIA (1995) TLR 161. On the third reason advanced by the learned Principal State Attorney, I wish to unreservedly state that it is also meritorious. It is his 5 contention that good cause has not been shown by the applicant because in both the said rulings of the High Court dated 17/05/2010 and 15/03/2011, there are no illegalities averred in paragraphs 11 and 12 of the applicant's supporting affidavit which reads:- " 11. That it has dawned on us that the provisions of law for vacating Hon. Justice Ihema's order were wrong in law so much so that it was not sustainable iq Jaw. 12. That likewise it was unethical and un-procedural for a Judge of the High court to overturn a Judgment of a /el/ow Judge." Admittedly, contentions as to the illegality or otherwise of the challenged decision have now been accepted as a good cause for extension of time (See; KALUNGA AND COMPANY ADVOCATES Vs. NBC LIMITED (200~) TLR 235 and PRINCI_PAL SECRETARY,. MINISTRY OF DEFENCE AND NATIONAL SERVICE Vs DEVRAM VALAMBHIA (1992) TLR 185. However, in this case, the illegalities alleged in paragraphs 11 and 12 of the applicant's affidavit could not be found or be inferred from anywhere in the said two rulings of the High Court which the applicant intend·· to challenge in this Court by the way of revision. With this brief observation in mind, I see no basis in the second ground for the relief upon which the applicant's notice of motion is premised. 6 Since rule 10 of the Rules requires the applicant to show good cause which in this case he did not, I decline,, for reasons given above, to grant the extension of time sought. Consequently, the present application is hereby dismissed. This being a matter which appear to have its origins in an employment cause, I make no order as to costs. \ DATED at DAR ES SALAAM this 15th day of April, 2015. , S.S. KAIJAGE JUSTICE OF APPEAL I certify that this is a true copy of the original. URT OF APPEAL 7