20110719 TZHC Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 45 OF 2011 DEBORA NALUMASI LWIZA ..........................................................APPLICANT VERSUS MARKO KAMUGISHA LWIZA ...................................................RESPONDENT (Application for extension of time to lodge written submissions in support of civil appeal no. 81 of 2010, appealing from the decision of the High Court of Tanzania, at Dares Salaam) (Mwariia, J.) 17th day of July, 2008 Dated in Civil Case No. 96 of 2006 RULING 291h June & 21St July, 2011 BWANA, J.A. This is an application by notice of motion filed pursuant to the provisions of Rules 10 and 73(1) of the Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit of Deborah Lwiza, the applicant. 1 The cause of this application emanates from the decision of the High Court (Mwarija, J) delivered on 17 July 2008. Aggrieved by that decision, the applicant, through her counsel, lodged a notice of appeal within the prescribed period. She subsequently lodged a record of appeal in this Court on 3td November 2010. Thereafter no further action was taken until the filing of this application on 10th May, 2011. As rightly submitted by both counsel, the period between 3rd November 2010 and 10th May 2011 exceeds the sixty (60) days within which an applicant has to file written submissions (Rule 106(1) of the Rules). Which is why the applicant came before the Court invoking Rule 10 of the Rules and seeking for extension of time for filing the said written submissions. The application is strongly resisted by the respondent• basically because no good cause is shown that led to the delay in filing the written submissions. Both counsel rely on Rule 10 of the Rules which states:- The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal, for the doing of an act authorized or required by these Rules " (emphasis provided). The basic issue here for consideration and determination is whether the applicant has shown good cause for the delay. Counsel for the respondent believes that she has not shown and as such, her application be dismissed with costs. The applicant avers in her affidavit that she was late to file her written submissions because she fell sick and had to attend treatment both within Tanzania and Uganda. She has attached medical documents which show that between yth December 2010 and 23Id March 2011 she attended medical treatment at The Hindu Mandal Hospital in Dar es Salaam and Nakasero Hospital Limited, Kampala, Uganda. 3 The above information raised an observation from the respondent counsel that the said medical reports are recent. That there is no evidence that she was sick since 2008, when the High Court judgement was delivered. However, it should be noted that the applicant could not file her written submissions before the relevant materials, such as copy of the record of proceedings and judgment were availed to her. According to the averments before me and as noted above, the record of appeal was lodged before this Court on 3rd November 2010. It means therefore that all the necessary documentation was in the applicant's possession by that date. Rule 106(1) states:- A party to a civil appeal, application or other proceeding shall within sixty days after lodging the record of appeal ....... file in the appropriate registry a written submission .........." ( emphasis provided). Therefore according to that provision of the Rules, the sixty (60) days should be counted from the 3rd November 2010. That period falls into the period when the applicant was sick and attending medical treatment both in Tanzania and Uganda. In my considered view, delay was therefore, due to good cause. There is however, the period between 23rd March 2011 - the last date shown on her medical papers and 10th May 2011 the date she eventually filed this application. No plausible explanation is given as to this delay. However, one can assume that it was a period when she was still recuperating. The provisions of Rule 106 (19) give the Court discretion, where it considers the circumstances of an application, such as this one, to be exceptional, to invoke the said discretion and in the interest of substantive justice (Rule 2), to waive compliance with the provisions of this Rule in so far as they relate to the filing of written submissions. Having considered such circumstances and in so far as this application is concerned, it is my considered view that illness of the applicant during the material time constituted a good cause. Accordingly, this application is allowed. The applicant is ordered to file her written submissions within thirty (30) days from the date of delivery of this Ruling. Each party to the application to bear his/her own costs. DATED at DAR ES SALAAM this 191h day of July, 2011. S. 3. BWANA JUSTICE OF APPEAL I certil 31