20190219 TZCA Dar es Salaam

IN THE COURT OF APPEAbOF TAN1i~NIA AT DAR ES SALAAM] C ,. " . (CORAM: MUGASHA, J.A., NDIKA,).A., And KWARIKO, J.A.) CIVIL APPLICATION NO. 1sf'o,='''2014 DR. MUZZAMMIL MUSSJ.\ KALOKOLA ..................... ~ ............... APPLICANT VERSUS 1.THE MINISTER OF JUSTICE AND ·7 CONSTITUTIONAL AFFAIRS I I 2. THE CONSTITUTIONAL REVIEW COMMISSIONJ········ ........... RESPONDENTS 3. THE HON. ATTORNEY GENERAL · (Application for revision from the Proceedings and Ruling of the High Court of Tanzania at Tanga) {Rugazia, Msuya and Wambali, JJ.) dated the 3 rd day of July, 2014 in Miscellaneous Civil Application No. 2 of 2014 RULING OF THE COURT lih & 25 th February, 2019 NDIKA, J.A.: Dr. Muzzammil Mussa Kalokola, the applicant herein, appears to be a public-spirited citizen. He applied to the High Court . .: of - ' -· Janzania ... ~ , ' -· .:• . sitting at Tanga in Miscellaneous Civil Application No. 2 of 2014 for the prerogative orders o_f ,cert.iorari, mandamus and prohibition against the _respondents, namely, Minister of Justice and Constitutional Affairs, the Constitutional Re~iew Commission a~d the Attorney General alleging i· ··, 1 I ,· numerous ·rNiolati®fil5''' of the Constitution of the United R@public of Tanzania of 1977; The alleged desecrations mostly related to or were ,f, ,'../•• .• .- ' ~~ ~•-~ ,. connected~:w,ittJ. tin~ process of constitutional re\/iew·: tht.lt ,;as .being "., . ;.__ .. '. ~. .. •.. . ~- . '. . - "'-~·· . carried out under· the Constitutional Review Act, Cap.: 83' RE 2014 aimed at attaining· a new constitution for the nation. As it turned out, his quest did not come to fruition; it was struck out with costs at the pre-hearing stage, the High Court having sustained the respondents' preliminary objection that the petition was fatally defective for non- citation of proper enabling provisions of the law. Aggrieved, the applicant has now lodged this application under sections 4 (3) and (5) and 7 of the Appellate Jurisdiction Act, Cap. 141 RE 2002 and Rules 4, 65 (3) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking revision of the proceedings and the ruling of the High Court. In resisting the application, the respondents duly filed a preliminary objection containing two points thus: ·:.. , ,. 1. Thdtthe ap;:tiLdllunis hopelessly time-barred· in terms of Rule 65 (4) of the Tanzania Court of Appeal Rule~ 200f!. ,;. , 2. That the application is incompetent as it does •. ,... · not fall within the provisions of section 4 (JJ 2 (2) and {3) ofJi~r,e Appellate Jurisdiction Act· Cap..141 RE 2002. At the hearin,g; of the' preliminary objection, the applicant .. appeared. in person,. unre'r)resented while the respondents -had ~he serviees of Ms~ AHcia- Mbuya, learned Principal State Attorney,- and Ms. Pauline Mdendemi, learned State Attorney. Ms. Mbuya argued the first point of preliminary objection but abandoned the second point after a brief dialogue with the Court. She submits, in effect, that while the impugned ruling of the High Court was delivered on 21st July, 2014, the application before us was lodged on 22 nd October, 2014, which was the 92 nd day after the impugned decision was handed down. The said lodgment was, therefore, out of the sixty days' period prescribed by Rule 65 ( 4) of the Rules, which expired on 21 st September, 2014. As no leave to file the matter out of time was sought and obtained by the applicant, Ms. Mbuya urges us. to strike out the application with costs . ;:-· ~ ~,,..-·. ~ .,,. .,,,The applicant strongly disagrees with Ms. Mbuya. While conceding •that the matter was lodged on' 22 nd October, 2014, he contends that it was timeous on the ground that it_ was filed justfive 1,' ·,ti l -•·t ,' days after he had collected from the High Court Registry a copy of the A ·i ' (. "fl··. - ~,-::r1~r-oceedings on 17th October,. :2014 font1~\thich he duly applied. He ,, . elaborates that in computing the sixty days' limitation period, the entire • ,. , 1.n ,,-period necessary for the . . preparation and delivery of the copy of ·- . . pr.oceedings by.the High Court Registry unt:il 17th October, 2014 must be excluded. On this basis, he did not have to seek and obtain extension of time under Rule 10 of the Rules to lodge the matter. On this contention, he relies on Rule 2 of the Rules and sections 7, 18, 19 and 21 of the Law of Limitation Act, Cap. 89 RE 2002, whose effect, he says, was excluding the entire period necessary for the preparation and delivery of the record of proceedings from the reckoning of the sixty days prescribed limitation period. Rejoining, Ms. Mbuya insists that the applicant, having failed to lodge the matter within the prescribed limitation period, ought to have applied for extension of time as the procedure for exclusion of the period for preparation and delivery of the copy of proceedings was inapplicable. :-- . Tf:lat the provisions of Cap. 89 (s1.~ora). are,_j11a_pplicable to _.· . . ' ~ : the proceedingsbefore this Court. We have carefully examined the record before us and taken · ". -..-.- acc:ount of the arguments:of the parties. It is common cause that the 4 .. --~~- impugned,Lf?k!l-11ng was handed down on 21s\ ·July, :2~-1:4 and that, in terms of ,Ru!e 65 (4) of the Rules, the present matter ought to have ,,,, · .· ~peen,filed·,within sixty days thereafter. It }s,apposite"to extract Rule 65 (4) hereunder: "Where the revision is initiated by a party, the party seeking the revision shall lodge the application within sixty days (60) from the date of the decision sought to be revised. " Reckoning the sixty days' limitation time from the date of delivery of the ruling, the said period expired on 21st September, 2014 but this matter was lodged on 22 nd October, 2014, which was the 92 nd day after the decision was handed down. The applicant's contention, relying on the provisions of Cap. 89 (supra), is that the matter was still in time as he lodged it five days after he had been supplied by the High Court Registry with a copy of proceedings that he duly applied for and that the entire period he ,· waited for that copy ought to be excluded from the computation of the limitation period. The point for, consideration is, therefore, whether th~. period for preparation and delivery of the copy of proceedings could be ···,1:···· j•,·'(°.'")• ,. _ · ..,·. --~ ·-· --~f:' -;-.. ,~(:·;, • legally excluded from the computation of the limitation period. 5 ... ~-~~'. II . I ! We are tir-.m in :;;10)¥fi;.mind that the applicant's conteFltion .is:~<@ased upon a cle~r.,_.miscqnception of the law. Although Cap. 89 ..(supra) ',... . •·.. contains. . provisjor.s,. ' . m-andating . exclusion -of certain ·periods·w·frcn1· the computation. of the. prescribed limitation, section 43 (b) of that. law explicitly excludes the ·application of that law to ''applications and appeals to the Court of Appeal.// The time limitations and their computations for the purpose of the proceedings before this Court are stipulated and governed by the Rules. Looking at the entire text of the Rules, there is no provision for exclusion of the period for preparation and delivery of proceedings by the High Court for the purpose of institution of a revision: in the Court. Once the prescribed limitation period has expired, a party intending to seek revision can only pursue the matter by applying, at first, for extension of time under Rule 10, which provides thus: "The Court may, upon good cause shown/ extend the time limited by these Rules or by any decision of ~he. Httfh ,co/1rt or tribunal, for the ,. .. .,•--; .,- doing of any act authorized.9r required by these t .. -·: . , ... _.,. Rules/ whether before- o/'atter the expiration of . that time and whether before or after the doing of the iict/.ahd any reference in· these Rules {o . •j 6 ... -.,. ;;~~: any such time,;sha/1 b@~;(l@nstrued as a reference to that time as so extended. ·~ ' " ~. :•,•. V\/e would recall trrat in·Cl_\~,vhis frantic effort to save· . this _. ., :_ :·•.· ;-.,. • .>..~·:_,., a (~~ ··'- application "'. . :· ''..•· •.~•--...••E": L--~(".,,., · :l~-,-' the applicant urged us to apply Rule 2 of the Rules, which enjoins the· Court to have due regard to the need to achieve substantive justice in every single case. Certainly, this Court will not worship at the altar of legal technicalities; it will endeavour to attain substantive justice in every case. Nonetheless, in the instant case, the Court cannot ignore the trashing of the mandatory time limitation prescribed by Rule 65 ( 4) of the Rules. As rightly argued by Ms. Mbuya, the applicant ought to have preceded his present pursuit by applying for extension of time under Rule 10. If an illustration be needed of the consequences of flouting Rule 65 (4), we would readily recall what we held in Kibong'oto Wanri Rural Cooperative Society Ltd. v. Koboko Rural Cooperative Society Ltd., Civil Application No. 3 of 2014 (unreported) that there was no better option than to hold an application for revision time-barred ahd liable to be struck out if lodged beyond the sixty days prescribed period. 7 ···-· . ,;ii"iiii~-. • . -:; ii,,· · ;;t~•j;•i'i,,,AII told, we sustain the prelim,inary obje.;Qtion on the first point and · ,, ~: - Jind.the application time-barred. Accordingly, Jhe matter is struck out ,,.,o .. , ... _with costs . '''h.·. .. . . Ordered accordingly. DATED at DAR ES SALAAM this 19th day of February, 2019. S. E.A. MUGASHA JUSTICE OF APPEAL G. A. M. NDIKA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL I certify that this is a true copy of the original ~trA S. J. KAINOA DEPUTY REGISTRAR _COURT OF APPEAL 8