20170313 TZHC Arusha

..J.. IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE DISTRICT REGISTRY] AT ARUSHA MISC. CIVIL APPLICATION NO.165 OF 2016: (C/F Matrimonial Cause No.14/2008) ' GODSON NANAAYA ....................................................... APPELLANT I VERSUS GRACE JONAS MOLLEL ........................ .,. ................. RE~PONDENT RULING Date of last Order: 10/3/2017 Date of Ruling: 13/3/2017 BEFORE: S.C. MOSHI, JUDGE. ' ' The applicant filed Chamber Summons under Section:' 14 of the Law of Limitation Act, Cap. 89 R.E. 2002 and any other Provision of the Law. ' The applicant is seeking for extension of time within which tp file an appeal ' ' against the Resident Magistrate Court of Arusha in Matrimonial Cause No.14 of 2008. The application is supported by the applicant's affidavit. . ' ' The application was argued by way of written ~:ubmission. The ' applicant was represented by Ms. Carolyn Ndossi learnedi advocate while the respondent was represented by Mr. Hamis Mkindi learned advocate ' I from the Legal and Human Right Centre. I It was the applicant's submission that, the delay in :filing the appeal ' within the prescribed time was due to the fact that, the: said Matrimonial I ' Cause No.14/2008 was heard in his absence and that his advocate Mr. ' I 1 j I Lawena did not give him any updates and outcome of the peti,tion which would have enabled him to take appropriate measures including appealing within time. He said that, delay was not caused by the applicant~s in action. He further submitted that, he needs to challenge the legality of the decision on the point of law in respect of jurisdiction of the: trial court, procedure, principal of natural justice, grant of divorce andi division of matrimonial properties. Opposing the application Mr. Mkindi submitted that, the arguments ' submitted by Advocate for the Applicant are baseless, fabricated and fictitious purposely adduced to mislead this Honourable Cou,it. The court records, proceedings and judgment of the Matrimonial Caus¢ No.14/2008 before Hon. P.A. Kisinda, RM shows clearly and proved th~t, applicant's ' advocate appeared in court to defend his client and when case was scheduled for defence hearing, applicant's advocate prayedi for judgment date after communication with his client went in vain. He said that, the proof that the applicant's advoca~e appeared in court to defend his client can be observed at page 2 and :4 of the typed judgment (copy of it attached herein for easy reference). At page 2 of the typed judgment trial Magistrate stated, and he did quote; "- Replying to that, the Respondent through his advocate, contended the allegation put forth against him by the petitioner. 2 - He said the petitioner has no proof of what she i~ alleging I and for that he prays this for judgm·ent against the I respondent as per petition. I I - This case was fixed for hearing where the respondent during 1 the hearing of this case he was represented by his, advocate I as he was not present before the court." [emphasis supplied] I He stated further that, again at page 4 of the typed judgment trial Magistrate stated that:- " - that was the Petitioner's case and when the case I was scheduled for the defence hearing, the r~spondent never appeared to testify the act which made his I I advocate to ask for a judgment date : after he I communicated with him in vain. "[Emphasis supplied]. I He added that, the appearance of a party to the suit may be made by I an advocate who has been dully appointed by such partv to make I appearance on the party's behalf. Advocate is a recognized agent of the I party to the suit, if so appointed, enter appearance, make an application or 1 I do any act on behalf of a party, that shall be effectual as if the same had I been done by the party in person, unless the court otherwise directs. That I is provided for under Order III Rules 1 and 3 of the Civi~ Procedure Code Cap.33 R.E. 2002. He referred this court to the case of E.A. ~Posts and I Telecommunications Corp Vs. M/S Terazzo (1973) LRif No.58 the I I High Court of Tanzania held that; 3 "Appearance under the code means attendance in person or by advocate in Court on the date stated in the summons which is also the date for hearing of the suit Once defendant is present either in person or by advocate when the case is called up that is sufficient appearance. He was of the opinion that from the above explanations and cited authority suffice to prove that, the applicant entered appearance in court and he was well represented in Matrimonial Cause NO.14/2008 before Hon. P.A. Kisinda - RM and he was afforded the right to fair hearing. ~he arguments by Advocate for the Applicant that, Article 13 (6) of the Constitution of the United Republic of Tanzania, 1977 as well as principles of natural justice demand that the Applicant should have been given an opportunity/right to be heard are baseless and of not merit, thus, need to be disregarded. The Applicant was dully represented by the advocate of his choice who appeared in court and defended the Applicant, however, when the case was scheduled for defence hearing, the respondent never appeared to testify; the act which made his advocate to ask for a judgment date because he could have done nothing more as their communication went in vain. He said, on the Applicant arguments that, his Advocate did not inform him about judgment as he was such has no merit as such an excuse should not be at the detriment of the respondent since applicant knew he has a case in court, and upon recovery from purported sickness he was duty bound to make a follow up either in Court or in his Advocate office to know the status of his case but he did not do so for the reasons known to 4 I himself. The learned counsel thus urged me to dismiss the appncation as the application did not advance sufficient reasons for his delay. , Section 14 (1) of the Law of Limitation Provides; "Notwithstanding the provisions of this Act the court may, for I any reasonable or sufficient cause, extend the : period of limitation for the institution of an appeal or an ~pplication, other than an application for the execution of a dect:ee, and an application for such extension may be made either before or I after the expiry of the period of limitation prescribed I for such appeal or application. " The provision above gives power to this court to extend :time, upon ' reasonable or sufficient cause shown. The question in such applications is I always, whether there is good or sufficient cause for extending :time. What I is "sufficient cause" is a question of fact, and no hard and fast rules can be laid down as to what constitutes and what does not constitute a good or I sufficient cause. I I In this case, one of the grounds advanced by the applicant. is that I Matrimonial Cause No.14 of 2008 was heard in his absence as ; well as in absence of his advocate and that unfortunately his advocate,: Mr. Lawena did not give him any updates on the outcome of the petition ,which would I have enabled him to make appropriate measures including appealing within time. i The applicant said that, he instructed advocate Lawe~a to defend I him in Matrimonial Cause No.14 of 2008 as he was sick. Thi~ is a general statement. It is not accompanied by sufficient particulars. Fo~ instance, he 5 I I I I has not said the lengthy of the period which he.' fell sick. Also np medical , I report has been attached to support the applica~t's allegation thpt he was sick. More over he even didn't inform his advocate of his /prolonged : I sickness. Furthermore, Mr. Lawena's affidavit wl;lich was annex p.3 to the application shows that the applicant never inquired at their offide· to know the position of the case. ' / 1 In an application for extension of time, th e applicant has ~o account for everyday of the delay and reasons for his de1lay in order to cdnvince the court to use it discretionary power to extend ti~e. The trial cou krecord is 1 clear that the Applicant was duly represented by an advocate whom he I dully instructed. Since the applicant knew he had a case in co~rt he was 1 duty bound to make a follow up either in court: or through his ~dvocate to know the status of his case or what has transpifed regarding th~ same. His negligence in not making a follow up cannot :be sufficient caµse for this court to extend time. / So in view of the above reasons, I find that the applic~nt has not , I succeeded to show good or sufficient cause for extension of time. The I application is accordingly dismissed with costs. : / Right of Appeal explained. i s.c.8. / JUDGE 13/03/2017 6