20070510 TZHC tABORA

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IN THE HIGH COURT OF TANZANIA AT TABORA. MISC. CIVIL APPL. NO. 9/2005 (Application arising out of the Judgment by Kabama District Court in Civil Case No. 19/2003) KAHAMA DISTRICT COUNCIL .............. .. APPLICANT Versus HASSAN MANYANGALI & 54 OTHERS ....... RESPONDENTS

RULING 2 nd August, 05 & 10th May, 07 MUJULIZI, J. I Pursuant to the Kahaµia District Council (Parking Fees) By-laws, 2000, G.N.No. 490 publishe& on 29/12/2000, the Applicant District Council filed a summary suit in the District C.ourt of Kahama, to recover unpaid, accrued parking fees from th Respondents, jointly and severally. The Respondents appl ed for leave to defend the suit on grounds that there were triable issues e titling them to grant of leave to defend the summary suit. The grounds raised we e; "a) The respondents claim is based on the by law which is the subsidiary legislation as per the annextures attached to the plaint 1 and the applicants are challenging the legality and its modus operandi. b) The Applicants had already given notice to sue the respondent claiming some relief but the respondent has lodged a shit prior to the proceedings by the applicants and hence/orth the applicant will have counterclaim against the respondent." Satisfied that the present respondents had disclosed a triable issue, the District Court granted them lea'fe to defend the summary suit. In their written statement of defence the Respondents herein, abandoned the grounds raised ~n the affidavit in support of the application for leave, but attacked the by -,aws on grounds that the claimed fees had no ' any legal basis and was unacceptable as ~he same were set clandestinely

by I disregarding the basic standards set by the Region. I In its judgment the Dis ict Court overruled this argument, holding, that the Applicant's claims ag inst the respondents were genuine"but there was a lacuna in conducting th plaintiffs (Applicant's) case of which the ., defendants are alleging that the claims was unfounded." The Court went on to ho d that: "I am not in a position o say that the defendants are liable, because so far, the .plaintiff has faile to prove that they had powers legally, to collect shs. 3001 from taxi oJners daily. This court as a court of law, can 2 not take for granted that there was a by-law made by Kahama District Council that each taxi owner was required to pay Shs. 3001 all else to face legal actions, in the absence of such law signed by the Minister. It is not the duty of this court to make good of either party's case, its duty is to adjudicate a case before it according to the law itself and evidence thereof. In the Circumstances I dec~are that the defendants are not supposed to pay what they are not legally re4uired to pay. That issue fails to that ex,tent." I ' Then the Court went to conclude as follows; ! I "...As already demorzstrated above, plaintiffs failure to show in ! court the by-law whi4h requires the taxi owners in Kahama District to pay shs. 3001= per ~ay, has removed the taxi owners from liability. In the event, the clail by

the plaintiff is hereby dismissed with costs to the defendants. " Aggrieved by the abo e judgment, the Applicant filed an application for review before the Distridt Court requiring it to review its own decision delivered on 9/9/2004. The application filed on 13/9/2004, was dismissed on 06/1/2005. Although t e affidavit in support thereof was held to be defective, but the Court dis issed it on the basis that it lacked merits. The record shows that right of ap eal against that decision was explained. But, instead of appeal· g against that decision, the Applicant District Council chose instead to ap eal against the original judgment and decree. Obviously they found themselves to be .out of time. 3 I j By way of the present application filed on 27/5/2005 the Council I seeks leave of this Court under section 14(1) of the Law of Limitation Act, '/ (Cap.89 R.E.; 2002). The Application is supported by the affidavit deponed by one Goody Pamba, then the District Executive Director of Kahama District, who deponed at paragraph 8 th,reof as follows; "8... That the failut to appeal in time against the decision by the ·,. District Court dattd 919/2004 was not occasioned by a sheer ! negligence but by a ibelief that the Court could be made to review its decision after the a 'Plicant had placed before it the By-law which was not produced dlor shown during the trial of Civil case

No. 19/2003." Section 14(1) of the Law of Limitation Act, (Cap. 89 R.E. 2002) provides: "14- (1) Notwithstan ing the provisions of this Act, the Court may, for any reasonable or sufficient cause, extend the period of limitation for the in titution of an appeal or an application, other than an application r execution ofa decree, and an application for such extension may e made either before or after the expiry of the I period oflimitation ptescribed for such appeal.. " In this case I am sati.led that ~though there was a miscalculation on the part of the Applicant's Jfficers, in going for review rather than appeal, I I, 4 I . .,I '' ,:i 1 :~ I!: II . 'I. , I, '' ' "J there are glairing errors of fact and law in the judgment of the lower Court that need to be addressed by this Court· on Appeal. I There is a clear divergence between what was pleaded and what the Court decided. Further, the holding of the court that the applicant had a duty to produce the evidence oftp.e by-law failing which, the court was entitled to declare that the said by-Ir was not applicable to the defendants needs examination whether it is c lrrect in law. However, the decisio1n affects and purports to be made of an existing I by-law imposing obligatiods and duties on a class of people who were not represen~ed at the trial. S condly, the by-law in question puts in place a source of revenue collectio for the

District Council. Failure to implement and enforce that by-law o the basis of the judgment of the District Court has serious repercussions o the ability of the Applicant District Council to discharge its public duties, imposed on it by statute. It is therefore in public interest that a Court of Jompetent :. jurisdiction have occasion to make findings clarifying the issu6 both for this District Council and others that may be faced with such pro lems. In the premises there is sufficient cause to warrant this court to grant the extension applied for. T me is extended to within 14 days of this Ruling. The Applicant is to file its a peal within 14 days from the date hereof. ""l',. \ l . \·rl ·1 . (~ 5 ~/J :/ It' ◄ . It is so ordered. ~-:.--=::>_ A.K. MUJULIZI

JUDGE 10/05/2007 ◄ i Delivered in the preseJce I of the .Applicant's Officer this 1oth day of I May,2007. . .K. MUJULIZI 1I JUDGE 101512001 ,, . 6