20150708 TZHC Arusha

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 29 OF 2014 MARIAM IDD (As An Administratix of The Estate of late MBARAKA OMARI) •••••••••••••.•••••••••..•..•...••••.••••. APPLICANT VERSUS 1. ABDULRAZACK OMARY LAIZER } (As Administrator of the Estate of The late ABUBAKAR OMARI) 2. •. RODRICK HUMPHREY JONAS - ................................. RESPONDENTS (Application for extension of time to serve the respondents with a memorandum of appeal and record of appeal from the decision of the High Court of Tanzania, at Arusha) (Nyerere, J.) dated the 12th day of July, 2012 in Civil Case No. 18 of 1992 RULING 3RD & 10th July, 2015 MJASIRI, JA.: By a notice of motion which was filed under Rule 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Court Rules), the applicant is seeking extension of time to serve on the respondents with a memorandum of appeal and record of appeal outside the prescribed period of seven (7) 1 ,1, days. The application is supported by the affidavits of Mr. Loomu Ojare, learned advocate for the applicants and one Aisha Mbaraka Omari. The applicant is relying on the following grounds which are reproduced as follows:- 1. That the pertinent memorandum and record of Appeal was filed or lodged in the sub-registry of the Court on 25/8/2014. 2. That under Rule 97 (1) of the Court of Appeal Rules/ 2009/ the respondents were required to be served with the memorandum and Record of appeal within seven (7) days/ latest by 1/9/2014. 3. That there was a delayin serving the respondents with the Memorandum and record of appeal due to inadvertence. 4. That the applicant is challenging the judgment and decree of the High Court in the appeal to this Honourable Court on grounds of illegality in that the suit property sold by the 1st respondent to the Z,d never belonged or did not constitute the estate of the late Abubakar Omart further that the disposition of the suit property was unlawful as it was not evidenced in writing or by a written memorandum of its terms as 2 evidenced in writing as mandatorily required by law; and further that the declared consideration of Tshs. 25 million instead of the proper and actual one of Tshs. 200 million was intended to deceive the Treasury on the tax liable to be paid. The respondents filed two affidavits in reply but neither party filed any written submissions. At the hearing of the application, the applicant was represented by Mr. Loomu Ojare, learned advocate and the respondent had the services of Mr. John Materu learned advocate. Mr. Ojare on his part, submitted that there was justification for the delay. He advanced the reasons of illness and the fact that he had to travel to India for medical treatment. This is set out in paragraphs 7, 9, 10, 11, 16 & 17 of Mr. Ojare's affidavit in support of the application. He submitted further that he had assigned the task of serving the record of appeal to one Aisha Mbaraka Omari. However Aisha misunderstood his instructions and she thought that she had a period of one month to serve the respondents instead of only a week. The affidavit of Aisha was relied upon by Mr. Ojare to explain the delay. 3 Mr. Ojare was of the view that good cause has been established and the delay was caused through inadvertence. He also raised the issue of illegality on the transfer of property. He asked the Court to grant extension of time so that the appeal can be heard on merit and the illegality issues resolved. Mr. Materu on his part submitted that the applicant had no justification for the delay. According to him failure to serve the respondents in time was caused by negligence. According to him there were other advocates in Mr. Ojare's chambers who could have done the job. He wondered why the task. was left to Aisha a lay person when one of the lawyers in Mr. Oja re's Chambers represented the applicant in the High Court. He complained that a period of one and half months had passed before the application for extension of time was filed. .-.. On the issue of illegality Mr. Materu submitted that the illegality must be apparent before the Court can grant extension of time on the basis of illegality. 4 Both counsel made reference to various authorities in support of their arguments. While I will not make reference to all of them, I have seriously taken them into consideration. The main issue for consideration and determination is whether or not good cause has been established. Rule 10 of the Tanzania Court of Appeal Rules provides as follows:- "The Court may upon good cause shown extend time limited by these Rules or by any decision of the High Court or tribunal for the doing ofany act authorized or required by these Rules/ whether before or after the expiration of that time and whether before or after doing of the act/ and any reference in these Rules to any such time shall be construed as reference to that time as so extended. " Mr. Ojare has raised the ground of illness on his failure to serve the respondent within the prescribed time. He stated in his affidavit that he had to travel to India for medical treatment. He left the task to one Aisha who failed to act on a timely basis. Mr. Materu has not disputed in any way that Mr. Ojare's account of his illness was not true. Under the circumstances, can Mr. Ojare's illness be considered good cause? What constitutes good cause cannot be laid down by any hard and fast rules. This depends on the 5 ' ' prevailing circumstances of each particular case. It is upon the party to provide the relevant material in order for the Court to exercise its discretion. In Ratnam v. Cumarasamy (1964) 3 ALL E.R. 933 Lord Guest stated thus:- "The rules of court must, prima facie/ be obeye~ and in order to Justify a court in extending the time during which some step in procedure requires to be taken/ there must be some material on which the court can exercise discretion. If the laws were otherwise/ a party in breach would have unqualified right to an extension of time which would defeat the purpose of the rules which is to provide for a time table for the conduct of litigation'~ While inadvertence is not sufficient to justify a delay, extension of time may be granted where a party acts diligently and or promptly. In Michael Lessani Kweka v. John Eliafye (1987) TLR 152 at page 153 it was stated thus:- --- ".. Although generally speaking a plea of inadvertence is not sufficient, nevertheless I think that extension of time may be granted upon such plea in certain cases/ for example where the party putting forward such plea is shown to have acted reasonably diligently to discover the omission and upon such discovery, he acted promptly to seek remedy for it. " 6 See Standard Chartered Bank (Tanzania) Limited v. BATA Shoe Company (T) Limited, Civil Application No. 101 of 2006, CAT (unreported). In the instant case the applicant has shown reasonable diligence in correcting the error upon his return from India after undergoing medical treatment. He made a follow up and upon discovering that documents were not served on the respondent, he acted promptly by filing the notice of motion in Court seeking to have the omission remedied. Mr. Ojare has also made an allegation of illegality, this factor was denied by Mr. Materu. He argued that even if there was an issue of illegality, it was not apparent. The question of illegality was also factored in the grounds in support of the notice of motion as well as in the memorandum of appeal attached to Mr. Ojare's affidavit. Mr. Ojare has demonstrated a probable case of illegality. I will however not delve into any details in order to avoid going into the merits of the case. The legal position is settled. When there is an allegation of illegality, ~ it is important to give an opportunity to the party making such allegation to have the issue considered. In the case of The Principal Secretary, 7 Ministry of Defence and National Service v. Devram Valambia (1992) TLR 182 it was stated thus:- '1/n our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty even if it means extending the time for the purpose of ascertaining the point and if the alleged illegality be established to make appropriate measures to put the matter and record right" This position was reiterated in VIP Engineering and Marketing Limited and three others v. Citibank Tanzania Limited, Consolidated Civil References No. 6, 7 and 8 of 2006 CAT (unreported), it was stated as under:- "We have already accepted it as established law in this country that where the point of law at issue is illegality or otherwise of the decision being challenged that by itself constitutes a ''sufficient reason" within the meaning of Rule 8 of the Rules for extending time. " See CRDB Bank Limited v. George Kilindu and Another, Civil Application No. 87 of 2009, CAT (unreported). 8 ' I Given the position, I accordingly grant the application with no order as to costs. A copy of the memorandum of appeal and the record of appeal are to be served on the respondents within a period of seven (7) days from the date of the delivery of this Ruling. It is so ordered. DATED at ARUSHA this 8 th day of July, 2015. S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy o RAR APPEAL 9