Ministry of Work Transport Communication Another vs Nasoro A

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. CIVIL APPLICATION NO. 09 OF 2023 (Originating from Civil Case No. 02 of 2017, High Court of Tanzania, Sumbawanga District Registry) MINISRTY OF WORKS TRANSAPORT AND COMMUNCATION............ ..... .................. ...... ...............1st APPLICANT ATTORNEY GENERAL.......................... ......... ........ ...............2nd APPLICANT VERSUS NASORO A. AHMED............. .................................. ......^.....RESPONDENT RULING This Application is made under Section 11 of the Appellate Jurisdiction Act Cap 141 in which, through Chamber Summons, supported by an Affidavit, the applicants beseech this Court to extend time within which they would file a Notice of Appeal out of time. The applicants are aggrieved parties against the respondent who was favoured by the decision of this Court (trial Court) in Civil Case No. 02 of 2017. Being unsatisfied by the said decision, the applicants jointly appealed to the Court of Appeal in which it was registered as Civil Appeal No. 145 of 2021. It was however struck out by the Court on technical ground, hence this application before this court. i When the matter was scheduled for hearing on the 08th day of April, 2024, the applicants were represented by Mr. Siyumwe S. Mubanga learned State Attorney and Mr. Baraka Maugo learned State Attorney from TANROAD, meanwhile the respondent was represented by Mr. Peter Kamyalile, learned Advocate. As it was the hearing day, the respondent's learned counsel sought leave of this court that the matter be heard by way of written submissions. The learned counsels for the applicant did not object the prayer sought by Mr. Kamyalile, and therefore this court granted the prayer and right away it scheduled the filing dates to both sides in which they all adhered to appropriately. In their submissions, the learned State Attorneys representing the appellant stated that at the outset they wish to adopt the contents of their affidavit together with its annexures filed on 05/10/2023 to form part of their submission. That this Application was preferred under Section 11 of the Appellate Jurisdiction Act Cap 141 R.E 2019, in which it gives mandate to this Court upon sufficient reason given to extend time for giving notice of intention to appeal out of time from the judgement of this Court. They added that their reasons advanced in this application are two; the first being technical ground and the other is illegalities on the 2 Judgement and Decree in Case No. 02 of 2017 which are pleaded in paragraphs 6 and 9 respectively of their sworn affidavit in support of this application. In clarification they started with their first reason of technicality as pleaded in paragraph 6 of their affidavit, that it is not in dispute that the applicants had their Appeal registered as Civil Appeal No. 145 of 2021, which was scheduled for hearing on the 27th day of September 2023 by the Court of Appeal of Tanzania but, on the same date, it was struck out on technical ground. They added further that technical ground and or technical delay is sufficient reason for the Court to exercise its discretion power to extend time to file notice of appeal out of time. In insisting that position, this court was to referred to the case of Peter Sany vs Ester Nelson (Civil Appeal No. 151 of 2018) [2020] TZCA 157 (27 March 2020) TANZLII at page 26, where it was held as follows: - "It is now settled principle that the delay in taking action within the time specified by law caused by the time spent in prosecuting a matter in court constitutes good cause of delay. This is what is now known in legal arena as technical delay" 3 Again, they cited the case of Erica Herman Yohahe & Another vs Magdalena Herman Muna Gidadi (Legal Representative of the Late Herman Muna Gidadi), Civil Application No. 130 of 2019) [2022] TZCA 768 (6 December 2022) TANZLIZ the Court of Appeal had the following to say: - "The fact that all the time from when the Judgement of Moshi J. was passed in the High Court on 27h April 2016, through to 15th November 2018 when Maige J. dismissed an application for restoration of Miscellaneous Civil Appeal No. 100 of 2016, such delay is explainable because the applicants were busy in courts pursuing the referred applications. That delay is technical and it is, under the law excusable " (Emphasis added) Therefore, with the above argument and the cases referred, the applicants' side submitted that technical ground as one of the reason pleaded by the them in paragraph 6 of the affidavit in support of the application, is sufficient reason to warrant this Court to grant extension of time to file Notice of appeal out of time. Moreover, another reason pleaded by the applicants in this application is Illegalities on the Judgement and Decree of the Civil Case No. 4 02 of 2017, in which the same was pleaded under paragraph 9 of the affidavit in support of this application. That, it is settled law in our jurisdiction that where the point of law at issue is illegality or otherwise of the decision being challenged, that by itself constitutes sufficient cause. However, the same must be apparently on face of records. That, the 1st Applicant but during the hearing of the original case all the evidence testified (starting with PW-1) was clear to the effect that TANROAD was the one responsible for the arrest and detention of the motor vehicle which was the subject matter and indeed the cause of action in the said case. They added that, it is not in dispute that, TANROAD was not pleaded in the amended plaint filed in the court on 20th day of August. They then submitted further that, the act of adjudicating the case and delivering the judgement and Decree of the Civil Case No. 02 of 2017, without neither hearing the testimony of TANROAD nor adding her as the necessary party it is obvious that the suit was incompetent for non­ joinder of a necessary party of which it renders it to contain illegality, apparently on face of records. 5 The learned counsels invited this Court to be guided by the celebrated wisdom made In the case of Stanslaus Kalokola vs Tanzania Building Agency and Another, Civil Appeal No. 45 of 2018 [2019] TZCA 412 (6 November 2019) TANZLII, which set out the way forward in situation of non- joinder of parties and it had this to say:- "... there are nonjoinders that may render a suit unmaintainable and those that do not affect the substance of the matter, therefore inconsequential." They added that, the court thereafter quoted commentary from Mulla Code of Civil Procedure, Edition Volume I Pg. 620 stating thus : - "As regards non joinder of the parties a distinction has been drawn between nonjoinder of a person who ought to have been joined as a party and non- joinder of person whose joinder is on/y a matter of convenience or expediency. This is because 0. 1 r. 9 is the rule of procedure which does not affect the substantive law. If the decree cannot be effective without the absent parties, the suit is liable to be dismissed" In further clarification, the learned Counsels added that, the nature of this suit requires TAN ROAD to be joined as necessary part, non-joinder 6 of the same will render decree passed not to be effected in her absent and to avoid a multiplicity of suits their joinder is necessary so as to have them bound by the decision of the court in the suit, as rightly stated in the case of Claude Roman Shikonyi vs Estomy A. Baraka & Others, Civil Revision No. 4 of 2012 [20 J 217 (11 July 2019) TANZLII where it quoted with approval the case of Tang Gas Distributors Limited vs Mohamed Salim Said and Others, Civil Application for Revision No. 68 of 2011, Court of Appeal of Tanzania (Unreported) and had this to say at Page 19: it is now an accepted principle of the law (see NULLA S treatise (supra) at P. 810) that it is a materia! irregularity for the court to decide a case in absence of a necessary party. Failure to join a necessary party, therefore is fatal (NULLA a t P. 1020" From the above, the learned State Attorneys insisted that, non- joinder of TANROAD as a necessary party is illegality which is apparently on the face of record sufficiently to warrant this Court to grant extension of time to file Notice of appeal out of time. Lastly, they submitted that, as stated in paragraph 8 of their sworn affidavit in support of the application that, the ruling of the Court of 7 Appeal was ready for collection on the 03rd day of October 2023 and, their application was filed on the 04th day of October 2023 without a delay of time. That, they made the said clarification in conformity with the criteria to account each day of delay which is the essential guideline to be considered in application for extension of time like this at hands. To this extent, they pray this Court finds that all the criteria to be considered for extension of time has been met by the applicant, as clearly set out at page 8, in the case of Attorney General vs Mkongo Building & Civil Works Contractors Ltd & Another, Civil Application 266 of 2019 [2020] TZCA 44 (16 March 2020) and that on the strength of their submission above, they pray for this Honourable Court to grant this application. In response, Mr. Kamyalile in his submission stated that in rebuttal to the applicants' submission, he states that the instant application is lacking merit and should be dismissed with cost for the following reason which he begged to submit below as follows: - First and foremost, he humbly prayed for this Court to adopt the contents in their Counter affidavit which contains their strength for opposing the application on the ground that the applicant has miserably failed to establish sufficient cause upon which the Court can enlarge the 8 time. This is because the counsel for the applicant has failed to show any point of illegality recognized by the law, excusable technical delay, also has failed to account for every day of the delay as follows: - Mr. Kamyalile started off by submitting on the issue of technical delay, that, categories of technical delays are never closed, it depends on the reason for incompetent which cause the delays. Advocates in action or negligence does not constitute good cause, and such delay is not technical delay because firms are manned by lawyers who ought to know Court procedures. He insisted on his argument above by citing the case of Filson Mushi vs Jitegemee Saccos Ltd, Civil Application NO, 313/05 OF 2021[2Q23] TZCA [18th day of July, 2023:TanzLII] at page 7-8 it was held that:- T "Categories of technical delays are never dosed. However, it could be a different and fatal scenario where such incompetent cases causing the delays ... In my considered view, such delay is not technical in my considered view just as advocate's inaction or negligence does not constitute good cause." 9 He added that, according to anriexure TNRD 3, it shows that the appeal was struck out for failure of the applicant to serve the respondent, the Notice of Appeal as well as Memorandum of Appeal and Record of appeal under Rule 84(1) and 97(1) of Tanzania Court of Appeal Rules, 2009. That, the failure to serve notice of appeal on time under Rule 84(1) of Tanzania Court o f Appeal Rules, 2009 to the other party was declared to be negligence, lack of diligence and seriousness on the part of the said Counsel and is not a sufficient reason for extension of time. In support of his argument, again he referred this court to the case of Bahati M. Ngowi vs Paul Aidan Ulungi, Misc. Civil Application No. 490/13 OF 2020, [2023] TZCA [15 August 2023:TanzLII] at page 11 it was held that:- "No doubt that, these allegations depict outright negligence, lack of diligence and seriousness on the part of the said Counsel. By any standard ... this cannot constitute sufficient reason for the delay and the same cannot, bail out the applicant as per the established principles." io He added the case of Exim Bank (Tanzania) Limited vs Jacquiline A. Kweka, Civil Application No. 348/18 OF 2020, [2021] TZCA [24th day of February, 2021:TanzLI'I] at page 13 it was held that: ’7 am not persuaded with this reason because both firms are manned by iawyers who ought to know Court procedures. I have never come across a situation where failure of the advocate to act within the detects of law being condoned to constitute good cause for enlargement of time and I am not prepared to do so." Then proceeded that, the failure to serve the document to the other party by advocate is a negligence which cannot constitute sufficient reason for the delay. He again cited the case of Winjuka Godson Mangare Versus John J. Ottaru, Civil Application No. 657/01 OF 2022, [2024] TZCA [25th March 2024: TanzLII] at page 11-12 where it was held that:- "It is settled that the negligence of an advocate is not a sufficient cause for the delay. See Loswaki Village Council and Another (supra); Mwananchi Engineering and Constructing Corporation (supra); and Bahati M. Ngowi v. Paul Aidan LUungf Wise Civil Application No. 490/13 of n 2020 [2023] TZCA 17503: [16 August 2023: TanzLII] where the Court refused to bless the negligence of the applicant's counsel. Similarly, in this application, the negligence of the applicant's former counsel cannot be blessed by this Court." In addition to that, Mr. Kamyalile argued further that it is a trite law that filing of a defective application/appeal exhibits lack of care on the part of the applicant and her advocate and it does not equally amount to an excusable technical delay and the relevant period remains unaccounted for. He insisted that, this position was laid in the case of China Hunan Construction Engineering Group (EA) Ltd vs Pendo Kasyamukuia, Civil Application No. 12/09 OF 2024 [2024] TZCA [19th day of March, 2024: TanzLII] at page 1041 it was held that:- "It was thus the filing of a defective application which caused a further delay subsequent to the dismissal of the first bite application. In view of the foregoing, I have no option, but to find that the filing of such application exhibited lack of care on the part of the applicant and it would therefore follow that the period subsequent to the dismissal... because of defects and irregularities does not equally amount to ail excusable technical delay, for reasons already stated. 12 Consequent to my finding that there is no justification for excusable technical delay, it means that the relevant period remains unaccounted for. There is therefore no good cause shown for the relevant period of delay." The learned counsel then submitted on the point of illegality that, it is trite law that, Executive Agency can only be sued where there is a contract with the one’s suing it. Where the suit is not based on contract, and any other matter, then the executive agency shall be sued in accordance with the Government Proceedings Act as expounded in Section 3(6)(c) of the Executive Agency Act, [Cap. 245 of 2002] He proceeded that, TANROAD is an executive agency established under the Executive Agency Act, [Cap. 245 of 2002], It was established under the Department in the Ministry of Works, Transport and Communication. That, TANROAD cannot be sued on the issue of tort, that the proper person to be sued is Ministry of Works, Transport and Communication under Section 6(3) of the Government Proceedings Act, [CAP. 5 R.E 2019]. He insisted that, with due respect he begged to differ with learned state attorneys who claimed that TANROAD was a necessary party, and the 1.3: suit: was incompetent for failure to join TAN ROAD, Since the law bars TANROAD to be sued on the issue of tort. He therefore maintains that non- joinder of TANROAD is not a point of illegality on the face of record. In the present case there is no any iota of illegality to warrant extension of time. He then stressed that not in every time non-joinder of party is fatal, and that the cases of Stanslaus Kalokola, Claude Roman Shikonyi, and Tang Gas Distributors Limited cited are distinguishable and have no place in this case since there is place and season for everything, as it was the position in the case of Director of Public Prosecutions vs Bernard Njavike [1988] TLR18 at page 22 where it was held that: "There is a place and season for everything." Basing on his submission above and the plethora of relevant authorities pined in, he then prayed for this application to be dismissed with cost. In rejoinder, the learned State Attorneys added that, they have carefully read the Respondent's reply submission in opposing the submission in chief in this application and they rejoin that, the Respondent's reply submission is misconceived and has no merits, worth’s consideration of this Honourable Court, accordingly oughts to be disregarded at all. 14 The learned Counsels for the applicants wish to reiterate what they had stated in their Submission in Chief, and make very brief and precise rejoinder since the Respondent has failed to challenge their strong Submission in Chief supporting this application at hand. Responding to the reply made by Ml Kamyalile on technical delay as one of the reasons advanced in the applicants7 affidavit in support of application, that, the Respondent subscribed to this reason as genuine reason warranting this Court to exercise its discretional power to extend time to file notice of appeal. However, he argued that, technical delays are never closed, it depends on the reason for incompetent which cause the delays and, that he went on to argue that Advocate inaction or negligence does not constitute good cause. The counsels insisted further that, the said Respondent's contention has never been pleaded anywhere in the counter affidavit. Since it is the cardinal rule in our jurisdiction that parties are bound by their pleadings, any evidence produced by any of the parties which does not support the pleaded or is at variance with the pleaded facts must be ignored as the same are new fact which are nothing than afterthought. The learned Counsels supported their above argument by stating that the position of the law above was found Jn the case of Barclays Bank 15 T Ltd vs Jacob Muro, Civil Appeal No. 357 of 2019, 2020 TZCA 1875 (26 November, 2020) TANZTI, where the Court at Pg. 11 upheld the position quoting with approval the case of James Funke Nywagro vs Attorney General [2004] TLR 161 and at Pg. 12 had this to say: - "... for the sake of certainty and finality, each part is bound by his own pleadings and can not be allowed to raise different or fresh case without due amendment properlymade..." They then submitted that, the learned counsel in his submission submitted on a new fact that, Advocate inaction or negligence does not constitute good cause and that he cited four different cases. However, the learned State Attorneys submitted that the cited cases are distinguishable with the reason of technical delay as those case were purely on advocate negligence which is not the case in this application before at hand. Again, they submitted that, since the Respondent has used the reply submission to introduce new fact which was not pleaded in the counter affidavit, they then invited this Court to: be guided by the principle made in the case of The Registered Trustees of Archdiocese of Dar es salaam vs The Chairman Bunju Village Government and 4 Others, Civil Appeal No. 143 of 2006 Court of Appeal of Tanzanzia at 16 Dar es salaam (Unreported) to disregard his contention, where the court had this to say: "... Submissions are not evidence. Submissions are generally meant to reflect the general features of party's case. They are elaborations or explanations on, evidence already tendered. They are expected to contain argument on applicable law. They are not intended to be a substitute for evidence. With the above argument, they insist that in this rejoinder submission technical ground is the reason which stands by itself sufficiently to warrant this Court to exercise its discretion power to grant extension of time to file notice of appeal out of time. Rejoining on the reason for Illegalities, they pointed out that the Respondent's counsel contended that, executive agency can only be sued where there is a contract with the one suing it and that, where the suit is not based on contract and any other matter then the executive agencies shall be sued with the Government Proceedings Act. They did insist that the counsel for the respondent went on to Conclude that, TANROAD is an executive agency established under the Executive Agency Act (Cap 245 of 2002) that it was established under the umbrella of the Department in Ministry of Works, Transport and Communication. 17 The learned Counsels insists that, the above contentions by the Respondent are totally misconception as both Laws cited by the Counsel does not bar TANROAD to be joined as a necessary part for matters which breached her duty. That, the first simple logic that needs this Court's attention is on how TANROAD can be bound by the decision of the court of which was neither part to it nor pleaded anywhere in the pleadings. Secondly is, how will the Ministry of Works, Transport and communication be accountable in execution process on liability directed to TAN ROAD which is not party to the proceedings the Court. Nevertheless, the Attorneys for the Applicants drifted ashore that, with the above reasoning, they wish to reiterate what they have submitted in their submission in chief that, the nature of this suit requires TANROAD to be joined as a necessary party, and its nonjoinder will render the decree passed not- to be affected. That, in her absence would render illegalities within the entire proceedings apparently on face of record sufficiently to warrant this Court to exercise its discretion power to grant extension of time to file notice of appeal out of time. With regard to the case of Director of Public Prosecution vs Njavike [1988] TLR 18 cited by the Respondent counsel which is to the effect that, "there is place and season for everything" it is their 18 submission that the same is distinguishable and does not meet the circumstances of this application. Therefore, on the criteria of accounting each day of delay, the Counsels reiterate what they have submitted in the submission in chief. After going through the submissions from both sides and the records before me, I am fortified that the only determinant issue is whether the applicants have accounted for each day of delay. Starting off with the ground of technical delay as pointed out by the counsels for the applicants, it was hinted earlier that this application is the outcome of the Civil Appeal Case No. 145 of 2021 which was struck out for incompetent. It was the respondent's counsel who lodged a notice of Preliminary Objection in which he alleged that the appellants failed to comply with the provisions of Rules 84(1) and 97(1) of the Court of Appeal Rules, 2009. This fact was conceded by learned counsels of both sides and hence the Court of Appeal struck it out. As rightly submitted by Mr. Kamyalile that categories of technical delays are never closed, that it depends on the reason for incompetent which caused the delay. That, Advocate in action or negligence does not constitute good or sufficient cause and such delay is not technical delay 19 because law firms are manned by lawyers who ought to know Court procedures. Indeed, negligence or lack of diligence and seriousness on the part of the learned counsels concerned cannot at any point constitute sufficient reason for the delay and the same cannot be of assistance to the applicant as laws and procedures are meant to be adhered to. In Lyamuya Construction Company Limited vs Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of'2010 (unreported) a single Justice of the Court elaborated that: ''Since every party intending to appeal seeks to challenge a decision either on point of law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a ■ genera! rule that every applicant who demonstrates that his intended appeal raises points of law should as of right be granted extension of time if he applies for one. The Court there emphasized that such point of law must be that of sufficient importance and, I would add that it must be apparent oh the face of the record, such as the 20 question of jurisdiction; not one that would be discovered by iong drawn argument or process'." [Emphasis added] Coming to the point of illegality as introduced by the learned counsels for the applicants. It may not be possible to lay down an invariable or constant definition of the phrase "good cause", but the Court consistently considers a myriad of factors. One such factor, which happens to relevant to this matter, is whether there is a point of law of sufficient importance such as the illegality of the decision sought to be challenged: see Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] TLR 185; at page 188, this Court held that: "... where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute 'sufficient reason’ within the meaning of rule 8 of the Rules [now rule 10 of the 2009 Rules] for extending time. To hold otherwise would amount to permitting a decision, which in law might not exist, to stand. In the context of the present case this would amount to allowing the 21 garnishee order to remain on record and to be enforced even though it might very well turn out that order is, in fact a nullity and does not exist in law. That would not be in keeping with the role of this Court whose primary duty is to uphold the rule of law." See also: VIP Engineering and Marketing Limited, Tanzania Revenue Authority and Liquidator of TRI-Telecommunications (T) Ltd vs Citibank (T) Ltd, Consolidated Civil References No. 6, 7 and 8 of 2006; Eliakim Swat arid Frank Swai vs Thobias Karawa Shoo, Civil Application No. 2 of 2016. (all unreported). The learned counsels for the applicants pointed out that the non-joinder of TANROAD as a necessary part rendered the entire proceedings illegal as its execution would not be possible without the presence of TANROAD as a party to the suit, and hence they intend to challenge that decision in which they believe is tainted with illegality. To this juncture, it is safe to say that the applicants have not advanced sufficient reasons for this court to grant them an extension of time to file Notice to Appeal out of time. I refuse to believe that the counsels openly intended to mislead this court, as I understand, The Tanzania National Roads Agency (TANROADS) is an Agency under the Ministry of 22 Works and Transport that is responsible for the Development and Maintenance of the Trunk, Regional Roads Network, and Airports in Tanzania Mainland. How on Earth would TANROAD be a different party to the 1st applicant herein. It is in my firm consideration to again concede what has been submitted by the counsel for the respondent that TANROAD has been formed under the umbrella of Ministry of Works, Transport and Communication and that it cannot be sued on issues of tort whereas the 1st is the proper party to be sued as provided for under Section 6(3) of the Government Proceedings Act, [Cap 5 R.E. 2019], I therefore hold that; the applicants have not shown sufficient reasons for the delay for this court to grant them an extension of time to file an Appeal out of time. This application thus meritless and I proceed to dismiss in its entirety. It is so ordered. Dated at Sumbawanga this 19th day of August, 2024. 23