CIVIL REFERENCE NO

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: MBAROUK. J.A.. MKUYE, 3.A. And WAMBALI. J.A.^ CIVIL REFERENCE NO. 3 OF 2018 MOSES MCHUNGUZI......................................................................APPLICANT VERSUS TANZANIA CIGARATTE CO. LTD.................................................... RESPONDENT (Application for Reference from the decision of a single Justice of the Court of Appeal of Tanzania at Bukoba) (Mwambeaele, J.A^ dated the 5th day of December, 2017 in Civil Application No. 531/4 of of 2016 RULING OF THE COURT 30th August & 6th September, 2018 WAMBALI, J.A.: The applicant, Moses Mchunguzi lodged an application for reference under Rule 62(1) (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules) through a letter dated 7th December, 2017. The application is against the decision of the single Justice of this Court that was delivered in favour of the respondent, Tanzania Cigarette Co. Ltd in which the application of the i applicant for extension of time within which to lodge an application for leave to appeal to the Court of Appeal was dismissed with no order as costs. It is noted that, the applicant lodged a suit before the High Court which was unsuccessful. He therefore sought to appeal to this Court. However, before lodging his appeal to this Court he was obliged by then to seek leave of the High Court first. That being the case, he applied for leave to the High Court but his application was not granted. He therefore, approached this Court and lodged an application for extension of time within which to lodge an application for leave. That application was placed before a single Justice of appeal who after he heard both the applicant and the respondent dismissed it in its entirety. In his ruling, the single Justice of appeal among others, observed that the applicant had not sufficiently explained and accounted for the delay of 16 days in lodging the application for extension of time. The single Justice found that there was no sufficient cause shown by the applicant to deserve extension of time. 2 At the hearing of the application before us, the applicant appeared in person, unrepresented while the respondent had the service of Mr. Geoffrey Kange, learned advocate. The applicant did not have much to submit on the application as he urged the Court to grant the application by considering the grounds contained in a letter of Reference and the written submissions which he lodged in support of the application. Mr. Kange resisted the application and emphasized that the decision of a single Justice of this Court is justified as the applicant did not justify why he was late for sixteen days to lodge the application. He was of the view that the chronology of events show that he could not justify why he spent sixteen days before he lodged the application on 28/7/2016 while he was supplied with the drawn order by the High Court on 12-7-2016. Mr. Kange urged the Court to dismiss the application and uphold the decision of a single Justice of this Court. 3 In order to have an appreciation of the grounds of complaints of the applicant against the decision of a single Justice of this Court, we think, it is important to reproduce them herein below: " 1. That in dism issing the said application for extension o f tim e on ground that Applicant failed to account for the delay o f sixteen days within which he would have taken steps in prosecuting his case, the learned single Judge not only exercised ju d icia l discretion arbitrary but also m is interpreted the letter and sp irit o f Rule 10 o f the Tanzania Court o f Appeal Rules supra which specifically states that no time frame is set for filin g the said dism issed application. 2. That the Honourable single Judge m isdirected him self in iaw to dism iss the said application basing on a wrong principle o f the position o f the iaw and facts surrounding the issue at hand, that prom pted him to take irrelevant facts into account and leaving the relevant ones. Something that led him to reach into an unjustice decision. 3. That the Honourable single Judge o f the Court went wrong in law to dism iss the said application basing on aforem entioned ground som ething that led him to depart from the established position o f law that were earlier entered by the Three Justices o f the Court to the effect that the claim o f illeg ality o f the challenged decision constitutes sufficient reason fo r extension o f time under Rule 10 o f the Court o f Appeal Rules supra. 4. That the single Judge o f the Court went astray in law to dism iss the said application on the ground that the Applicant failed to account for sixteen days o f his delay to file the application in question by relying on irrelevant and distinguishable aforem entioned authorities whose circum stances are quite different with the m atters a t hand. Thus his Lordship failed to take into account the established principle o f law that categorically states that where case law and statute are at variance the latter takes precedence over the form er." 5 It is worth noting that apart from the grounds of Reference, the applicant lodged a lengthy written submission in support of the application. We also acknowledge the fact that in the said written submission which the applicant did not wish to elaborate further at the hearing but urged the Court to consider it, contains several authorities on the decisions of this Court on extension of time. From the above reproduced grounds of Reference, it appears to us that the applicant's main complaints are four. First, that the single Justice exercised his judicial discretion arbitrary when he dismissed the application. Second, that the single Justice applied wrong principle of the position of the law. Third that the single Justice relied on irrelevant and distinguishable authorities whose circumstances are different from what exists in his application. Fourth that the single Justice departed from the position of the law which is to the effect that the claim of illegality constitutes sufficient reason for extension of time under Rule 10 of the Rules. In order to understand the position of the law on extension of time under the provision in which the application was premised before the single Justice, we deem it fit to reproduce the provision of Rule 10 of the Rules hereunder: "10. The Court may upon good cause shown, extend the time lim ited by the Rules or by any decision o f the High Court or tribunal; for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such tim e sh all be construed as a reference to that tim e as so extended." It follows that the provision of Rule 10 of the rules is hinged on first, the discretion of the Court to grant extension of time and second, that for the Court to do so the applicant must show good cause. It is therefore clear that the said provision has not laid exactly any principle to be followed by the Court in exercising the discretion except that the applicant has to amply demonstrate that good cause exists to be entitled for consideration for extension of time. This Court in a number of decisions has emphasized that what constitute "good cause" cannot be laid down by any hard and fast rules. Good cause is therefore dependent on the circumstances of each case. Thus it is up to the party seeking extension of time to provide the relevant material to convince and move the Court to exercise its discretion (see Regional Manager Tanroads Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007 CAT and Oswald Masatua Mwizarubi v. Tanzania Fish Processors Ltd, Civil Application No. 130 of 2010 CAT (both unreported). The Court has therefore developed some factors which can be considered to constitute good cause. Some of these include promptness of taking action, the length of the delay, illegality and delay in being supplied with the necessary documents. However, despite that fact, it cannot be taken as an indication that every application for extension of time under Rule 10 of the Rules will be approached by the Court in a way similar to another application. Therefore, while we accept that Rule 10 of the Rules contains the Court's powers to extend time, we equally accept that, that power must be based on the principle that the discretion has to exercised judiciously depending on the circumstances of each matter and not broadly. Every applicant thus is duty bound to show the Court that there are sufficient materials on which the Court should exercise its discretion. We venture to state that this requirement is aimed to preserve the dignity and the authority of the rules and the Court which may be treated with impunity by the defaulting party. Applicants therefore must be aware of the time limit for taking a certain action, when time starts to run and the very restricted criteria for permission to do that out of time through extension of time. Having laid the position of the law, we now wish to consider the complaints of the applicant against the decision of the single Justice. We wish to point out that, we have carefully gone through the applicant's grounds of reference and the written submissions. Nevertheless, we are of the considered opinion that the applicant has not demonstrated anything to show where the single Justice of this Court went wrong when he dismissed his application for extension of time after the previous one was refused by the judge of the High Court. We hasten to add that the applicant was duty bound to establish why he delayed to take action to the extent of not lodging his application in time. Indeed, since the focus of the single Justice of this Court was that even after the applicant got the drawn order from the High Court he could not lodge his application before this Court in time, the applicant was duty bound to demonstrate why it took him 16 days before he lodged the application after he was supplied with the relevant documents. This, in our view, is not to say that the single Justice was more concerned with limitation of time within which the applicant could lodge an application for the extension of time. We think, the single Justice wanted to satisfy himself why the applicant did not lodge his application immediately after he was supplied with the relevant documents from the High Court. We think his position was premised on the arguments that the promptness of an applicant in taking action to apply for extension of time is one of the matter which the Court in its discretion can consider as sufficient cause in granting extension of time. It is important to note that even at the High Court the applicant did not establish good cause for his delay to lodge an application for leave. We have also noted that the applicant criticizes the single Justice to have considered irrelevant issues and authorities before he dismissed the application. We think that this criticism is not justified. The single Justice before coming to the conclusion on the substance of what he decided, he reproduced the relevant paragraphs of the affidavit of the applicant which he thought might have established the reasons for the delay but in the end he was not convinced by what was stated therein with regard to the cause of the delay. We must insist that the affidavit of the applicant which supported the notice of motion was the basis of the application which was before the single Justice. Indeed, it is worth noting that in those paragraphs it cannot be said with certainty that the applicant demonstrated any sufficient cause for his delay in view of the fact that he got the drawn order on 12th July, 2016. Yet he did not state any tangible reason in all the paragraphs why it took him 16 days up to 28th July 2016 when he lodged the application after he was ii granted the document by the High Court. We think promptness of the applicant which was not demonstrated before the High Court could have been demonstrated at the Court of Appeal. It suffices to add that the single Justice paged his reasoning and the ultimate decision on the issue of not taking action immediately to lodge the application to the Court of Appeal as the applicant did not have much to say as to why he could not lodge an application for leave early in the High Court. Moreover, in our view, the applicant cannot blame the single Justice to have put more reliance on the decision of the High Court (Matogoro, J.) which was delivered on 31/5/2016. We think, the judge could not have gone out of the facts which were disclosed in the affidavit deponed by the applicant and come to a different conclusion that the applicant fully demonstrated good cause for the delay. It cannot be denied that the relevant paragraphs (7-11) in the affidavit of the applicant were those which the single Justice reproduced in his ruling. Paragraphs 1-5 of the affidavit just stated the matters in passing and necessarily on the history of what transpired since the case started. We 12 hold a view that a careful glance at those paragraphs indicate that no substantial and sufficient reason was disclosed on the cause of delay. Indeed, even the issue of illegality which the applicant raised as ground and has repeatedly stated in the written submission as one of the criteria for the Court to grant extension of time was stated in passing without establishing it. It must be made clear that in order for the Court to rely on the issue of illegality as one of the reason for seeking extension of time, a party must not only list it as one of the ground for seeking extension, but must also establish it and explain sufficiently to deserve extension of time. In the present Reference, we are settled that a close scrutiny of the notice of motion and the affidavit of the applicant which was placed before the single Justice and even his submission in the present Reference, indicates that nobody can safely conclude that illegality is apparent in the decision which was before the High Court which is sought to be appealed against as the applicant simply stated it in passing without sufficient explanation. We have no hesitation therefore to state that, going through the record of what was before the single Justice, we cannot safely conclude that the 13 single Justice exercised his discretion arbitrarily when he dismissed the applicant's application as submitted by the applicant. We are of the considered view that the single Justice took cognizance of Rule 10 of the Rules and assessed the circumstance of the application that was before him and decided the matter judiciously. We need to emphasize that in deciding whether or not to allow an application for extension of time, the Court has to consider whether or not there are sufficient reasons not only for the delay but also sufficient reasons for extending the time during which a relevant application either for leave or lodging a notice of appeal or an appeal exists. We must appreciate the enamons work put by the applicant in preparing the written submissions that include list of authorities on extension of time. However, we do not think the applicant can seek assistance and take refuge on the same without demonstrating that good cause exist to convince the Court exercise its discretion. We therefore agree with the counsel for the respondent that this Reference is devoid of merit. In the end, in view of what we have discussed above in relation to the Reference and the status of the application which was before the single Justice, we are satisfied that this Reference has been brought without any basis and we accordingly dismiss it. In the circumstance of this matter which involves a labour dispute, we make no order as to costs. DATED at BUKOBA this 6th day of September, 2018. M. S. MBAROUK JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. 15