20131210 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA

AT ZANZIBAR

CIVIL APPLICATION . :..: NO. 91 OF 2013 1. MOTOR VESSEL SEPIDEH . } .

2. PE MBA ISLAND TOURS & SAFARIS ................................. APPLICANTS

VERSUS 1. YUSUF MOH'D YUSSUF } . 2~ AHMAD ABDULLAH .............................. ~·················· RESPONDENTS (Application for extension of time to file an application for Revision of the Proceedings, Rulings and Orders of the High Court of Zanzibar at Vuga (Abdulhakim A. Issa, J.) dated the 21 st day of lune, 2012 and (those given by Yesaya Kayange DRHC) dated 24th December, 2012, 22nd February, 2013, 8 th March, 2013 and 19 th March, 2013)

RULING 6 th & 13th December, 2013 JUMA, J.A.: By a notice of motion which was filed on 31/5/2013 under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), Motor Vessel SEPIDEH (1 st applicant) and Pemba Island Tours & Safaris (2 nd applicant), are seeking an extension of time to enable them to lodge an application for revision outside the prescribed sixty days (60) from the date of the decisions of the High Court of Zanzibar sought to be revised. Should the extension be granted, the applicants would like to apply for revision out of 1 time against the proceedings, rulings and orders in Civil Case No. 31 of 2012 between on one hand, Yusuf Moh'd Yusuff and Ahmad Abdullah Ali, and Motor Vessel Sepideh and Pemba Island Tours & Safaris, on the other · hand. The Rulings and Orders in Civil Case No. 31 of 2011 which are subject of this application are dated:- 21/6/2012 ·(Abdulhakim A. Issa, J.), 24/12/2012 (Yessaya Kayange- DRHC), 22/2/2013 (Yessaya Kayange- DRHC), 8/3/2013 (Yessaya Kayange- DRHC) and 19/3/2013 (Yessaya Kayange- DRHC). The motion contains th~ following grounds: {i} The compromise agreement was illegally recorded as a decree of the Court on 21st June while the.applicants' preliminary objections raised in their written statement of defence were yet to be decided and on that day the applicants were not represented by a legal counsel who could have raised the

irregularities. This illegality has rendered the Settlement Order and subsequent proceedings a nullity. {ii} The Deputy Registrar of the High Court of Zanzibar heard and determined the applications in the case when he had no power to do so the powers having 2 rese4rved by law to the Judges of the High Court of. Zanzibar. (iii) The applicants were not aware that the proceedings were being conducted illegally until J;lh May, 2013 when I was informed that the proceedings were vitiated. The present application is supported by the affidavit affirmed to by Idrissa Sheha Maalim, a majority shareholder and director of the Pemba Island Tours & Safaris (2 nd applicant herein). The deponent affirmed ho~ while the two applicants were engrossed with effort to save the motor vessel SEPIDEH from attachment; several illegalities an~ irregularities were taking place. The applicants only became aware of these illegalities and irregularities when they obtained legal advice from Mr. Daimu Halfani, learned Advocate. Yussuf Moh'd Yussuf and Ahmad Abdullah Ali (1 st and 2nd respondents) filed a joint affidavit in reply. They opposed the application. Mpoki & Associates, Advocates of' Dar es Salaam, filed written submissions in support of the application. In so far as the cause for delay is concerned, the .learned counsel for the applicants reiterated how, while the 3 two applicants were busy trying to

rescue the motor vessel (SEPIDEH) from attachment and sale; illegalities and irregularities were taking place without the two applicants' knowledge. And it was until 18/5/2013 when they sought and obtained legal advice to seek an extension of time to apply for revision. When this application came up for hearing on 6/12/2013; the applicants were represented by Mr. Daimu Halfani, learned Advocate. Neither the respondents nor their learned Advocate, were in attendance. Records of service of summons clearly show that notice of hearing was duly served and it was acknowledged on respondents' behalf by M & B Law Chambers of Dar es Salaam. Mr. Halfani seized the occasion to invoke Rule 63 (1) urging the Court to proceed with the .hearing of the application. I duly granted the prayer and the hearing proceeded as scheduled. ·Mr. Halfani urged the Court to grant him the extension to enable the applicants to present grounds of illegalities and irregularities to the Full Court sitting on revision. According to Mr. Halfani, should I grant them an extension, the applicants will show how the trial court overlooked the preliminary points of objection that was pending determination, and ) 4 proceeded to record the settlement of the Civil Case No. 31 of 2011. In addition, the trial court recorded the settlement of the suit despite being notified about the withdrawal of the learned counsel who was

up to that time, representing the two applicants. Mr. Halfani also questioned the way the Deputy Registrar of the High Court delivered his Rulings over matters which by the requirements of Order LI Rules 1 (5) and 2 of the Civil Procedure Decree, Cap. 8; were reserved to a Judge of the High Court. The learned Advocate also submitted that the learned Deputy Registrar of the High Court issued ·several orders which are prima facie in conflict of an Order of the High Court issued under Civil Case No. 21 of 2010. Mr. Halfani finally submitted that through their motion, supporting affidavit and written submission; the applicants have advanced good cause for this Court to extend the time. He pointed out that whenever faced with - applications for extension based on grounds of possible illegalities or irregularities; the Court has invariably found good cause for extension of time: The Principal Secretary Ministry of Defence and National Service vs. Devram Valambhia [1992] TLR 185; The Principal 5 Secretary, Ministry of Defence and National Service vs. Doram P. Valambhia 1992 TLR 387 (CA) and Civil Application No. 168 of 2008, Veronica Fubile vs.

1. National Insurance Corporation, 2. Hon. Minister . for Labour Youth Development and Sports, 3. The Attorney General (unreported). From the foregoing submissions, it is pertinent to point out that Rule 65 (4) has prescribed sixty (60) days within which an applicant may apply for revision. This Rule states: 65 ( 4) Where the revision is initiated by a paft½ the party seeking the revision shall loqge the application within sixty days (60) from the date of the decision sought to,be revised. A total of seventy two (72) days passed between 19/03/2013 when the Deputy High Court Registrar delivered his last Ruling; and on 31/5/2013, when the applicants filed this motion. By counting the sixty (60) days within whic,h the applicants were supposed to apply for revision, the application for revision should have been filed by 20/5/2013. For purpose of extension of time, the applicants are supposed to account for days between 20th and 30th May, 2013. 6 It is in addition appropriate to observe that Rule 10, which the two applicants employed to move this Court, confers judicial discretion to this Court to extend time upon the applicant showing good cause. This Rule states: 10. The Court ma½ upon good_ cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal for the doing of any act authorized or required by these Rules, whether before or after the

expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. The applicants have relied on two distinct sets of good cause to urge the Court to grant an extension. The first set is contained in paragraph 17 I of the affidavit which the applicants filed in support of their motion contending that they, as lay persons, were not aware of illegalities and irregularities which were taking place. Paragraph 17 states:- 17. THAT, the applicants have all along been struggling to have the 1st applicant (MOTOR VESSEL SEPIDEH) be rescued from being attached and sold amid illegalities and irregularities and it was only on 18h Ma½ 2013 I sought the legal advice of Mr. Daimu Halfani from Mpoki & Associates Advocates for purposes of challenging the whole proceeding 7 in Civil Case No. 31 of 2011 and I was informed that applicants are required to seek extension of time as we are time barred. For his second set of good cause, Mr. Halfani placed reliance on the decisions of this Court which had he furnished in his list of authorities in urging me to extend time on basis of illegalities and irregularities which only this Court on revision can rectify. There is no doubt in my mind that Paragraph 17 of the affidavit : affirmed to by Idrissa Sheha Maalim furnishes good cause

why the applicants could not lodge their application for revision before they received services of learned Advocates. With due respect to Mr. Halfani, the decisions of the Court he cited, are all settled that illegality is invariably regarded is to be sufficient reason to extend time under Rule 8 of the old Rules. The decision of this Court in Duram P. Valambhia [1992] T.L.R. 387 which the learned counsel referred to, dealt with an application for extension of time to pay court fees and security for costs. The applicant seeking the extension cited illegality of decision being challenged to be 8 . sufficient reason within Rule 8 of the former Tanzania Court of Appeal Rules, 1979 (old Rules) to move the Court. The Court stated: "... While avoiding the risk of going into the merits of the case/ we think that the points raised are sufficiently weighty. They are such that if proved they go to the root of the matter. For instance, they allege illegality of the order or orders of the Court That is obviously a point of law. In Civil Reference No. 9 of 1991 involving the same parties as in this case, we took the view that where the point of law at issue is the illegality or otherwise of the decision being challenged, that is a point of law of sufficient importance to constitute sufficient reason within rule 8 of the Court· of Appeal Rules to overlook non-compliance with the requirements

of the Rules and to enlarge the time for such compliance. " In Veronica Fubile (supra) this Court considered an application brought under Rule 8 of the old Rules seeking an . extension of time within which to serve the respondents with copies of a notice of appeal and to lodge an appeal out of time. In one of the grounds, the applicant had contended that the proceedings in the High Court were tainted With illegality. The Court was in no doubt that sufficient reason existed to extend time where illegality is 9 . likely to be at issue. Referring to its other decision in Valambhia [1992] T.L.R. 185 at page 189 where the Court stated: ".. .In 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 purposes to ascertain the point and, if the alleged illegality be established, to take appropriate ·measures to put the matter and the record right " I am acutely aware of a caution warning a Single Judge of the Court while hearing an application for extension of time, should not delve into substantive matters which the Full Court is destined to heat should an .· extension of time be granted. This caution is designed to prevent Single Judge from delving into substantive matters which the law has already reserved to a Full Court. In The Regional Manager - TANROADS Lindi vs. DB Shapriya

and Company Limited, Civil Application No. 29 of 2012 though dealing with an application of extension of time to lodge an appeal, the decision conveyed a caution that a Single Judge of the Court hearing an application for extension of time, should not delve into substantive matters which the Full Court is destined to hear should an extension be granted. In that decision we observed that: 10 . " •~ ..it is now settled that a Court hearing an application should restrain from considering substantive issues that are to be dealt with by the appellate Court This is so in order to avoid making decisions on the substantive issue before the appeal itself is heard. Further to prevent a single Judge of the Court from hearing an application by sitting or examining issues which are-not his /her purviews." ' . "This present application for extension of time to apply for revision is before a Single Judge. Should the application be granted, the main application for revision shall be heard by the Full Court. I shall therefore refrain from going into the question whether the illegalities and irregularities which the applicants allege, can sustain a revision before the Full Court. It is adequate for purposes of extension of time if the applicant shows that there are illegalities and irregularities which should be forwarded to the Full Court on revision. Having said that much, it seems to me that

the applicant has prima facie shown that there is a need for parties to be heard by the Full Court over the serious illegalities and irregularities which the two applicants have alleged. From the foregoing, and having considered the Motion for an extension of time within which to apply for revision and it appearing to me 11 - that good cause exists for the granting of such motion; an extension of time is hereby granted with costs. The applicants shall file their application for revision within fourteen (14) days of this Ruling. It is so ordered. Z.A. •

DEPUTY REGISTRAR

COURT OF APPEAL 12