mountainside farm company ltd vs mepukori salash 2017 tzca 336 26 may 2017

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 5"A" OF 2016 MOUNTAINSIDE FARM COMPANY L T D ........................................... APPLICANT VERSUS MEPUKORI S A L A S H ............................................................................ RESPONDENT (Application for Extension of time from the decision of the High Court of Tanzania at Moshi) (Nyerere, J.) dated the 16th day of September, 2014 in Land Case No. 7 of 2010 RULING 24th & 26th May, 2017 MJASIRI. J.A.: By a notice of motion filed under Rule 10 of the Tanzania Court of Appeal Rules, 2009, the applicant, Mountainside Farm Company Limited is moving the Court to extend time in which to serve the respondent, Mepukori Salash with a copy of the notice of appeal. The application is supported by the affidavit of Mr. Samwel Gard Madulanga, learned advocate. The notice of appeal was filed within the time stipulated under the law. The reason for the delay in serving the applicant with a copy of the notice of appeal is narrated in paragraphs 5 - 1 0 of the applicant's affidavit. i Paragraphs, 5 & 6 of the applicant's affidavit are reproduced as under:- "5. That; the notice o f appeal file d by the applicant could not be served on the respondent within the prescribed period o f 14 days as the respondent who was unrepresented in the High Court could not be traced. 6. That a fter failin g to trace the respondent; the applicant decided to challenge the decision o f the High Court o f Tanzania in Land Case No. 7 o f 2010 by way o f review instead o f an appeal and consequently file d Misc. Land Application No. 4 o f 2014 in the High Court o f Tanzania." At the hearing of the application, the applicant was represented by Mr. John Materu and Mr. Samwel Madulanga, learned advocates. The respondent appeared in person and was unrepresented. He was however duly served with the applicant's notice of motion since October, 2016 and the applicants written submissions on May 17, 2017. The applicant neither filed an affidavit in reply nor written submissions. Mr. Materu argued the application. He asked the Court to adopt the affidavit in support of the notice of motion and the written submissions filed in Court as part of his submissions. He argued that the notice of appeal was filed in time and the only reason for failure to serve the respondent with the 2 notice of appeal was because he could not trace the respondent. The respondent being unrepresented, could not be traced as his whereabouts were not known. According to him, he mitigated this problem by seeking a review from the High Court. However he was advised by the High Court to pursue the appeal, as the judge who handled the matter was not present, and the matter could not be reviewed by the Judge who had not heard the matter. In the meantime, time had lapsed hence the need to seek extension of time. He informed the Court that he has already filed his application for leave to appeal to the Court of Appeal in the High Court. He argued that good cause has been established as failure to serve the respondent was because the respondent could not be traced. The respondent vehemently opposed the application. He argued that the applicants could have reached him if they wanted to. He complained that the applicants have been filing numerous applications and serving him late. He stated that he objected to the application for review filed by the applicant in the High Court. He totally opposed the application. After hearing both parties and reviewing the notice of motion filed by the applicant, the main issue for consideration and determination is whether 3 or not good cause has been established. Rule 10 of the Court Rules, provides as follows:- "10. The Court may, upon good cause shown, extend the tim e lim ited by these Rules o r by any decision o f the High Court o r tribunal, fo r the doing o f any a ct authorized or required by those Rules, whether before o r after the expiration o f that tim e and whether before o r after the doing o f the act; and any reference in these Rules to any such tim e sh a ll be construed as a reference to that tim e so extended . " Paragraph 5 of the applicant's affidavit stated that failure to serve the respondent with the notice of appeal was because the respondent could not be traced. The applicant submitted that the notice of appeal was filed within time. It is a requirement under Rule 84 (1) of the Court Rules that an intended appellant must serve the respondent with a copy of the notice of appeal within fourteen (14) days from the date of lodging the notice of appeal. The purpose of a notice of appeal is to inform the respondent that an appeal is intended to be lodged. In the instant case even though the notice of appeal was filed on 29th September, 2014, within the time required under the law, the notice of appeal could not be served on the respondent within the prescribed period of fourteen (14) days as he could not be traced. Rule 10 of the Court Rules confers the court with very wide discretionary powers to grant extension of time. In RATNAM vs CUMARASAMY (1964) 3 ALL ER 933 it was stated thus:- "The Rules o f court must\ prim afacie, be obeyed\ and in order to ju stify a court in extending the tim e during which som e step in procedure requires to be taken, there m ust be som e m aterial on which the court can exercise discretion. I f the law s were otherwise, a party in breach w ould have unqualified rig h t to an extension o f tim e which w ould defeat the purpose o f the rules which is to provide a tim e table fo r the conduct o f litig atio n . " On the strength of the affidavit filed by the applicant, and the fact that the respondent could not be traced, I am of the considered view that good cause has been established. In the event, and for the reasons stated, the application for extension of time to serve the respondent with a copy of the notice of appeal is hereby granted as prayed. The applicant should serve the respondent with a notice of appeal within a period of fourteen (14) days from the date of this ruling. I make no order as to costs. Order accordingly. DATED at ARUSHA this 25th day of May, 2017. S. MJASIRI JUSTICE OF APPEAL I certify that this is a true copy of the Original. / \E. Y. ZU DEPUTY REGISTRAR COURT OF APPEAL -^■5* .f 6