20151022 TZCA Dar es Salaam

IN THE COURT OFAPPEAL OF TANZANIA AT DAR E S SALAAM CIVIL APPLICATION NO. 63 OF 2011 NATIONAL INSURANCE CORPORATION OF {T) LTD ...................APPLICANT VERSUS SHENG ENA LIMITED ............................................................... RESPONDENT (Application for extension of time to apply for revision against the ruling and order of the High Court of Tanzania at Dar es Salaam) (Makaramba. J.) Dated the 14th day of June, 2010 In Commercial Case No. 75 of 2005 RULING 9th September & 27th October, 2015 MUSSA, l .A.: This is an application for extension of time to allow the applicant to invoke the revisionary jurisdiction of this Court as against the decision of the . Commercial Division of the High Court (Makaramba, J.), comprised in Commercial Case No. 75 of 2005 and dated the 14th June, 2010. The application is by way of a notice of Motion which is predicated under Rules 10 and 48(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is accompanied by an affidavit dully sworn by the 1 applicant's Assistant Corporation Secretary,! namely, Ted Mwakifuna. For an I easy and better perception of the factual background giving rise to the I . application, I deem it opportune to cull from the affidavit accompanying the Notice of Motion. Way back in the year 2005, the respondent herein instituted against the applicant, the referred Commercial Case No. 75 of 2005 in the High I Court, Commercial Division, at Dar es Sa~laam. A little later, on the 28th September, 2005 the trial court (Kimaro, IJ; as she then was), entered a default judgment against the applicant under Order VII Rule 14 (1) of the I Civil Procedure Code (the Code). In the aftermath of the default judgment, the applicant embarked on ! a litany of applications whose considerations and determinations are not quite of relevance to the matter at han~. In the upshot, the applicant mounted an application, before the trial court, seeking extension of time I within which to file a Notice of Appeal as against the default judgment. The I application was countered by the respondent who, additionally, greeted it with preliminary points of objection to the effect that the same is hopelessly I time barred and that it was accompanied by an incurably defective affidavit. I . At the height of the hearing, the trial court (Makaramba, J.) upheld the 2 ~.~r-- preliminary points of objections, whereupon the application was struck out in the already referred Ruling which was p~onounced in the 14th June, 2010. The applicant was initially minded to challenge the trial court's verdict by way of an appeal and she, accordingly, dully filed a Notice of Appeal on the 16th June, 2010. In addition, the applicant contemporaneously moved the trial court for leave to appeal to this Court in an application which was ultimately granted on the 2nd May 2011. Unfortunately, the drawn order granting leave misspell the name of the applicant and, at her prompting, an amended drawn order was eventually issued on the 26th May, 2011. Now, when all was done and, as the applicant geared towards instituting the appeal, she had second thoughts with respect to the competency of the desired appeal. According to Mr. Mwakifuna (the deponent of the affidavit in support of the application), he learned through case law that the verdict sought to be impugned is not appellable. On account of the conception, the applicant abandoned the appeal process and, on the 6th June, 2011 she set in motion the application at hand. As hinted upon, the application is by way of a notice of Motion which seeks to move the court upon four grounds, namely:- 3 ~ -k ' r (i) . Time to file the application elapsed while the applicant was seeking leave to appeal, which was granted on the z,d May, 2011, later to discover that this honourable court has now issued guidelines in the interpretation ofsection 5 (1) (c) of the Appellate Jurisdiction Act (Cap141 R.£ 2002) on categories of appellable and non-appealable orders, while the order subject of this application is not appealable. (ii) The gist of the application involves a denial of naturalJustice on the part of the applicant in that the merits of the application was determined without calling upon the parties to be heard (iii) The application seeks to challenge the error of the High Court Judge who did not make the appropriate order commensurate with the decision he made and in consonance with the law. In both dismissing and striking out the same application the hon. Judge blocked the applicant from taking the necessary next remedy available at law and as per the constitution. To that extent the decision is illegal 4 >- (iv) The decision against which the High Court Judge was being moved to rant leave to appeal is not observant of the law and is illegal resulting into an unjustified I ! process of execution ofa resultant decree in the sum of Tshs 3.9 billion while the principal sum was only Tshs. 37 million further it was subjudice to Civil Case No. 197 of 1998 pending in the High Court" I Apart from the Notice of Motion and its accompanying affidavit, the applicant lodged written submissions in which she expounds her reasons behind the quest for extension of time. In this regard, it is noteworthy that the respondent did not lodge any affidavit in reply pursuant to Rule 56 (1) I of the Rules. Nonetheless, she similarly lodged written submissions to resist the application. At the hearing before me, the applicant entered appearance through Mr. Samson Mbamba, learned Advocate, whereas the respondent had the services of Dr. Ringo Tenga, also learned Advocate. At the outset, both counsels fully adopted their respectiv~ written submissions. I Mr. Mbamba prefaced his submissions with the contention that on account of the respondent's non-filing of any affidavit in reply, there is no evidence to support his written submissions. To buttress the contention, the 5 ',.. I contention, the learned counsel relied Civil Application No. 162 of 2006 - two unreported decisions of the Court - viz - CRDB 1996 LIMITED Vs • I I GEORGE M KILINDU and Civil Application No. 47 of 1998 MANDAVIN COMPANY LIMITED vs GENERAL TYREl(E.A) LIMITED. As regards his written submissions in support o the application, Mr. Mbamba essentially replicated what was stated in the Notice ~o Motion and its accompanying affidavit. More particularly and, to begin with, the learned counsel contended that the delay to file the desi~ed application for revision was occasioned by the applicant's misaligned engagement in the appeal process. I In the premises, Mr. Mbamba urged that the applicants was diligently and, in good faith, prosecuting the appeal process till when it dawned upon her I that the order desired to be impugned is, after all, not appellable. According to the learned counsel, the wakeup call waJ sounded to the applicant by two unreported decisions of the Court - viz- Civil Appeal No. 68 of 2003 Civil I .. Appeal No. 68 of 2003 - East African Development Bank vs. Khalfan Transport Co. Limited and Civil Appeal ~o. 137 of 2008 - CRDB Bank · Limited vs. George Kilindu. In the former decision, the court observes thus:- 6 "The CP. 4 therefore, bars any appeal to this Court against any order of the High Court unless such appeal is expressly provided for under its provisions or in any other law. " Mr. Mbamba contended that prior to the referred decisions, the law was being interpreted as if all orders of the High Court are appellable so long as the desirous appellant obtains leave. Thus, the learned counsel urged that the applicant was not dilatory, rather, she was diligently and persistently in and out the High Court corridors prosecuting the appeal process till when she discovered that the option was ill-fated. It is, however, noteworthy that East African Development Bank and CRDB Bank (supra) were, respectively, pronounced on the 6th October, 2008 and the 13th July, 2009. Mr. Mbamba further submitted that the Ruling of the High Court is remarkably double jointed in that it is comprised of two verdicts which are mutually exclusive. Elaborating, counsel contended that the in the order desired to be impugned, the presiding Judge actually struck out the application before him just as he also dismissed it on the merits. To that extent, counsel charged, the High Court Ruling is palpably tainted with illegality the more so as the court inter alia dismissed the application without 7 . :- affording the parties an opportunity to be h~ard. To sum up the submissions, Mr. Mbamba insisted that on account of the reasons explaining the cause for the delay as well as the al~eged illegality! of the order, the application is I meritorious and that the same should be granted with costs. For his part, while conceding that t~e respondent did not lodge any affidavit in reply, Dr. Tenga countered that it was not quite an imperative requirement for the respondent to lodge ~n affidavit in reply. Rather, he submitted, in terms of Rules 56 (1) of the Rules, filing an affidavit in reply is at the option of a respondent, the failure ~f which would not bar the party from appearing and putting a defence. In sum, as regards the merits of the application, the learned counsel for the rJspondent strenuously urged that no good cause has been shown to entitl~ the applicant extension of time. I He accordingly prayed for the dismissal of the application with costs. 1 I I have given anxious consideration to the learned competing arguments. The issue before me is simlple, namely, whether or not the applicant has demonstrated good cause toI deserve the requested extension I I under Rule 10 of the Rules. As already observed, it seems to me that the case for the applicant is pegged upon two premises. In the first premise, I the applicant contends that the delay to file the desired application for 8 revision was on account of her diligent and bona fide engagement in an appeal process which, however, turned out to be an inappropriate· option. Secondly, he applicant contends that for the reason of being comprised with two verdicts which are mutually exclusive, the decision which is desired to be impugned is double faced and, as such, palpably tainted with illegality. To begin with, I agree with Mr. Mbamba's submission of to the effect that on account of his non-filing if an affidavital in reply, the affidavital disposition of Mr. Mwakifuna cannot be contradicted by the respondent's submissions. As was observed in Mandavin (supra):- •~ ...... affidavital deposition is evidence on oath which cannot be contradicted by statement from the bar. , Such evidence like any other type of evidence given on oath can only be controverted by evidence on oath." But, as correctly rejoined by Dr. Tenga, that does not mean that the application is unassailable and, in any event, an applicant is enjoined to demonstrate good cause to entitle himseif / herself to enlargement of time. Getting now to the nitty-gritty of the matter, I should clearly express, from the very outset, that in an application for extension of time under Rule 9 10 of the Rules, it is entirely upon the discretion of the Court to either grant or refuse it. In Civil Application No. 6 of 2001 - Tanga Cement Co. vs. Jummanne Masangwa and Another (unreported),· the Court observed as follows:- "This unfettered discretion of the Court, however, has to be exercised Judicially, and the overriding consideration is that there must be "sufficient cause" for doing so. What amounts to sufficient cause has not been defined. From decided cased a number of factors has been taken into account, including whether or not the application was brought promptly,· the absence of any valid explanation for the delay,· lack of diligence I on the part of the · applicant. " It is, perhaps, pertinent to remark that the foregoing referred decision was premised on the expression "sufficient reason" as comprised under Rule 8 of the old Rules. In the new Rules, the expression was substituted with "good cause" but, to me, the guidelines propounded in Tanga Cement (supra) equally apply to the current Rule 10 of the Rules. But, 10 ,,. quite apart there may be other factors in addition to those enlisted in the case under reference. In, for instance, the unreported Civil Application No. 168 of 2008 - Veronica Fubile vs National Insurance Corporation and Three others, it was categorically stated that the existence of special circumstances in a particular case may warrant the grant of extension of time. Among the listed special circumstances included a claim of illegality (see also Civil Application No. 97 of 2003 -' Citibank (T) Limited vs TTCL and others; Mza Criminal Application No. 5 of 2005 - William Malaba Butabutemi vThe Republic and; Consolidated Civil References Nos. 6,7,& 8 of 2006 - VIP Engineering & Marketing limited vs Citibank (T) Ltd (all unreported). In the latter case, the court , observed thus:- ''It is, therefore, settled law that a claim of l'llegality of the challenged decision ,constitutes sufficient reason for extension of time under Rule 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay." When all is said with regard to how the law stands on the issue, I propose to first consider the explanation given by counsel for the applicant 11 to account for the delay in filing the desired application. I have already indicated the extent to which the applicant's explanation is premised on the contention that she was diligently and in good faith prosecuting an appeal ·process till when it dawned upon her that the option was inappropriate. As I have, again, hinted upon, the decisions which were relied upon by Mr. Mbamba were, respectively, pronounced on the 6th October, 2008 and the 13th July, 2009. The verdict of the High Court giving rise to the application at hand came about later on the 14th June, 2010. To say the least, by then CRDB Bank and East African Development Bank which sounded the wake-up call to Mr. Mbamba had long been pronounced and were, so to speak, at the disposal of the learned counsel, if at all he was diligent. To. this end, I so find, the applicant was dilatory in her prosecution of the appeal process as she did so in haste without subjecting the engagement to due diligence. Nonetheless, it remains to be determined whether or not he claim of illegality is worthy. In the contention that the High Court Ruling was double faced, the learned counsel for the applicant had reference to the bottom portion of the decision which I reproduce in fully:- 12 "The issue now becomes whether in the presentappllcationtheAppllcanthasassigned such good reasons to justify this Court to exercise its discretionary power to extend time to file notice of appeal in the affidavit in support of the application the Advocate for the Applicant has stated only generally that it is due to the reasons appreciated by Hon. Werema 1., in both of his rulings, the one setting aside the rejection order, and the other declining to review the decision of Hon. Kimaro, 1. (as she then was), as being the reason for preferring this application so that the legal propriety of the judgment dated 29h September 2005 can be examined by the Court of Appeal. I do not find this to be a reason good enough to the satisfaction of this Court as explaining the delay in filing the application for this Court to be able to exercise its discretion to grant extension of tie to file Notice of Appeal. If anything in my view, the above reason given by he 13 • learned counsel for the applicant only goes to explain I what the applicant is anticipating to raise at the Court ! of Appeal but not why the applicant failed to lodged I the application for extension of time to file notice of 1 appeal. I I In the event and for the foregoing reasons the preliminary objections raised lby the Respondent succeeds to the extent indicated above. The application is hereby struck out with costs. It is I accordingly ordered" [Emphasis I added] I Mr. Mbamba's main complaint is that I the learned Judge seemingly considered ad determined the application o~ the merits without affording the parties an opportunity to be heard. I am afraid he might have a valid point I I and that being so, I need only pay full homige to. what was observed by the ' Court in the ca·se of Principal Secretary, Ministry of Defence vs I Valambia [1992] TLR 185:- ''In our view, when the point at issue is one alleging I illegality of the decision being challenged, the Court has a duty even if it means lending time for the 14 ' purposes to ascertain the point and,· if the alleged illegality be established, to, take appropriate measures to put the matter and the record right" In the light of the foregoing, I find myself enjoined to grant this application so as to enable the Court to ascertain the existence or otherwise ' of the alleged illegality and, if it be established, to take appropriate measures. Thus, in fine, I grant the extension of time sought with costs. The application for revision should be instituted within fourteen (14) days from the date of the delivery this ruling. Order accordingly. DATED at DAR ES SALAAM trais 22 nd day of October, 2015. K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. E.. DEPUTY ISTRAR COURT F PPEAL 15