20151110 TZCA Dar es Salaam

., IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 211 OF 2014 NICHOLOUS HAMIS & 1013 OTHERS .••...•.•........•.•.•.•••. APPLICANTS VERSUS THE CONSOLIDATED HOLDING CORPORATION 2 OTHERS~ •. ;o; •••••••••••••••••••••••••••••••••••••••••• RESPONDENTS (Application for Extension of tim~ to file Revision from the Judgment decision of the Court - ~ ~~~~~;-~,~~~~0~,-~~V•*j~0 (Makame, Kisanga, Ramadhani JJA.) dated 21st day of November, 2003 in Civil Appeal No. 62 of 2000 RULING 10th & 18th day of November,2015 JUMA, J.A.: By a notice of motion filed on 4th December, 2014, the applicants, Nicholaus Hamisi and 1013 oth~rs, acting under Rules 10, 4 (1) and 66 (1) of the Tanzania Court of _Appeal Rules, 2009 (the Rules) are seeking an extension of time so that tf:ley may apply for a review of the final appellate , 1 ' judgment. of t~e Court the Civil Appeal No. 62 of 2000 (Makame, J.A., [) Kisanga, J.A. and Ramadhani, J.A.) dated 21/11/2003. The application for extension of time is supported by an affidavitof Nicholous Hamisi, and is based on the following grounds: 1.-That the applicants did not sit on their right as they filed their appeal in time soon after it was strvck off they filed a was struck off. 2. -That we assigned this brief to our Advocate Madame MAJAMBA ADVOCATE who subsequently passed over the brief to RWEYONGEZA & CO. ADVOCATES who in turn shifted in the same to BARNABA LUGUWA {Advocate) therefore this delay . I .was a just cause. 3. There are errors of law apparent on the face of record. The background to this_ motion is summarised in the affidavit of Nicholous Hamisi. The applicants' bone of complaint traces back to the suit which they filed in the Resident Magistrate's Court of Dar es Salaam against the Tanzania Shoe Co. Ltd (later under the receivership of the 2nd 2 ' . respondent). They were claiming, among others, outstanding Subsistence ,,-··1 Allowance and travelling .. costs. The trial Resident Magistrate declined to pay that subsistence allowance .. Aggrieved, the applicants went to the High Court (Kimaro,·PRM, and. f:xtended Jurisdiction, as she then was). The High Court dismissed their first c1ppeal. On 21 st November, 2003 this Court in ';i' ' Civil Appeal No. 62 of 200Q.(Makame, J.A., Kisanga, J.A. and Ramadhani, J.A.) delivered its judgment: dismissing the applicants' second and final It was a~ainst the disrn:t~sal of their final appeal by the Court which prompted the applicants to find another ·route to the Court by filing the Civil Application No. 5 of 200'.fl-, to seek for a review of the final appellate decision of the Court. But this.ctttempt failed when the Civil Application No. 5 of 2004 was struck out or1 .8th April, 2009.The striking out of their first application for a review is. ,captured in paragraphs 6 and 7 of their supporting affidavit: 6.-That on 1 d'1 March 2009 upon hearing the said matter the court moved suo motu to question the provisions supporting the notice of .. .motion and eventually gave its ruling on tfh April 2009 that the provisions on the face of notice of motion 3 could not move the court to review the said decision though on , --) . the Notice .of Motion it was clear that it was ·set out for a review. 7.-That, the court also made a finding that it could not allow an amendment to the notice of motion at the stage of the hearing and ruled that the applicant be struck out A copy of ruling is j annexed hereto marked "C'~ [ ~ m'i~-~~~~~~~~~~~~~~~~r.~~mi~~ ~ I Still determined, the applicants revived their interest to apply for a review when they filed the Civil (. . Application . No. 152 of 2010 to seek an . extension of time to enable ~hem to apply for a r€view. But this application met yet another setback when it was struck out by the Court (Mandia, J.A.J on 2nd January, 2013 becaus~ the grounds which the applicants preferred . . in support of their motion were mixed up with legal arguments thereby ' offending Rule 48 (2) of th_e Rules.It took the applicants another 23 months before they filed this instant application on 4th December, 2014 to seek an extension of time to. apply for the review of the decision of the Court that was delivered 11 years before. 4 The instant application . . is opposed by the Consolidated Holding ,,.') Corporation (1 strespondent:herein) by way of an affidavit in reply sworn to by Paul ·Geoffr~y Shaidi, learned Senior State Attorney. On 9th November, 2015, when this application came .up for hearing, Mr. Paul Geoffrey Shaidi, learned State Attorney appeared to represent the interests and liabilities of the.: defunct Consolidated Holding Corporation Ham is (the 1st applicant} e)(plained he and othe~ applicants can no longer afford the fees to engage the services of learned counsel. Restating that he wa~ speaking on behalf of himself and all other 1013 applicants, Mr. Nicholous Hamis adopted the Notice of Motion, his affidavit as well as all the documents that are attached in support thereof. He had nothing more to . add except to urge the Court to grant the applicants their prayers for extension. Mr. Shaidi begun _his. s,ubmission by urging me to dismiss the application on the ground that.the applicants, having filed their motion on 4/12/2014, defaulted in filing, th.eir written submission. This default, added 5 ' the learned Senior State Attorney, violate the mandatory provisions of Rule ' 106 (9) of the Rules which allows the Court to dismiss an application where the applicant failed to file writt.en submissions within sixty days of filing the application.· Replying on behalf of his co-applicants, Mr. Nichotous Hamis dissuaded the Court from dism.issing the application because of their failure to file written submissions. He :urged me to take into account of the fact that the dispute has been in the courts for a very long time. During all this, abandoned them because. of lack of money to pay their fees. Left on their own, they were not aware ofthe requirement to file written submissions. It seems_ to me that I should be inclined to allow the hearing to proceed despite the applicants~failure to file their written submissions. This inclination will. be in line with. what this Court said in Eusto Ntagalinda v ' . Tanzania Fish Process . Ltd, MZA Civil Application No. 8 of 2011 (unreported) that under the framework of Rule 106 of the Rules and its sub-rules, there is some room for the Court to exercise its discretion and waive the requirements of written submissions where a party fails to lodge the same for any reason. The Court stated: 6 ': .. Furthe0 as statedearlie0 the issue at hand is the Failure to file written submissions within the prescribed period as provided For under Rule 106 (1) of the Rules. While we do appreciate the mandatory nature in which Rule 106 (1) is couched, we are alive to the provisions of Rule 106 {19) which in essence gives power to this Court, in the interest of iustice. and taking into consideration the circumstances of each application, to waive compliance with the provisions.of this Rule in so far as they relate to the Next, Mr. Shaidi expres~ed himself why he thought that the instant application has not shown .th~ good cause to explain the delay. He added that the explanation that the:.change of advocates from the late H. Ndolezi, Miriam Majamba, Rweyongeza right up to Mr. Barnaba Luguwa, cannot be regarded as a good cause to move the Court. In urging me to dismiss the instant motion,· Mr. Shaidi insisted that there are many decisions of the Court out there which state that the negligence of the learned counsel occasioning delay to file motions within the prescribed time ca.nnot be good cause. He did not wish to press for costs. 7 In the rejoinder,. the l~t .applicant stated that the applicants should () not be made to suffer because of their ignorance of the rules and procedure and also on account of the negligence of their learned advocate. On my part, in order to .find out whether the applicants have shown good cause to .be granted. an extension of time I must begin from the premise of Rule 10 of the. Rules. This provision confers judicial discretion to Rule states: 10. - The Court may, 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 Rule~ 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. There is no doubt from the affidavit in support of the motion that the applicants on _diverse occas.ions relied on services of several learned counsel right up to 2nd January, 2013 when they were represented by Barnabas Luguwa and the single Justice of this Court (Mandia, J.A.), struck 8 , out the applicants' Civil Application No. 152 of· 20.10. It is averred in the , ,.,~, supporting affidavit th~t fo:llowing the decision of Mandia, J.A. the applicants rectified the sho.rtcomings in their motion and · brought this instant motion. In the application; .b.efqre me there is no doubt that the applicants have given a diligent .. account of what occasioned the delay from ~~~~~~'wnerrtnfs fuurt~nad;;its~ecisib~in~~~.62~~~-~;. 1 2000 right up to 2/1/2013 when Mandia, J.A. struck out their motion.This, period coincides with the.period when the applicants were on various stages represented by several learned Counsel. It seems evident to me that the applicants have not accounted for 23 months of delay from 2 nd Jar;1uary, 2013 when Mandia, J.A. struck out their Civil Appiication No. 152 of 2p10 right up to 4 th December, 2014 when they filed this instant application. on to seek an extension of time.The position of the Court regarding applications seeking extensions of time under Rule 10 of the Rules is now settled that in showing good cause an applicant has a duty to account for each d 9y of delay. In Crispian Juma Mkude v R. Criminal Application No. 34 ·. of 2012 (unreported) the Court referred to 9 . , Bariki Israel vs. R, Criminal Application No. 4 of 2011 (unreported) ' ,~., where the Court expressed itself that:- " .. .in an application for extension of tin1e/ the applicant has. to_ acc;punt for every day of the delay. Thi~ the applicant has failed to do ... ,,, In the upshot .of the above, there is no evidence on the role of . I, ., ·,' learned counsel during this .latt:yr period and my inevitable conclusions that of Mandia, J.A. In the re~ult, .· ~re application is dismissed. Each side shall bear its own costs. DATED at DAR ES SALAAM this . 10th day of November, 2015. JUSTICE OF APPEAL I certify that this is a true copy of the original. / GISTRAR Of APPEAL 10