20100409 TZCA Dar es Salaam

IN THE COUR'T Of ·APPEAL OF TANZANIA AT DAR ES SALAAM . (CORAM: IULE~, J.A., MASSATI, J.A. And MANDIA, J.A.) CIVIL APPLICATION 1'10. 54 OF 2009 . · NICHOLAUS. HAMISI. AND 1913 ·0THERS ........................................APPUCANTS ~ VERSUS TANZANIA SHOE CO. LTD AND TWO·OTHERS ........ ~ ..................~.RESPONDENTS (Application for Extension of t~me.to file a review of the decision made by the Court of Appeal at Dar es Sala~m) · (Makame, Kisanga and Ramadhani JJ.A) st dated the 21 November, 2003 in Civil Appeal No. 62 of 2000 RULING 25 th January & 1st July, 2010 KILEO, J.A.: This is an application preferred under Rule 8 of the Court of Appeal Rules 1979 in w~ich the applicants are seeking extension of time to file an application for review of the decision of this Court da~ed on 21 st November 2003 in Civil Appeal No. 62 of 2000. In that decision, the applicant's appeal 1. against the respondents was dismissed. The dismissal of the appeal was followed by Civil Application No. 5 of 2004 in which th~ applicants sought to have the decision reviewed. The application for the review which was filed in the court on· 19/01/2004 was struck out on 31 st March, 2009 for having been brought . , ·under the wrong provision of the law. Undaunted, the . appJicants, .with the assistance, of Ms Miriam Majamba have come back to the .Court seeking extension of time to file an application for review. . ' ' /.hen ~he application was called on for hearing on 25th January 2010, it was met with a preliminary point of objection, notice of which had been . filed earlier ·on by Crax ~w Partners on 13th. January 2010. The notice of objection, which was argued before us by Mr. Magafu learned counsel, contained two grounds ~amely: · 1. The Application is misconceiv~d and or incompetent for _failure. to state the grounds of the application l j 2. The Application is an abuse of the court process. i Submitting on .the preliminary objection Mr. Magafu argued that the i 0 appUcation was incompetent for failure to disclose the ·grounds thereof in I the Notice of Motion as required in terms of Rule 45 (1) of the Court of I ;j q ' App+eal- Rules, 1979. Mr .. Magafu submitted further that the application was :-. a1Y aouse-of~tne·coart~ptocess .in view of the fact that the applicants had filed a similar application which was struck out after it was found to be incompetent. Responding to Mr. Magafu's submission, Ms Majamba conceded that the .• ··. . . ' •..:~_:. .\·f'"·-·:-., grounds were not stated in the Notice of Motion as required under Rule 45 {() (1). She however, argued that this was not a fatal error and was one that . could be remedied as the· grounds for the application could be gathered ' . from the affidavit. As for the application being an abuse of the court process; the learned counsel claimed that it could not be so because this is · an application for ·ext~nsion of time within which to apply for review while . ' ) ~ the first application was one for review. She further pointed out that the application for review was never heard on merit~ 2 .r-~-... . .-~':,._. -.. . 1' '' " . . /4 ne of the points at issue ~s whether the application before us should be dismissed for failure to state the grounds thereof in the Notice of Motion. . . I am of the settled view that where grounds are not stated in the Notice of Motion but are clearly· stated in the affidavit then there would be no . . j1;,1stlf1cation in throvving out the a·ppllcation for that reason alone .especially conslderil)g that this Court is enjoined to dispense justice · without • t • - - being tied up wit~ undue technical provisions wh.ich may obstruct --~spensation . of justice. (See. Article 107A (2) (e) of the Constitution . of the United Republic of Tanzania). The question that follows however i~ whether the grounds for the application have been stated in the affidavit as suggested by Ms Majamba. I _have carefully examined the affidavit of Nicholaus Hamisi which . was filed in support of the Notice of Motion _but ·with due respect to~.Ms,.•Majamba, I have not been able to decipher the -grounds from· any of the paragraphs in the affidavit. Even the learned counsel herself did n·ot point out' the grounds from the. affidavit. For the above reason I would find the application to be incompetent. 1 he. above consideration is sufficient to dispose of the; application and I find a discussio~ of the second point raised in the Notice of Motion to be of no use. In the circumstances !·would sustain the first p9int of preliminary objection raised and strike ou~ the application. This being a labor matt~r I would. no.t . . make any order as to costs.· 3 DATED at DAR ES SALAAM this 9th day of April 2010. E. A. Kileo JUSTICE OF APPEAL · I certify that this is a true copy of the original .. .· ~ ) ,- .,, c: 0 ·· ;:_ -II · J.S. MGETTA (DEPUTY REGISTRAR) . . . ' )