20080812 TZHC Dar es Salaam

I '.~) .--~ \l IN THE HIGH COURT OF TANZANIA AT DAR-ES-SALAAM CIVIL APPEAL NO. 106 OF 2008 OTTU (TAFICO BRANCH) On behalf of 83 TAFICO WORKERS .................... APPELLANT VERSUS PARAST AR SECTOR REFORM] COMMISSION .................................... RESPONDENT Date of Last Order: 17/06/2008 Date of Ruling-12/08/2008 RULING ,..-, ,~ Mlay, J. The Applicants OTTU TAFICO BRANCH on behalf of 83 TAFICO WORKERS have filed an application by Chambers Summons Under Section ll(i) of the Appellate Jurisdiction Act (Cap 141 RE.2002, Section 14(i) of the Laws of Limitation Act (Cap 89 RE 2002) and Order XLIII Rule 2 of the Civil Procedure Code Cap 33 RE 2002 . The applicant is seeking orders for "Extension of time for the Applicant to file Notice of Appeal out of time for the purposes of appealing against the decision of this Honourable Court ...... " as well as for "costs of the applicants" The application is supported the affidavit of SHABAN AMOUR who has deponed that he is "among the 83 members of OITU TAFICO who are the Applicants in this application .... ". The deponent SHABAN AMOUR has further deponed as follows: 2. That on the 27th of March this honourable Court delivered judgment in Civil Appeal No 106 of 2001 demising the Applicants Appeal. 3. The judgment was delivered on 27th March 2007 in absence of both parties that is neither the Applicant nor the Respondent was aware of the date of the judgment. No notice of delivery of the said judgment. The Court had categorically declared that judgment will be upon notice of the parties. 4. That I went to court on a separate date to receive the ruling of another case to same judge and I discovered after asking the court Clerk of 2 Mlay, J. that the judgment in Civil Appeal No 106 of 2001 has already been given out in absence of both parties and without notice. 5. I Informed out Advocate Maira and Company who wrote a letter to the Register of the High Court so as to be supplied with the said copy of the judgment in order to know what the decision of the Court. 6. I managed to get a copy of the Judgment on 18 th July 2007 and we intended to appeal as we are not satisfied· with the decision of the Court but the some could not be field till orders in the Chambers Summons are graduate. 7. That I advised by my counsel, Moses Maira , the advice which I verify believe to be true that leave of this Honourable Court in mandatory in order to appeal against this decision completely. 8. That if the orders sought in the Chamber Summons are not grated the applicants shall suffer an irreparable loss. 1 The Respondent the PARASTATAL SECTOR REFORM COMMISSION filed a counter affidavit by their advocate, MARIA MALINGUMU KASHONDA, who noted the contents of the Applicants supporting affidavit, but deposed "that no irreparable loss will be occasioned as the intended appeal does not stand any chance of success" 3 The advocates representing both parties filed written submissions on the application. In short the Applicants advocate submitted that, 11 there is no dispute that judgment was delivered but in the absent (sic) of both parties". The learned advocate further submitted that 11 one of the most important points to consider whether or not to allow an appeal out of time is to whether the applicants have shown sufficient and reasonable course of the delay ..... ". He cited the case of SAIDA V SAIDI MOHAMED (1989)206 in which the leaned advocate said "it was held that as reasonable and sufficient cause for the delay his been show application for extension of time of granted". The citation of the case SAIDA V SAIDI MOHAMED as given by the advocate is not known to this court and as the text was not provided, it has not been possible to verify the holding in that case or its subject matter. Be that as it may, the Applicants advocate also cited the Case of SAMSON KISHOSHA GABBA VS CHARLES KINGONGO GABBA [1990] TLR 133 where it was held that, in determing whether or not to allow an application for leave to appeal out of time the court has to consider reasons for the delay as well as the likelihood of success of the intended appeal. He further submitted that, "looking at the matter at hand ... .. the appeal has however chances of success as there is point of law involved for the attention of the Court of Appeal". The Applicants advocate went an to enumerate the alleged points of law as follows: 4 1. Whether the trial Magistrate erred not to have advised the Appellants to appear against the order of the High Court that the Resident Magistrate Court had power to hear the matter. 2. The Resident Magistrate erred in law in disregarding other provisions of the law. 3. Whether the Principal Magistrate erred in Law in disregarding the judgment of law Superior cause. The Applicants advocate submitted that for the above reasons reasonable and sufficient cause for the delay has been shown, the Appeal has good chances of success and the extension applied for should be granted. The Respondents advocates submitted that section 14(1) of the Law of Limitation Act gives discretionary powers to the court on deciding whether an not to grant leave for extension of time to file Notice of Appeal out of time. They further submitted that the "Applicants submission that they could not have the content of the delivered judgment and have the cause of delay has no weight". The Respondents advocate argued in effect that the Applicants had the duty to follow up the judgment The learned advocates further argued that the fact that the judgment was read in their absence and despite the fact that the court did not issue summons for the date of judgment, uthe Applicants if they had 5 acted deligency would have know that judgment had been delivered shortly after the Court had delivered it". The Respondents Advocates submitted that, "the Applicants had duty to make a fallow up of the matter the duty which they failed to discharge". On the above submissions the Respondents advocates prayed that this application be dismissed, with costs. The record shows that OTTU T AFICO BRANCH suing on behalf of 83 TAFICO WORKERS sued the PARASTATAL SECTOR REFORM COMMISSION in the Court of Resident Magistrate of Dar es salaam at Kisutu. A Principal State Attorney representing the Attorney General appeared on behalf of the PSRC and raised an argument that PSRC cannot be sued before the subordinate Court because it is an autonomous organ of the Government and that it can only be sued in the High Court. The trial Magistrate held that PSRC has two faces, a corporate body which can sue and be sued and as an autonomous body of the government. He held that as a corporate body PSRC can be represented by a private advocate but as an autonomous body of his Government it has the right to be defendant by the Attorney General for the purposes of safeguarding Government interests. On this reasoning, the trial Principal Magistrate held that a suit against PSRC automatically would be a suit against the Government hence triable by the High Court. The Plaintiffs appealed to this Court in Civil Appeal No 78/95 in which 6 Kalegeya, J (as he than was), decided that whereas the Government was at liberty through the Attorney General "to apply to be joined as a party or upon the application by PSRC itself under third party procedure, either channel however does not mean that the Attorney General can simply appear in Court and declare himself a party to a suit- he must come under the procedure provided under the Civil Procedure Code ............ ". For this reason Kalegeya, J (as he that was) allowed the appeal and sent back the case to the trial Court "for trial as the said court is vested with jurisdiction to try the same treading on the parties so far on record". When the case went back the Luguru PRM for trial as ordered by Kalegeya J, the Defendants advocate the late Kapinga raised a preliminary objection that the trial court lacked jurisdiction because under Government Notice No. 322 of 1996 the Tanzania Fisheries Corporation (T AFICO) was specified and as the result of the specification the PSRC was appointed as the receiver of T AFICO pursuant to section 43 (1) of the Public Corporations Act. It was argued that under section 97 of the Bankruptcy Ordinance, the proceedings had to be filed in the High Court, following the appointment of PSRC as receiver of TAFICO. The Principal Resident Magistrate upheld the preliminary objection and "dismissed the suit for want of jurisdiction". The Plaintiffs again appealed to this Court on three grounds. This appeal 7 • was dismissed on all three grounds in a judgment delivered on 27th day of March 2007. The Judgment is recorded to have been delivered in the absence of both parties and this has been given as the reason for the delay by the Applicants to give notice of intention to appeal within the prescribed time, which is 14 days from the date of judgment. Section 11 (1) of the Appellate Jurisdiction Act Cap 141 2002, which is one of the there provisions allied upon, provides as fallows: 11-(1) subject to subsection (2), the High Court, .........., may extend the time for giving notice of intention to appeal from a judgment of the High Court or .......... for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired. Since Section 11 (1) of the Appellate Jurisdiction Act gives power to this court to extend the time for giving notice of intention to appeal or to file an application for leave to appeal or for a certificate of a fit case for appeal, section 14 (1) of the Law of Limitation Act Cap 89 RE 2002, which has also been cited and relied upon for this application, is inapplicable to this particular application. The applicants advocate has correctly submitted, in 8 order to succeed, the applicants most show a good cause or a reasonable cause for the delay to file the notice of intention to appeal within time. Not being aware of this delivery of judgment would in normal circumstances constitute a good cause. In the present case however, although the judgment is recorded to have been delivered in the absence of both parties, the record of the proceedings on the date the judgment was delivered will show that one SHABAN AMOUR, an interested member, is recorded to have been present. Since the Appellants were on record known as OTTU T AFICO BRANCH on BEHALF or 83 TAFICO WORKERS, Bakari Amour one of the workers represented by the OTTU TAFICO BRANCH could not have been recorded as a party, but he is recorded in the proceedings to have been present. Bakari Amour is the deponent of . the supporting affidavit and as an interested party, he was in a position to make the applicant aware of the delivery of the judgment on 17/3/2007. Since it is the same Bakari Amour who made the Applicants advocate aware of the delivery of judgment but late, and the Applicant is relying on the affidavit of the same Bakari Amour, who was present in court on the date the judgment was delivered, the applicants cannot claim that they were unaware of the delivery of the judgment on 17/3/2007. the delivery of judgment in the absence of the parties cannot, in the circumstances of this case, be a good as reasonable cause for the delay to give notice of intention to appeal. . 9 ' I The applicants have also advanced likelihood of success of the appeal as another reason for granting an extension of time. The reasons would be applicable if this was an application to appeal out of time. In addition the reasons as listed in the submissions, are based on the decision of the trial Magistrate, instead of the judgment of this court which is the subject of the intended appeal, if this application succeeds and another application for leave to appeal out of time is successfully made and granted. In the final analysis the Applicants have not shown a good cause or a reasonable cause for the delay and accordingly, this application is dismissed, with costs. Delivered in the presence of Ms. Kashonda advocate for the Respondent also holding brief for Mr. Maira Advocate for the Applicant this 12th day of August 2008. ,ah 12/08/2008. 10