20100226 TZCA Arusha 1

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA CIVIL APPLICATION NO. 11 OF 2009 1. SHABBIR KARIMJEE 2. FAKHRUDDlN ZAVERY 3. JUZER LAMUWALLA .

4. SAIFUDDIN ISSACK..........................................APPLICANTS

VERSUS 1. THE HON. ATTORNEY GENERAL 2. INDERJEET BASSAN SINGH -legal representative of GURDIAN SINGH and hardev sigh (deceased) 3. HARBIN DER SINGH SOOR - legal representative of TARU SINGH ........................................................................... RES PON DENTS (Appeal from the decision of the High Court of Tanzania at Arusha) (Mushi, J.) dated the 27th day of May, 2000 in Civil case No. 33 of 1999

RULING 18th & 26th February,2010 MANDIA, J.A. By notice of motion lodged in this court on 17th June, 2009 the applicants sought to move this court for orders that time within which they can lodge a notice of appeal against the order of the High Court in Civil case No. 33 of 1999 be extended. Mr. Alute Mugwai assisted 2 by John Umbula, learned advocates, .and appeared for the applicants. Mr. Obadiah Kameya, learned Senior State Attorney, appeared on behalf of the first respondent and Mr. De Souza, learned advocate appeared for the second respondent. The notice of motion is supported by the joint affidavit of learned advocates John Sikay Umbulla and Alute Simon Mughwai deponed on 16th June, 2009. Mr. Obadia Mugasa Kameya, learned Senior State Attorney filed a counter-affidavit on 16th February, 2010. The brief background of this matter as pointed out by the parties in their respective affidavits shows that the applicants were plaintiffs in Civil case No.33 of 1999 in which the respondents in this application were defendants. The above named civil case was struck out by the High Court after the defendants successfully argued a preliminary point of law in the High Court. The present applicants, through their counsel, filed a notice of appeal in time in the High Court of Tanzania, Arusha, where the notice was endorsed by an official other than the District Registrar. The Notice of

Appeal was endorsed on 19th June, 200. On 14th September, 2001 the court of 3 Appeal of Tanzania, in WILLIAM LOITIAME vs ASHER! NAFTALI Civil Appeal No. 62 of 1999 invalidated all notices of appeal endorsed by court staff other than the Registrar or District Registrars. On 2nd April, 2003 the applicants lodged in the Court of appeal of Tanzania, Arusha sub Registry, a withdrawal of their notice of appeal filed on 19th June,2000, and were categorical that they were withdrawing the notice because they no longer wished to proceed with the appeal. On 6th June, 2005 the Hon. The Ag. Chief Justice marked the notice of appeal filed on 16th June, 2000 withdrawn. Thereafter the applicants instituted Misc. Civil Application No. 48 of 2005 in the High Court of Tanzania Arusha, seeking extension of time to file a notice of appeal. This application was dismissed. The applicants are railing against this order of dismissal. In reply, Mr. Kameya argues that the applicants are themselves to blame for filing a defective notice of appeal and they urge the court to treat this as an act of negligence. Mr. Kameya also argues that the applicants through their counsel indicated that they were withdrawing the notice because they did not intend to pursue the 4 appeal any more, and that they cannot be heard to say now that they withdrew with an intention of refilling the same. Both sides have submitted

authorities to bolster their arguments. 1 It is trite law that in conside ring extension of time within which to file a notice of appeal the guiding light is "sufficient reasons" advanced by the applicants or their advocates for the delay. After listening to both counsels I am of the opinion that instead of giving reasons for delay the applicants have been apportioning blame to others except themselves. For the error of handing over a notice of appeal to a non- designated officer they blamed the William Loitame case, not themselves who lodged the notice. They also blame counsel for the second, third and fourth respondents for suggesting to them that the notice be withdrawn to pave way for afresh notice, but there is nothing on record to show that they were forced by anybody to apply for withdraw of the notice. In their notice of withdrawal, they categorically stated that they did not wish to prosecute their appeal any further. Who forced them to say that? 5 IJ And if they were under any inimical force, why did they not tell the Hon. The Chief Justice they were not acting out of their own volition? This is the first time I am hearing of counsel remotely suggesting that he took action not on professional considerations but at some other person's prodding. The reason the applicants gave for withdrawing their notice in their communication to the Hon Chief Justice tells it all - that they did not intend to pursue the matter any more. I am satisfied that no sufficient reasons have been advanced. The application is dismissed with costs to the respondents. DATED at ARUSHA this 26th day of February, 2010. W.S. MANDIA

JUSTICE OF APPEAL I certify that this is a true copy of the original. M.A. MALE 0

DEPUTY REGISTRAR

COURT OF APPEAL