20080515 TZCA Dar es Salaam

'i I , II ., I lj i: IN THE COURT OF APPEAt OF TANZANIA AT DAR ES SALAAM I I Ii1 : I CIVIL APPLICATION NO. Ii 94 II OF 2007 1: 1·, 11 it TANZANIA PORTS AUTHORITY :I fi (The Successor to Tanzania Harbours ! . Authority) ..................................... Jj, .. I:· ................APPLICANT VERSUS I : WILLIAM MAJI YA PWANI. ............ ~ ... J....•••••••... RESPONDENT (Application for Extension of TimJ frlm the decision of the High Court of Tanzania at Dar es Salaam) II ! I i (Oriyo, J.) 11 11 I: th dated the 26 day of Oct9ber, 2006 'I ■ , In • l Miscellaneous Civil Cause I No. 115 of 2002 1: ------ :1 I I !J RULING· i 22 April & 15 May, 2008 MUNUO, J.A.: , .i The applicant, Tanzania Ports AJhlrity, brought the present I Ii application under Rule 8 of the Tanzani~ ciurt of Appeal Rules, 1979 I !; for extension of time to serve a Notice ~f !Appeal lodged on the 30th ,I 1. October, 2006 against the decision in J I1 is~ellaneous Civil Cause No. , 115 of 2002 in the High Court of TanzJniJ at Dar es Salaam on the I\ , 2 i . i : L 26th October, 2006, on the Respondent,! M,r. William Maji ya Pwani. I .i: II Mr. Mchome, learned advocate, represented the applicant. The 1: ; ,I : !1 : . Respondent appeared in person. :1 · :1 I :1 Adopting the affidavit in support or t~e application, counsel for the applicant submitted that failurJ fo timeously serve the i I! ,I I respondent arose from the fact that the l~tter had indicated that he 1: r; .l I would be served through COTWU (T) byt ciid not identify a particular [/ /i person at the COTWU (T) offices at t1na'~i Mmoja for purposes of Ii 11 service. Hence when one Mr. Kelvin K~agilwa went to the COTWU 1: ,I (J) offices to serve the respondent he tas turned away because the I Ii ! I I respondent does not work at the CO~U /(T) offices, and as it was, nobody at the said offices agreed to adce~t service on behalf of the ' . i :! respondent. Because the respondent's residential address was not ·I' ,I i) known to the appellant, it took time be,or7 he was traced for service after one Mr. Mbeleka at the COTWU ;j(T~ offices indicated that his office would indeed accept service for !1th~ respondent. As time for i : serving the respondent had elapsed~ dounsel for the appellant I•I I'11 i !, brought this application for extension ofi tirpe. I j! i . i 3 i' Ii The respondent filed a counter-affidavit insisting that he had I i instructed the C01WU (T) office to rece:jve! service so failure to serve i i the Notice of Appeal on him was caustd i1 :by the appellant's lack of I: , I' diligence so there is no justifiable cau$e :Jor granting extension of time. I 11 I ii I'. The issue is whether there is ground for extending the period i of limitation to serve the Notice of Appe~I o:n the respondent. ,, II :I I . 1': :: : ,i II 1 ' Rule 8 of the Tanzania Court of Appeal, 1979 states: I I :: ! ,! ,. 8. The Court may for s_ufficient reason extend the time limited bv these Rules or by any High Court . !~or the doing of :; i any act authorized or required by these \ 1. IJ l' Rules whether before or after the i ' expiration of that ti,rle land whether 11 ' before or after the dqing of the act, 1 and any reference in these Rules to 1 1, I l i any such time shall be construed as a I ,: reference to that time as so extended. i I ·! ,i 1: I: i, On the issue of limitation therefore, the to~rt would extend time is if 'i ;: there is sufficient ground for doing so. Th~ Court affirmed the same I .I I ' !I 'I i 4 l ; .i 11 . i 1: " in the case of Dr. Ally Shabby versuf 7:anga Bohora Jamaat, . i 1i Civil Application No. 48 of 1997, Co~jrt: :;of Appeal of Tanzania . I (unreported) wherein the Court undersc1(e1 the holding in the case of Edwards versus Edwards (1968) IWL R 149 at Page 151: 1 .I. II: :1 :! :; ;1 ,.· i ......... Parliament has left a discretion I . in the I .I courts · to dis11ense ,., with': 'I Ii the time I " requirements in certain resprctf- That does i' i' not mean, however, that the nJles are to be 1 1 i . . regarded as, so to speaR, antique time 11 11 pieces of an ornamental ValU:e but of no I ;! ' i: chronometric, so that lip s1rvife only need be paid to them. On the boqtrary, in my 11 i· . I 'I view the stipulation which Parliament has I ,! laid down or sanctioned as to ifme are to be 1 !I i observed unless Justice c/e~rly indicates · I Ii that they should be relaxed. ... ·j· .. :, '11 1: . 1 In this application, the address of servi~e ~he respondent gave, did 'I I! 1 not specify who at COTWU (T) offices \No Lld receive service on his i I ,; ;I 1; I, behalf so the first time Mr. Kelvin went to $erve the Notice of Appeal . I :i he was turned away by the receptionist.i l, 'In the quest to trace the 1 respondent's residential address, the abp~llant's agent returned to I 1; I l 1 I ,I 'I 11 I • . :1 5 :1 I I I the COTWU (T) offices at Mnazi Mmoja (pr [assistance. It was then, 1 • II ! that one Mr. Mbeleka, a principal office~! ofJ COTWU (T) cooperated I :1 ' Ii and accepted service for the respondent ibyl'which ' 1. time the period of I I' !! limitation had already elapsed. ! 'I :j ·: 1' . '! Ii :: I· Under the circumstances, the appli9anf cannot be held liable for 1 faHing to serve the respondent within timr. ilack of a proper physical address which would have enabled tre applicant to serve the ,I 1 respondent directly caused the delay of terying the Notice of Appeal ' ,I I I! on the respondent. Hence this constitutes sufficient ground for 1 II ! enlarging time. I accordingly extend the tirrne to serve the Notice of 'I i I !i Appeal on the respondent by 14 days kommencing I 1, today. Costs I 1: I ,, within the cause. 'I !I ·! :: lJ I ii1 I DATED at DAR ES SALAAM this 1st1 d~y of May, 2008. '' I I I i ,! Ii 11 II !I I E. N. MUNUO . !I i ': JUSTICE OF APPEAL ' 6 • .iJI I J j I !