20091117 TZCA Dar es Salaam

I I IN THE COURT OF APPEAL OF TANZANIA 1 AT DAR ES SALAAM I CIVIL APPLICATION NO. 44 OF 2009 I I THE BANK OF TANZANIA .... ~-. .................................... ~ ........ APPLICANT . VERSUS I EMERENCIANA CHRYSOSTOM ....................................... RESPONDENT I I (Application for extension of time within which to file an application for revision and stay of execution from the decision of thf High Court of Tanzania at Dar es Salaam) . . I i (Mruma, J.) i I dated the 1 st day of. September, 2008 I in I Civil Case No. 336 of 2001 RULING 14 September & 17 December, 2009 NSEKELA, J.A.: The applicant, The Bank of ~anzania filed al Notice of Motion : I under Rules 3 (2) (a) and 8 of th~ Court of Appejl Rules, Cap 141 R.E. 2002 (subsidiary) seeking, int~r alia, the follow ing orders - 1 1 (a) That time be extended to enable the a~ plicants to file an application for revision of the whole p'roceedings of the High Court (Hon. Mrum~, J.) in Civil caJe No. 336 of 2001 I I to satisfy itself as to the irregularities and incompetency of the proceedings; I (b) That the execution of the decree be stayed pending the ': filing of the intended revision. The notice of motion was supported by an affidavit sworn by . I one Regina Kwigema Sinamtwa. The genesis of th~ notice of motion .! ' is High Court Civil Case No. 336 of i2001 before MnJma, J. From her . I affidavit, the applicant filed a Notice of Appeal Ion the 1.9.2008 against the decision of Mruma, J. Apparently on 24h.2009 this Court , I . I (Kimaro, J.A.) struck out the appeali (Civil Appeal Nd. 135 of 2008) on the ground that there was non-co~pliance with Rui'e 82 of the Court I of Appeal Rules since the applicant had not served the notice of I appeal upon the respondent withirn the prescribed time. With this I state of affairs, the applicant is no\f' seeking an enlargement of time to file an application for revision. ~hat is, this Cou~ should invoke its revisional jurisdiction. However,· it-·dawned upon the applicant that the prescribed period for moving tllis fourt to enlatge time had long expired, hence the current application. The affidavit in support of I the application has some eight paragraphs, but I shall only refer td paragraph 6 wnich is relevant. It reads - 2 "That, the proceedings i~ the High Court iwere irregular and incompetent regarding a~ong other thing; jurisdiction :of the trial Couh on 1 the case which is a labour matter, thu~ the I Applicant has great chance of success iin its intended application for tevision. j I I That in the circumstances and in the interest I I of justice, I pray that this Honourable court 1 be pleased to grant the ;prayers sought i,n the Notice of Motion". Ms. D. K. Mutabuzi, learned advocate for the applicant, I I submitted that the decision in Civil Case No. 336 of 2001 was 1 I delivered on the 28.8.2001. The appellant lodged ~ notice of appeal 1 I against that decision but the High Court, (Mruma, ].) struck out the I I notice of appeal on the 24.2.09 on the ground that it had not been I I : I served upon the respondent within the prescribed seven days. Under i the circumstances, the learned 'ad~ocate contendJd that she could not appeal and is therefore seeking the Court to efercise its powers of revision. However there is a hurdle to jump over, namely seeking an enlargement of time to file an cipplication for re~ision. The bone 1 I of contention is that the High Court had no jurisdi~tion to hear and 3 determine the case, i.e. the High ~ourt lacked juri~diction in labour I ;I I cases. 1 1 I Mr. E. Shayo, learned advoc~te for the res9ondent, strongly I resisted the application. He submitted that the applicant filed in this I I Court Civil Appeal No. 135 of 2008 which was struck out. Judgment : I was given on the 28.8.2008 and th e applicant had sixty days within 1 1 which to apply for an order of revisi:on. This applicition was filed on the 2.4.2009, clearly out of time; · · The applicant has not given sufficient reason to explain the ~elay. The quistion of lack of I jurisdiction did not amount to sufficient cause to warrant the court to exercise its discretion in favour of ~e applicant. I My starting point is of cours~ Rule 8 of the Court of Appeal i Rules Cap 141 R.E. 2002 (subsidiary) which reads - "The Court may. for su~cient reason jxtend . I the time limited by these Rules or by any 1 decision of the Court or of the High Co~rt I for the doing of any act authorized or requi~ed by ' ' ' these Rules, whether I before or after the expiration of that time ~nd whether befbre or : I 4 ,,1: i,I' ' ·I I after the doing of the ad, and any referrnce i . I in these Rules to any .:such time shall be '! I construed as a reference to that time as so I extended". ,, I I I t :: I Under Rule 8 above, this Court has discretion to extend time for 1 i' ,i the doing of any act in terms of that rule if sufficient reason is given. 1 The question to answer is what amiunts to suffi~iJt reason. This ·I · 1 I needs scrutiny of the affidavit in sufport sworn by jegina Kwigema Sinamtwa. This Court (Kimaro, J.1.) on the 24.2.f 009 struck out Civil Appeal No. 135 of 2008. This ,~means that the ~pplicant had to I . start all over agai-n to institute the !appeal.· Rul~ 8 /gives this Court f ' wide discretion in granting extensioh of time within/ which to take a particular step required by- the iules, Like :anj~ other judicial discretion it must be exercised judidally and on sound principle. It is I ,I I I i ' 1 established that this discretion is ex~rcised in favpun of the applicant [I ·t r -1 showing evidence of sufficient cayse. The sufficjent cause must relate to the failure to take particui;ilr steps in tiine/ In the case of i~ i I Shanti v Hindocha & Others [1[973] EA 207, trne then Court of '·i : 'ii Appeal for East Africa had this to say - : I! I I 5 I I I r I I I I I "The position of an applidant for extension of time is entirely different from that ofl an I I application for leave to appeal. He is I I concerned with showing sufficient , reason Iwhy he should be given more time and the rhost I • I persuasive reason that he can show ... is that 1 the delay has not been c/iused or contrib ~ted 1 by dilatory conduct on his part. But there I I I may be other reasons and these are all , I matters of degree. He does not necessarily I I have to show that his appeal has a reasonable . I prospect of success or even that he hals an arguable case ... " ,: I ! I I 1 In Consolidated Civil Reference s No. 6, 7 and slof 2006, (i) VEP . I engineering and Marketing Limited (2) Tan:tania Revenue I I I I Authority (3) The Liquidator of Tri-Telecommunication (T) I I Limited (unreported) this Court obs'erved, inter alia,/ that - I .. ii .. "We have already acce~ted it as establ:ished law in this country that where the point Jf law at issue is the illegali~--or· otherwise qf the decision being challe~ged, that. by / itself constitutes "sufficient , reason" withirl the I I 6 I I I I I ,: I meaning of rule 8 of the :Rules for extenqing time~ I I And in the case of Abdalla Salanga and ~3 Others and I Tanzania Harbours Authority, Civil Application ~o. 4 of 2001 (unreported) a single judge of this Co'l1rt stated - I I I "Rule 8 of the Court Rules requires that an applicant for extension of time give suffiJient reason. This Court in a ~umber of cases! has accepted certain reaso~ as amountin~ to - - • • • - I •• I sufficient reasons. But no particular reason, I ' or reasons have been set out as stanldard I ' sufficient reasons. It '.all depends onl the i I particular circumstances of each application." I '1 The matters which this Court takes into account include - I I . I (i) the length of delay; 1 (ii) the reason of the delay; ,I I I (iii) possibly, chances of: appeal succeedjng if I the application is granted; I. (iv) degree of prejudice: to the respondint if I I the application is granted. I I I I 7 I I I I I ! , I With respect, I agree with Mr,. •Shayo learned advocate for the 'i . I respondent, that the reason advanc~d by learned 9dvocate for the applicant related to the question of ilack of jurisdictibn. However, I 1 I f ' ' part company with him that this did I not amount to ufficient reason to warrant enlargement of time. whether or not th~ trial court had I jurisdiction to entertain the matter i$ not a question before me but I am of the settled view that it is a niatter that shou1b be determined I by the trial court. In the result I grant the extension of time and stay of execution , I 1 I I as prayed. The application should be lodged with.in fourteen (14) I I days from the date this ruling is delivered. Costs to qe in the cause . . I .. It is so ordered. i I DATED at DAR ES SALAAM thi 11 th day of Decfmber, 2009. 7 I H. R. NSEKELA , ,., '.'1 I JUSTICE OF APPEAL I certify that this is a true cop~ of the original.