registered trustees of joy in the harvest vs hamza sungura 2007 tzca 172 23 february 2007

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA TABORA CIVIL APPLICATION NO. 2 OF 2005 THE REGISTERED TRUSTEES OF JOY IN THE HARVEST..........................................................APPLICANT VERSUS HAMZA SUNGURA.................................................... RESPONDENT (From the Orders/Ruling of the High Court of Tanzania at Tabora) (Mwita, J .^ dated the 20th May, 2003 in Misc. Civil Application No. 2 of 2002 RULING 16 & 23 February 2007 LUBUVA, 3. A .: Before me is an application by notice of motion for extension of time in which to apply for leave to appeal to this Court. The application is made under the provisions of rule 8 of the Court Rules, 1979, (the Rules). 2 From the affidavit in support of the application sworn by Mr. Kayaga, learned counsel for the applicant, the facts giving rise to the application can briefly be stated as follows: In 1996, the respondent, Hamza Sungura successfully sued the applicant in the District Court of Kigoma. That was Kigoma District Court Civil Case No. 38 of 1996. Apart from the respondent being declared the lawful occupier of the disputed plot, the applicant was also ordered to pay the respondent shillings 3,000,000/= as damages. The applicant appealed to the High Court which ordered the District Court to record additional evidence of the former occupant of the disputed plot one Vrushank Desai. Instead of appealing against the High Court order for additional evidence, the applicant unsuccessfully applied to the High Court to review its order for additional evidence. The High Court heard the appeal on merit and on 6.2.2002 the appeal was dismissed. Dissatisfied, the applicant intended to appeal to this Court by first seeking leave to appeal. The High Court dismissed the application for leave to appeal on 20.5.2003. On 1.3.2005 a Single Judge of this Court (Kaji, 3 . A.) in the absence of 3 the applicant delivered the ruling striking out the application for leave. On 18.4.2005 the applicant became aware of the decision of the Single Judge striking out the application. Because there was a delay in reinstituting the application in this Court after it was struck out on 1.3.2005, this application for extension of time in which to apply for leave to appeal has been filed. For the applicant, Mr. Kayaga, learned counsel, appeared. He had also represented the applicant both in the High Court before Mwita, J. seeking leave to appeal and in this Court before the Single Judge. Counsel ardently maintained that there was sufficient cause for the delay in applying for leave to appeal. According to Mr. Kayaga, although the applicant initially had filed the application on time to this Court after refusal by the High Court (Mwita, J.) the delay in reinstituting the application after it was struck out on 1.3.2005, was not due to any negligence or laxity on the part of counsel for the applicant. The reason, Mr. Kayaga insisted, was that neither the applicant nor his counsel was aware of the date when the Single Judge delivered the ruling striking out the application. On that 4 day, counsel for the applicant was attending High Court Sessions at Nzega. However, Mr. Kayaga further submitted that as soon as he became aware on 18.4.2005 that the Single Judge had struck out the application, he immediately set upon processing this application seeking extension of time in which to apply for leave to appeal after refusal by the High Court (Mwita, J.) on 20.5.2003. At this stage, Mr. Kayaga emphasized, what is required is for the applicant to show sufficient reason for the delay which he said, the applicant has shown. He also said that he had diligently been following up the matter after becoming aware of the decision by Kaji, J. A. Mr. Muna, learned counsel for the respondent, vehemently opposed the application. According to Mr. Muna, no sufficient cause for the delay has been shown. First, he said even if it is accepted that Mr. Kayaga, learned counsel was busy attending High Court Sessions at Nzega as claimed, still the matter could be pursued by one Makungu Matwew (sic), his clerk, as reflected in paragraph 13 of 5 the affidavit. Second, having conceded that the applicant was not served with the notice of the date when the ruling was delivered by the Single Judge, still counsel maintained that the matter was not pursued soon after 18.4.2005 when the decision striking out the application was known. This, Mr. Muna submitted, was indicative of laxity and negligence on the part of counsel for the applicant. Third, that the affidavit in support of the application before the Single Judge was defective, which is also a reflection of laxity and lack of diligence in handling the matter by counsel. Laxity and negligence on the part of counsel does not constitute sufficient reason, Mr. Muna stressed. For these reasons, he urged the Court not to grant the application as no sufficient reason had been shown for the delay. It is common knowledge that in order for the Court to exercise its discretionary power in extending time under rule 8 of the Rules, sufficient reason for the delay has to be shown. Rule 8 provides: 6 "The Court may for sufficient reason extend the time limited by these Rules or by any decision of the Court or of the High Court for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing or the act, and any reference in these Rules to any such time shall be construed as a reference to that time as so extended". With regard to the basic requirement that sufficient reason has to be shown, it seems both Mr. Kayaga and Mr. Muna, learned counsel for both parties are generally in agreement with each other. So, the determination of this application hinges on the issue whether the applicant has shown sufficient reason for the delay in seeking leave to appeal after refusal by the High Court (Mwita, J.) on 20.5.2005. 7 In resolving this issue, I think there are two aspects of the matter. First, it is the earlier stage when the applicant sought leave of the Court after refusal by the High Court on 20.5.2003. During this stage, the application for leave to appeal to the Court was done within the prescribed time under rule 43(b). The matter took a different turn before the Single Judge of this Court (Kaji, J. A.) because of the defective affidavit in support of the application. The defect led to the application being struck out on 1.3.2005. Until this stage, it is my view that there was no problem relating to the issue, subject of this application. The other aspect relates to the stage from the time when the application was struck out on 1.3.2005. This is the relevant period for consideration of this application. With the striking out of the application, there was nothing as it were, left on the plate. Time for seeking leave from this Court had to be reckoned from the time after refusal to grant leave to appeal by the High Court (Mwita, J.) on 20.5.2003. Unless leave was obtained for filing the application out of 8 time, otherwise the notice of motion filed on 18.5.2005 was clearly out of time. As a result, this application has been filed in this Court. From the time, the applicant became aware of Kaji, J. A's ruling on 18.4.2005, there is no evidence to the contrary that the applicant or his counsel had not immediately set about following the matter diligently. After all, as Mr. Muna correctly conceded, the applicant or his counsel had not been served with the notice that the ruling would be delivered on 1.3.2005. In that situation, I am with respect, not in agreement with Mr. Muna that there was either laxity or negligence on the part of the applicant in the handling of this application after becoming aware of the ruling of the Single Judge on 18.4.2005. The processing of the application until its filing on 18.5.2005 may not in the circumstances of the case be regarded as unduly long and without reason. As I pointed out to counsel for both parties during the hearing of this application, I would not deal with the grounds of the intended appeal at this stage. Apparently, Mr. Kayaga was inclined to address the Court on the grounds. These, as I pointed out are not relevant at this stage when the relevant issue is sufficiency of reason for the delay. All in all therefore, taking into account all the circumstances of the case, I am increasingly of the view that sufficient reason has been shown for the delay in applying for leave to appeal against the High Court decision (Masanche, J.) in Tabora High Court (PC) Civil Appeal No. 41 of 1998 of 6.2.2002. In the event, the application is granted. Time is extended for 14 days from the date of delivery of this ruling within which to apply for leave to appeal to this Court. It is so ordered. 10 DATED at MWANZA this 23rd day of February, 2007 D. Z. LUBUVA JUSTICE OF APPEAL I certify that this is a true copy of the original. UMANYIKA noo REGISTRAR