19970114 TZHC Dar es Salaam

IN TiIE HIGH COUJ?.r OF TAl'J:6,hNIA DAR :&s .SALAAM DISTRICT REGI:..,T1::Y CIVIL CASJ!i !'Kl. 62/1990 The Tn~stco of Sunn ·Muslim Jamaat (Hcmafi Sect) with leave of the Attorney General & Minister for Justice. • • • • •••• • ~ •.•••••••••••• e • • • • • Plaintiff versus Sayeed Mazar. Kac1ri•••••••••••••••••••••Defendant Iqbal Halduy•••••••••••••••••••••••••••Defenda~t Ibrnhim S,:i.nc;ay .r,'( others ••••••• • •••• • •••Defendant -·---,----- RULING This is an a:r1Jlication un<ler Rules 41~, 76 uncl i36 of' the Court of Appeal Rules. It is suppo1~tecl by an affidavit. The prayer to the Court is for leave to file notice of intention to appe0l one of time and also leave to file memorandum of a.ppeal out of time. The List of the applicv.tion is that the 1~u1ins in the. cnse at hand was delivered on 16/9/92 in the presence of Yir Semgo.J.awe who was a partner with Nr. Mchora in the lm·1 firm knoi•m o.s ,itDar es Sa.larun Attorneys and Associntes.• 1 Prior to that Mr Semgalawe had appeared .,_ for the applicant on 22/5/92 when the raatter was hen.rd and rulinr, 1,ias delivered on 16/9/92 as aforementioned. On 29/6/92° unar es Sulaam Attorneys and. Associates• 9 1r.ras dissolved. It would appear that Mr 5 eme,ralat-1e· did not c0111muni~ate the Ruling of the Court on 16/9/92 to his partner nor did he take steps to apperu. against the Ruling. By the time Mr Mchoru beca-ne aware of the Rulil-ig the t~me to file notice of intention to appeal and. memorandum of appeal had long lapsed., The intended appeal has overwhelming chance~ of success, hence this application. In reply, Mr Ismail, learned com1Sel for the respondents submitted. tmi.t the Court of Appeal Rules require notice to be filed within 14 4ays of the Ruling. But here the appli~e.tion for enlargement .of· time to file notice was made on 27/11/92, L .l - 2 ... morethan 1}~ months late. The application has not giyen any reason for the delay. He sn.id . that paragraph 6 of the affidavit did not help matters because, it does not say when Mr Mchora bec..o:;."lle a.ware of the Ruling so that the court may be able to se~ .~thether there was any diligence in filing the present application. He referred to the counter affidavit which avers that on 22/11/92 there was some dis~ussion of the' Ruling of the Court, ttlri.•h meant that the office beares of the Sunni Muslim Jamaat were aware of the Ruling. He argued that the •ourt should have been told when Mr Mchora or his clients came to know about.the Ruling. He went or further to· argue that if it is true that Mr Semgaiawe did not·notify Hr Mchora ·· one would expect Mr Semgalawe file the affidavit rather than the deponent who •ould not knew of his o.,.m knowledge whether N.r • Scmgalawe had not notified Vil' Hchorti about the Ruling. Mr Ismail questioned the affii;lavit which talks of ilMchora & Company" as if it were a legal person and added that the affidavit should have stated who told the deponent that Mr Semgalawe ha.d not notified ' Mr Mchora. He arqued that M:;.~ Hchora could not esc8:pe liability even if rir Semgalawe did not notify him be'°-use liability wa.s attributable to the firm. He concluded that no valid reason for extension of time had been given and that in any case the Ruling was sound and there was no chance of success1 hence the delay which has been eaused by the applicant in this matter. In a short reply Mr Komba learned ~~unsel for the applica..~t 'submitted that paragraph 6 of the affidavit showed that Mr Mchora received information about the ruling after time to file memorandum of appeal had lapsed. But Mr Komba withdrew t~s submission when he was challen&ed by the court to explain how para 6 of the affidavit could mean that. This is an application for extension of time to file both the notice and the memorandum of appeal out of time. This application has taken a very long time to take off and had it not been for the objection of Hr Ismail, it would not have been heard on 3/12/96. Neither party was diligent enough in ensuring that the application is heard. As for the affidavit apart from paragraph 1 and 2 which are introductory, none of the other paragraphs is from the kno\-tledge of the deponent. Therefore there is no prbof of any of the matters I deponed in the affidavit apart from the fa•ts that the deponent is • • oo,./}• · .. ., - 3 .. a trqstee and that Mchora & Coml?any was engaged to file this ·•ase (paragbaphs,,-1 & 2) 0 This •-'.>urt CruL'tlot act on such an ·' affidavit which •~ntains hearsay evidencee Secondly, even if the -•:>urt were to act on this affidavit, there is no way in which the court can measure th~ diligence of Mr Mchora-1.n this matter because it is not .shovm in the ~fffd.av:l.t ._,.,hen I'll:' Mchora knew of the ruling 0 If 9 for example ~Ir J1chora knew about this 1 ruling at the end of September ·1992 a.nd he filed this application on 22/11/92~ then surely he,wa.13 hot-diligent _enough and this court . - • ~Quld have to take this fact into consideration in order to come to it·s decision. Since no_thing has been said about the date when Mr Mchora came to knew about the ruling, the court is left to SJ)eculate and in doing so it .cannot determine whether Mr Mchora was diligent or not • . Furthermore the affidavit cannot establish really whe,ther Mr Semgalawe failed to notify Mr Mchora about the Ruling because one would have_ezj)ected Mr Semgalawe to file his affidavit to the effect that le actually did not notify lrl.m. As such the whole thing remains simply hearsay• ,;. t-,astly, I. do not ag-ree that the intended appeal has overwhe]Jning chances of success since I.think the ruling is quite sound in law. 1 For thc above reasons :t am·not inclined to grant ~his applica- tion which I dismiss with costs. A. BAH.ATI JUDGE · 31/12/96 1 Cerami A. Ro Hanento, SDR -He. : Parties - Absent cc. : Asha Livanga Order: Ruling/Judgment 10/1/97 • ...-:~•·~ Partios to be notified. : ~-\ \.. ·:··::·:·~~...::~ A. R •. HANENI'O,SDR-HC 31/12/96. 14/1/97 Coram~ Ma:nento,SDR-HC Komba - For the Plaintiff Hr.Ismail - For the Defendant cc. Livanga ~~...ll The ruling is read in the presence of the cqunsels. ;,:t{t. . -\7::· A. R. t-v\NEi\f.ro ~ SDR-HC 14/1/97. ( ·1 ,,) ' r' I