20170629 TZHC Arusha2

«l-~ IN THE HIGH COURT OF THE UNITED REPUBLIC bF TANZANIA I I (DISTRICT REGISTRY) AT ARUSHA. I MISC. CIVIL APPLICATION NO. 169 OF 2016 (Arising from Civil Case NO. 44 of 2015)j I TIB DEVELOPMENT BANK TANZANIA LIMITED ...... ~•····APPLICANT VERSUS FAUSTIN JOHN MATERU t/a Materu& Company Advocates ................................ ~RESPONDENT I RULING DR. OPIYO, J. I I This is an application for extension of time to file an appl'ication for review of the ruling of this court (Honourable S. C. Moshi, J) delivered on 20th May, 2016 in Civil Case No. 44 of 2015.The application i~ preferred under Section 19(5) and 14(1) of the Law of Limitation Act Cap. 89 RE 2002. It is I supported by the affidavit of Michael Joachim Tumaini Ngalo, Counsel for the applicant. The application was argued by way of written submission. In support of the application Mr. Ngalo, counsel for the applicant submitted that on lih November 2015, th_e applicant herein together with Receiver Manager, Arusha Blooms Limited, being the 1st and 2nd plairltiffs respectively instituted a Civil Case No. 44/2015 against the respondent herein. On I I .· I 27/Jan/2016 the respondent raised the ~reliminary Objection based on 3 ! grounds. In determination of the objection ,· first and second points were overruled by the court. Only on point of objection that the second plaintiff I lacks locus standi to institute and prosecution a suit was 1sustained. Upon such sustenance of the Preliminary Objection the Court tjroceed to strike out the suit with costs. This fact aggrieved the applicant as the Preliminary Objection was not affecting him but the 2nd Plaintiff ~lone. He thus, preferred to file application for review so that his suit shall be restored. He i submitted that in such application he ought to have obtained the copies of I ruling and drawn order of the court in civil suit No. 44/2015 that was struck i out. 1 i That being the case he wrote a letter on 24/May/2016 a~d 25 th July 2016 to be supplied with the said copies, (Armexture MJTNl I to the affidavit) I which were replied to on 9/8/2016 allowing him to colleqt the said copies which they collected on 11/08/2016. By' that time,the time to apply for . I review had already elapsed forcing him 'to file the curre,nt application on i 25/08/2016 for extension of time to file an application for review. Thus, . I because it was necessary for them to obtain the copies of ruling and order in making the application then the delay in getting th~ said documents forms basis of their delay in making the application. 1 I I This application was strongly opposed by the other side where Mr.i I Ngemela, the counsel for the respondent after adopting the contents of ' their counter affidavit submitted that it iis not in dispute I that the decision I th striking out Civil Case No 44 of 2015 was delivered on 20 I May, 2016 in presence of the Counsels for both parties. And thatthe applicant herein I I 2 I I I I I I I I I I . I applied for copies of proceedings, ruling, drawn order and/ decree in Civil case No 44 of 2015 on 24th May, 2016 as per its Counsel's l~tter dated 24th I , May, 2016. He argued that, the proceedings, ruling and 8rawn order in I Civil Case No. 44 of 2015 were ready for collection . as fromI ih June, 2016 when the drawn order was issued and the respondent her~inobtained the ruling and drawn order in Civil Case No. 44 of 2015 on 14tr June, 2016 as I per exchequer receipt No. 10773921while the applicant's aounsel Ngalo & I Co. Advocates obtained the documents on, 19th July, 2016 as per exchequer , I receipt No. 11326415(annexture Rl)to the counter amdavit.That, the I applicant's counsel obtained another copy of the proceedings, ruling and i drawn order on 11th August, 2016 as per exchequer receipt No. 11326599 I and filed application for extension of time on 29 th August, 2016 after lapse 1 of more than three (3) months from the date of the ruli~g i.e. 20th May, I 2016. I I I i I I He continued to submit that, the reason for delay in filipg the intended I application for reviewadduced by the applicant,that it was due to late in I getting copies of proceedings, ruling and drawn orderis riot supported by I facts as they can be gathered from the records of the C¢,urt in Civil Case No. 44 of 2015, the affidavit of the applicant's counsel on~ Michael J. Ngalo ' i and. the counter affidavit of one John Faustin Materu.This is because when 1 ! the ruling in Civil Case No. 44 of 2015 was delivered on 2p th May, 2015 the i applicant was represented by one William Mwesijo, advoqate who held the i brief of Mr. Michael J. Ngalo, the present counsel for the applicant. That, I the records further reveals that the requested copies ofproceedings, ruling , I and drawn orders were officially supplied to the applicant's counsel on the I 19th July, 2016 vide exchequer receipt No. 11326415 issued in the name of I 3 i I I I I I I I I I I Ngalo & Co. Advocates.However, for reasons best known tdI the applicant's counsel they wrote another remainder letter on 25 th July, 2016requesting 1 I to be supplied with copies they were already been supplied I which was however replied to by the Deputy Registrar in the letter dated 9th August, I 2016 annexture MJTN-2 to the affidavit' of the applican~, informing the I applicant that the requested documents:, were supplied to Ngalo & Co. , I th Advocates on 19 July, 2016 as per exchequer receipt ~o. 11326415 of 19th July, 2016 (annexture Rl to the counter affidJavit).That, the I Honourable Deputy Registrar further informed the appli1ant's counsel if they were in needof another copy they could get the same upon payment I I of 25,000/=. The applicant's counsel accepted the Deputy Registrar's I advise and obtained another copy of proceedings, ruling a:nd order on 11th I I August, 2016. From the above circumstances, he arg.uedthat there was no delay in I supplying the applicant's counsel with copies of proceedings~ ruling and I I drawn order as alleged as the applicant after filing! the first letter I requesting for the documents the applicant's counsel did not make a follow i up to know if the documents were ready for collection. He referred to the I case of EVA SIZYA (Legal Representative of the; late Innocent ! Gervas) versus MASESA MAFAJA MA:SHAURI, High Oourt of Tanzania,I I Civil Appeal No. 27 of 2016 (unreported) this Honourable Court (Hon. Dr.M.Opiyo,J) held that:- I I •~ ..... but the applicant was supposed to make a follo,w up of the same I ! to get the copy as soon as it was ready. Manifested; the applicant did I not do so, hiding behind unfounded and I unsubstantiated 4 I i reason.... The applicant was supposed to make a close follow up in I order to know if the documents were' ready so that he ! could collect the same as early as possible to facilitate his appeal;' In the case at I hand it seems the respondent was the one who was making a follow I up that is why he obtained the order for almost three weeks before . • I ' the applicant. " · ' I Then, he argued that as it was the holding in the above case, in this very I I application, the applicant and his counsel were negligent in obtaining the i ! requested copies from ih June, 2016 when the dr~wn order was issueduntil 19th July, 2016. Again the applicant as well as ;his counsel was I negligent when they failed to file the application for extension of time from 19th July, 2016 when they obtained the: first copies of the proceedings I th ruling and order to 11 August, 2016when they received ~econd copies of .the same documents. Besides that from 11th August, :2016 when the I applicant counsel received another copy to 29th August~ 2016, but this I application was filedafter 19 days had passed. No explanation has been ' I offered by the applicant's counsel for this inordinate delay;. To substantiate his argument he cited the case of Bashiri Hassan ~ Latifa Lukio i Mashayo, Civil Application No. 3 of 20O7(Unreported) where the Court of I Appeal of Tanzania held at page 6 that:- ' ' I ''Delay of even a single day has to be accounted for otherwise there i would be no point of having rules. prescribing periods I within which certain steps have to be taken. " 1 5 ' I I I I I I He went on to distinguish facts of this application with the case of National Social Security Fund Versus Kilimanjaro Bazaar i Ltd(2005) TLR 160 cited in the applicant's written I submission by I submitting that,in that case, the Court of Appeal found th~t no court fees was paid in respect of the documents obtained by Prof. M~aikusa, while in this case the applicant's counsel purchased theproceedirngs, ruling and drawn order through exchequer receipt No. 11326415 dated 19th July, ' I ! 2016,annexture Rl to the counter affidavit.In the cited case of National I Social Security Fund, the court insisted on official delivery df documents by I payment of Court fees. In this case !official delivery ;of the Court's documents in respect of Civil Case No. 44 of 2015 was co:mpleted on 19th I July, 2016 when the applicant's counsel paid for the same.; Payment of the i Court fees is further confirmed by the letter from the Deputy Registrar I i th dated 9 August, 2016 and the allegation that the 9ocuments were I obtained by unknown person is an afterthought and well :unfounded. The exchequer receipt is very clear that the documents were /collected by the I law firm of Ngalo and Co. Advocates who were representing the plaintiffs in Civil case No. 44 of 2015 and who represent the a~plicants in this I application. 1 I I I th Thus, it is his argumentthat the letter by the applicant's counsel I dated 25 July, 2016 was an afterthought after he foundhimself ou~ of time to bring I • the application for review as the documents in Civil· Cas~ No. 44 of 2015 I were ready for collection before the expiration of the pefiiod of thirty (30) i days for filing a review. He contends that the applicaht's counsel was I negligent in following up the matter in order to obtain th¢ said ·documents and therefore cannot blame the Court for the late supRly. He submitted 6 I that, it has been held by this court and the Court of Appeal that negligence i of a party or his advocate cannot constitute sufficient reason for extension I of time and referred to the case of The National Bank of; Commerce v Sadrudin Meghji(1998) T.L.R 503to substantiate his argument. In that ' case, the Court of Appeal of Tanzania held that, at page 509 and 510 held I as follows:- 1 '1t is common knowledge and elementary too : that counsel's I I inadvertence inaction or lapse which goes to the very root of the I matter is a serious matter amounting to negligence oh the part of theI counsel. This in our view would not constitute sufficient reason of the I I Court. In somewhat similar situation involving laxity qnd lapse on the I part of counsel, in the case of Kighoma Alli Malima I v. Abasi Yusuf I Mwingamno, Civil Application No. S of 1987(unrepifrted) the Court stated:- I ''Sufficient reason has been considered in a tJumber of cases I sometimes a slight lapse by an advocate mig{'t be overlooked but not a lapse of a fundamental nature like tre non supply of any supporting evidence for an application of enlargement of I time." Again in another case of Institute of F:inance Management v. Simon I Manyaki, Civil Application No. 15 of 1987( unreported) cited with approval ! in the case of The National Bank Of Commerce Versus Sadrudin Meghji(supra)the Court of Appeal stressed that:- 7 I I I • "The point to stress here is that counsel's mistake may amount to I I sufficient reason only where the mistake involves a 171inor or slight I lapse, but not where it involves a lapse of a fundamental nature. ,✓ II . I . , I His further contention is thatit was proper for this Honouriable Court to I strike out the suit being brought by improper Plaintiff, thu~, no arguable case exists for review.This is because the suit was jointly filed by the . I applicant and the Receiver Manager of Arusha Blooms Ltd. lihe court could I ., I ' I not in law separate the suit and/or the parties in Civil case ~o. 44 of 2015. I Thus to himthere is nomerit in the intended application for review. He I agrees that the power to grant or refuse the application fqr extension of I time is purely at the discretion . of the Court; but that discretion I need to be I exercised judiciously and upon the fulfillment by the applicant of the I principles as stipulated in the case of Lyamuya Construc~ion Company ' Ltd Versus The Board of Registered Trustees of Yoµng Women's I Christian Association Of Tanzania, Civil Application iNo. 2 of 2010 I (unreported) that:- I I I I I I a) The applicant must account for all the period of delay, . I I b) The delay should not be inordinate, i c) The applicant must show diligence and not apath¥, I negligence or I sloppiness in the prosecution of the action that h~ intends to take I and : I d) If the Court feels there are other sufficient r,basons such as I existence of point of law of sufficient importan'ce, such as the I illegality of the decision sought to be challenged. I I I I I I 8 I I I I I I I I • th So, in thepresent application which was filed ,,,on 25 August, ~016, almost after ninety seven (97) days from the dat~·. of the decision/ of the High 1 Court in Civil Case No. 44 of 20145, which amounts . to inordinate I delay, the applicant did not account for the days he delayed , from when Ihe purchased . I the documents for the first and second time to the time I when this I application was filed in court. I I I j1 : In other words, the applicant was not diligent in pursuing this matter and !l l there are no legal points of sufficient :, importance to I warrant this I I Honourable Court to review its decision. In tihe : circumstances' he submitted : I that this application lacks merits, it shall be dismissed with cqsts. I I I I I I have painstakingly gone through the sybmission of cou;nsels for both , I parties. I am alive to the fact that in application for extensibn of time like , r' I I that, it is important to account for the each time lost by being inactive in i' I I pursuing one's rights. In this case, it is undisputable :, thatI obtaining the copies of both drawn order and judgeme~t was necessary/ in making the :' I application for review. We are told that ;~he applicant topk about three months to file the current application, and even 19 days a:fter getting the I copies for the second time. As argued by,, the counsel for lthe respondent 'I I , I the applicant may have no good cause foi-; delay, but for orfle thing I noted 1 "I I I from the submission of both parties and the records df this court, in i1 I , I relation to Civil Case No. 44 of 2015, I am incline~ to relax the ·I I requirement. That is, it has been noted thatthere was more than one party I , I as plaintiffs, the applicant inclusive, but ttrle reason resulting to striking out I I . I of the suit concerned the competency of bne party only. lfhe centre of the :, I applicants concern is that while the matter concerned the competency of I 9 -, I :I I 11 !1 . I I one party, but he was also affected in the p1ocess without hi competency being determined. There being such legal t~chnicality to bel dealt with in the contemplated review, justification of !nineteen days ~elay can be waived, as it is not the only consideration inl granting extensifn of time. In the circumstances, the application is grante~:. Application fir review be filed within 14 days from the date of obtain ing copies of tHese order. No ': 11 order as to costs. 11 ~ ~ • I I I I . , I I '' I I . I I I I