20151106 TZCA Dar es Salaam

. IN THE COURTOF A"ilJ>EAL OF TANZANIA AT DAR ES SALAAM . CIVIL APPLICATION NO. 197 OF 2014 WAMBELE MTUMWA SHAHAME .............. ..:·;·.~: .••...••••• ~~·····APPLICANT ·vERSUS MOHAMED HAMIS (The Administrator of tfre · estate of late . ASHA . JUMA ..... ; ...................... ~ ... ~ ............. RESPONDENT . . (Application for RestoraUon of the Application decision ·of the High Court of Tanzania at Dar es Salaam · {Junia, J.A.) dated 21 stday of November, 2013 in ._ ........ Civil AppHcation No. 16 of 2013 RULING OF THE COURT 5th & 16th November;, 2015 JUMAc: J.A.: . ·.,·:-~ -::- ..., ....... . The applicant, WAMBELE MTUM\VA SHAHAME was also the applicant in Civil Applic~tion No. J6 of 2013 which was dismissed by a Single Justice of the Court (Juma, lA) on 21/11/2013. The applicant has come . back to. ' .. ·-. the Court with·the instant application which he filed on 13/11/2014 uhder . . Rules 10; 63 {3) and 4 (1) of the Tanzani,i Court of Appeal Rules, 2009 (the Rules) to seek the following orders:- 1 L -That this court be please;/lo enlarge time for the applicant .to file application to restore the application· dismissed for want ofprosecution out of time. · 2. -Thatsubject to pray {sic) no. 1 above dismissedfor want of · executive (sic) on the 21/11/2013 this court be pleased to restore Civil Application No. 16 of.2013 which was dismissed for want ofprosecution on the 21st day ofNovembe~ 2013. The application is predicated on five closely interrelated grounds. The first and second grounds contend that when Civil Application No. 16 of 2013 was called on for hearing of preliminary objection on 21/11/2013, the applicant was present in person whereas his learned counsel was absent because he fell ill suddenly and he could not be reached on account of the illness.. The applicant· elaborates that althb-ugh· he informed· the Single Justice of the Court about. the predicament thcit had. befaHen his learned counsel; the Court dismissed his application under Rule 63 (1) of the Rules. As his final ground, the applicant contends that he filed another application (Le.· Civil Application No. 221 of 2013-Mandia/ }A.)before another Single Justice ·of the Court. This later application was· withdrawn because it suffered from a defective jurat. · 2 ·•;'' Today, when the matter .was ca(led on for hearing; the respondent's . leamed counsel, the ·Mashiku & Company Advocates though du·ly served· with the notice of hearing, did not enter the··.appearance. Mr. Mashiku was at very least expected·to appear and argue the point preliminary objection · notice of which he had filed on 22/4/2015. On his part, the applicant, Wambele Mtumwa Shahame appeared in person. He informed the Court that he will argue this application despite the absence· of Mr. Barnaba Lugu_wa,. his learned advocate. He proceeded to place full reliance on the affidavit which· he affirmed in support of the a.ppHcation to urge me to restore his Civil Application No. 16 of 2013. Il t . The Civil Application No. ·16 of 2013 subject of this application for restoration had a long history of its own. It ·was an application by the applicant to seek an extension of time to apply for a review of the decision · of the Fuli Court (Msoffe, Luanda arid Massati~ JJJA.) ·in Civil Application · No. 124. of 2009. Whi:m that applicatfon ca·me for hearing. before me on 21/11/2013, the applicant literally· declined: to. prosecute his application _because his learned counsel, Mr. Barnaba Uiguwa was absent and he did .not know why his counsel was not present in Court. Mr. James Maugo, the . . . learned advocate who represented the respondent in that application urged 3 ~ · the court· to dismiss. the application )61~der Rule 63 of the Rules. The CoLirt · . . ·. . . . . ·.. . . . . .·· . . .. . .. · obliged and dismissed that application, and stated: ~ •~ .. the best interests ofjustice will be served if this application I '- is dismissed on refusal of lhe applicant to prosecute his I f i application. It was the applicant who in the first place moved I I i the Courtin a Notice of Motion which he flied on 7/2/2013~ It .· ·is his du[½ not Court's duty to flnd out why Mr. Luguwa did l i not enter any appearance~ In the flnal result this application is hereby dismissed under Rule 63 (1), '' .. In so far as the instant application is concerned, I shall premise my determination of the application by.revisiting the scope of R·ule 10 and sub- rules (1), (3) and (4) of Rule 63 which· the applicant cited in support of his instant application. Rule 63 provides: . 63. -(1) If on any day fixed for the hearing of an application · . . . . . the applicant does not appear; the application may be dismissed,· unless the Court sees flt to adjourn the hearing. 4 r, .. ,• . . (3) Where an applicatioiJ 17j/§i:-been distnis-:5ed under sub-rule (1) or allowed under sub-:rule (2J the party in ·whose absence . the application was determined mav applv to the Court to restore the· application for hearing or to re-hear it. as the case may be/ if he can show that he was preven·ted by any sufficient cause from appearing when the application was called on fof hearing. (4) An application made under sub-rule (3) shall be ' ' made within thirty days of the decision of the Court or in the .case of a party which has been served with notice of the hearing but ·was not so served, within thirty days of his first hearing of that decision.[Emphasis added]. i I I . I i ' The above sub-rules of Rule 63 provide an opportunity to an applicant whos·e application has been dismissed•onder su,b.:rule (1),to apply for its restotation .within thirty days_ of the dismissal. The application concerned may be ·restored if the applicant:";.:can show that he. ·was prevented by any sufficient cause from appea.ring when the application was . called on for hearing... // '·.· ·,, 5 Gl · It is evident that after finding··'t11atthis ·instant application is outside the thirty days prescribed under sub~rule (4), the applicant placed reliance . .· . .· . . on· Rule 10 of the. Rules to seek an extension·, of time· so that he may apply for restoration of his application·. The relevant Rule 10 states: 10. The•Court ma½ upon good cause shown, extend the time limited bv these Rules or by any decision of the •High Court or tribunal for the doing of any act authorized or required by these Rule~ · whether before or after the expiration of that time and whether before or alterihe doing . of the act; and any reference in these Rules to any such time .shall be construed as a .reference to that time as so extended.[Emphasis added]. The main · question calling for my determination is whether the applicant has· in his own affidavit and that' of Mr. Barnaba Luguwa, accounted for all the days from 21/11/~0t3 when his Civil Application No; 16 of 2013 ·was dismissed for want of prosecution, Tight up to almost to. one year lcJter . on 13/11/2014 when he. filed this motion for . restoration. It is . . . . . . . evident that neither the applicant nor his learned ··advocate accounted for that period of delay. Mr. Luguwa merely explained why he failed to appear 6 ; . i f» before the Court when the Civit·Appli2ation . . .. . . Net 16 of 2013 was dismissed·_ . . . . on 21/11/2013. In the last par-agraph of h_is affidavit, Mi-.- Luguwa stated: j'.7. That the reasons·wliile {sic) I failed to turn- up on . the 21st day of Novembe~ 2013 is due to the fact that I had a terrible body ailment which rendered me helpless and desperate. Mr. Luguwa offered no_ account of delays .right up to the time when instant application was lodged.· The duty placed on the applicants who seek extension of time to account for each day of delay is now well settled ,by the Court. In Bushfire Hassan vs. Latina Lucia Masaya, Civir'- Applkation No. 3 of 2007 (unreported) the Court insisted that: "... Dela)!; of even a sing!e day, has to be accounted for otherwise there would be no ·point of having rules prescribing periods within which certain steps have to be taken. // . In Mustafa· Mohamed Raze Varian vs. Mehboob Hassanali Versi, Civil Application No. 168 of 2014 -· (unreported) the Court was 7 • presented with an occasion to deteihline the duty to account for each day . of delay under Rule 10 of the Ru/es. The Court stated:. . . . ·''From the wording ofthis Rule, it is my view that an application for extension of time. may be brought at any time even .after the expiration of the prescribed time. It is also my understanding that the applicant's obligation . is to account for the delay for eve;y day. within the prescribed period ,✓ For having failed to account for ea_ch day of delay, the applicant has not shown good cause to· warrant an extension of time. The application is dismissed for want of merit. It is so ordered ... '· · -· th DATED at DAR ES SALAAM this 6 day of November, 2015. I.H. JUMA .JUSTICE OF APPEAL . - I certify that this is a true copy of the original. EGISTRAR COURT OF APPEAL 8