20060614 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA /;,;,T D/t.R E5 SA.Lil.AM C:!Vltl f~PPLICATIO.f\~ NO. 67 OF 2005 L YOKE (~V/Ar<u.·. 2. CID'l~!i•,.Ul--fA.lED Mµ.5QNJ'U 3~ 10·:-c,1 GID/\ftr~_GED ~~~-~-~~~~f!,~·-·••H«~-~~ftm~, 1~_Pr'i-ICA.NTS 4. GICHEf'.!'.OGA YOKE 5. BAt<1~R~ _QUI-UDE .' .. . VERSUS ., 1-. ~-OOv . . 1.. NATIONAL AGRICULTURE A[{D, .,,.. -, .r, ,..,.. ···r,;.:, COr,J·0.-...,-1.ilvh. n · '. (h.l~fCO) l ' . c:•i:, .•f · ,r• c ............... RC:..:::,t Oh.DEh.f.,:, 2. GA\:VAL \~JHEAT FARM LTD. j (Appficatlon for extension of time with[n wMch to ar;,µ[y to restore. CivH Appeal Ne, 37 cf 1-998 frorci the Judgment and Dcicree of the High Court of Tanzania at Dar es Sa:!.aam) dated the 6 th day of September, 1994• in ClvH Case N:o. 52 of l988 RULING 8 & 14 June 2006 In the Amended Notice of Motion, the app!icants, through the services of Mr. S. Shayo, learned advocate, seek extension of time within which to app!y to restore Civil Appeal No. 37 of 1998 and furthermon::: upon such restoration, the said appeal pr·oceeds to 2 hearing. The application is supported by affidavits deponed to by the Yoke Gwaku and the affidavit of one Duncan . ' ( Geta:<anooa. In his ,1ffldavit, Duilcan stated that because a long period elapsed v.dthout hearing from their then 2dvocate about the fate of Civil J\pp!::~a! No, 137 of 1998/ie n:ad2 inquiries at the Human Rlqhts Centre at Dar-es-Salaam in view of the fact the Human Rights Centre had been assisting the villagers in litigation. It was then that he was informed that the appeal had been dismissed. lie then sought more information from Dr. Mwaikusa \Nho was representing the. appellants in vain. He visited the Registry and ultimately obtained a copy of the Order dismis~ing the appeal, /:..nnexture D1, to the Amendsd Notice of Motton. He subsequently rel2yed the ne,vs to the applicants. Mr. Shayo, learned advocate for the applicants, submitted that there is sufficient cause for extending the period for restoring the 3 pastoralists suffered a cornmunlcation break down with their for·mer counse!, Dr. Mwaikusa. He contended that the applicants have interest in lhe farm in dispute so th2 Cowt should restore the civil appeal for detcrrnination on rner[t. rvir. VV. Chipeta, learned advocate, opposed the application. He pointed out that the appeal in question was dism[ssed on 15th October, 2004 and the present application was filed seven months thereafter on the 17.5.2005 instead of being fi!ed within a period of thli~ty ddys under the lavv · of limitation, inordinate delay by any standard. He faulted the applicants for not folio\Ning up the appeal serious!y. He further stated that since Dr. Mwaikusa did not file an affidavit to substantiate the break down so it lacks merit and ouoht __, to be dismissed \Vlth costs. Citing the cases of A[[1.~jt t:J1dr...m:h. 41 and John Chuwa ver·strs Anthony C[za (1992) TLR 233 in which the court refused to give extension of time for want of f 4 sufficient ground. He urged the Cou1t to dismiss the application with costs. The issue is vvhether there is sufficient ground for extending the period for applying for the restoration of Civil Appeal No. 137 of 1998 and for restoring the said appeal. The Order dismissing Civil Appeal No. 137 of 1998 clearly states at Page 20 of the record of appeal, paragraph 2: Mr. Maro contended, and rightly so, that it is on record that the appellants vvere duly served and as they are now absent, after the withdr-awal of Professor Mwaikusa, then Rule 105 should apply. We dismiss the appe2! under Rule 105 for the faiirn-e of the appellants to turn up. We make no order as to costs as Mr. Maro submitted. Dated at Arusha this 15th day of October, 2004. 5 . From the above Order of the Court, it is dear that the appellants, now applicants, were duly served with notices for hearing. Thetr allegation that Dr. Mwaikusa disowned and did not communicate the hearing date to them cannot hold v✓ater beca:.ise they were duly served but they defaulted in appearance so when their counsel withdrew, they were not in court to prosecute their appeal. Unde1- the circumstances, the application is lacking in merit. The application is accordingly dismissed Vvith costs. DATED at DAR-ES-SALAAfv1 this 14th day of June, 2006. E.N. MUNUO .JU[~Trcr: or= r. r rr:rr. i certify that th1s ls a true copy of the orlginal.