Alexander M. Msolwa vs Doris Mwansasu (Civil Application No. 99 of 2019) [2019] TZCA 429 (19 November 2019)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 99/01 OF 2019 ALEXANDER M. MASOLW A ....................... ................ ...............APPLICANT VERSUS DORIS MWANSASU............................ ...................................RESPONDENT (Application for extension of time to lodge an application for Revision from the Ruling and Orders of the High Court of Tanzania at Dar es Salaam) (Mutungi, J.) Dated the 25th day of October, 2018 in Miscellaneous Civil Application No. 758 of 2017 RULING 19th July, & 19^ November, 2019 WAMBALI, J.A.: The applicant Alexander M. Masolwa lodged Civil Appeal No. 134 of 2014 before the High Court of Tanzania at Dar es Salaam to contest the decision of the District Court of Temeke in which he was convicted for contempt of court and sentenced to three months' imprisonment. He was so convicted and sentenced to imprisonment as he failed to comply with the order of the District Court of Temeke which had directed him to pay Tshs. 30,000/- monthly as maintenance costs to his child one Daniel i

Alexander and to surrender his custody to the respondent Doris Mwansasu. The respondent won the case (Miscellaneous Civil Application for custody Cause No. 56 of 2014) which she had instituted before that court against the applicant. The said appeal was dismissed by the High Court (Ruhangisa, J. as he then was) on 28th June, 2016. As a result, since the applicant was still dissatisfied with both the ruling and orders of the District Court of Temeke and the decision of the High Court that dismissed his appeal against conviction and sentence for contempt of court, after he completed serving his sentence of imprisonment, he lodged before the High Court Miscellaneous Civil Application No. 758 of 2017. In the said application, he sought the following orders: First, to be granted leave to file an application for review out of time against the judgment of the High Court in DC. Civil Appeal No. 134 of 2014. Second, to have the High Court review its judgment in DC. Civil Appeal No. 134 of 2014 and thereby quash and set aside the same 2

including all the orders of the District Court of Temeke in Miscellaneous Civil Application for Custody Cause No. 56 of 2014 on the contention that, the said court lacked jurisdiction to entertain the matter under the Law of the Child Act, 2009. According to the record of the application, although the respondent did not appear on the date the said application was called on for hearing and the applicant was thus heard in her absence, in the end the High Court (Mutungi, J.) dismissed the same in its entirety with costs. It is noted that in her ruling dated 25th October, 2018, the learned Judge found that the applicant had not only failed to account for the cause of the delay in lodging an application for review but also ruled that whether the trial District Court of Temeke had jurisdiction or otherwise could not be resolved by way of review. She thus reasoned that granting the application for review as prayed in that application would simply be an abuse of the court process. Following the said ruling, the applicant lodged the present application seeking for orders for extension of time within which to lodge

an application for revision against the same. The application is supported by the applicant's affidavit and the written submission. On the other hand, the respondent lodged an affidavit in reply and a written submission in opposition to the application. At the hearing of the application both the applicant and respondent appeared in persons as they did not have the assistance of learned advocates. In this regard, they both adopted their respective affidavits and written submissions and prayed that the same be considered for purpose of determining whether the application for extension of time has merits or otherwise. The applicant also lodged a list of authorities to support his application. On my part, having gone through the applicant's notice of motion, affidavit and the written submission, I am of the considered opinion that the applicant, essentially, relies on the following paragraphs to explain the delay in lodging the application for revision against the ruling of the High Court in Miscellaneous Civil Application No. 758 of 2017.

"5. That on 19th November, 20181 wrote a letter to his Lordship the Chief Justice of the Court of Appeal of Tanzania praying to his Lordship to call for and examine the records of proceedings of the High Court and the trial court and exercise his powers and take appropriate action as he may deem fit 6. That after about two months I received a letter from the Registrar of the Court of Appeal dated 17th January, 2019 informing me that His Lordship the Chief Justice has declined to exercise his powers but has directed him to advise me either to appeal or file revision against the decision of High Court. 7. That when I received the Registrar's letter, time within which I could file an application for revision against the High Court decision had already elapsed. 8. That the delay to make the application for revision against the High Court decision was not due to 5

negligence or inaction on my part but due to the reasons as narrated herein." It is further noted that in the notice of motion the applicant's major grounds for seeking extension of time are essentially two out of the four outlined therein. One, that in its ruling delivered on 25th October, 2018, the High Court refused to grant him extension of time to lodge an application for review against its judgement and decree in Civil Appeal No. 134 of 2014 dated 28th June, 2016. Two, that the District Court of Temeke had no jurisdiction to hear and determine the suit. The above grounds are listed as number (i) and (iii) respectively. In my considered opinion, the rest of the so called grounds listed as number (ii) and (iv) respectively do not qualify to be termed as grounds. For, whereas the former states the obvious that Civil Appeal No. 134 of 2014 originated from an Application for Custody Cause No. 57 of 2014 before the District Court of Temeke, the latter is a prayer that costs and any incidental to the application should follow the event, 6

On the other hand, in her affidavit in reply and the written submission opposing the application, the respondent has strongly attributed the delay of the applicant in lodging the application for revision on his negligence of taking action to prosecute his case and complying with the court orders and guidance given from time to time that his several applications have no merit at all. Overall, the respondent strongly argued that there is no any sufficient reason for delay advanced by the applicant to deserve extension of time. The respondent argued further that the applicant's intended application for revision stands no chances of success as the entire proceedings complained of do no reveal any disturbing features to require guidance from the Court. She thus submitted that the application should be dismissed with costs. From the record of the application there is no doubt that the decision of the High Court, a subject of the intended application for revision was delivered on 25th October, 2018 and that, the drawn order was supplied to the applicant on 1s t November, 2018. It follows that, in

terms of Rule 65 (4) of the Tanzania Court of Appeal Rules, 2009(the Rules), the applicant was supposed to have lodged an intended application for revision by or on 24th December, 2018. Nevertheless, the applicant in paragraph 5 of his affidavit explains that during that period, on 19th November, 2018 he wrote a letter to the Chief Justice and he had to wait for the response. He further states that the said response was later channeled to the Registrar of the Court of Appeal on 17th January, 2019 with the advice for him to lodge an application for revision or an appeal. In the circumstances, although the applicant seems to explain the delay from the date the ruling was delivered, that is, 25th October, 2018 to the date he received the letter from the Registrar of the Court of Appeal on 17th January, 2019, he has not explained why it took him almost seventy-eight (78) days from that date to 5th April, 2019 when he lodged the present application. The applicant has neither in his affidavit nor in his written submission accounted for the said period as to why he did not take immediate action to adhere to the advice to lodge an 8

application for extension of time within which to either lodge an appeal or an application for revision. For, as stated in paragraph 7 of his affidavit reproduced above, by the time he received the said letter he knew that the period of limitation of sixty days within which to lodge an appeal or an application for revision had already elapsed. In the circumstances, it is my considered opinion that the applicant was not diligent and prompt after he received the response to ensure that the present application was lodged in time. He has therefore failed to account for the said period of delay. It follows that the submission of the applicant in his written submission that the delay in lodging the application for revision was not due to his negligence is not supported by the material in the record of the application. Indeed, apart from relying on the reason of waiting for the said response before he lodged any matter before the Court, the applicant has not stated any reason to explain the period of delay between the time he received the response until the time he lodged the present application, that is, 78 days. 9

On the other hand, in his view, the major issue which the applicant intends to raise before the Court is that of lack of jurisdiction by the District Court of Temeke. However, it is noteworthy that apart from indicating that issue as one of the grounds in the notice of motion for seeking extension of time, there is no explanation or particulars in his affidavit on how the same is apparent in the proceedings and ruling of the High Court a subject of the intended revision by the Court, if extension is granted. This is so because the decision of the High Court in Civil Application No. 758 of 2017 dismissed an application for extension of time within which to lodge an application for review and the so intended application for review. Moreover, the applicant has not demonstrated in his affidavit in support of the application on how the decision of the High Court which did not deal with the decision of the District Court on merits is tainted with the alleged illegality. Yet, in his written submission in support of the application the applicant simply, without any further explanation on the alleged illegality 10

states that, the intended application for revision is aimed to ask the Court to revise the decision of the High Court which refused to extend time to file review, while the District Court of Temeke lacked jurisdiction to hear the case which was filed under the Law of the Child Act, 2009. However, the respondent has characterized the contention of the applicant on this issue as unfounded since in her view, the High Court did not commit any irregularity or illegality when it dismissed an application for extension of time within which to lodge an application for review against its decision concerning his conviction and sentence and that of the District Court of Temeke concerning an order for a monthly maintenance costs and custody of the child. Nevertheless, the applicant supported his contention by making reference to the previous decisions of the Court in The Attorney General v. Tanzania Ports Authority and Alex Msama Mwita, Civil Application No. 86 of 2016 (unreported) and The Principal Secretary, Ministry of Defence v. Devram Valambia (1992) TLR 182. He argued that through those decisions, it is settled law that a claim of illegality of the challenged decision of the lower court constitutes sufficient reason ii

for extension of time regardless of whether or not a reasonable explanation for the delay has been given by the applicant. However, as I have stated above, in the present application the applicant has simply alleged that the District Court of Temeke lacked jurisdiction to determine the suit which was before it without any particulars on how the said illegality is apparent in the decision of the High Court a subject of the intended revision before the Court. It is important to emphasize that it is not sufficient for the applicant seeking extension of time to simply allege in passing in the notice of motion that, a point of law of great importance exist or that, the proceedings and the decision of the High Court is tainted with illegality without showing briefly the particulars in the affidavit to enable the Court exercise its discretion to extend time judiciously based on the material provided in the record of the application. Besides, according to the record of the application, what was dismissed by the High Court was an application for extension of time to lodge an application for review against its decision which dismissed his 12

appeal against his conviction and sentence for contempt of court for his failure to comply with the order the District Court of Temeke. In my considered opinion, the applicant was therefore at least expected to explain the alleged illegality or point of law in the proceedings and ruling of the High Court which he intends to place before the Court as a ground of the intended revision. It is noteworthy that the stated holdings of the Court in The Attorney General v. Tanzania Ports Authority and Alex Msama Mwita and The Principal Secretary, Ministry of Defence v. Devram Valambia (supra) relied upon by the applicant to support his position do not apply automatically as every case must be considered based on its own circumstances. It is in this regard that, in Tanzania Harbours Authority v. Mohamed R. Mohamed [2003] TLR 76 the Court emphasized that, although the Court has said in a number of its decisions that time would be extended if there is an illegality to be rectified, however it did not say that time must be extended in every situation. 13

In the present application, applying the said court's observation, I am satisfied that the applicant has not only failed to explain the cause of delay of the period consisting of seventy-eight days in lodging the application, but also that he has not demonstrated good cause to deserve extension of time within which to apply for revision against the decision of the High Court in Civil Application No 758 of 2017.1 therefore, agree with the respondent that the application is without basis. To this end, I have to conclude that this application fails and is, accordingly dismissed with costs. DATED at DAR ES SALAAM this 14th day of November, 2019. The ruling delivered this 19th day of November, 2019 in the absent of the applicant, duly notified whereas the respondent appear in person is hereby certified as a true copy of the original. F.L. K. WAMBALI JUSTICE OF APPEAL DEPUTY REGISTRAR COURT OF APPEAL 14