Moses Mchunguzi vs Tanzania Cigarette Company Ltd (Civil Application No 531, 4 of 2016) [2017] TZCA 337 (5 December 2017)
Judgment
IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CIVIL APPLICATION NO. 531/4 OF 2016 MOSES MCHUNGUZI ................................................................... APPLICANT VERSUS TANZANIA CIGARETTE CO. LIMITED....................................RESPONDENT (Application for extension of time against the decision of the High Court of Tanzania at Bukoba) (Matoaolo, J.) dated the 31st day of May, 2016 in Civil Application No. 13 of 2014 RULING 28th November & 5th December, 2017 MWAMBEGELE. J.A.: By a Notice of Motion taken out under, inter alia, rule 10 of the Tanzania Court of Appeal Rules, 2009 (hereinafter referred to as the Rules), the applicant Moses Mchunguzi seeks enlargement of time within which to challenge the decision of the High Court (Matogolo, J.) which struck out his application for leave to appeal to this Court against the decision of Khaday, J. in Civil Application No. 47 of 2009. The application is supported by an affidavit duly sworn by Moses Mchunguzi; i
the applicant. It is resisted by an affidavit in reply deposed by Silwani Galati Mwantembe; an advocate of the High Court and Courts subordinate thereto, save for the Primary Court. The application was argued before me on 28.11.2017 during which the applicant appeared in person, unrepresented. The respondent had the services of Mr. Geoffrey Kange, learned counsel who also represent the respondent in the High Court. Both parties had earlier on filed their written submissions for and against the application which they sought to adopt alongside the affidavit and affidavit in reply, as the case may be, as part of their oral arguments. The parties, having adopted the documents they filed for or against the application, as the case may be, had very little to add at the oral hearing. In essence, they reiterated their written submissions. As for the respondent, Mr. kange added that the law, as it stands now, through the recent decision of the Court, does not require any leave of the High Court in labour matters like the present to challenge the decision of the High Court in this Court. Mr. Kange, however, did not have the citation of that case at his fingertips. I think Mr. Kange had in mind Tanzania Teacher's Union 2
v. the Chief Secretary & 3 others, Civil Appeal No. 96 of 2012 (unreported), whose decision was rendered by the Full Bench of the Court on 31.05.2017. The reasons why the applicant could not take appropriate steps in time to challenge the decision of the High Court can be deciphered form the last four paragraphs of the affidavit supporting the application. The applicant deposes in those paragraphs: "7. That follow ing the delivery o f the ruling o f the High Court dated 31st May 2016 wrote a letter dated 31st May 2016 requesting to be furnished with a copy o f ruling and drawn order for the taking the necessary measures towards prosecuting my intended appeal. Unfortunately I was only furnished with a copy o f the ruling as it w ill be confirm ed by ERV No. 11033602 o f 1&h June 2016. A copy o f the said letter is attached herewith and marked "E". 3
- That given the fact that an application o f this nature has to be accom panied by a copy o f the drawn order o f the High Court refusing the application in question, on 17th June 20161 had to write another letter to the D istrict Registrar seeking once more to be given the required drawn order. Despite my constant follow up the same was not issued to me until 12th July 2016 vide ER V No. 11033656. Copies o f the said letter and ERV's are attached herewith and m arked "E l" "F"and "FI".
- That in view o f the aforesaid delay in furnishing me with the High Court's ruling and drawn I was unable to take necessary measures for appeal purpose within the prescribed period.
- That while this application is prim arily concerned with the issue o f extension o f time under which to file an application for leave to appeal out o f
time, I feel pertinent to show the contentious iegai points worth the consideration by the court appeal as I hereby do in the notice o f motion. 11. Under the given circum stances I believe that I have adequately disclosed sufficient reasons for delay as w ell as sound points o f law in support o f this notice o f motion for the consideration o f this Ho. Court." As can be gleaned from the five quoted paragraphs, the applicant claims to have delayed in challenging the decision of the High Court because the drawn order was supplied to him belatedly. It was supplied to him on 12.07.2016. The respondent strenuously resists the application through the affidavit in reply, the reply written submissions as well as in the oral arguments at the hearing before me. It is argued that a drawn order is not one of the necessary documents to be appended with an application for a second bite. According to the respondent, the Ruling he wished 5
to challenge which was supplied to him on 16.06.2016, was sufficient for the application for a second bite. As the present application was filed on 28.07.2016, the respondent's counsel argues, the applicant delayed for 42 clear days which have not been accounted for. On this premise, the respondent is of the firm view that the applicant has not brought to the fore good cause to grant the extension sought and therefore the application should be dismissed with costs. The applicant had nothing to rejoin and placed reliance on the documents filed in support of the application and asked the Court to go through them and grant the application with costs. Having stated the above, I should now be in a position to address the relevant issue in the application which is whether the applicant should be granted the extension of time sought. However, before I do that, I find it appropriate to state at this juncture that the respondent had earlier filed a three-point preliminary objection seeking to challenge the competency of the application. However, before hearing commenced, the respondent's counsel sought to withdraw the preliminary objection with a view to expediting the hearing of the 6
application. As the applicant had no objection to the prayer for withdrawal, the Court granted the prayer and, accordingly, marked the preliminary objection withdrawn. I now revert to the merits of the application. It is important to underline here that extension of time under rule 10 of the Rules, under which the present application has essentially been made, is within the discretion of the Court. This discretion is unfettered. It is subject only to the implied fetter upon all such discretions, that is; they should be exercised judicially - see: Lalji Gangji v. Nathoo Vassanjee [1960] 1 EA 315 and Noormohamed Abdulla v. Ranchhodbhai J. Patel & another [1962] 1 EA 447. Under rule 10 of the Rules, an applicant will only succeed to trigger the Court to exercise this unfettered discretion in its favour upon showing good cause for the delay to take the appropriated steps in time upon which the enlargement is sought. For easy reference, I take the liberty to reproduce the rule hereunder. It reads: "The Court may, upon g o o d cause show n , extend the time lim ited by these Rules or by
any decision o f the High Court or tribunal\ for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such tim e shall be construed as a reference to that tim e as so extended." [Emphasis supplied]. The catch words in the above provisions are "upon good cause" which I have taken liberty to bold for emphasis. What amounts to "good cause" has not been defined by the Rules and, to my mind, this course has been taken deliberately because extension of time being a matter within the unfettered discretion of the Court, cannot be laid down by any hard and fast rules but will be determined by consideration of all the circumstances obtaining in each particular case - see: Regional Manager, TANROADS Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007 (unreported). 8
Recent jurisprudence has added that an application for extension of time will also succeed if there is an issue of illegality in the proceedings of the lower court - see: The Principal Secretary, Ministry of Defence and National Service v. D P Valambhia [1992] TLR 185, Abubakar AN Himid v. Edward Nyelusye, Civil Application No. 51 of 2007 (unreported), Kalunga and Company Advocates v. National Bank of Commerce [2006] TLR 235. In Edward Nyelusye, for instance, this Court held that where a point of law at issue is the question of illegality, time will always be extended and leave to appeal to this Court must be granted even where the delay is inordinate. Having expounded the position of the law relating to extension of time, I now turn to consider if the applicant has shown good cause to warrant the Court exercise its unfettered discretion to grant the enlargement of time sought. Agreeably, the applicant; a lay person has presented his grounds in the Notice of Motion in rather a verbose manner. He has been referring to the decisions of Lyimo and Khaday, JJ. as if the present application is in respect of them as well. However, 9
it occurs to me that reading through the Notice of Motion and its accompanying affidavit together with the written submissions; and also after hearing the applicant, this application, essentially, intends to challenge the decision of Matogolo, J. As already stated, the applicant has ascribed the delay to take the requisite steps to challenge the decision of the High Court to the fact that the drawn order was supplied to him belatedly. The applicant, having been dissatisfied by the Ruling of the High Court which was rendered on 31.05.2016, issued a Notice of Appeal on the same day vide his letter entitled "Maombi ya Kupatiwa Nakala ya Amri (Ruling) Pamoja na Drawn Order Kuhusiana na Shauri la Maombi Na. 13/2014 Katika Mahakama Kuu Bukoba". He stated in the said letter that he needed the documents so that he could take "necessary steps" against that decision. He deposed at paragraph 7 of the affidavit supporting the application that the Ruling was supplied to him on 16.06.2016 and ERV No. 11033602 of the same date is appended with the affidavit to support this averment. As the Drawn Order was not supplied alongside the Ruling, the applicant wrote another letter dated 10
17.06.2016 requesting for the same and was supplied to him on 12.07.2016. The applicant has explained away the delay, sufficiently in my view, in respect of the period he was waiting for the relevant documents to be supplied to him for purposes of challenging the decision of the High Court. However, I am afraid, he has not sufficiently explained away the delay after he was supplied with the Drawn Order on 12.07.2016. It took him some 16 days to file the present application on 28.07.2016. The sixteen days have not been accounted for. In applications of this nature, every day of delay must be accounted for. That his is the stance was stated by the Court in its unreported decision of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007. In that case, the Court had an occasion to underline the need for litigants who seek to extend time in taking actions within which certain steps could be taken. The Court stated: " "Delay\ o f even a single day, has to be accounted for otherwise there would be no ii
point o f having rules prescribing periods within which certain steps have to be taken" In the case at hand, as already alluded to above, the applicant has failed to explain away the delay of about sixteen days within which he could have taken some steps in prosecuting his case after he was armed with all the relevant documents. At the hearing, the Court prompted the applicant to give an explanation why he took such a time; more than a fortnight, to file the application but could not offer any useful excuse other that asking the Court to read the documents filed for an answer. I have dispassionately gone through the said documents as asked by the applicant. As bad luck would have it, those documents have no explanation accounting for the delay under scrutiny. At this stage, I wish to remind the applicant what was stated by the Court in Dr. Ally Shabhay v. Tanga Bohora Jamaat [1997] TLR 305 at 306 in underlining the overarching need to show necessary delays and great diligence in taking steps in applications of this nature. The Court stated: 12
"Those who come to courts o f law m ust not show unnecessary delay in doing so; they m ust show great diligence." The two qualities in the above excerpt; that is showing unnecessary delay and great diligence are wanting in the present application. I wish to comment at this stage that, unlike what Mr. Kange would want us to hold, the Drawn Order was a relevant document to be attached to support the applicant's application. This is the tenure and import of the provisions of rule 49 (3) of the Rules. The subrule requires that "every application for leave to appeal shall be accompanied by a copy of the decision which it is desired to appeal and where application has been made to the High Court for leave to appeal by a copy of the order of the High Court". The applicant was therefore on the right track when he applied and waited for the Drawn Order. Apart from addressing rule 49 (3) of the Rules, the applicant, as already said, has failed to account for the delay of sixteen (16) days. 13
For the avoidance of doubt, I have deliberately refrained from commenting on Mr. Kange's averments on whether the applicant's application would be a second bite and whether the applicant did not require any leave in that application, for that course, in my considered opinion, might prejudice the applicant in future endeavours, if any. The foregoing stated, it is my considered view that the applicant has not brought before the Court good cause to warrant the exercise of the discretion to grant the extension sought. The application is therefore arid in merits. It stands dismissed in its entirety. As the matter is labour-related, I make no order as to costs. Order accordingly. DATED at BUKOBA this 4th day of December, 2017. J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 14