Mohamed A. Shatry vs Sifa Mwitu and Another (Civil Application No. 290/01 of 2017) [2017] TZCA 1279 (14 November 2017)

IN THE COURT OF APPEAL OF TANZANIA. AT DAR ES SALAAM . CIVIL APPLICATION NO. 290/01/2017 MOHAMED A. SHATRY .......•.........•.....................•..•........•.•.......... APPLICANT VERSUS SIFA MWITU ................................................ ~ ..... ~ ............... 1 5 T RESPONDENT HALDAY NIUEEB .............. ~ ................................................ 2No RESPONDENT {Application for extension of time within which to lodge an application for revision from the decision of the High Court of 8 th & 16 th November, 2017 MWANGESI, J.A.: Tanzania at Dar es Salaam Registry) (Dyansobera, J.) dated the 3 rd day of March, 2017 in Civil Appeal No. 38 of 2013 RULING The application at hand is for extension of time within which the applicant can apply for revision of the decision of the High Court that was handed down by Honourable Dyansobera, J. in Civil Appeal No. 38 of 2013 wherein, the appeal was allowed. The application has been made under the provisions of Rule 10 of the Court of Appeal Rules 1 2009 (the Rules). It is supported by the affirmed affidavit of the applicant. And in terms of the provisions of Rule 106 (1) of the Rules, the learned counsel for the 1

applicant did lodge written submissions in amplification of the application. The application is on the other hand resisted by the second respondent only, who did file an .affirmed affidavit in reply in terms of Rule 56 (1) of the Rules, as well as written submissions in reply to the written submissions by the applicant by virtue of Rule 106 (8) of the Rules. On the date when the application was called on for hearing that is, on the 8 th day of November, 2017, Mr. Samson Mbamba learned counsel, did enter appearance for the applicant whereas, Messrs Thomas Massawe and Thomas Eustace Rwebangira learned counsel, did appear to jointly represent the second respondent. The whereabouts of the first respondent was nowhere to be traced. And, when the leaned counsel for the applicant was required by the Court to account for the whereabouts · of the first respondent, his response was to the effect that, he did not know as he never served him with the -summons to appear today. The reasons, which were advanced as to why there had been no efforts to serve the first respondent, were to the effect that, it was because he did not actively participate in the appeal before the High Court, after efforts to serve him had proved futile. In that regard, the learned counsel for the applicant did 2

. request the Court to permit· them to proceed with the hearing of the application without involving the first respondent, . who after all, his presence was unnecessary. And, in case the Court could buy his idea, he did pray to adopt the contents of the affirmed affidavit in support of the application and the written submissions, as part of the submissions on behalf of the applicant with nothing to add. Alternatively, it was the submission of the learned counsel for the applicant that, in the event the Court insists that, the presence of the first respondent has to be ascertained before the hearing of the application could take piace, he did humbly seek for the indulgence of the Court, to adjourn the hearing of the application today and grant them leave to serve the first respondent by way of substituted. service through publication in newspapers, in terms of Rule 22 of the Rules. On the other hand, it was orally submitted by Mr. Rwebangira learned counsel on behalf of the second respondent that, the fact that, the applicant did fail and/or made no any attempts to serve the first respondent with the notice of motion and other copies at least two days before the hearing in compliance with the requirement under Rule 55 (1) of 3 ·.---·· ·-- -------

-• the Rules, and further that, he did not advance any reasons to account for such failure, the Court should deem him to have failed to discharge his duty imposed under the provisions of Rule 22 (9) of the Rules, the remedy · of which, is to strike out the application with costs. Additionally, Mr. Rwebangira _learned counsel did join issues with his learned friend for the applicant that, indeed a party or person, who was not a party in the proceedings of which his rights got touched, the only remedy available for him is to apply for revision of such proceedings. Nevertheless, he did hasten to submit that, in the current application, even though the applicant did claim that, his rights were infringed, the same were nowhere to be traced neither in the judgment nor in the decree of the High Court. It was therefore t_he view of the learned counsel for the second respondent that, such absence signifies that, the applicant has no any rights which have been infringed in the decision which he seeks. to be revised. In the circumstances, the application is unfounded and has to be struck out with costs, he did conclude. The first issue to be tackled in so far as the application at hand is concerned is whether the hearing of the application can proceed in the 4

absence of the first respondent. My answer is right away in the negative. It is the law that, whenever the Tights of any person are to be litigated 1 he. has to be fully involved. That has been the position of the Court in a plethora of decisions including. that of Mbeya - Rukwa .Autoparts and Transport Limited Vs Jestina Georg 1 e Mwakyoma [2003] TLR 251, where it held that: "It is not a fair or judicious exercise of powe 0 but a negation of justice where a party is denied a hearing before his rights are determined and taken away." In that regard, I am in agreement with the submission of the learned counsel for the second respondent that, the failure by the applicant to make efforts of ensuring that, the first respondent gotserved was a fatal irregularity in terms of Rule 22 (9) of the Rules. The subsequent issue that arises from such position is as to what should be the way forward under the circumstances. While Mr. Mbamba learned counsel on behalf of the applicant did ask for leave to effect service to the first respondent, his 5

_.. learned friend Mr. Rwebangira. learned counsel on the other hand, did · implore the Court to strike out the application. Essentially, both learned counsel are at one to the fact that, the current applicant was nota party to the proceedings sought to be revised. Nonetheless, Mr. Rwebangira did move further by arguing that, the contention by the applicant to the effect that, his rights were affected, is nowhere to be traced neither in the judgment nor in the decree. In my considered view, the learned counsel for the second respondent did travel beyond what was expected of him for the moment. Such arsenals ought to await the opportune moment in case there will be such application for revision. For the time being it is premature. That being the case, the fact remains that, the only remedy available for the applicant to have. his alleged rights determined, is by way of revision. This Court in the case of Halais Pro- Chen1ie Vs Wella AG (1996] did hold that: "The Court will revise suo rnotu the proceedings of the High Court where for instance/ the aggrieved party or person has no right of appeal. It will as well do so where in the circumstances of any given case an injustice would otherwise be condoned. // 6

In order that, the alleged rights of the applicant in the proceedings sought to be revised are deliberated and determined, it is pertinent that, extension of time for him to lodge the application for revision has to be granted by the Court. Regard being to the fact that, today, the hearing of the application did fail to take off due to negligence on the part of the applicant, the leave sought to enable them to serve the first respondent is hereby granted only that, they will have to bear for the costs of the second respondent in today's attendance. Order accordingly. DATED at DAR ES SALAAM this 14 th day of November, 2017. S. S. MWANGESI · JUSTICE OF APPEAL I certify that this is a true copy of theoriginal. DEPUTY REGISTRAR COURT OF APPEAL 7