Modern Newspaper Printers Limited vs Clouds Entertainment Company Ltd and Others (Civil Application No. 218/01 of 2017) [2017] TZCA 1285 (15 November 2017)

IN THE COURT OF APPEAL OF TANZANIA l . () AT DAR ES SALAAM .. r CIVIL APPLICATION NO. 218/01/2017 MODERN NEWSPAPER PRINTERS LIMITED ------ APPLICANT VERSUS CLOUDS ENTERTAINMENT COMPANY LTD------- pt RESPONDENT CLOUDS FM RADIO STATION ______________ .;__"'------ 2 nd RESPONDENT DOCTOR SEBASTIAN NUEGE ________________ .:. _____ 3 rd RESPONDENT (Application for extension of time to appeal against .the ruling of the High · Court of Tanzania at Dar es salaam District Registry)·· (Mujulizi, J.). dated the 15 th day of April, 2016. in Miscellaneous Civil Application· No. 458 of 2014 RULING 7L 11 & 16 th November, 2017 MWANGESI, J.A.: By notice of motion .made under the provisions of Rule 10 of the Court of Appeal Rules, 2009 (the Rules), the applicant herein is moving the Court to grant extension of time within which it can lodge an application for · leave to appeal to the Court .to challenge the decision of the High Court (Mujulizi, J.), that was delivered on the 15 th April, 2016. The application is supported by affidavit that was affirmed by one Hamza Byarushengo, an 1

qdvocate representing the applicant. Additionally, on the 7 th day of June, 2017, the learned counsel for the applicant did lodge written submissions in amplification of the grounds· of application in compliance·_ with the stipulation under the provisions of Rule 106 (1) of the Rules. On the other hand, the application is strenuously resisted by · the respondent in the reply affidavit to the notice of motion, which was sworn . . by Mr. Michael Joachim Ngalo, who happens to be the advocate representing the respondent. And, in terms of the provisions of Rule 106 (8) of the Rules, on the 7 th July, 2017, Mr. Ngalo learned counsel~ did lodge written submissions in reply to the written submissions lodged by his learned friend on behalf of the applicant. When the application was called on for hearing on the 7 th Nove01ber, 2017, Mr. Hamza Byarushengo learned counsel, did enter appearance for the applicant, whereas, Mr. Michael Ngalo also learned counsel, appeared to advocate for the respondent. In his oral submission in Court, Mr. Byarushengo did pray to adopt the affidavit which he did affirm to support the notice of motion, as well as the written submissions, which he did lodge on the 7 th June, 2017, to form part of his oral submission. And, in additional to what is contained therein, the learned counsel did respond to 2

__j the written submissions that were lodged by his learned friend wherein, he -did raise two points of preliminary objection. Responding to the first point iri the raised preliminary objection, wherein it was argued by his learned friend that, the application is incompetent for want of order of the High Court refusing leave to appeal, it was the argument by the learned counsel for the applicant that, the style which was used by his learned friend to raise the alleged preliminary" objection, is uncalled for, as it is un-procedural. In his view, in case his learned friend was of the _ view that, the application was indeed incompetent as he did argue, he ought to have lodged a formal notice of preliminary objection in terms of Rule 4 (2) (a) of the Rules and not presenting it through the back door. To that end, he did urge the Court to disregard the same. Alternatively, Mr. Byarushengo learned counsel, did submit that, the contention by his learned friend is misconceived in that, in the application · at hand, the ruling that was given by the High Court refusing to grant leave is appended to the notice of motion, which is the same as the order demanded by his friend. This is from the fact that, the words "order" and "ruling" carry the same meaning, and are used interchangeably as per the 3

holdings in the cases of Edward MareaHe Vs MareaHe Clan and Akilei Marealle [1992] TLR 275, at page 277, as well as John Mgaya and Fo:ur Others Vs Edmund Mjengwa and Six Others [1998] TLR 457, at page 482. On the second point of argument, Mr. Byarushengo did submit that, his learned friend did raise the issue on the probability of the intended appeal succeeding. In his view, this was yet another misconception on the part of the learned counsel for the respondent in that, it was raised at an improper stage. What the applicant was required to establish in so far as the application at hand is concerned, was showing if there was any good cause that caused him to fail to lodge the application for leave to appeal within the time prescribed by the law. As the point by his learned friend . . has been prematurely raised, the learned counsel for the applicant did urge the Court to dismiss it with the contempt it deserves. With regard to the substantive application before the Court, it was the submission of the learned counsel for the applicant that, following the refusal by the High Court to grant leave to his client, to appeal to this Court to challenge its decision, his client did instruct him to go for a second bite in this Court. Nonetheless, the copy of the ruling which he applied for from 4

the High Court as per annexure BCA-6 to his affidavit was supplied to them late as evidenced in annexure BCA-7 to the affidavit. And, since in terrns of Rule 49 (3) of the Rules, the applicant could not have lodged a .o.o--'--'-'tic,...,..P... c ....... )f __ _ motion in this Court without accompanying it with a copy of the ruling of the High Court, and the fact that, the delay in getting the copy of ruling of the High Court was not of the applicant's own making, Mr. Byarushengo learned counsel, relying on a Nigerian decision in the case of Fa111fa Oil U111ited Vs Attorney General of the Federation and Nigerian National Petroleun1 Corporation - SC 305/2002, reported in monthly judgments of the Supreme Court of Nigeria on the 3 rd day of November, 2003, _did argue tt1qt, there was good cause for the applicant to fail to lodge the application within time and as a result, there is justification for this Court, to grant the soug~1t extension of time, he did so submit In response, Mr. Ngalo learned counsel, · on behalf of the respondents,. did also request to adopt his sworn affidavit in reply to the notice of motion, as well as the written submissions, which were lodged in reply to the submissions by his learned friend, as part of his oral submissions. It was his submission that, by virtue of the provisions of Rule 49 (3) of the Rules, the document which is required to accompany an r :.J

application for [eave to appeal is a copy of the order, and not the ruling, as misconceived by his learned friend. In the circumstances, annexure BCA-'-4 to the affidavit of the applicant in support of the application is an improper document because, it is a ruling which is not an order according to the cited law. Mr. Ngalo learned counsel, did submit further to the effect that, the argument by his learned friend that, in raising the preliminary objection in the written submission was improper is as well misconceived because, it is the law that, a preliminary objection on a point of law can be raised at any . . . . stage of the proceeding. He did therefore distinguish the authorities that were relied upon by his learned friend by arguing that, the same were applied under different context to the one under discussion. For instance, in Edward Mareafe Vs Mareale Clan and another (supra), the issue was in respect of an interlocutory order which is not the case here. In both cases, Mr. Ngalo did argue, the applications were in respect of their peculiar circumstances, which were not meant to have a universal application. He did thus urge the Court to give Rule 49 (3) of the Rules, its plain meaning that, what was required to be appended to the application 6

was an order and nothing else. In that regard therefore, the application at hand be found to be incomplete and as such, it be struck out. On the question as to whether the applicant has shown good cause as to why he did not lodge the application for leave within time, in the view of Mr. Ngalo, learned counsel, there was none. Besides the fact that, the applicant did use a lot of efforts to explain on how he struggled to get a copy of the ruling, which unfortunately was irrelevant to the appl_ication

• envisaged to get lodged, the follow-ups he alleged to have made were not disclosed and thereby, causing problems to the Court in ascertaining as to whether such follow-ups were indeed made or not. The learned counsel did therefore conclude his submission by arguing tt1at, no sufficient explanation had been given to account for the delay in lodging tr1e application for leave . .
• · to appeal from the 20 th April, 2017, when the ruling was delivered at the High Court, to the 19 th May, 2017, when the application at hand got lodged in Court. He therefore, prayed for the application to be struck out With costs. From the submlssions made by the learned counsel for both sides above, three issues stand for dellberation and determination by the Court. These are, first, whether the preliminary objection raised by the learned 7

.counsel for the respondent is tenable. Secondly, whether in annexing a copy of the ruling instead of an extracted order to Ute application for extension of tirne 1 the applicant was legally proper: And, third, whether t1'1e applicant has managed to advance good cause for his delay in lodging the current application for---extension of tlrne. Starting with the first issue that is, as to whether the respondent's learned counsel, was legally justified to raise the preliminary objection regarding the competency of the application in the cause of his reply to the written submissions, my answer is in the affirmative.• The preliminary objection which was raised by the learned counsel in the application is in ·respect of the requirement of law that, the application was not accompanied by the extracted order of the decision sought to be appealed against. I view the requirement stipulated under the provisions of Rule 49 . (3) of the Rules, as having a direct impact to the jurisdiction of the Court. It has severally been held by the Court that, where an issue on a point of iaw has been noted and in particular, if it relates to the jurisdiction of the Court, it can be raised at any point in time even at the appeal stage. See: Richard Julius, Rukan1buka Vs Issack Ntwa Mwakajifa and Tanzania Railways Corporation, Civil Application No. 3 of 2004, Baig 8

and Butt Construction Lin1ited Vs Hasn1at Ali Baig, Civil Appeal No. 9 of 1992, as well as Fanuel Mantiri Ng'unda Vs Herman Mantiri Ng'unda and Twenty Others, Civil Appeal . No. 8 of 199S (nll unreported). It was for instance held in the case of Fanuel Mantiri Ng'unda Hern1at1 Mantiri Nh'unda and Others (supra) that: "The question of jurisdiction for any court is basi0 it goes to the very root of authority of the court to adjudicate upon cases of different nature. The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the cornmencernent of the trial---." · The second issue is on the question of the document that was supposed to accompany the notice of motion. The question is whether appending a ruling to an application for_ extension of time was improper in view of the wording under the provisions of Rule 49 (3) of the Rules. The wording under t~1e Rule Reads: 9

"Every application fvr leave to appeal sha/1 be accompaoied by a copy of the decision against which it is desired tv 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. " While Mr. Ngalo learned counsel is of the view U1at, by view of the wording in the above quoted provision, it was mandatory for the applicant to append to the application the order of the High Court, Mr. Byarushengo learned counsel on the other hand, is of tt1e view that, by appending the ruling to the application instead of extracting an order from the ruling was sufficient. The same issue was a subject of discussion in the case of , Edward Mareale V's Mareale cian (supra), involving Ruie 46-(3) of the repealed Rules of 1979, which had the same wording. The holding of the Court was that: "There is no Rule that is relevant tv the present matter which stipulates that an application for _ a copy of the order of the High Court rnust be sent to the respondent. It is not desirable tv extend the rigorous provisions of Rule 83(2) to applications for leave. The words 11 0rder" and 1 'ruling" carry the sarne meaning and are mutval/y interchangeable. " 10

The above holding which was later cited by the Court with approval in the case of John Mgaya and Four Others Vs Edn1undi Mjengvva and Six Others (supra), has remained to be the position of the law. ln the circumstances, in annexing the ruling to the application, the applicant has done nothing wrong and the preliminary objection, which got raised to that effect, is held to be unfounded and hence, rejected. Lastly, is the issue as to whether the applicant has managed to. · establish good cause for the delay in lodging the application for extension of time to lodge an application for leave. It is apparent from annexure BCA

• 5 to the affidavit of the learned counsel for the applicant that, they did ask for certified copies of the ruling on the 28 th April, 2016, tt1at is, after the elapse of thirteen days from its delivery, which was made on the 15 th April, 2016 and therefore, within the fourteen days prescribed by the law~· . . The same indicates to have been copied to the respondent's · learned counsel. And, annexure BCA - 7 to the affidavit of the learned counsel for the applicant, there is evidence of Ute exd1equer receipt to establish that, · the certified copy was supplied to the applicant on the 16 th May, 2017. With sucl1 evidence, I am sufficiently convinced that, the applicant had 11

. good cause to fail to lodge tr1e application for leave to appeal to this Court in the second bite within time. He therefore bears no blames for delay. That said and done, I hereby grant the application for extension of time to lodge an appH~ation for leave to appeal against the decision of the High Court. The same has to be done within a period of twenty one days fro·m the date of this ruling. Order accordingly. DATED at DAR ES SALAAM this 15 th day of November, 2017. S.S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy A.H. MI DEPUTY REGISTRAR COURT Of APPEAL 12