Mrs Mary Kahama (Attorney of Georgia George Kahama) and Another vs H.A.M. Import and Export (T) Ltd and others (Civil Application No. 52/17 of 2017) [2017] TZCA 1241 (24 August 2017)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 52/17 OF 2017 MRS MARY KAHAMA (ATTORNEY OF GEORGIA GEORGE KAHAMA) AND ANOTHER ............................................... APPLICANT VERSUS H.A.M.. IMPORT & EXPORT (T) LTD AND 2 OTHERS .................. RESPONDENTS (Application for extension of time to file an Application for leave to Appeal from the decision of the High Court of Tanzania at Dar es salaam) (Wambura, J.) Dated 8 1h day of April, 2016 In Land Case No. 139 of 2008 • . . RULING th . - •••MUGASHAJA ., . Bynotice .of..rnotion which was filed under Rule 10 of the Court of • Appeal Rules, 2009 (the Rules) the applicants are seeking extension of time by way of. second bite to apply leave to appeal. The applicants are relying stated.. in the Notice of motion. .:. L Imediately after delivery of impugned Judgment in Land Case No. 139 of 2008, the applicants timely lodged at the High Court, Land Division, an application which was registered as Miscellaneous Application No. 296 of 2016. The said Application 1

though lodged, was not admitted by the High Court Registrar timely and no reasons justifiably given on the delay of the admission. The Applicants request to the High Court Registrar to swear an affidavit on admission that the documents were timely lodged was refused and as a result, the High Court Land Division struck out the application for being time barred. The App1icnts approached the High Court for an application for extensionof time to apply leave througft Miscellaneous Land. .: . ..... Appliction No. 26 of 2016. The High Court dismissed the application hence this second bite ..... .: .....4 The App'licats Thve - at all material times been vigilant in prosecuting the application for leave to appeal. 5.. 'The.. decision gainst which extension of time' to file leave to appeal is sought is tainted with illegalities, irregularities ..... .. .. .rnisrep:r.esentatio...which if left to stand will set a ,bad precedent. 6. That the intended appeal will be the first appeal. 2

The application is supported by affidavits of SYLIVATUS SYLIVANUS MAYENGA and DR EDEN ERASMUS MARO. The application is opposed by the respondents through the affidavits in reply of DANIEL HAULE NGUDUNGI Daniel and DEOGRATIAS WILLIAM RINGIA. Both parties filed written submissions as required under rule 106(1) of the Rules. At the hearing, the applicants were represented by Mr. Silvanus 4ayenga, learned counsel whereas the respondents had the services of Mr. Daniel Haule, Ngudungi learned counsel Mr. Mahyenga adopted the written submissions and affidavits in support Of the Notice of Motion. He submitted that, following the handing down ofddsionof the High Court Land Division, the applicants were aggrieved and sought to pursue an appeal On 21/4/2016 a Clerk from FK Law Chambers one Samson Kimwaga presented to the High Court Registry documentation in respect of leave to appeal against the impugned decision Those documents were stamped on 21 /4/2017 which was the thirteenth day from the date of the impugned decision. However, due to internal processes of the High Court the documentation in question was cleared of admission and so endorsed on the 25/4/2016, released to Mr. Samson 3

Kimwaga for payment of requisite fees and registered as Misc. Land Application 296 of 2016. In addition, Mr. Mayenga pointed out that, the applicants faced another predicament since the Deputy Registrar signed the Chamber Summons on 5/5/2016. After more than one month on 14/612016, F.K. Law Chambers wrote a letter (annexture MK-5) requesting the Registrar to swear an affidavit narrating circumstances surrounding the delay to admit the application while the same was presented for filing on 21/4/2016. • The Registar. declined., to swear an affidavit and instead wrote a letter informing FK Law Chambers that the application was filed on 251412016 when court fees were paid The Registrar further clarified that, • the said application was ready to be filed since 22/4/2016 which was the • deadline. However, the applicants paid on 25/4/2016 which resulted into the application being time barred and it was struck out Subsequently, the applicants unsuccessfully sought extension of time to apply leave which was dismissed on 26/1/2017. Mr. Mayenga argued that, the delay was not deliberate since the applicants have all along been vigilant to pursue the appeal. It was further contended that, extension is sought because the impugned decision is tainted with illegalities because rd

the High Court raised and determined a point of law on jurisdiction without hearing the parties. On the other hand, Mr. Ngudungi adopted the written submissions and the affidavits in reply to oppose the application. He pointed out that, after the Ruling of the High Court, the initial application for leave was filed on 25/4/2016 as evidenced by payment of Court fees. He argued that, the absence of the affidavit of the Registrar signifies that, there is no proof if such delay was. occasioned by internal processes of the court preceding the filing of respective application As such, Mr. Ngudungi was of the view that the applicants have no cause to blame the Registrar. On the issue of illegality, Mr. Ngudungi submitted that parties were heard. as they we oorbinédto file final written submissions. However, the applicants declined to address the issue of jurisdiction whereas the respondents accordingly addressed the court on issue in question. In Court to ascertain if there is any illegality as alleged;.. In a brief rejoinder, Mr. Mayenga submitted that since the issue of jurisdiction was raised in final submissions, the applicants had no opportunity to make a reply and thus they were denied the right to be 5

heard. He reiterated that, the applicants were not successful in making the Deputy Registrar swear an affidavit on the delay which was attributed by the internal court's processes. Both counsel made reference to various decisions of this Court to support their propositions. While I will not make reference to all of them I have seriously taken them into consideration. Having considered the submissions of the parties and various authorities cited, the main issue for consideration is whether or not good cause has been established by the applicants Rule 10 of the Rules provides as follows - !' The Court rnay, upon good cause shown, eend time limited by these Ru/es or by any decision of the High Court or Tribunal, for the doing of ahy at authorized or. required by these Rules,whether before .or after expiration of that time and whether before or after the doing of the act, any reference in these Ru/es to any such time shall be construed as a reference to that time so exterided" As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and it must be exercised according to the rules of reason and justice, and not according to

private opinion or arbitrarily. (See LYAMUYA CONSTRUCTION VS BOARD OF TRUSTEES OF THE REGISTERED TRUSTEES OF YOUNG WOMEN CHRISTIANS ASSOCIATION, CivU AppUcation No. 2 of 2010 (unreported). Mr. Mayenga has raised the grounds of inaction on the part of the court which made the initial application to be struck out and the reason of illegality surrounding the impugned decision arguing the same to be good cause for the delay. Mr. Ngudungi argued that, no good cause has been drnonstrated by the applicants: What constitutes good cause is dependent on the prevailing circumstances of each land particular case As such, it is incumbent on the party to furnish the relevant material to enable the Court to exercise its discretion.. In RATNAM VS CUMARASAMY( 1964) 3 ALL ER 933 it was held: The Ru/es of court must, prima facie, be obeyed, and in order. OJUSt4y.a court in extending the time during which some step in procedure requires to be taken, there must be " some material on which the court can exercise discretion. If the laws were otherwise, a party in breach would have unqualified right to an extension of time which would defeat 7

the purpose of the ru/es which is to provide for a time table for the conduct of litigation" In MICHAEL LESSANI KWEKA VS JOHN ELIAFYE (1987) TL.R 152 it was stated: Although generally speaking a plea of inadvertence is not sufficient, nevertheless I think that extension of time granted upon such plea in certain cases, for example were a party putting forward such a plea is shown to have acted reasonably diligent to discover the omission and upon such disco vely, he acted promptly to seek the remedy for it." in the present case, the applicants who were aware that the decision was handed down on 8/4/2016 have not shown reasonable diligence having.presented the.ocuri .d ntation on 21/4/2016 and not making a follow up on the very next-'d8y the 22/4/2016 which was the deadline of filing the initial application fOr leave to appeal. Apart from the applicants' deposition which hinges on complaints about the internal processes being completed on 25/4/2016, there is no deposition on what transpired between 21/4/2015 on the presenting he documentation and before N .

25/4/2016 be it in the affidavits or notice of motion. The trends of events show that by 25/4/20 16 the applicants had not yet discovered that the appUcation was already out of time. This is cemented by the fact that no complaint was raised to the Registrar at the earliest moment including the 25/4/2016. Instead, fifty (50) days later on 14/6/2016, FK Law Chambers resurfaced asking the Registrar to swear an affidavit. Since the respective documentation was ready awaiting payment to have the application registered as of 22/4/2016, the applicants have not established good cause

• let alone explain the delay. I would agree with Mr. Ngudungi that there was no follow up of the pllcaiidr on thé - fate ofth application, in paicular, on the 22/4/2016, the applicants were a caUse of their own peril and they are not justified to blame the Registrar. Therefore, the applicants did not act diligently. 'Moreover, the authorities cited by applicants are distinguishable from the BAUDA VS RAZA HUSSEIN LADHA DAM)I and OT1-lERS, Civil Application No. 215 of 2016(unreported), the applicant was granted extension of time because the impugned decision was heard and determined without applicant's knowledge. He became aware on being informed that the property in question was sold in execution. Similarly, in ATTORNEY GENERAL vs TANZANIA PORTS

AUTHORITY and MR. ALEX MSAMA MWITA, Civil Application No. 87 2016, the Attorney General who was applicant was not a party at the ti and sought extension of time to apply revision after becoming aware of t decision. On the applicants' allegation on illegality, this factor was denied Mr. Ngudungi.. The question of illegality was also factored in the notice motion and the affidavits. In my considered view, Mr. Mayenga has as demonstrated the probable case of illegality However, I will not dwell into any details of the illegality in order to avoid gOing into the merits of the case The legal position is settled. When there is an allegation of illegality. the .. impugned decision,iti.s pertinent that to give an opportunity to the pafty making such allegation to have issue considered. This position was stated in the case of THE PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE VS DEVRAM VALAMBHIA [1992] TLR 182 it was:- "In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty even if it means extending time for the purpose of ascertaining 10 71

the point and if the alleged illegality be established to make appropriate measures to put the matter and record right." The position was further cemented in VIP ENGINEERING AND MARKETING LIMITED AND THREE OTHERS VS CITIBANK TANZANIA LIMITED, Consolidated Civil References. No. 6, 7 and 8 of 2006 (unreported) where we said: "We have afready accepted it as established law in this country that where the point of law at issue is illegality or otherwise of the decision being challenged that by itse/f constitutes a "sufficient reason" within the meaning of Rule 8 of the Rules for extending time." (See also ATTORNEY GENERAL vs TANZANIA PORTS AUTHORITY and MR ALEX MSAMA MWITA (supra) Since the law is settled on enlarging time on account of the complaint on illegality, as earlier said, I ásertaining its existence or otherwise is going into the merits of the case which is not my domain. 11

S - in view of the aforesaid, on account of alleged illegality, I accordingly grant the application to apply for leave not later than twenty one (21) days from the date of this order. DATED at DAR ES SALAAM this 24th day of August, 2017 12