Poliycarp Kimaro t/a Shinyanga vs Shinyanga Region Cooperative Union (Shirecu) Limited (Civil Application No. 1 of 2015) [2015] TZCA 937 (21 August 2015)

lN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAM CIVIL APPLICATION NO. 1 OF 2015 POLIYCARP KIMARO t/a SHINYANGA MWANANCHI GARAGE ................ I ••••• ■■■■■■■■■■■■ I ■■ I ••••••••••• I •• ••••• APPLICAN_T~ VERSUS SHINYANGA REGION COOPERATIVE UNION (SHIRECU) LIMITED ............................................. RESPONDENT (Application for extension of time within which to file an Application for Review of the decision of the Court of Appeal of Tanzania at Dar es salaam) {LAUNDA, MJ.ASIRI, And MUSSA, JJJ.A.) Dated the 22 nd day of October, 2013 In Civil Revision No. 3 OF 2013 RULING OF THE COURT Date 18 Augu'st & 4 th September, 2~15 I RUTAKANGWA, J.A.: The applicant was ~ggrieved by the ruling and order of this Court "Lne Court'1-ii1CivirRevision No.3 of-2013 wnich were suo motu revision proceedings. The impugned ruling ("the ruling") is dated 22 nd October, 2013. 1

' \j ;;,,. On 2nd January 2015, exactly 437 days later, the applicant lodged this application. The application, which is brought under Rule 10 of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), is by Notice of Motion supported by two affidavits by Mr. Poliycarp Kimaro and Mr. Said Issale Mmanya. In this application the applicant is seeking an order extending the time within which to apply for review of the ruling. This is because in terms of Rule 66(3) of the Rules, such an application ''shall be filed within sixty days from the date of the Judgment or order sought to be reviewed". In paragraph 10 of his affidavit, Mr. Kimaro categorically states:- "Thal the delay in filing an application {sic) for Review is {sic) not occasioned by the Applicant's negligence or inaction but by the cause {sic) beyond his own control and the intended application for Review has overwhelming chances of success'~ -------1-he-advc1nced-cat1ses~'-'beyond-the-controf"-of-th-e-appl"it:a-nt-whlch necessitated this unarguably inordinate delay, can be gleaned from paragraphs 8 and 9 of Mr. Kimaro's affidavit. Mr. Kimaro deponed thus therein:- 2 /"

''8. Thal immediately after the delivery of the said ruling of the Court of Appeal the Applicant was aggrieved by the said decision I applied for a certified copy of the said Ruling and on the same date he {sic) instructed MIS Membar Law Attorneys to take appropriate legal steps to challenge it and the said Yasin Membar agreed to represent the Applicant and advised the Applicant that he would file the papers in Court on the Applicant depositing of the legal fees in the sum of Tshs. 5,000/000/=. 9. Thal the Applicant raised the fee and duly deposited into the Advocates Clients/ Account on _g-d day of January, 2014 but despite several follow-ups with the instructed Law Firm no steps could be taken in time till gh December 2014 thus necessitating the Applicant to seek assistance from M/S Smart Lawyers {Advocates) who duly advised 3

the applicant that there was . no · any other alternative than filing this application. leave is craved to refer to annexure marked •~3" Collectively as part hereof." The application has been strongly contested by the respondent in its affidavit in reply sworn to by Mr. Gregory Rugaila, its learned advocate. It is the latter's contention that the application lacks merit as neither no good cause has been shown to account for the delay, nor does the intended application for review have any chance of success as pressed by the applicant. Challenging the contents of paragraphs 8 and 9 of Mr. Kimaro's affidavit, Mr. Rugaila thus deponed:- ''I deny the contents of paragraph {sic) 8 and 9 of the Affidavit. There is no proof to that end. Even if that Is true/ the said Advocate was therefore -----·-·--- -·-·----· _______ - _____ n_egfigen_t[n p1.1rsyJog __ tbf3 instructio!J given_ becaus~--- ~ __ ----------- the ruling sought to be reviewed was delivered on the 2Z7d Octobe~ 2013 and the application at hand was filed on :z7d Janua~ 2015." [Emphasis is mine]. 4

· Before I delve into the merits or otherwise of the application, I find apt to give its undisputed background. This was clearly narrated in the Court's impugned ruling as follows:- ''..4 brief account of the matter as per the record and which is not disputed by the parties is to this effect. On 17/3/2008 the 1 st respondent filed a suit in the High Court {Commercial Division) against the applicant for recovery of a sum of money totaling Tshs 1689 409.00 being the costs or repairs done to the applicant's vehicles, loss of business and interests arising from a 2000/2001 crop season. On 26/6/2008 the parties to the suit through their counsel informed the trial High Court ---------fll/4efje_ma ✓ • 1,1 that theY- had reached an amica_b_Le"----------- settlement out of court and wish to record the settlement which settlement was duly recorded in court as a decree. The decree not only contains the 5

decretal sum of money Tsh 4~750/000/- payable to the 1 st respondent but it also includes the schedule of payments and a default clause. All in all however, by 31 st October, 2010 the applicant ought to have settled the debt The applicant however, did not pay as agreed due to one reason or another. This prompted the 1 st respondent on several occasions to resort to applying for arrest of the Principal Officer of the · applicant and sent to prison as civil prisoner which applications did not materialize because the applicant was paying though not according to the schedule and yet the 1 st respondent was accepting. In view of this development the High Court declined to commit the Principal Officer of the applicant to prison. On 4/6/2010 yet again the 1 st respondent applied for committing the Principal Officer to prison 6

as civil prisoner. It wa$ on that day when it was discovered that the applicant had paid a substantial amount leaving a balance ofTshs 5,000/000/- only. The High Court (Makaramba/ J.) did not find justifiable under the circumstances to convict (sic) the Principal Officer to prison. In its stead it gave the applicant one month from that day (4/6/2010) to settle the balance Tshs 5,000/000/=. Indeed the applicant through their cheque No. 128829 paid the amount and the 1 st respondent acknowledged receipt by a tax receipt of 3/7/2010 within the time ordered by the court. That would have put the case to rest/ it was not. On 28/11/2012 after a period of 2 years and 4 months when the debt had already been sett/eel Mr. Pesha on behalf of the 1 st respondent applied for execution of a decree {Tshs 178 ✓ 098 ✓ 213.85) for attachment and sale of the house of the applicant 7 l I

The High Court granted · the application despite protests. So/ the two houses were sold to the .Yd and ,fh respondent respectively. According to Mr. Mamba/ the Court Broke~ the houses fetched Tshs 5000,000/- and Tshs 6000,000/- respectively and the money is in the account of the Judiciary. As to why they had attached and sold the houses while the applicant had already paid, Mr. Pesha said they were enforcing the court decree dated 26/6/2008 and in particular paragraph 5 - default clause. We have shown that according to the deed of settlement which later on was registered as a decree/ the parties to the dispute (the applicant and -------'--_,tb_e_J5!__ces11-aadeat)_bad_agceed_tbat_tbe_applicant _______ _ shall pay a total sum of Tshs 49/750/000/-. Not only that they also put in place the schedule of payment showing the amount to be paid and the 8

time frame. According to the schedule, the applicant ought to have settled the entire debt by 31/10/2008. It is on record that the applicant did not stick to the schedule payment but yet the 1 st respondent accepted payments when made. The applicant cleared the debt on 3/7/2010 when the last payment was paid with the assistance of the High Court order and 1 st respondent accepted it without any objection. Given the above sequence of events, it is clear that the conduct of the 1 st respondent in accepting payment in violation of the schedule of payment till the debt was settled is deemed to have -~~~~~-'{Jreed~to_l/azy__tbe_agceement_afpa-Jtment.d_._N __ ~---~~--- The applicant herein was the 1s t respondent in the revision proceedings. 9

In the ruling, the. Court found it as a fact that the respondent, ''at the time the houses were sold, had already settled the debt." The Court, under the circumstances, found it inescapable to register its worry and astonishment at ''Mr. Peshas insistence that he. was enforcing the court decree which hadalready been settled." The Court further found itself: "Equally disturbed {by) the manner in which the High Court {Makaramba/ J.) had handled the matter. The Court went on to hold that:- "Had the High Court read and checked the record properly as we have shown above it would not have ordered the sale of the houses because the debt was settled more than 2 years ago. " In the face of these glaring undisputed facts, the Court was constrained to invoke its revisional powers and proceeded to nullify the sale of the two houses and set them aside. It is this order which is the bane of the applicant and as such he is bent on having it vacated. 10

As already indicated above, the applicant is seeking an· extension of time to apply for review of the ruling. The law governing applications of this nature is well established. An applicant must show good cause (Rule 10 of the Rules) why he should be given more time. As succinctly stated by the East African Court of Appeal in SHANTI v. HINDOCHA & OTHERS [1973] E.A. 207:- " ... the more persuasive reason that he can show. .. is that the delay has not been caused or contributed -bydilatoryconduct on his part ... But there may be other reasons and these are all matters of degree. He does not necessarily have to show that this appeal has a reasonable prospect of success or even that he has an arguable case ... // While it is perfectly correct to assert that the applicant "does not necessarily have to show ... that he has an arguable case," this assertion does not cover each and every proceeding. This rider is, therefore, necessary. This assertion will not automatically extend to a proceeding 11

where the applicant has no constitutional or statutory· right to redress, as is the case in applications for review of this Court's decisions or orders. Having in mind the above observations, the Court in LAURENO MSEYA v. REPUBLIC, Criminal Application No. 8 of 2013, categorically stated:- "The right of reviel¼ therefore/ is discretionary and is highly circumscribed as is glaringly clear from Rule 66 of the Rules. No person can come to this Court claiming as a matter of right a review of the Court's Judgment .. For the same strong reason no person has a right to access the Court seeking an extension of time to apply for review. There must be strong reasons advanced by the applicant to move the Court to grant an extension order. .. // (See also, ELIYA ANDERSON v. REPUBLIC, Criminal Applicafion~~~2 of 2013, CHARLES BARNABAS V. REPUBLIC, and Criminal Application No. 13 of 2007, etc. (both unreported)). 12

In view of the above clear position of the law, can it now be held with absolute certitude that the applicant has crossed the prerequisite threshold to merit the grant of the sought order or relief? My considered answer to this pertinent question, after studying the notice of motion, the affidavit in support of it and the submissions of Mr. Kidumage Chipson, Counsel for the applicant, is in the negative. My negative reply is predicated on the fact that the applicant has totally failed to prove that the inordinate delay, of 377 days, in applying for review, was not caused and/or contributed by his dilatory conduct. I have found no cogent evidence to establish that the applicant applied on 22 nd October, 2013, to be supplied with a copy of the ruling, for whatever reason, as alleged in paragraph 8 of Mr. Kimaro's affidavit. A copy of that letter to bear him out on this was neither annexed to the affidavit nor produced by Mr. Kidumage on the date of hearing inspite of my specific ___ _,~equest_to him to do so. The only damning irrestible inference to be drawn from this failure, therefore, is that such a letter was never written. It is alleged in the same paragraph that "on the same date" Mr. Kimaro instructed "MS. Membar Law Attorneys to take appropriate action 13

to challenge" the ruling and that advocate "Yasin Membar agreed to represent the Applicant" and demanded a deposit of Tshs 5,000,000/= as legal fees. At the hearing of this application and in the presence of Mr. Kimaro, Mr. Kidumage assured me that the said advocate Yasin Membar is alive and well and within the country. When asked why they never found it prudent to support the notice of motion with Mr. Membar's affidavit, Mr. Kidumage insisted that they thought Mr. Mmanya's affidavit would have sufficed. Mr. Mmanya is, allegedly, an Administrative officer in the "Member Law Attorney". He is accordingly not an advocate who could have received Mr. Kimaro's instructions. Mr. Kimaro is very specific that he personally instructed advocate Yasin Membar. So the affidavital evidence of Mr. Mmanya is purely hearsay which I cannot act on: see KIGHOMA ALLI MALIMA v. ABAS YUSUFU MWlNGAMNO, Civil Application No. 5 of 1987 (unreported). In his attempt to buttress the applicant's case, Mr. Mmanya avers in paragraph 6 of his affidavit thus: 14

"I believe that Mr. Yasin Membar failed to prepare and file the necessary papers in challenging the said decision of the court due to his illness as he was continuously suffering from stomachache... Leave is craved to refer to annexture marked '~4'' collectively as part hereof.,,,, Annexture 'A4' is a diagnostic report issued by the TMJ Hospital in respect of Mr. YASIN Membar. However, this report does not advance even by a millimeter the applicant's case because it was issued on 22 nd August, 2014 while the impugned decision was delivered on 22 nd October 2013. All the same, it is my considered view that it was Mr. Membar alone who could have competently testified ori these alleged facts. The absence of his affidavit fundamentally weakens the applicant's case. On this I am fortified by the decision of the Court in the KIGHOMA MALIMA's case ----(sup.ra}.~1be Court unequivocally held therein as follows:- ''Sufficient reason has been considered in a number of cases. Sometimes a slight lapse by an advocate might be overlooked,,. but not a lapse of a 15

' - ..... fundamental nature like the non-supply of any supporting evidence for an application for enlargement of time'~ In this particular case, if the applicant wanted to be believed in his assertions, the affidavit of Mr. Memba was essential. Its absence renders the assertions of both Mr. Kimaro and Mr. Mmanya wholly unreliable, if not wishful thinking. The above position notwithstanding, I am a shade unsure as to whether both Mr. Kimaro and Mr. Mmanya deponed to the truth. While Mr. Kimaro deponed categorically that he instructed Mr. Memba on 22/10/2013 (para. 8), Mr. Mmanya belied him claiming that Mr. Kimaro ''approached their office seeking legal advice" on 23/10/2013. Furthermore, even if I assume without accepting that Mr. Kimaro instructed Mr. Memba on 22/10/2013, he would not escape being guilty of dilatory conduce~. Tnisisb-etauseby--the"--time-he-Ele130sit:eE1-tl:le----sG-ca-lled~Tsbs. ___ ~ 5,000,000/-, if he actually did so, 03/01/2014, sixty days had already expired. So the advocate was not to blame. 16

Furthermore: ''It is common knowledge that negligence or inaction on the part of Counsel which causes inordinate delay in the processing of cases has normally been held by the courts as not sufficient reason for extending the time ... unless acceptable explanation is given,, (ABDUL RAMADHANI v. SAID RAMADHANI BAAMARY & ANOTHER (CAT) Civil Application No. 14 OF 1994). Such explanation is totally wanting here. It is, also, the applicant's contention that his ''intended application for Review has overwhelming chances of success/~ I understand this is not normally a major consideration in applications of this nature. But since he has raised it before me I have a duty to canvass it, although briefly. After going over the ruling, the notice of motion and its supporting affidavits, I venture to think that the applicant is being overly optimistic. There is no dispute on the fact that the respondent did not honour the payment schedule. But it appears vividly that there was tacit acquiescence of this ------.Uby_tbe_ap_plicant. As the Court observed in its ruling the respondent "was paying though not according to schedule and yet the,, applicant "was accepting/~ 17

When on 4/6/2010 the executing court discovered that the respondent had paid a substantial part of the decretal sum save for Tshs. 5 million only, it declined to commit its principal officer to prison as a civil prisoner. Instead it gave the respondent a grace period of one month within which to settle that balance. The applicant was evidently satisfied with that decision as he never challenged it at all. The respondent paid the balance on 3/7/2010. The debt was accordingly fully discharged and the decree fully satisfied. What was there remaining to execute? Nothing. I am, in the circumstances, like the full Court equally bewildered as to why the High Court could have blessed the unconventional process taken by the applicant over two years later (on 28/11/2012) to execute a decree which had long been satisfied. By that date the respondent was no longer a judgment debtor. What better example does one need to demonstrate a clear abuse of the process of the court. Were this trend to be sustainable, I fear that the courts would be turned into shrines of commerce for the financially well-heeled. That is not the mandate of any court of law. On the basis of these established facts, I find no basis to support Mr. Kidumage's belatedly raised issue of illegality in the impugned ruling, as even the two affidavits do not allude to any issue of illegality. 18

All said and done, I find myself in full agreement with Mr. Rugaila and hold that this application is devoid of merit. It is accordingly dismissed with costs. DATED at DAR ES SALAAM this 21 st day of August, 2015. E.M.K. RUTAKANGWA JUSTICE OF APPEAL I certify that this is a true copy of the original. RAR APPEAL 19