Sakum Ahmada Kuangaika vs Mohamed Mussa Salum (Civil Reference No. 4 of 2011) [2014] TZCA 2309 (9 September 2014)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM . (CORAM: KIMARO, J.A., BWANA l.A., And LUANDA, J.A.) CIVIL REFERENCE NO. 4 OF 2011 SALUM AHMADA KUANGAIKA ..................................................... APPLICANT VERSUS MOHAMED MUSSA SALUM ....................................................... · RESPONDENT (Reference from the decision of a single Justice of the Court of Appeal of Tanzania) 5 th & 16 th September, 2014 BWANA, J.A.: (Kileo, J.A.) dated the 4 th day of July, 2011 in Civil Application No. 85 of 2010 .................... RULING OF THE COURT This Reference was filed by Salum Ahmada Kuangaika, the applicant, pursuant to Rule 62 of the Court of Appeal Rules, 2009 (the Rules) following the decision of a single Justice of the Court dismissing his earlier application for extension of time to serve the respondent a notice of appeal 1

and a copy of a letter to the Registrar applying for copy of proceedings, .. judgment and decree. The single Justice ·of Appeal dismissed the said a·pp.lication for want ' . . of written submissions in terms of Rule 106(1) of the Rules and for failure to give grounds for seeking :extension of time to serve the documents to the respondent as required in terms.ofRule 48 (1) of the Rules.· . ' ' Aggrievep_' by that decis!on of the singe Justice of_ the Court, the applicant preferred this Reference: · His main ground for the reference is . ' . . that the sin9.le Justice was "too harh," in -dismissing his application based on the lack of compliance with Rule 106 (1). He states further thus:- ''F_ailure on the part of the applicant to file written submissions was not. due to negligence or in advertence on his part, rather, it was due. to . him . ' . being a layman,. also . semi-educa_ted The applicant . . . after filing for ,extension of time he was not a·ware of i - O "L 2

.. . i' the requirement for filing_ written submis_sions in terms of Rule 106(1) of the Court Rules, 2009 ... " ..... . . . r • I .- . . . Th~ applicant though his written submission the_refor prays for_ the leniency of the Court, in the interest of. justice to reverse the dec_ision of the single Justic~ and-:grant him th~ extension sought. ' ' . In response, the respondent .controverts the applicant's avermerits. He is of the view that- since the applicant ·failed to comply with the mandatory provisions of Rul~ 106(1), the single Justice 9f Appeal was right in dismissing the application as the reasons advanced . by the applicant . . were not sufficiently strong to make the Court grant the reliefs sought. We are aware of the requirements of Rule 106. The obligation to file written submissions is madatory .undr sub-rules (1) and (8) of Rule 106. ' .' . However, sub-rules (9) and . (10) of the said Rule defines the likely . . . - . ., . consequences for failure to file .submissions. On the part of the applicant, . . . the Court may dismiss the· appeal/application. As regards the. respondent; the Court may proceed to determine the appeal· or application ·ex parte. 3

The discretion extended to the Cou~ has to be ap_plied judiciously, thus, . . not offending the spirit of Rul~ 106 as a whole and in th~ inter~_st of justice in particular. The same applies to Rule 106 (19) where the Court may, in •• I • ·exceptional circumstances, dispense with the requirement to have- written I ' •'" submissions. · Wl)at hs to be borne in mind are the dictaes of justice. ' The said interests of justice however, in our considered viw, should not be • • t , •', applied or invoked to defeat he very requirements, of th_e law .. ustice has .. ', I to be in accordance with the law. In the instant application, t_he applic_ant raises ,the excuse that he was ignorant of the- provisions. of Rule 106.' It suffices to state herein the well settled principle of law that ignorance of th law is not an excus; thus the ' Latin maxim ignorantia legis_heminem excusat Each and evf?,ry person, let . . . . alone a litigant, is presumed to know the law involved or the tenets thereof. Since -the applicant avers that he did not know that the Rules required him to.file writte·n submissions-and or to 'do so within a prescribed . . . period or that he did -not know that requirement because he is a "semi- .. , l educated man", m_uc as _we may take note of his statement, regarding his educational background~ we nevertheless uphold the o_ld principle stated 4

above. Ignorance of th~ law is neither an excuse_ or a ground to enable us invoke R_ule 106 (19) of the Rules. Accordingly we old ·that· the· applicant has no advanced sufficient ground to make us ·depart_ from the· reasoning and decision of the single Jutice of the _Court, in dismissing te. earlier appliction for extension f . time to serve the respondent. Therfore this Reference fails and it is . dismissed in its _entirety. We make no order as to costs. DATED.at DAR ES SALAAM this.9 th day of September; 2014 .. . · . . . ~ .• N; P. KIMARO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL B.M.LUANDA JUSTICE OF APPEAL I certify that this is a.true copy of the originaL . ' Ji!L. [ , -rllF · F. J. KABWE DEPUTY REGISTRAR COURT-OF APPEAL - 5