Pius Kuhangaika and 2 Others vs Cowi Consult (T) Ltd. (Civil Application No. 191 of 2013) [2014] TZCA 2394 (4 August 2014)

4 CD IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 191 of 2013

1. PIUS KUHANGAIKA
2. ALLY LUNG'ANDE
3. COSTA JOHN (Administrator of the estate of the late RAPHAEL ANTONY) .. .. ...... .. .. .. .. .. .. .. .. .... .. .. .. .. .. APPLICANTS VERSUS COWi CONSULT (T) LTD. .. ..................................................... RESPONDENT (Application for extension of time to appeal against the decision of the High Court of Tanzania at Dar es Salaam.) 12 th February & 5 th August, 2014 BWANA, J.A.: (Shangwa, J.) dated the 14 th day of April, 2005 in Civil Revision No. 8 of 2004 RULING The applicants herein filed a notice of motion praying for extension of time within which they could lodge a notice of appeal against a decision of the High Court dated 14 th April, 2005 in Civil Revision No·. 8 of 2004. Before me the applicants were reprsented by Mr. Ndurumah Keya Majembe, learned advocate, while Mr. Thomas Sipemba, learned advocate appeared for the respondent. r r..,. r

Before the hearing, the respondent raised a notice of preliminary objection couched in the following words:- ctJlf!refore~-notmaintenable lJefore lhe -court- clSJ th~jurisidiction to exteifiTtime rof filing lJrnotke / ~ ---------------- ~-!l_PPeaf _ is-~vested--with- the--High_ Court_ ot) ~--- ---------------------------- \Tanzania. l--------" . 2. The application is incompetent for wrong citation of the applicable law. Both counsel filed written submissions in support of their respective positions on the subject. In so far as the respondent is concerned, on the first point of preliminary objection, he is of the view that jurisdiction to extend time for lodging a notice of appeal is vested in the High Court. He cited the provisions of section 11 of the Appellate Jurisdiction Act, Cap 141, in support of his arguments. He submits that this Court does not have 2

· concurrent jurisdiction with the High Court when it comes to extension of time. According to Mr. Sipemba, a proper move to be taken by the applicants following Utamwa, J.'s refusal to grant them extension of time was to appeal against the said decision. In so far as citation of a wrong provision of the law is concerned, it is Mr. Sipemba's submission that Rules 10 and 83 (1) and (2) of the Court of Appeal Rules, 2009 (the Rules) do not apply in the present circumstances. It is only section 11 of Cap 141 that grants jurisdiction when it comes to extension of time, he asserted. According to him and as per settled law, non-citation and or wrong citation of the rules maks an application incompetent and is therefore, liable to be struck out. He cited in support of his averment, the cases of Citibank (T) Ltd vs TTCL and four Others, Civil Application No. 64 of 2003 (unreported) as well as The National Bank of Commerce vs Sadrudin Meghji, Civil Application No. 20 of 1997 (unreported). He therefore, prayed for the application to be struck out with costs. 3

Mr. Majembe controverted Mr. Sipemba's stance. According to him and the historical background of the application considered, the instant application was lodged before this Court following refusal by the High Court (Utamwa, J.) although the responent did not resist the same. Upon refusal by the High Court to extend the time sought, the law allows the applicant to lodge the application in this Court, averred Mr. Majembe. He cited the decision of the Court in Ali Vuai Ali vs Suwedi Mzee Suwedi, ZNZ Application No. 1 of 2006 (unreported), in support of his line of argument. As to the alleged wrong citation of the applicable law, it is Mr. Majembe's submission that since the Notice of Motion was filed pursuant to Rule 10 of the Rules, the said Motion is properly before the Court. (!f-is ?ettled that an - application - of this~ kind- is--prpr innatufe d_7 ubstance if lodged under the provisions of Rule 10 of the Rules._ What is'> most-requ1recr ls-for lh-eapplicant Eo show that there-was good cause fo-rJ .....__ - - Cth-e 9elay'? wtiere the"applicant first -files the application, as was rightly J done by the applicants herein, before the -High-Court and· ne/she -is not L- ' (successful, the sald applicant has the_right to come before this Court for a7 second bite. He/she does not TJeed_tocomeby-way_ of appeal _or revision} .. 4

c-- Tnefefore, theprocedure followecnntliis applicatiQoJ? ptopr. I do agree ' ----- - - , -- , - - '-----___, - . ..,,.- --:--:-7 _ jwiththeappUcants' counsel that such an application_ is lodged_Jn _ th,is Court ....-- ---- , ,.,,.,;,;/ ,------- • L.----•--• • • r \ ~ ...,,.... • • - --• • ;P!tr it had been made before th~ Mign-cotJrt:-ana refused: _eusal by the~/ 1:,igh-Court is the - onli trigger for the_application- -to--this--Court. (See: Manoharlah Aggarwal vs Tanganyika Land Agency Ltd and 8 Others, Civil Reference No. 11 of 1999; Abuhkar Ali Himid vs Edward Nyelusye, Civil Application No. 51 of 2007 - both unreported). Likewise, I find no substance in the wrong citation of the law ~ argument. The matter before me was brough under Rule 10 of the Rules, citation of Rule 83 (1) and (2) notwithstanding. In my considered view, section 11 (1) of the Appellate Jurisidiction Act, Cap 141 would not apply in the circumstances of this application. The material point for consideration herein is whether the applicants have shown good cause for the delay to lodge their notice of appeal, hence prompting an application for extension of time. In the affidavits of Pius Kuhangaika and Ally Lung'ande, both in support of the application, it is evident that since 2005 the matter has been moving between the High Court and this Court, until, as stated earlier, 18 th February, 2011 when the 5

,,.._ High Court (Utamwa, J.) eventually refused to grant them the extension sought. Application No. 44 of 2011 that was filed at this Court following the High Court's decision was withdrawn under Rule 58 (1) of the Rules with liberty to reinstitute the same within two weeks from the date of that Order, (i.e. from 21 st October, 2013). The present application was filed on 5 th November, 2013 thus within the prescribed period. The above considered, it is evident that this application is properly before the Court. Therefore, the Preliminary Objection raised by the respondent has no merit. Accordingly it is dismissed with costs. The application for extension of time to file the notice of appeal is hereby granted. DATED at DAR ES SALAAM, this 4 th day of August, 2014. S. J. BWANA JUSTICE OF APPEAL I certify that this is a true copy of the original. M.A. MALEWO DEPUTY REGISTRAR COURT OF APPEAL 6