Henry Muyaga vs Tanzania Telecommunication Company Ltd (BK Civil Application No. 1 of 2013) [2014] TZCA 2311 (13 March 2014)

'!' '"/ ,, . ./ I • IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA (CORAM: KILEO, J.A., LUANDA, J.A. And MUSSA, J.A.) BK CIVIL APPLICATION NO. 1 OF 2013 HEN RY M UYAGA ... ....................................................................... . APPLICANT VERSUS TANZANIA TELECOMMUNICATION COMPANY LTD ..................... RESPONDENT (Application from the decision of the single Judge of the Court of Appeal of 10 th & 14 th March, 2014 MUSSA, l.A.: Tanzania at Mwanza) · (Massati, J.A.) dated the 22 nd day of March, 2013 in BK Civil Application No. 8 of 2011 RULING OF THE COURT The applicant successfully sued the respondent in civil case No. 15 of 1999 instituted in the Court of Resident Magistrate, Bukoba. The decision was, however, reversed by the High Court (Lyimo, J.) in Civil Revision No. 5 of 2002 which was handed down on the 16 th March, 2010. Aggrieved by the High Court verdict, the applicant, seemingly, lodged a Notice of Appeal which was acknowledged by the Court on the 22 nd March, 1

2010. For some obscure cause, on the 17 th May 2010, the applicant instituted High Court Civil Application No. 18 of 2010, as it were, seeking enlargement of time within which to appeal to this Court in terms of section 11(1) of the Appellate Jurisdiction Act, Chapter 141 of the revised laws. On the 6 th June, 2011 the applicant withdrew the application in the wake of an objection from the respondent that the High Court had no jurisdiction to entertain the cause. A good deal later, the applicant refreshed his quest for enlargement of time in BK Civil Application No. 8 of 2011 which was lodged . and acknowledged by the Court on the 11 th October, 2011. As it turned out, on the 22 nd March, 2013 the foregoing application was dismissed for want of merits by a single Justice (Massati, J.A.). By Notice of motion which was lodged on the 27 th March, 2013 the applicant impresses upon the Court to vary the decision of the single Justice for reasons enlisted in his accompanying affidavit. In the affidavit, the applicant criticizes the verdict of the single Justice upon an array of complaints which we need not recite. Suffice to mention one of the complaints in which the applicant is at odds with the single Justice for non- directing himself on the original Court record in which was his Notice of 2

Appeal. The applicant went so far as to attach the said Notice to constitute as part of his affidavit. At the hearing before us, the applicant was fending for himself, unrepresented, whereas the respondent had the services of Mr. Galati Mwantembe, learned Advocate. Ahead of the hearing, Mr. Mwantembe had lodged a Notice of preliminary objection to the effect that: - The applicant's Notice of Motion is incompetent as it is supported by affidavit which contravenes the provision of Rule 62(2) of the Tanzania Court of Appeal Rules, 2009. Elaborating the point of objection, the learned counsel deplored the applicant's attempt to introduce the Notice of Appeal which was, in effect, not pleaded at the hearing of the previous application by the single Judge. Mr. Mwantembe urged that the introduction of the Notice amounts to adducing additional evidence without leave of the Court, contrary to the explicit provisions of the referred Rule 62(2). To this submission, the applicant simply pleaded that he is a layman and that he would abide by the determination of the Court. Without hesitation, we ~ntirely subscribe to counsel's submission but, we ask ourselves: Was it a requirement for the 3

applicant to impugn the decision of the single Justice in the manner he did, that is, by a Notice of motion supported by an affidavit? The answer is, definitely, in the negative more so as sub rule l(b) of Rule 62 prescribes two modes through which a dissatisfied civil litigant may impugn a decision of a single Ju.stice. The first mode is to apply informally to the Justice at the time when the decision is given and; the second mode is to apply for a variation of the decision by letter to the Registrar, within seven days after delivery of the decision. To this end, unlike other applications which are imperatively required to be by Notice of motion supported by affidavit, an application to vary or vacate a decision by a single Justice is spared that formality. Thus, the applicant's mode was clearly a deviation and, accordingly, we expunge the impugned affidavit. Asked as to whether the application survives without the affidavit, Mr. Mwantembe generously suggested that the application may be still be entertained by the invocation of Rule 2 of the Tanzania Court of Appeal Rules, 2009 which imposes upon the Court a duty to have due regard to the achievement of substantive justice in a particular case. We entirely agree, much as it is clear that the applicant seeks a reference under Rule 62 which does not embrace formalities. In our determination, we shall, however, 4

abide by the Notice of motion presented in the previous application giving rise to the present proceeding. For a better appreciation of what was before the single Justice we deem it instructive to recite the applicant's substantive reason for the delay from paragraph 3 of his affidavit: - That the delay was not deliberate but was subject to some prevailing circumstance that on the 2dh March, 2010 my elder brother one Mr. Felician Binamungu Muyaga passed away and that on 31 st March, 201 O my daughter Joyce Henry Muyaga also died leaving me behind preoccupied with days of sorrows and serious duties aligned thereto and in order to confirm on the reasons of delay I endeavor to attach a copy of letter from our Ward Executive Officer of which appears here as documents '~ '~ In this regard, Mr. Mwantembe told the single Justice in his written submissions that the applicant still had 15 days within which to lodge the Notice of Appeal which are unaccounted. Having heard either side, the single Justice determined: - Much as one may sympathise with the applicant with the demise of his brother and daughter in succession, which I accept as a valid reason for the delay, I entirely agree with Mr. Mwantembe that after that, 5

the applicant had 15 days to his credit in which to lodge the notice of appeal. He did not account for these days. As already intimated, the single Justice finally determined that no good cause has been shown and dismissed the application, hence the present quest. In support of the application the applicant fully adopted his written submissions and attempted some oral elaboration. In a nutshell, the applicant criticized the single Justice, first, for not affording him opportunity to present an oral argument in support of his written submissions; second, he faulted the single Justice for not finding good cause in his reason and; third, the applicant claimed that as he was about to recover from the sorrowful demise of his dear ones, his brother, namely Clonel Muyaga was struck by a strange disease and, as a result, he had to attend his treatment at Bukoba Government hospital and before a herbalist where he, eventually, also passed away in mid-July, 2010. It is noteworthy, however, that the latter detail was not comprised in the applicant's pleadings before the single Justice and, for that matter, we need not address it. As regards the first complaint, it should be recalled that the previously heard application was lodged on the 11 th October, 2011. In the aftermath, 6

the parties on either side duly filed their respective affidavits as well as written submissions. When the matter was called up for hearing before the single Justice on the 8 th day of March 2013, the applicant informed the Court in writing that he would not be able to attend the hearing on account of a sickness. The Judge noted that the applicant made a similar excuse when the application came up for hearing on a previous occasion and won an adjournment. In the result, the Judge was disinclined to a further adjournment and ordered thus: - unless any party files a notice in arrest of the ruling within seven days from this date/ ruling based on the written submissions shall be delivered on 22/3/2013. The applicant shall be served with a copy of the order. There was no response and, so the ruling was delivered as scheduled. Given the fact that the applicant, on a previous occasion, had made a similar excuse, coupled with the fact that the parties had presented their respective written submissions; we think that the single Justice was fully justified to dispense with the oral arguments. We should add that it would not have been in the interests of justice to adjourn the application for the second time in a row. 7

Coming now to the substantive reason advanced by the applicant in support of the application, we think it is important, in this regard, to sequence the chronology of events as follows: - i) J(1h March, 2010 - the impugned Judgment was delivered; ii) Z,d March, 2010 - the Notice of Appeal was lodged; iii) 2(Jh March, 2010 - applicant's elder brother passes away; iv) 31 st March, 2010-applicant's daughter passes awa½· v) J;;th Ma½ 2010 - applicant lodges Civil Application No. 18 of 2010 in the High Court; vi) (1h June ,2010 - applicant withdraws High Court Civil Application No. 18 of 2010 and; vii) 11 th October, 2011 - applicant lodges CA Civil Application No. 8 of 2011 which gave rise to the present application. Going by the foregoing chronology of events, the sorrowful incidents occurred on the 20 th March 2010 but it is beyond question that there was a good deal of an unexplained delay from the sorrowful events to the day when the appellant began the attempts to seek enlargement of time, as it 8

( were, on the 17 th May 2010. More particularly, the applicant assigned no reasons why he delayed the application giving rise to the present matter for more than a year after he withdrew the improperly preferred High Court proceeding on the 6 th June, 2010. To this end, we fully associate ourselves with the stance taken by the single Justice to the effect that the applicant had not shown sufficient cause to deserve the requested extension of time. In the result, the application is dismissed but, like the single Justice, we make no order for costs. DATED at BUKOBA this 13 th day of March, 2014. E. A. KILEO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL K. M. MUSSA JUSTICE OF APPEAL .,~ this is a true copy of the original. ~ l) Z.A.mA DEPUTY REGISTRAR COURT OF APPEAL 9