In Re: Application by Allison Xerox Sila for Orders of Certiorari and Mandamus; In Re: Decision of the Board of Directors of Tanzania Harbour's Authority to Terminate Allison Zerox (Misc Civil Cause No 34 of 1995) [1998] TZHC 2148 (30 April 1998)

IN TIE HIGH COURT OF TANZANIA (Di\H ES SALA.i\1'1 DISTRICT REGISTRY) AT DAR i.GS SAtAA:M HISCELLANBOUS CIVIL CAUSE NO.;?t OF 199.'f"i , IN TH8 MAT'rER OF AN APPLICATION BY ) ALLISON XEROX SILA FOR ORDERS OF ) CERTIORA..-cn AND MANDIOOJS ) A n d IN 'rHE MATTl~R OF 'filli DECISION OF ) THE BOARD OF DIPJi:CTURS Of 'I'ANZA~IA )

• H./\RBOlJR I S AU'rI-iORITY '.L'O 'l'JERHINATE ) ALLISON ZEROX ) RULING CHIPST:.., j- ,, :

---

0 e O ''° e. e APPLICANT 00000• RESPONDENT 'This is ax1 application for extension of time to file a fresh Notice of Appeal and lodge an appeal in the Court of Appeal. The application has been.made under section 11 of the Appellate Jurisdiction Act, 1979. 10 The background of the me.tter is that this Court (Bubeshi, J.) 20 delivered its Ruling against t,he applicant on 14th May, 1997. On 16th May, 1997, the applicant filed a Notice of Appeal, and on. the same day, he qled ap. application for leave to appeal to the Court of Appeal~ 'rhat Notice of Appeal was defective in that it did not have :the aignature of the Registrar a.nd was wrongly entitled~ On 29th August, 1997 (presumably after the. applicant had received a notice of preliminary obj~ctio:n fi:.ed on 14th August, 1997) the applicant filed an a;pplication μ'! the Col:lrt of Appeal seeking 30

. I 2 to amend the Notice of Appeal. However, on 24th October, 1997, at the ir:.,stance of the a_pplicGmt, that a1):plication was marked withdrawn, a1d on 14th i 1 /ovember 1 1997, the applicant filed the present application. Professor Fimbo, learned counsel for the applicant, submitted . applications that the guiding principles in suci1 · _ , were, first, whether the applicant was negligent in delaying to fi:le }lj_s Notice of Appeal; and secondly, whether in_ju.stiGe \·wulcl. bt caused if the application is refusedo In his submission, tile delay could. be explained and was excusable; and that neither the applicant nor his a.gent were negligent. It was learr1ed cou.ns;.,l I s further submission that the intended appeal stand:: a go-od chance of success, and that it would raise questions of la.vi of gener1:tl public importemce. Hr. Mzava, learned counsel :for the respondent, submitted 1 in the first place, that this applic0tion be rejected because there was a subsisting Notice of Appeal as the same has not :yet been withcir·c,wn even if it -..,,r.s found to be defective. ,-econdly, he submitted that the principles which guide the cou:tts in such cases. were, firBt, whsther the applic2.11t was diligent in making the applice.tion; secondly, whether the applicant was negligent in delaying to file the Notice of .Appeal; thirdly, whether the applicant had sufficiant cause for the delay; B.nd fourthly, whether injustice would be caused to either p[;!X'ty if the application is granted or refused. On the question of diligenc·e, lfr" !'lza.va submitted that the applic€.Ilt 1 s advocate 1 s failure to file a proper Notice of Appeal showed lack of diligence. On the question of negligence, learned counsel submitted that the applicant's delay in filing this application some 19 days 10 20 after withdrawal of his application in the Court of Appeal and some 30 90 days after he knew thot the NoticB of Appeal was defective amounted to gross negligence, end that rw single reason had been given to support the application.

( ) 3 On the basis of the foregoing, Mr. Mzava submitted that the application be dismissed even if the intended appeal has merit, and that the question of injustice must be subject to fulfilment of the provisions of the law. Learned counsels of both sides cited several decisions of the Court of Appeal of 'ranzania which appear to me to be somewhat in note conflict. It is e.lso relevant to · .. that almost (if not) all the decisions cited by both sides .dealt with Rules 8, 1 +3, 44, 57, 76, and 87 of the Tanzania Cou:ct of Appeal Rules. In those Rules, specific periods have been given for doing particular acts. But section 11 of the Appellate Jurisdiction Act, 1979, under which the present· application has been made, does not appear to provide a specific period within which such ari application should be made. For my part, and on the authorities, the principles which should guide the courts in such matters are, first, whether the applicant has been guilty of negligence Emd inaction in making the application or filir!g his Notice of Appeal·; secondly, whether the applicant had. sufficient cause for delay; a.nd thirdly, whether injustice would be caused to either side if the application is refused. From the history of the matter, it seems to :ne that, eitqer, there was no Notice of Appeal filed in the Court of Appeal, or, if that defective Notice of Appec,.l be tr.Jrnn to have been a Notice of Appeal, then, by the provisions of Hule ,34 of the 'l'anza.nia Court of Appeal Rules, 1979, that Notice must be deemed to have been withdrawn by the time the pre1:,ent application was filed. Aga.in from the history of -the 1:1atter..s the defects in the earlier Notice of Appeal were largely contributed to by the Registry. The reason for the delaY, therefo:te;i was· ,a mere matter of techinicality rather tha.'1. the applicant's· so called gross negligence. All other ,steps up to the filing of this application were ·tc.tken very expeditiously. I I therefore, find no negligence on the part of the applicant. 10 20 30

,. 4 It is, I think,·correct to sa;; thc:.t where no negligence on the part of tlia applicant has been established, the court should go on to consider whether sufficient cause for the delay has been established, and further, whether injustice would be caused to either side if the application is refused.' On the causes of th,=i delay, I think that the history of the matter contains thoae causes, d I think that for purposes of this application time started to run after th,3 application in the Court of Appeal was withdrawn because this application could not have been filed in this Court while ·that in the Court of Appeal was still 10 pending. Besides, tbe delay in filing this application was by no means inordinate. On the question of injustice, it.appears to me that where the intended appeal sts.nds reason.:i.ble chc..r,ces of success and would raise important questions of law of general r:ul,1i-c importance, ref,.isal of the application jn such a. case would certainly cause injustice to the applicent. I am fortified in this view by the decision of-the Court of Appeal in the case of Chrisant H. Mzindakay_v. Gilb-3rt Louis Ngua, C.A.T~ Civil l-i.pplication No. HB.2 of 1981, in vthich Nyalali, C.,J. He added: ,:There is also authority to the effect that an ap:plicfation for extension of ti!!le should rwt be refused where the int:c:nded appeal stands a reasonable chance of success''. "ln my view, I am required only tc, see wnether there are non-directions or misdirections on the evidence or on the law, and whether there are irregularities affecting the procee- dings cf the court below and to decide whether on the basis of such non-directions or mis- directions or irregularities, the intended appeal stF..i.nds a reason.::tble cl-la.nee of success. 20 30

5

'.l'he Lord Chief ,JuEtice concluded; :, I hav8 carefully r:-0nside,·ed the submission of both sid0s, cilld I have come to -ho conclu- sion that it ca.'lllot be said that tho intended 1peal does· not stand .. a reasonable •he.nee of s.iccesso I therefore allow the a.pplia't'ion·:: o In the instant applic:J.tion, the applicant has sh_own that the intended· appeal stands a reasonable chance of successG Besides; the intended appeE,.l would indeed rcise questions of law of general public importanceo On the contrary, the respondent did not in any way attempt to show that th8 intended appeal does not have a reasonable chance of successo For -mr part, after carefully considering the submissions of both sides, arid after goitig through the Ruling o:f this Court (Bubcshi. 1 J.) which the intended app8al would seek to challenge, I have come to the conclusion tllat the int.:mded appeal does st:;v."ld a reasonable chmce of success. · For the foregoing rzusons, I hereby grant this application. · 11he applicant shall file his Notice of ,~.ppeal within ten days from the date of delivery of this Buling. The applicant shall pa:f court fees for filing the said Noti¢e of Appeal. Costs shall be in the cause. JiJDGE ~ 10 20

.., .. -. 30/4/98: Coram: I-1.shote, DR In person: For the Applicant Msuya: . For th3 Hespondents CC: Nesta 6 (j .. Huling delivered in Chambers in the presence of the Applicant in person 3.lld in the presence of Mr. i'-1.3uya 1 Learned Counsel for the respondent. U.igd) : F. S. MSHOTE DIS'I'RICT REGIS'I'Ril.R "j,0/4/1998 ... ... ... r •. • . , •• .. 10