Charles Marwa Wambura v. National Bank of Commerce Civ no 5 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 5 OF 2007

CHARLES MARWA WAMBURA ……. ……………………………....APPLICANT

VERSUS

NATIONAL BANK OF COMMERCE………………………….…… RESPONDENT

(NOW CONSOLIDATED HOLDING CORPORATION)

(Application for Extension of time from the decision of the High

Court of Tanzania at Dar es Salaam)

(Mroso, J.A,Nsekela,J.A, And Kaji J,A.)

Dated the 13^th day of October, 2006

in

Civil Reference  No. 26 of 2005

R U L I N G

17^TH & 23^rd August, 2007

MSOFFE, J.A.:

        Before me is an application by way of notice of motion.  It is supported by an affidavit sworn by Charles Marwa Wambura, the applicant.  The court is being moved for an order that it:-

be pleased to extend time within which the applicant may lodge for a review this court’s decision dated 13^th day of October, 2006 between CHARLES MARWA WAMBURA and the NATIONAL BANK OF COMMERCE (NOW CONSOLIDATED HOLDING CORPORATION).

        A brief historical background giving rise to this application is instructive.  The applicant was employed by the National Bank of Commerce which has now been succeeded by the Consolidated Holding Corporation.  He filed several cases in the High Court against his employer.  One was before Mapigano, J. and another before Ihema, J.  He appealed to this Court against the decision by Ihema, J.  On 16/4/2003 this court dismissed the appeal vide Civil Appeal No. 3 of 2002.  Feeling aggrieved by the decision of this court in the above mentioned Civil Appeal No. 3 of 2002 he desired to have it reviewed by this same court but was late to apply for review.  On 26^th March, 2004 he filed an application (Civil Application No. 36 of 2004) before a single judge of this court seeking enlargement of time to file his application for review.  Ramadhani, J.A. (as he then was) dismissed the application on 17^th October, 2005.  Dissatisfied, the applicant applied for a reference to this court from the decision of the single judge of this court.  Two grounds were given for the reference and these were:-

1.           That the decision which was given by Hon. Ramadhani, J.A was a result of improper records which do not confirm (sic) with the records of Appeal.

2.           That the learned Justice of Appeal did not consider that being a layman in law I had to look for legal aid before filing the review within the specified time and in the mean time I had no any one to direct me to correct documents, which shows (sic) that I was attended by a particular lawyer.

On 13/10/2006 the reference was dismissed vide Civil Reference No. 26 of 2005.  Aggrieved, the applicant desired to have the decision of 13/10/2006 reviewed by this same court but was late to apply for review.  Hence on 22/1/2007 he lodged this application seeking leave to file his application for review out of time.

        It is not in dispute that the decision the subject of the intended review was given on 13/10/2006, as already stated.  On 20/10/2006 the applicant wrote a letter to the Chief Justice requesting that the decision of the court dated 13/10/2006 be referred to a Full Bench of five Justices for re-consideration.  In a letter dated 29/12/2006 information was communicated to the applicant that the Chief Justice found no legal circumstances warranting the constitution of a Full Bench of five Justices.  In the letter the applicant was advised that he should have applied for review of that decision if he strongly believed that the principles set in the case of Principal Secretary, Ministry of Defence and National Service V Devram P. Valambhia, Civil Reference No.9 of 1991 (unreported), applied to his case.  Consequently, this application was filed on 22/1/2007, as already stated, which was 24 days after the communication from the Chief Justice and 101 days after the decision of 13/10/2006 in Civil Reference No. 26 of 2005.

        The essence or spirit behind this application is best captured by the averments under paragraphs 3, 4 and 5 of the affidavit in support of the application.  The paragraphs read as follows:-

3.           That I was not satisfied with the said decision of this court consequently I made a reference to HIS LORDSHIP, THE CHIEF JUSTICE OF TANZANIA for his decision.  Copy of the said letter of application dated 20^th October 2006 is appended here to and marked CMW – 3 collectively forming part of this Affidavit.

4.           That on perusal of the said letter by HIS LORDSHIP THE CHIEF JUSTICE, advised me to come in this court by way of application for review.  A letter with Civil reference No.26 of 2005 dated 29/12/2006 received by me on 15/01/2007 advising the same appended hereto and marked CMW-2 forming part of this Affidavit.

5.           That failure to make the application for review within 60 days from 13^th day of October was not caused by negligence but it was caused by the circumstances and reason stated in paragraphs 3 and 4 herein above.

As already observed, this is an application for enlargement of time to apply for review of a decision of the full court. In Civil Reference No. 26 of 2005 this court stated:-

“In an application for enlargement of time the court   essentially considers whether the reasons advanced to explain away the failure to do that which ought to have been done within the given time have merit.  Put in another way, in such an application the court looks at the reasons given for the delay to see if they provide an acceptable excuse.  The court does not, at this stage, consider the merits or otherwise of the case which would be filed if extension of time is granted”.

The law is now settled that an application for review ought to be filed within 60 days from the date of the decision sought to be reviewed.  The crucial question is whether the applicant has given sufficient reasons to explain away the delay in filing the intended review within time.

In explaining away the delay the applicant has reiterated the contents of his averments under paragraphs 3, 4 and 5 of his affidavit.  In the process, he urged that he thought the letter was enough to move the Court for a review; and that he could not move the Court with the letter and a formal application for a review at the same time.  With respect, the applicant ought to have known that under Rule 45 (1) of the Court Rules 1979, subject to sub-rule 3 thereto and to any other rule allowing informal application, all applications to the Court are by motion.  The only instance where a party could move the court by writing is under Rule 57(1) in a reference from a decision of a single judge.  Therefore, it was not open to the applicant to think that the letter to the Chief Justice was an application for a review.

Indeed, the applicant ought to have known further that by writing to the Chief Justice he was in effect seeking an extra-judicial solution to his cause.  Much as he was entitled to seek assistance he ought to have made sure that time did not run against him.  This was important because “the period of limitation does not stop running while an intending litigant is pursuing the remedy extra-judicially”- Israel Solomon Kivuyo V Waijani Langoi and Another, C.A.T Civil application No. 35 of 1993.  I may add here that, even assuming that it was legally open to the applicant to seek redress by writing to the Chief Justice, he has not given any explanation as to why he had to take another 24 days to file this application after the communication by the Chief Justice! All in all, much as it was not necessary to seek redress from the Chief Justice, as already observed, the end result was that this application was filed 101 days after the decision sought to be reviewed was given.  In my view, this was an inordinate delay, and the applicant has not advanced sufficient reasons to explain away the failure to lodge the application within the period of 60 days.

At the hearing of this application the applicant came up with yet another point.  That where there is a point of law touching the illegality or otherwise of the decision sought to be challenged, that is a point of law of sufficient importance to enlarge time under Rule 8.  In support of the principle, the applicant cited the case of Valambhia (supra).  In his view, the point of law in this matter is an illegality in Civil Appeal No. 3 of 2002 where there were three grounds of appeal and yet the court considered only two grounds.

        In his submission, the applicant admitted that he did not canvass the above point of law before Ramadhani, J.A. in Civil Application No. 36 of 2004.  In similar vein, the point was not raised in Civil Reference No. 26 of 2005.  Indeed, in the Civil Reference only two grounds were given for the reference, as demonstrated above, and  the above point was not one of them.

        In Civil Reference No. 26 of 2005 this court restated the legal position governing a reference.  The court said:-

“… in a reference the court usually confines itself to the substance of the matters which were before the single judge to see if the decision of the single judge can be faulted”.  

If so, since the alleged illegality was not canvassed in the application before Ramadhani, J.A. and in the Civil Reference the subject of the intended review, it is too late in the day for the applicant to raise the point at this stage as a basis for  extending time to file a review.

        I am satisfied that no sufficient reason has been advanced to persuade me to enlarge time for filing an application for review.  The application is dismissed with costs.

DATED at DAR ES SALAAM this 23^rd day of August, 2007.

J. H. MSOFFE

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

I. P. KITUSI

DEPUTY REGISTRAR

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