National Housing Corporation & another v. Ms board of trustees of the parastatal pension fund Civ no 181 of 2006

IN THE COURT APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION 181 OF 2006

1. NATIONAL HOUSING CORPORATION

2. THE BOARD OF TRUSTEES OF THE             …….. APPLICANTS

    PARASTATAL PENSION FUND                                                   

                                           

VERSUS

MS PROPERTY BUREAU (T) LTD ……………..…..…RESPONDENT

(Application for Extension of Time from

               the Judgement  of the High Court

                 of Tanzania at Dar es Salaam)

(Kimaro, J.)

Dated the 28^th day of October, 2005

in

Commercial Case No. 47 of 2004

RULING

24^th August, 2007 & 12^th September, 2007

MSOFFE, J. A.:

        This is an application for extension of time to file an appeal. It is supported by an affidavit sworn by Mr. Mpaya Kamara. At the hearing of the application Ms. Miriam Majamba, learned advocate for the respondent, informed the court that no affidavit in reply was filed because the respondent admits the facts in the affidavit in support of the application.

The background to the application may be stated as follows.

On 28/10/2005 the High Court (Commercial Division) delivered a judgement in Commercial Case No. 47 of 2004.  On 9/11/2005 the applicants filed a notice of appeal against that decision. Earlier on, the applicants had also applied for certified copies of judgment, decree and proceedings for purposes of appealing as evidenced by their latter ref. no. PC/ C. 52 / 01 dated 2/ 11/ 2005 addressed to the Registrar. On 30/12/2005 the applicants were supplied with the above documents but without a certificate of delay. Inspite of the applicants’ letters dated 6/01/2006 and 5/4/2006 to apply for the certificate it was not until late September, 2006 when the applicants were issued with a certificate of delay dated 13/9/2006 excluding the period between 2/11/2005 and 30/12/2005. According to the affidavit:-

“ ….. in itself the certificate of delay has complicated and compounded the Applicants’ predicament by sitting on and consuming  the whole of and far in excess of the period that it intended to exempt in favour of the Applicant. We thus resolved to prepare an application for extension of time to file the Appeal.”

As the applicants were in the process of filing an application for extension of time to file an appeal they were served with a letter Ref. No. Civil Application No. 136 of 2006 dated 18/10/2006 about an application by the respondent to strike out the notice of appeal. In the applicants’ view, their “imminent application for extension of time had thus been and it stood pre – emptied.” On 14/12/2006 the respondent’s Civil Application No. 136 of 2006 was struck out. On the same day, i. e. 14/12 /2006, this application was filed.

Mr. Mpaya Kamara, learned advocate, appeared for the applicants. His oral submission before me was essentially an elaboration of the facts contained in the affidavit in support of the application.

        On the other hand Ms. Miriam Majamba was of the general view that there was a lot of relaxation and unnecessary delay by the applicants in prosecuting the intended appeal. In elaboration, she maintained that the Court Rules are clear and to the effect that the appeal ought to have been filed within a period of 60 days after the notice of appeal was lodged. Further, since the certificate is dated 13/9/2006 there was no reason for the applicants not to file the intended appeal within 60 days thereafter. And finally, she went on to say, Civil Application No. 136 of 2006 was lodged on 18/10/2006 but the applicant took no immediate action. Instead, it was not until 14/12/2006 when this application was filed.

Admittedly Rule 8 of the Court Rules, 1979 provides for extension of time “for the doing of any act authorized or required by these Rules” if there is sufficient reason. The question is whether the applicants have shown sufficient reason to warrant the exercise of this Court’s discretionary power in their favour.

        I have carefully considered the competing arguments and in the end I have reached the conclusion that there is merit in the application.

To start with, the applicants were all along diligent in prosecuting the intended appeal. They filed the notice of appeal within the period of 14 days prescribed under Rule 76(2). On 14/11/2005 they served the notice of appeal on the respondent i.e. within the period of seven days provided for under Rule 77(1). They applied for a copy of proceedings within 30 days as stipulated under Rule 83 (1).And under Rule 83(2) they sent a copy of their letter to the respondent. Once the record was supplied they noticed that it was without a certificate of delay. So, without wasting time, they wrote to the Registrar requesting for a certificate. Sensing that the Registrar was delaying in providing the certificate they wrote a reminder. Once the certificate was finally issued they realized that it was far in excess of the period that it intended to exempt. Faced with this situation, they thought of filing an application for extension of time to file an appeal. As they were in the process of doing so, they were confronted with the respondent’s application for striking out the notice of appeal - an application which to use their own words, “pre -emptied” their “imminent application for extension of time.”  Once the respondent’s application was struck out they lodged this application on the very date the application was struck out. Surely, the applicants’ conduct in the matter was an indication that all along they had a desire to file the intended appeal without wasting time but only to be frustrated by circumstances which were beyond their control. It is not true therefore, as Ms. Majamba contended, that there was a lot of relaxation on the part of the applicants in prosecuting the intended appeal.

It is true, as was urged by Ms. Majamba, that the intended appeal ought to have been filed within sixty days of the date when the notice was lodged. I may emphasize here that ideally that is what the applicants ought to have done. However, in the circumstances of this case, that could not be possible for reasons which can be gathered from the facts averred in the affidavit in support of the application.

Once the applicants were issued with the certificate of delay, which for want of a better word was “defective,” perhaps one might be tempted to think that it was still open to them to apply to the Registrar for a supplementary certificate of delay. However, in my view, that would not have been the best cause of action to take in the circumstances because there is nothing in the Rules providing for a supplementary certificate of delay – See Tanzania Revenue Authority v Tango Transport Co. Ltd,C. A. T. Civil Appeal No. 83 of 2004 (unreported).

In conclusion, I am satisfied that the delay in instituting the intended appeal was caused by good reasons. And, as was stated by this Court in Mrs. Kamiz Abdullah M. D. Kermal v The Registrar of Buildings and Miss Hawa Bayona, 1988 TLR 199, where delay is caused by good reasons, other than the time taken in preparing the record of appeal, a prudent party may safeguard its position by applying for extension of the period prescribed for the doing of any act under Rule 8. In my view, by filing this application, the applicants acted within the spirit propounded in Kermal (supra).

Accordingly, the application is granted with costs. The intended appeal shall be instituted within a period of 14 days from the date of this Ruling. It is so ordered.

DATED at DAR ES SALAAM this 12thday of September, 2007.

J. H. MSOFFE

JUSTICE OF APPEAL

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

S.M. RUMANYIKA

DEPUTY REGISTRAR

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