Salvand K. A. Rwegasira v. China Heinan International Group Co Ltd, Civ no 18 of 2006

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:   RAMADHANI, J.A., LUBUVA, J.A., And  KAJI, J.A.)

CIVIL REFERENCE NO. 18 OF 2006

SALVAND K. A. RWEGASIRA …………………………. APPLICANT

VERSUS

CHINA HENAN INTERNATIONAL

GROUP CO. LTD. ………………………………….…. RESPONDENT

(Reference from the Ruling of the Court of Appeal

of Tanzania at Dar es Salaam)

(Munuo, J.A.)

Dated the 14^th day of June, 2006

In

Civil Application No. 43 of 2005

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RULING OF THE COURT

6 September 2006

LUBUVA, J.A.:

      This reference arises from the decision of a single Judge of this Court (Munuo, J.A.) extending the time in which the respondent, China Henan International Cooperation Group Company Limited, could apply for a reference to the Court under rule 57 (1) of the Court Rules, 1979.

        The historical background giving rise to the reference sought is brief, it may be stated as follows.  The matter originated from the decision of the High Court at Bukoba (Luanda, J.) of 7^th December, 2003 in Civil Case No. 5 of 2003.  The judgment was passed in favour of the applicant Salvand K. A. Rwegasira who was the plaintiff.  The respondent, being dissatisfied, filed notice of appeal against the High Court decision.  On 9.9.2005, in Civil Application No. 114 of 2005, a single Judge of this Court (Nsekela, J.A.) struck out the notice of appeal on the ground that the respondent’s notice of appeal had not been served upon the applicant.   Unsuccessfully, the reference  preferred against the decision of the learned single Judge was struck out on 21.3.2005 by the full Court because the application was made under a wrong inapplicable rule.

        Undaunted, the respondent sought to institute the reference afresh after rectifying the error.  However, because the time prescribed under rule 57 (1) for preferring a reference had ran out the respondent applied for extension of time under rule 8.  In Civil Application No. 43 of 2006, a single Judge of this Court (Munuo, J.A.) granted the application by extending the time in which to file the reference.  As indicated earlier, this is the decision which it is sought in this application for reference to be reversed or varied.

        Granting the application, the learned single Judge was satisfied that the omission in citing a wrong rule in support of the application was neither fraudulent nor was it done in bad faith.  The learned single Judge also held that the error was human which could be corrected by extending time.

        In this application before us Mr. M. Maira, learned counsel, appeared for the applicant.  The respondent was advocated for by Mr. R. K. Rweyongeza, learned counsel.

        Essentially, Mr. Maira’s submission in support of the application may be looked at from two aspects.  First, he sought the direction of the Court as regards the applicable rule in this matter.  He said rule 8 is not applicable in a situation such as in this matter because the application is for the re-institution of the reference which was struck out by the full Court.  In his view the rules do not provide for the re-institution of a reference.  He further submitted that what is provided under rule 57 (1) is the institution of a reference.  In that case Mr. Maira took the view that perhaps the proper rule under which the application could be made is rule 3.

        On whether rule 3 was the proper one to be invoked in support of this application, Mr. Rweyongeza firmly maintained that the submission by Mr. Maira was misconceived.  He said rule 8 is the appropriate rule upon which applications for extension of time limited by the rules are made.  In this case, Mr. Rweyongeza maintained, after the application for reference before the full Court was struck out, the only way open for the respondent was to start afresh instituting the reference.  Since the time prescribed under rule 57 (1) for instituting a reference had run out, extension of time was properly sought under rule 8.

        We need not be delayed in this aspect.  It is common knowledge that the discretionary powers of the Court may be invoked to extend the time limited by the rules or by any decision of the Court for the doing of any act authorized under the rules.  In this case, we agree with Mr. Rweyongeza, learned counsel, that after the reference  was  struck  out  by  the  full  Court  on  21^st March,  2006  

the seven days period provided under rule 57 (1) in which to file application for reference had long elapsed since 9.9.2005 when the decision of the single Judge was passed.  In that case the institution of the reference afresh could not be done without seeking extension of time under rule 8. 

        We agree with Mr. Maira that the terminology “re-institute” is not used in the rules but its import when used in situations such as this is that the matter is to be brought to the Court afresh governed by the same limitation of time under rule 8.  Therefore it seems to us that Mr. Maira’s discomfort on the application of rule 8 is, with respect, without foundation.

        The second aspect which was strongly canvassed by Mr. Maira relates to what we consider to be the essence of the reference.  The issue is whether sufficient reason had been shown upon which the Court could exercise its power to extend time.  Mr. Maira emphatically submitted that no reason, let alone sufficient reason had been shown for the delay in seeking the reference.  Under rule 8 Mr. Maira further submitted, the Court can only exercise its discretionary power to extend the time if sufficient reason is shown to explain the delay for not preferring the reference within the time prescribed under rule 57 (1) of the Court Rules, 1979.

        With regard to the merits of the application for extension of time, Mr. Maira seriously faulted the learned single Judge in basing her decision to extend time on factors which were not relevant at that stage.  According to Mr. Maira it was erroneous on the part of the learned single Judge to extend time because the judge was satisfied that the omission to cite the applicable rule in support of the application in Civil Reference No. 22 of 2005 was human error which could be corrected by extending time.  This, he submitted, was an aspect which could appropriately be considered at the hearing of the reference in relation to the decision of Nsekela, J.A. sitting as a single Judge.  At the stage of hearing the application for extension of time what was required is sufficient reason for the delay in seeking reference.  At any rate, Mr. Maira also observed, from the circumstances of the case, it is clear that the delay was due to the negligence of the advocate who omitted to cite the proper rule.

        Mr. Maira also expressed doubts whether it was proper for the single Judge to take a different view from that of the full Court.  Elaborating, he said while the full Court was settled in its view that failure to cite a proper rule in support of the application was not a technicality, the learned single Judge took the contrary view that it was a technical human error.  So, Mr. Maira concluded, as the extension of time was based on irrelevant consideration, and no reason at all let alone sufficient reason was given for the delay, the decision of the learned single Judge was improper, it should be reversed.

        Strongly opposing the application, Mr. Rweyongeza, learned counsel, submitted that there was no merit in the application.  The essence of his submission was that the delay in this matter was not real or actual, it was technical because the original appeal was lodged in time but had been found to be incompetent on the ground that a wrong rule had been cited in support of the application and a fresh application had to be instituted.  In support of this proposition, Mr. Rweyongeza referred the Court to the decision of a single Judge of the Court in Fortunatus Masha v. William Shija and Another, (1997) TLR 154.

        In the instant case, counsel maintained, the applicant acted promptly in applying for extension of time after the application for reference had been struck out by the full Court on 31.3.2006.  In view of the fact that the mistake in citing an applicable rule in support of the application for reference was not either intentional or meant to defeat the ends of justice, and that the applicant was not iddling since the reference was struck out, sufficient reason had been shown to warrant the Court’s exercise of its discretionary powers to extend the time.  The extension of time granted by the learned single Judge was proper, Mr. Rweyongeza stressed.

        In our view, we think this matter can be resolved within a narrow scope.  As indicated earlier, rule 8 of the Court Rules, 1979 provides for extension of time limited by the rules or decisions of the Court for the doing of any act authorized by the rules.  The criteria for the Court to invoke its discretionary powers under this rule is that sufficient reason has to be shown for the delay.  In this case the issue is whether there was sufficient reason.  From the background giving rise to this matter it is not disputed that the respondent did                               not sit iddle wasting time after the decision of the full Court striking out Civil Reference No. 22 of 2005 on 21.3.2006.  This is borne out from the record which shows that on 29.3.2006, the respondent, by notice of motion filed application No. 43 of 2006 seeking extension of time in which to file the reference.  Extension was sought within eight days.

        In that light it seems clear to us that the reason why time was lost for instituting the reference within seven days after the decision of the single Judge on 9.9.2005 is also common knowledge.  That is, while the respondent was busy pursuing the application in Civil Reference No. 22 of 2005,  time was lost.  This, we think contrary to Mr. Maira, constitutes sufficient reason in terms of rule 8.  In somewhat similar circumstances, a single Judge of this Court expressed views to this effect in Fortunatus Masha (supra).  He stated:

“A distinction had to be drawn between cases involving  real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted.  In the present case the applicant had acted immediately after the  pronouncement of the ruling of the Court striking out the first appeal.  In these circumstances an extension of time ought to be granted.”

        We fully subscribe to this view of the learned single Judge of the Court.  In similar vein, in this case we are satisfied that the circumstances were such as to justify the extension of time.  We do not agree with Mr. Maira that the delay was due to the negligence of the counsel who was handling the matter on behalf of the respondent.  In our view the alleged negligence on the part of counsel relates to the application for reference in Civil Reference No. 22 of 2005.  It is in this reference that a proper rule in support of the application was omitted.  In the matter in issue for extension of time before the learned single Judge, subject of the application, no such  negligence was involved.

        Before concluding this matter we wish to deal briefly with one other aspect which was raised by Mr. Maira.  As indicated earlier, the learned single Judge had taken the view that the omission to cite a proper rule in support of the application for reference was human error which could be corrected by extension of time.  With great respect, we think this was an oversight on the part of the learned single Judge.  As correctly pointed out by Mr. Maira, the omission to cite the proper rule was not relevant for purposes of determining the application for extension of time.  What was required at that stage was the reason for the delay.  In any case the learned single Judge was not dealing with the decision of the full Court in Civil Reference No. 22 of 2005 in which it would appear she expressed different views from the full Court on whether the omission was technical or not.  However, we need not say  more on this as we think this was inadvertent on the part of the learned single Judge.  Even then, had the learned single Judge properly addressed the issue before her, it is our view that she would have come to the same conclusion on the merits of the application for extension of time.  For different reasons we think the end result would be the same.

        For the foregoing reasons, we are satisfied that there was sufficient reason for extending time.  Accordingly, the application for reference is dismissed with costs.

        DATED at DAR ES SALAAM this 12^th day of October, 2006.

A.S.L. RAMADHANI

JUSTICE OF APPEAL

D. Z. LUBUVA

JUSTICE OF APPEAL

S. N. KAJI

JUSTICE OF APPEAL

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

(S. M. RUMANYIKA)

DEPUTY REGISTRAR