Modestus Daud Kangalawe vs Dominicus Utenga,Civil Reference no 01 of 2022.

This case provides an ingredients for reference to the court of appeal of tanzania, please peruse a case and have it on your device.

The guiding principles when determining whether or not to interfere with the decision of the single Justice was clearly articulated in the case of G.A.B Swale v. Tanzania Zambia Railways Authority (supra). The Court having revisited its previous decisions on reference, summarized the principles that govern applications for reference which are that: one, the Court looks at the facts and submissions the basis of which the single Justice made the decision; two, no new facts or evidence would be given by any party without the prior leave of the Court; and three, the single Justice’s discretion is wide, unfettered and flexible, that it can only be interfered with if there is a misinterpretation of the law. In the case of Philip Chumbuka v. Masudi Ally Kasele, Civil Reference No. 14 of 2005 (unreported), the Court stated as follows:

“It is an accepted principle that in reference, the fu Court considers what was presented and argued before the Single Justice and see whetherthe learned judge was right or wrong. The full Court w ill not interfere with the decision o f the Single Justice on the basis o f fresh facts or submissions which were not available to the Single Justice.

See also Amada Batenga v. Francis Kataya, Civil Reference No. 1 of 2006 (unreported).

Coming to the application before us, we find that there are three issues to guide us on how to determine the instant application. 

First, whether the applicant’s ill health was a good cause for extension of time. 

Mr. Kisakali contended that the applicant was unable to lodge the notice of appeal within time because he was sick. Haying examined the annexure MDK2 and affidavital information from the applicant as was extracted by the single Justice at page 11 of the impugned ruling, we noted that none of the paragraphs in the supporting affidavit provides any justification on the whole duration of the illness of the applicant. For ease of reference, we find it apposite to reproduce part of the single Justice’s holding 

hereunder:

” ,,,the applicant’s delay to lodge a notice of appeal was due to his ignorance o f law and negligence, the ground and argument that the delay was caused by sickness cannot be accepted. As it has been amply demonstrated above, the impugned decision was delivered on 30th September, 2016. According to the applicant he got sick soon thereafter up to l( November, 2016 when he recovered. After recovering from 1CP November, 2016 up to 2019 he took no efforts in regard to the notice o f appeal, rather he wasted time seeking lea ve to appeal…”

Going by the above excerpt, we think the single Justice reasons for declining the ground of sickness are fully justified. Consequently, we find no reason to vary it.

Second, whether the ground of technical delay was a good ground for an extension of time. Upon our reading of the single Justice’s decision, specifically at pages 9,10 and 11 of the impugned ruling, from the outset, 

we find and hold that the raised technical delay did not amount to a good cause for an extension of time. The single Justice could not have been in  a position to grant the applicant’s application based on the ground of technical delay since this ground can only stand when the original appeal was lodged in time but for one reason or another has been found to be incompetent. 

In the instant application, the notice of appeal to which extension of time is sought had not been lodged . Consequently, the period 

of delay cannot conveniently be termed as a technical delay. Thus, the facts in Fortunatus Masha (supra) does not fall in all fours with the present case.

The third issue is whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. We 

are mindful of the fact that it is settled that in applications of extension of time, once an issue of illegality in the impugned decision is raised, that amounts to good cause and the Court, even if every day of delay is not accounted for, would grant an extension sought to rectify the illegality on

appeal.

 This position has been stated by the Court in a string of decisions, see: The Principal Secretary, Ministry of Defence and National

Service v, D P Valambhia [1992] TLR 185, The Principal Secretary,Ministry of Defence and National Service v. D P Valambhia [1992]

TLR 387 and Said Nassor Zahor & 3 Others v. 7 Nassor Zahor Abdallah El Nabahany, Civil Application No. 278/15 of 2016. In The

Principal Secretary, Ministry of Defence and National Service v. D P Valambhia (supra), the Court held;

“Where, as here, the point o f law at issue is the illegality or otherwise o f the decision being challenged, that is o f sufficient importance to constitute “sufficient reason within the meaning of rule 8 o f the Rules for extending time”.

The Court, went on to state that:

“… when the point at issue is one a lle g in g

Ille g a lity o f the decision being challenged\

th e C ourt has a duty even if it m eans

extending th e tim e fo r the purpose to

ascertain the p o in t and if the alleg ed

ille g a lity be established, to take appropriate

measures to put the matter and the record right”.

[Emphasis added]

It transpired that in this reference the single Justice rejected the ground of illegality for not constituting good cause for the delay, however, we are of the considered view that, after a perusal of the proceedings of the DLHT in Application No. 86 of 2015 that was brought forward to us, it does. By merely looking at the DLHT proceedings, we note that the applicant had pegged the illegality on the decision of the DLHT that, the Chairman did not invite the assessors to give their opinions. In Citibank

(Tanzania) Ltd v. TICI & Others, Civil Application No. 97 of 2003 

[2006] TZCA 89; (04 May 2006, TanzLII), the Court observed that enlargement of time can be done if there exist exceptional circumstances such as:

“A claim o f illegality or otherwise o f the challenged decision or order or In the proceedings leading to the decision. “

In the above cited authority, the full Court reversed the decision of the single Justice and granted the applicant the extension of time sought. 

The same stance applies in the instant application. Therefore, we are in accord with the submission advanced by Mr. Kisakali that the allegation of an illegality of the decision sought to be challenged amounts to good cause for the delay warranting the reverse of the previous order of the single Justice.