IN THE COURT OF APPEAL OF TANZANIA

ATARUSHA

(CORAM: MWARIJA, l,A" LILA, l.A., And KWARIKO, l,A.)

CIVIL APPEAL NO. 82 OF 2017

BRUNO WENCESLAUS NYALIFA .......•.•..•• " '" I. I ••••••••••••••••••••••••••••• APPELLANT

VERSUS

THE PERMANENT SECRETARY,

MINISTRY OF HOME AFFAIRS ......................•.....•.•............. 1sT RESPONDENT

THE HONORABLE ATTORNEY GENERAL .......•.•..•.•.•.•••.......•. 2ND RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Moshi)
(Mwingwa, l)

Dated 14thday of December, 2016

in
(Misc. Civil Application No. 66 of 2016)

JUDGMENT OF THE COURT

4h & 14h December/ 2018
MWARllA, l.A.:

The appellant herein, Bruno Wenceslaus Nyalifa, instituted an

application in the High Court of Tanzania at Moshi seeking to be granted

extension of time to file an application for orders of certiorari and

mandamus against the respondents; the Permanent Secretary, Ministry of

Home Affairs and Hon. Attorney General. The application was filed by way

of chamber summons under S. 14 (1) of the Law of Limitation Act [Cap. 89

1
R.E. 2002] and S. 95 of the Civil Procedure Code [Cap. 33 R.E. 2002]. It

was supported by an affidavit sworn by the appellant. He attached to his

affidavit, certified copies of the documents which he relied upon to support

his averments.

The application was argued by Mr. Mhyellah, learned counsel. In his

submission before the High Court, he contended that the appellant was

late in filing the application for leave to apply for judicial review because he

did not receive his dismissal letter until when the time for filing the

intended application had expired. He stated those facts in paragraphs 6

and 7 of his affidavit as follows:

"6. That, the copy of dismissal letter came into my

hands on 23/11/2015, though it was prepared on 2gh of
October. 2015. N

7. That, I was on (sic) Morogoro when the said

dismissal letter was sent to my former duty station at
Mosh~ then at Arusha and I was notified to come and
collect the letter on 23 day of November, 2015.
Attached herewith is the copy of the dispatch book I
signed marked annexture 'Bruno 3'; I crave leave of
this Honourable Court for it to form part of this

affidavit. N

2
 According to the learned counsel, after having received the dismissal

letter, the appellant instituted an application for leave to file an application

for a judicial review on 11/5/2016. That application, Misc. Civil Application

No. 33 of 2016 was however, struck out. Still maintaining his quest to seek

judicial review, the appellant filed the application for extension of time

which gave rise to the impugned decision.

Mr. Kibwana, learned State Attorney who appeared for the

respondent opposed the said application. He submitted before the High

Court that the appellant had failed to establish a sufficient cause for the

delay in filing the intended application. He challenged the allegation by the

appellant in paragraph five of the affidavit that he wrote a letter to the

Permanent Secretary asking for a copy of the decision immediately after his

dismissal. He dismissed the contention as being a lie. He argued further

that the contention that the appellant received the letter on 23/11/2015 is

not true because a copy of the attached part of the dispatch book does not

originate from the police. This, he said, is because the same does not

bear the name of the police officer who dispatched the letter. He finally

prayed to the Court to disregard the annextures to the affidavit on account

that the same were not formerly tendered in Court.

3
 In rejoinder, the appellant's counsel submitted that the respondent

did not substantiate the contention that, since the rank and the force

number of the police officer who dispatched the letter is not shown in the

copy of the part of the dispatch book annexed to the affidavit, it is not

certain that the dispatch book originated from the police. On the argument

that the documents annexed to the affidavit should be disregarded because

they were not tendered, the appellants' counsel replied that the same were

to be tendered during the hearing of the intended application. He said

however that he had the documents in court for perusal, but the High

Court declined to examine them.

Having heard the submissions of the learned counsel for the parties,

the learned judge found that the appellant had failed to establish that the

delay was due to a sufficient cause. He was of the view, firstly, that the

appellant did not substantiate the contention that he wrote a letter to the

Permanent Secretary, Ministry of Home Affairs requesting for a copy of his

dismissal letter and secondly, that he had failed to account for the delay as

from the date of receipt of the letter, which the appellant alleged to be on

29/11/2015.

4
 The learned judge was also of the view that, since the documents

which were annexed to the affidavit were not tendered in court as exhibits,

the same could not be acted upon to determine the application. He relied

on the decision of this Court in the case of Japan International

Corporation Agency (JICA) v. Kaaki Complex Ltd, Civil Appeal No.

107 of 2007 (unreported). On those considerations, the learned judge

dismissed the application.

The appellant was dissatisfied with the decision of the High Court

hence this appeal. In his memorandum of appeal he has raised the

following three grounds:

"1. The presiding High Court Judge erred in law and in

fact in holding that the Applicant's counsel failed to
tender documentary evidence at the time he was
making his oral submission in support of the
applicationas exhibits are not part of the submissions.

2. The trial judge erred in law and in fact in holding that

annextures in Applicant's affidavit were not tendered
by the counsel for the Applicant during an oral
submissionand therefore not part of submission.

5
 3. The trial judge erred in law and in fact for failure to
grant the prayers sought as there was no inordinate
delay on the part of the Applicant. "

At the hearing of the appeal, the appellant was represented by Mr.

Ally Mhyellah, learned Counsel whereas the respondents were represented

by Mr. Ponziano Lukosi, learned Principal State Attorney.

The appellant's counsel had earlier on 12/4/2017, filed his written

submission in support of the appeal. At the hearing of the appeal, he

highlighted the points which he had raised in the written submission. With

regard to the 1st ground of appeal, he argued that from the nature of the

application, the learned counsel for the appellant could not tender as

exhibits, the copies which were annexed to the appellants affidavit. He

cited inter alia the cases of the Registered Trustees of the

Archdiocese of Dar es Salaasm v. The Chairman, Bunju Village

Government & 11 Others, Civil Appeal No. 147 of 2006 and Bish

International B.V. & Rudolf Teurnis Van Winkelhof v. Charles Yaw

Sarkodie &. Bish Tanzania Limited, Land Case No. 9 of 2006 (both

unreported) to bolster his argument.

6
 With regard to the cause of delay, the learned counsel submitted that

the High Court erred in failing to find that the appellant had shown a good

cause for the delay. According to Mr. Mhyellah, the appellant instituted his

application for leave to file an application for orders of certiorari and

mendemus (Mise. Civil Application No. 33 of 2016) within time. That

application was however, struck out and had thus to apply for extension of

time so as to institute a fresh application.

Mr. Mhyellah concluded that, the finding by the learned judge that

the appellant had failed to show good cause on account that the

documentary evidence attached to his affidavit were not tendered as

exhibits, is erroneous. He added that, since the documents were annexed

to the affidavit, they formed part of the deponent's evidence and therefore,

ought to have been acted upon.

In reply, Mr. Lukosi argued that, the counsel for the appellant was

obliged to cause the documents to be tendered as directed by the High

Court. As to the cited cases, the learned Principal State Attorney submitted

that the same are distinguishable in that, the same relate to attachment of

exhibits to written submission, not attachment of the same to an affidavit.

7
 With regard to the cause for the delay, Mr. Lukosi submitted that,

apart from the fact that the appellant did not include in the record of

appeal, a copy of the decision in Mise. Civil Application No. 33 of 2016,

going by the appellant's statement, that the same was struck out on

23/11/2015, the application before the High Court would remain to be time

barred. This, he said, is because the appellant has not accounted for the

period between 23/11/2015 when that application was dismissed and

3/10/2016 when the application giving rise to this appeal was lodged.

He argued therefore that, the appellant was not only required to

account for the period between the date of his dismissal and the date of

filing Misc. Civil Application No. 33 of 2016 but also the period from the

date on which that application was struck out to the date of filing, in the

High Court, the application for extension of time. The learned Principal

State Attorney added that, there was an inordinate delay in filing the

application in the High Court.

We have duly considered the arguments made by the learned

counsel for the parties. To begin with the 1st and 2nd grounds of appeal,

the main complaint by the appellant emanates from the procedure which

8
was applied by the learned High Court judge in the course of hearing the

application. We agree with the appellant's counsel that, from the nature of

the proceedings, the learned judge erred in disregarding the documentary

evidence annexed to the appellant's affidavit on the ground that the same

were not tendered at the time when the appellant's counsel was making

his oral submission.

As stated above, the application was brought by way of a chamber

summons supported by an affidavit. The respondents countered it by filing

their counter affidavit. In the circumstances therefore, during the hearing,

the parties were only required to make submissions. As observed in the

case of The Registered Trustees of the Archdiocese of Dar es

Salaam (Supra) cited by the learned counsel for the appellant.

", . . submissions are not evidence. Submissions are

generally meant to reflect the general features of a
party's case. They are elaborations or explanations on
evidence already tendered. They are expected to
contain arguments on the applicable law. They are not
intended to be a substitute for evidence.rr

We find further that the documents which were annexed to the

appellant's affidavit should not have been disregarded on the ground that
9
they were not tendered in evidence. This is for obvious reason that,

affidavit is evidence and the annexture thereto is intended to substantiate

the allegations made in the affidavit. Unless it is controverted therefore,

the document can be relied upon to establish a particular fact.

As stated above therefore, we agree with learned counsel for the

appellant that it was wrong for the learned judge to disregard the

documents which were annexed to the appellant's affidavit on account that

the same were not tendered in court at the time of hearing the application.

In the 3rd ground, it is the appellant's contention that he had

disclosed sufficient cause for grant of an order of extension of time. In

determining this ground of appeal, we find it apposite to reiterate the

guidelines to be followed by courts in exercising its discretion in deciding to

grant or refuse an application for extension of time. The same were aptly

stated by the Court in the case of Lyamuya Construction Company Ltd

v. Board of Registered Trustees of Young Women's Christian

Association of Tanzania, Civil Application No.2 of 2010 (unreported) as

follows:

10
 "(a) The applicant must account for all the
period of delay.

(b) The delay must not be inordinate.

(c) The applicant must show diligence, and not

apathy, negligence or sloppiness in the
prosecution of the action that he intended to
take.

(d) If the court feels that there are sufficient

reasons, such as the existenceof a point of law
of sufficient importance; such as the illegality of
the decisionsought to be challenged.//

In the case at hand, the appellant based his application on two main

factors; first that he obtained his dismissal letter after the prescribed period

for filing the intended application had expired and secondly that, although

he previously filed Misc. Civil Application No. 33 of 2016 timely, that

application was struck out. He contended also that the delay was not

inordinate. As stated above, the learned High Court judge found that the

appellant did not show sufficient cause for grant of the application.

The immediate issue for our determination is whether the appellant

accounted for all the period of the delay. Mr. Lukosi argued that, even if

11
the period spent by the appellant in prosecuting Misc. Civil Application No.

33 of 2016 is to be taken into account, the period from the date on which

that application was struck out to the date of filing the application for

extension of time in the High Court was not accounted for. We agree with

the learned Principal State Attorney's argument. Indeed, the appellant did

not say anything as regards the period between 26/9/2016 when the

application for leave to apply for judicial review was struck out and

3/10/2016 when the application for extension of time was filed in the High

Court. The requirement of accounting for every day of delay has been

emphasized by the Court in a number of cases - See for example, the

cases of Bushiri Hassan v. Latifa Lukio, Mashayo, Civil Application No.

3 of 2007, Karibu Textile Mills v. Commissioner General (TRA), Civil

Application No. 192/20 of 2016 and Sebastian Ndaula v. Grace

Rwamafa (Legal Representative of loshua Rwamata), Civil

Application No.4 of 2014 (all unreported).

In the first case, the Court stated as follows:

"Delay, of even a single day, has to be accounted for

otherwise there would be no proof of having rules

12
 prescribing periods within which certain steps have to be
taken. rr

Since therefore, the appellant did not account for the period stated

above, there is no gainsaying that his application for extension of time

before the High Court was properly dismissed.

For the foregoing reasons, this appeal is devoid of merit. We

therefore hereby accordingly dismiss it. From the nature of the parties'

dispute we order that they shall bear their own costs.

DATED at ARUSHA this 13th day of December, 2018.

A. G. MWARIJA
JUSTICE OF APPEAL

S. A. LILA
JUSTICE OF APPEAL

M. A. KWARIKO
JUSTICE OF APPEAL

13