IN THE COURT OF A P P E A L OF TANZANIA

AT PAR ES SALAAM

CIVIL APPLICATION NO.73 OF 2015

ATTORNEY GENERAL................................. ........................ ............... A PPLIC A N T

VERSUS

1. THE BOARD OF TRUSTEES OF THE CASHEWNUT INDUSTRY

DEVELOPMENT TRUST FUN D .........................................
.
2 HAMMERS INCORPORATION CO.LTD ........................ . RESPONDENTS

(Application for extension of time to file an application

. for revision against the decree of the High Court of
Tanzania Cot Tim er da! Division)

(Nyangarika, J.)

dated 31st day of July 2014

in
C o m m e rc ia l C a s e N o. 1 0 8 o f 2 0 1 3

RULING

2"d & 27th November, 2015

K I H A R Q , 3.A.:-
The Attorney General has filed a notice of motion under rule 10 of

the Court of Appeal Rules, 2009 seeking for extension of time to apply for

a revision against the judgment of the High Court of Tanzania, Commercial

Division (Nyangarika, !)■ The application is supported by an affidavit

sworn by Gabriel Paschal Malata. In compliance with rule 106 (1) of the

Court of Appeal Rules, 2009, the applicant also filed written submissions to
 support the application which Mr. Maiata adopted, together with his

affidavit.

When the application came for hearing, Mr. Gabriel Maiata Principal

learned State Attorney appeared for the applicant, assisted by Mr. Silvester

Mwakitalu and Paul Shaidi, both iearned Senior State Attorneys. Mr.

Nduruma Majembe learned advocate appeared for the 2nd respondent. The

Court was informed that Mr. Kibataia,. learned advocate was supposed to

appear to represent the 1st respondent. Unfortunately at the time the

Court started business he had not arrived and the Court had to proceed

hearing the application in his absence. As he had not even filed any

affidavit in reply to oppose the application the Court drew an inference that

he was not contesting the application.

Mr. Majembe informed the Court that an affidavit in reply to oppose

the application was affirmed by Mr. Haroun Rashid Maarifa. He too, filed

written submissions in opposing the application under Rule 106 (8) of the

Rules to support his position in opposing the application. He adopted both

the affidavit in reply and his submissions to support his position.

 The grounds for filing the application are many but my considered

opinion is that they include those relevant to the application for revision

itself but not to this application seeking for extension of time to file a

revision. What appears to be relevant to the application at hand are

grounds j and I. In the two grounds the applicant says that the

government was not made a party to Civil Case No. 108 of 2013 from

which the application arises and adverse orders were made against it

without being afforded an opportunity for hearing. The deponent of the

affidavit says Civil Case No. 108 of 2013 involved Hammers Incorporation

Company Limited and The Board of Trustees of the Cashewnut

Development Trust Fund who were the plaintiff and the defendant

respectively. The Office of the Attorney General became aware of the

existence of the case when they received a letter from the Permanent

Secretary Ministry of Agriculture, Food Security and Cooperatives bearing

reference No. CAC. 19/86/01/VI dated 30th March 2015 informing them that

a colossal amount of money in the account of the second respondent had

been attached in execution of a decree issued in respect of the civil case.

The affidavit of Gabriel Malata explains in detail the relationship

between the Government and the second respondent. In a summary form,

 what is gathered from the affidavit of Gabriel Malata is that through funds

supplied by the government, the first respondent entered into a contract

with the second respondent for supply of sulphur dust. A

misunderstanding occurred between the parties on the quality of the

supply, place and time of delivery and style of parking. This resulted into

the first respondent filing Civil Case No. 108 of 2013. The first respondent

was granted judgment. Consequently the account of the second

respondent at CRDB Bank PLC amounting to T. shillings 953, 142, 797.05

was attached and the said amount remitted to the Registrar Commercial

Division of the High Court. It is contended that the said money belongs to

the Government. The Government was not aware of the existence of the

case until when execution was processed resulting in the attachment of the

account of the second respondent. The affidavit further avers that since

the government has an interest in the matter, it is asking that it be

afforded an opportunity to be heard. The applicant became aware of the

case on 2ndApril, 2015 while the judgment was delivered on 21st July 2014,

that was after nine months. Mr. Malata said the delay was not an intended

one and that is why he is seeking for extension of time to file an

application for a revision of the judgment of the High Court. He said the
judgment is tilted with a lot of illegalities. He prayed that the application

be granted. The Court was referred to among others the cases of

Abdallah Salanga & 63 others V Tanzania Harbours Authority Civil

Application No. 4 of 2011 (unreported), Wankira Benteel V Kaiku Foya

Civil Reference No.4 of 2000 and Principal Secretary, Ministry of

Defence and National Service V Devram Valambia [1992] T.L.R. 182

to support the application.

The affidavit in reply by Mr. Haroun Rashid Maarifa agrees that there

was a contract for supply of sulphur dust entered into between the first

respondent and the second respondent. The credit facility was facilitated

by the Tanzania Investment Bank. He said the First respondent fulfilled its

obligation under the contract but a misunderstanding occurred because the

second respondent did not pay the full amount of the contract. That is

what led the first respondent to file the case against the second

respondent. The cases of Daudi Haga V Jenitha Abdom Machafu Civil

Reference No. 1 of 2000 and Regional Manager Tanroads Kagera V

Ruaha Concrete Company Limited Civil Application No.96 of 2007 both

(unreported) in support of the submission in opposing the application. Mr.

Majembe prayed that the application be dismissed with costs.

 The application is one which seeks for extension of time to file an

application for revision to challenge the legality of the judgment the of the

High Court. The application is filed under Rule 10 of the Court of Appeal

Rules, 2009. All that the applicant is required to do is to show sufficient

cause why he was not able to file the application in time. Having gone

through the notice of motion, the supporting affidavit and the affidavit in

reply, the submissions by both parties and their authorities cited, my

considered opinion is that the applicant has shown sufficient cause for the

delay in filing the application. The affidavit in support of the application

shows that the applicant became aware of the existence of the case after

the period for filing a revision had elapsed. The learned Principal State

Attorney pointed out correctly that an application for revision has to be

filed sixty days from the date of the judgment. This is what Rule 65 (4) of

the Court of Appeal Rules says. If the applicant became aware of the

decision he wanted the court to intervene through a revision after the

expin/ of the sixty days, definitely the applicant had to request for

extension of time for filing the application. The learned Principal State

Attorney said he attached the authorities I have referred to. Unfortunately

they are not in this case file. But there is the case of R V Yona Kaponda

6
 and 9 Others [1985] T.L.R. 84 which is of assistance to the application

although it relates to a criminal matter. The issue which was involved was

extension of time. In that case the Court held that:-

"7/7 deciding whether o r not to allow an application

to appeal out o f time, the court has to consider

whether o r not there is "sufficient reasons"not only

fo r the delay but also "sufficient reasons" fo r

extending the time during which to entertain the

appeal"

The Court in the case of Daudi Haga (supra) cited by the learned

advocate for the respondent said "B ut in order fo r extension to be granted

reasons accounting fo r the delay have to be advanced."

In this case as I have already said, the applicant has accounted for

the delay. The government was not aware of the existence of the suit

which led to the attachment of the money which the applicant claims to

have supplied to the second respondent. The Court has always insisted

that the right to be heard is fundamental. See the Constitution of the

United Republic of Tanzania, 1977 article 13 (6) (a). The applicant has
also said that the judgment it wants to challenge has some illegalities,

illegality has also been accepted as a reason for allowing an application for

extension of time. The case of Valambia (supra) is of relevance on this

point. The first respondent accepted that there was a credit facility

extended to it for supply of sulphur to the second respondent. Interest of

justice requires that the parties be heard so that the truth can be

ascertained. The observation having been made, I allow extension of time

to the applicant for filing the application for revision. The same should be

filed within a month from the date of the delivery of this ruling.

DATED at DAR ES SALAAM this 24th day of November, 2015.

N.P.KIMARO
JUSTICE OF APPEAL

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