, IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 463/01 OF 2017

MOTO MATIKO MABANGA.•....•...•..•.•..•.••...•................•.........••.... APPLICANT
VERSUS
1. OPHIR ENERGY PLC 1
2. OPHIR SERVICES PTY LTD ............•....•.•....•......... RESPONDENTS
3. BRITISH GAS TANZANIA LIMITED
(Application for extension of time from the Decision of the High Court of
Tanzania, at Dar es Salaam)

(Mujulizi, Mkasimongwa, Mwandambo, JJJ.)

Dated the 19th Day of May, 2016

in
Misc. Civil Application No. 14 of 2014

RULING

I(EREFU, J.A.:

The applicant, Moto Matiko Mabanga, has lodged this application

seeking for orders of extension of time to lodge an application for revision

against the decision of the High Court, at Dar es Salaam, (' the High Courf),

(Mujulizi, Mkasimongwa, Mwandambo, JJJ) dated 19th May 2016 in Mise.

Civil Application No. 14 of 2014. The application is brought by way of

Notice of Motion lodged on OSH) October, 2017 under Rule 10 of the

r anzania Court of' Appeal Rules, 2009, GN 368 of 2009, ('the Rules). The

i' ii' t ' ? r , I f c I (. i I r " ~. '; J! .,! ,~, J i /

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Application is supported by the affidavit of the applicant himself. On the

other hand the respondents have filed affidavits in reply opposing the

applicant's application.

On the day when the application was called on for hearing, Mr.

Gabriel S. Mnyele, the learned counsel appeared for the applicant, Mr.

Waziri Mchome, the learned counsel appeared for the 1st and 2nd

respondents and Mr. Gerald Nangi, the learned counsel appeared for the

3rd respondent.

Submitting in support of the application, Mr. Mnyele commenced his

submission by fully adopting the contents of the Notice of Motion, the

supporting affidavit and his written submission. He then clarified that, the

main reasons which delayed the applicant to lodge the application for

revision in time is (i) delay in securing the High Courts documents to

accompany his application and (ii) thet: there is serious error in the High

Courts Ruling/ which needs to be revised.

Mr. Mnyele elaborated that, it was wrong for the High Court Judges

to invoke the provisions of Section 8 of the Civil Procedure Code, Cap. 33

[R.E. 2002] and stay the proceedings in Mise. Civil Application No. 14 of

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2014 pending the determination of Commercial Case No. 185 of 2013. He

said, the two matters were not substantially the same. He referred to the

Annexure Mabanga-12/ where pleadings for the two cases are attached

and argued that, prayers in the commercial case were on the breach of

investment Agreement, while in the civil application were on the

infringement of petitioners' constitutional rights.

Mr. Mnyele noted that, the applicant has not accounted for the delay

of each day, because according to him, when there is an allegation of

illegality the same constitutes good cause regardless of the period of delay.

He finally prayed for the application to be granted.

In reply, Mr. Mchome also prayed to adopt his affidavit in reply

together with the written submission to form part of his oral submission,

He then contended that, the order of the High Court sought to be revised

is interlocutory in nature, as the same has not conclusively determined the

matter, but only stayed the proceedings in Mise Civil Application No. 14 of

2014 pending the determination of the proceedings in the Commercial Case

No. 185 of' 2013. He cited Section 5 (2) and (d) of the Appellate

Jurisdiction Act, Cap. 141 [R.E. 2002J, (' the AlA) and argued that, it is not

\11/11: 1\"1'1'/1/, 1,1

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viable to grant extension of time to revise an order which is not subject for

revision.

Mr. Mchome disputed the claim by Mr. Mnyele that, when there is an

allegation of illegality the applicant is not required to account for the delay

of each day. He said, not every allegation of illegality carries out a day. He

further argued that, since the applicant's allegations of illegality herein are

unjustified, the application should be dismissed with costs.

On his part, Mr. Nangi commenced his submission by attacking the

\

oral submission made by Mr. Mnyele. He argued that, pursuant to Rule 106

(15) of the Rules, Mr. Mnyele, was required to first seek for the leave of

the court to be allowed to introduce new issues that were not part of his

written submission filed on os" December 2017. It was the strong view of

Mr. Nangi that, since the said leave was not sought, the issue of illegality

raised by Mr. Mnyele unprocedurally should be disregarded.

As for the reason that, the applicant delayed to lodge his application,

while waiting for the High Court documents, Nangi said, the same is not

one of the ground envisaged under Rule 10 of the Rules. To bolster his

argument, he referred to Said Ally Majeje @ Kadeti & 2 Others v. the

".
Republic, Criminal Application No. 21 of 2015, (unreported) and

Lyamuya Construction Company Limited v. Board of Trustees of

Young Women's Christian Association of Tanzania, Civil Application

No. 02 of 2010, (unreported).

Mr. Nangi also challenged the content of paragraph 9 of the

supporting affidavit that, the information contained therein is hearsay and

the applicant has not substantiated the same with an affidavit of his

counsel to verify the same. He finally submitted that, the applicant has

failed to submit good cause to warrant grant of this application.

In rejoinder submission, Mr. Mnyele argued that, the issue of

interlocutory order was raised prematurely as the same cannot be

considered at this stage. As for the failure to address the issue of illegality

in his written submission, Mr. Mnyele conceded, but he said, the same has

not prejudiced the respondents, because the issue of illegality is contained

in paragraph 9 of the supporting affidavit and respondents have discussed

it in their affidavits in reply and written submissions. In the same

reasoning, Mr. Mnyele urged me to adopt his oral submission by invoking

the provision of Rule 4 (1) of the Rules and depart from the requirement of

Rule 106 (15) (supra). As for the claim that paragraph 9 of the supporting
SII//I: Herefll, fA
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 affidavit contain hearsay information, Mnyele said, the same has been

cured by the verification clause.

Having heard the Counsel for the parties on the issues above, the

remaining task before me to resolve is whether the applicant has submitted

good cause for the delay to warrant grant of this application. Pursuant to

Rule 10 of the Rules, an application of this nature can be granted if the

applicant has given good cause for the delay. For avoidance of doubt, I

think it is instructive to extract the said Rule in full. Rule 10 provides that:-

"the Court msy, upon good cause shown, extend

the time limited by these Rules or by any decision
of the High Court or tribunal, for the doing of any
act authorized or required by these Rules/ whether
before or after the doing of the ect; and any reference
in these Rules to any such time shall be construed as a
reference to that time as so extended // [Emphasis
added).

Under the above cited provision of the law, the requirement which

the applicant has to satisfy is to show good cause for the delay in filling the

application. There are numerous authorities to this effect and some of

them have been cited by Mr. Nangi, but I wish to add on the list to include,

-~--~-~--------------
Kalunga & Company Advocates ltd Vs National Bank of Commerce

ltd (2006) TLR 235 and Attorney General V Tanzania Ports Authority

& Another, Civil Application No. 87 of 2016 at pg 11, to mention but a

few.

In exercising its discretion to grant extension of time, the Court

considers the following crucial factors; the length of de/a~ the reason for

the delay and degree of prejudice that the respondent may suffer If the

application is granted. It is therefore the duty of the applicant to provide

the relevant material in order for the Court to exercise its discretion. See

the Regional Manager Tan Roads Kagera v Ruaha Concrete

Company limited, Civil Application No. 96 of 2007, (unreported).

It has also been held in times without number that, the ground

alleging illegality constitutes a good cause for extension of time. Among

the decisions include, Principal Secretary Ministry of Defence and

National Service Vs Divram P. Valambhia (1992) TLR 387; Kalunga,

(supra) and Arunaben Chaggan Mistry Vs Naushad Mohamed

Hussein & 3' Others, Civil Application No. 6 of 2016, (Arusha)

(Unreported).

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Now, in the appllcatlon at hand, the first reason for the delay submitted by

Mr. Mnyele is delay in securing the High Court's documents. It is on record

that, the decision of the High Court sought to be revised was delivered on

19th May 2016. The applicant was required to file his application within

sixty (60) days from the date of delivery of the decision. It ought to have

been filed lately on is" July 2016. Nonetheless, the application before me

was lodged on os" October 2017, which is, after lapse of more than

seventeen 17 months, i.e about 510 days.

The reason that has been advanced by Mr. Mnyele and also found in

paragraph 7 of the supporting affidavit is that, the applicant was waiting

for the High Court's documents, which was availed to him on LI" July

2017. Computing time from 11th July 2017 to OSh October 2017, it is clear

that, the application was lodged after lapse of almost eighty four (84) days,

from the date when applicant was supplied with the High Court documents.

ThQ a pplicant was expected to account for such delay and give reasons in

the supporting affidavit explaining why he stayed mute for almost eighty

four (84) days. Unfortunately, that was not done. This fact was as well

admitted by Mr. Mnyele.

SinH; /len'/i/, fA
lJ

-----------
 It is a settled position that, any applicant seeking for extension of

time under Rule 10 of the Rules is required to account for the delay of each

day. Indeed, the Court has reiterated that position in numerous cases and I

wish to refer to Bushiri Hassan v. Latifa Lukio Mashayo, Civil

Application No. 03 of 2007, (unreported), where the Court emphasized

that:-

"... Delay of even a single day, has to be

accounted for, otherwise there would be no
point of having rules prescribing period within
which certain steps have to be taken. N

[Emphasis added].

I fully subscribe to the above authority and reasoning and I am thus

constrained to sustain the submission by Mr. Mchome and Nangi on the

first point, in that, the applicant has completely failed to account for the

delay of each day and as such, the first reason for the delay argued by Mr.

Mnyele cannot stand.

I now turn to the second point on illegality, which was said to have

been raised by Mr. Mnyele during his oral submission, unprocedurally and

contrary to Rule 106 (15) of the Rules. While I do agree with Mr. Nangi on

this point, that, Mr. Mnyele was required to seek for the leave to include

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that point in his oral submission, but I have noted that, the issue of

illegality is clearly contained in the Notice of Motion ground (b) and

paragraph 9 of the supporting affidavit. It is also not in dispute that, the

respondents have thorough responded on that point in their affidavits in

reply (See for instance paragraphs 11 in the affidavit for reply by the I"

and ?d respondents and also paragraph 7 of the affidavit in reply by the

:5d respondent's), respectively. I have as well noted that, the 1st and 2nd

respondents have at length discussed the said point in their written

submission. (See items 2.9 - 2.12 of the t" and Zd respondents/

submission). Again, during their oral submissions before me, all counsel for

the parties have adequately addressed me on that matter. I am therefore

in agreement with Mr. Mnyele that, even if I decide to consider this matter

the respondents will not be prejudiced, as they have exhaustively

addressed their minds on the matter. In the event and for the interest of

justice, I will proceed to consider the point of illegality raised by the

applicant.

It is on record that, the issue of illegality was raised by Mr. Mnyele in

respect of the decision of the High Court issued on 19th May 2016, staying

the proceedings in Mise. Civil Cause No. 14 of 2014 pending the

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 determination of Commercial Case No. 183 of 2013. Mr. Mnyele had since

argued that, it was wrong for High Court Judges to invoke the provisions of

Section 8 of the, Civil Procedure Code, (supra) to stay the proceedings in

that application/ while the same was not substantially the same with the

said commercial case. It was his strong view that, the said illegality

constitutes a good cause for extension of time.

While Mr. Mchome and Mr. Nangi were in agreement with the

principle cited by Mr. Mnyele that, ground of illegality alone may

constitutes a good cause, but strenuously argued that, the decision of the

High Court sought to be revised is an interlocutory decision, which is not

subject for revision, as it has not conclusively determined the rights of the

parties to the finality.

To ascertain the above arguments I have endeavored to reproduce

the said order of the High Court which is indicated under page 14 of the

High Court Ruling, contained in Annexure Mabanga -1 to the supporting

affidavit, which is couched in the following tone:- "For that purpose it is

just and equitable that we stay these proceedings pending

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- .. -.,--~-.-- .. ----
 determination of Commerciel Case No. 185 of 2013." [Emphasis

supplied].

I am mindful of the fact that, as a single Justice, I am not expected

to dig deep into the matter to determine the alleged illegality, but suffice to

hint that, by mere looking at the above High Court order, there is no doubt

that, the same is an interlocutory decision, as it has not conclusively

determined the rights of the parties therein. Pursuant to Section 5 (2) and

(d) of AJA, as amended by the Written Laws, (Miscellaneous Amendments),

(No.3) Act, No. 25

, of 2002, such orders are not subject to revision. Even if

an extension of time is granted, the intended application for revision would

not yield any practical utility, as the same is barred by the provisions of

Section 5(2)(d) of AJA. For the sake of clarity, Section 5(2)(d) of AJA

provides that:-

"No appeal or application for revision shall

lie against or be made in respect of any

preliminary or interlocutory decision or

order of the High Court unless such decision

or order has the effect of finally

12

---- .. _----------
 determining the criminal charge or suit."

[Emphasis added}.

Considering the content of the above provision, as a single Justice, I

can only hasten to remark that, the order the applicant is seeking to revise

did not have the result of finally and conclusively determining the matter

between the parties and the matter is still pending before the High Court.

I am also aware that, Mr. Mnyele has strongly argued that the above

interlocutory order was wrongly invoked because the two matters were not

similar. Either way, I do still find that, the point of illegality raised does not

meet the established principle to constitute a 'good cause', as claimed by

Mr. Mnyele. In the case of lyamuya, (supra) the Court observed that:-

"Since every party intending to appeal seeks to

challenge a decision either on points of law or

facts/ it cannot in my view, be said that in

VALAMBIA's case, the court meant to draw

a general rule that every applicant who

demonstrates that his intended appeal

raises point of law should, as of right, be

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 granted extension of time if he applies for

one. The Court there emphasized that such

point of law must be that of sufficient

importance and, I would add that, it must

also be apparent on the face of the record,

such as the question of jurisdiction/ not one that

would be discovered by a long drawn argument

or process [Emphasis supplied].

1'1'

Again, in Ngao Godwin Losero v Julius Mwarabu, Civil

Application No. 10 of 2015, (unreported) the Court emphasized that, the

illegality in the impugned decision should be clearly visibte on the face of

record

Applying the foregoing principle to the application at hand, I am not

persuaded that the alleged illegality is clearly apparent on the face of the

record. Certainly, it will take a long drawn process to decipher from the

impugned decision the alleged misdirection or non-direction on the point of

law. i.e going through the two cases to certify if they are similar or

completely un-related and whether the conclusion of one of them will

Sif/II; Kcre]«, j·i

14
affect the other. I am therefore not persuaded that, the alleged illegality in

this application constitutes a good cause.

In the event, it is my finding that the applicant has failed to advance

good cause to justify the grant of extension of time. Consequently, the

application is without merit and is accordingly dismissed with costs. It is so

ordered.

DATED at DAR ES SALAAM this 12th day of April, 2019.

R. KEREFU
JUSTICE OF APPEAL

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

S1Ai{;(/vvwi?/ir
S. J. KAINDA --
DEPUTY REGISTRAR
COURT OF APPEAL

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