This is an application for extension of time within which to lodge an. application for leave to appeal against the decision of the High Court sitting

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1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MSOFFE, J.A., RUTAKANGWA, J.A., And LUANDA, J.A.) CIVIL APPLICATION NO. 182 A OF 2007 SELINA CHIBAGO... APPLICANT VERSUS FINIHAS CHIBAGO... RESPONDENT (Application for extension of time to apply for leave to appeal against the decision of the High Court of Tanzania at Dar es Salaam) (Mjasiri, J.) Dated 8 th day of September, 2006 In Civil Appeal No. 2 of June & 25 July, 2011 RUTAKANGWA, J.A.: RULING OF THE COURT This is an application for extension of time within which to lodge an application for leave to appeal against the decision of the High Court sitting at Dodoma. The said decision was delivered on 7 th September, This application, which is based on Rules 8, 3(1) and 43 (a) and (b) of the then Tanzania Court of Appeal Rules, 1979 (the Rules) was lodged on 11 th December, This was roughly fifteen (15) months after the impugned decision. 1

2 The parties herein used to live together as wife and husband respectively. The quotation marks have been used advisedly. The reason for this will become obvious after we have given a brief background to the application. The same is as follows. The applicant and respondent had a formal marriage. As the learned High Court judge who rejected the first application for leave to appeal observed in his ruling, the marriage was not a happy one. They never took the law into their hands, nevertheless. They agreed to end it amicably. The parties went to the District Court of Dodoma (vide Matrimonial cause No. 7 of 2004) to fulfil their desire. They did not have a trial, however. They sought and were granted a consent divorce decree. The District Court had, subsequent to the dissolution of the marriage, passed a consent order on the division of their matrimonial assets. As the respondent had no objection, their two issues of marriage, both under 7 years of age, were placed in the custody of the applicant herein. The couple happily parted company thereafter. 2

3 After a while, the applicant believing to have had a raw deal out of the consent divorce decree, went back to the same District Court, seeking a review, under section 78 (a) of the Civil Procedure Code, Cap 33. She wanted a review so that the decree incorporated the order on the division of the matrimonial assets. She also wanted express orders regarding the maintenance of the two children by the respondent. The review application was heard by another magistrate and granted. The respondent was aggrieved. He appealed to the High Court (vide Civil Appeal No. 2 of 2006). In its judgment, given on 8 th September, 2006, the High Court (Mjasiri, J., as she then was) allowed the appeal. The review order of the District Court was quashed and set aside, for reasons which are not immediately relevant. The applicant herein was condemned to pay costs. The applicant was aggrieved by the decision of the High Court. She resolved to appeal the entire decision to this Court. She duly lodged a notice of appeal to that effect. The appeal would be a second appeal. In terms of section 5(1) (c) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, she had first to seek and obtain leave either of the High Court or this 3

4 Court. Her first attempt in the High Court (vide Civil Application No. 23 of 2006) failed. The High Court dismissed the application on 31/05/2007 as it found no point of law worthy of consideration by this Court. The applicant was undeterred. She wants a second bite in this Court. She had to do so (i.e. apply for leave of this Court) within 14 days of the High Court s decision. She failed to do so. Hence this application. The notice of motion instituting this application, lodged by Mr. Barnabas Luguwa, learned Advocate, was supported by two affidavits. One was deponed to by Mr. Luguwa and the other by the applicant. The contents of the two affidavits are almost identical. It is averred therein that the applicant was prevented to lodge this application in time by two reasons. One, she was not supplied with a copy of the High Court ruling rejecting her application for leave to appeal. Two, the advocate who had prosecuted the application for leave in the High Court parted company with the law firm of Mr. Luguwa to join UNITED LAW CHAMBERS, soon after the High Court had delivered its ruling. It is further averred that the ruling of the High Court quashing the review judgment left many legal issues undecided. For these reasons, it is urged that the justice of the case 4

5 would best be served if the sought order is granted, and the legal issues conclusively determined by this Court on appeal. The respondent did not file any affidavit in reply. So the factual averments contained in the two affidavits remain uncontroverted. At the hearing of the application, the applicant appeared in person. Mr. Luguwa made an oral application to the Court to withdraw from the conduct of the application. The applicant consented and leave to withdraw was granted. The respondent was represented by Mr. John Ruhumbika, learned advocate. Being a lay person, the applicant had nothing new to tell us apart from relying on the contents of her affidavits. Mr. Ruhumbika vehemently resisted the application without denying the averred fact that the applicant was supplied with a copy of the High Court decision after the expiry of the statutory 14 days period. He only lamented that they were being vexed by the applicant. He accordingly urged us to dismiss the application as the applicant has failed to show sufficient reason for the inordinate delay in lodging this application. 5

6 In deciding this contested application, we have found it apposite to first direct our minds to the requirements of Rule 8 of the Rules. The said Rule ran thus:- The Court may for sufficient reason extend the time limited by the Rules or by any decision of the Court or of the High Court for the doing of any act authorised or required by these Rules, whether before or after the doing of the act and any reference in these Rules to any such time shall be construed as a reference to that time so extended. [Emphasis is ours]. Admittedly, as this Court has consistently held in a number of cases, that no particular reason or reasons have been set out as standard sufficient reasons. It all depends on the particular circumstances of each 6

7 application. Each case, therefore, should be looked at in its own facts, merits and circumstances, by looking at all the circumstances of the case before arriving at the decision on whether or not sufficient reason has been shown for extension of time: See, for example, ABDALLA SALANGA & 63 OTHERS v. TANZANIA HARBOURS AUTHORITY, Civil Application No. 4 of 2001, CITIBANK ( TANZANIA) LTD V. T.T.C.L, TRA. & OTHERS, Civil Application No. 97 of 2003 and WILLIAM MALABA BUTABUTEMI V. R., Criminal Application No. 5 of Be it as it may, one of the accepted reasons for granting extensions of time under Rule 8 of the Rules was and still is, the illegality or otherwise of the impugned decision. This Court, in the case of PRINCIPAL SECRETARY, MINISTRY OF DEFENCE AND NATIONAL SERVICE V. DEVRAM VALAMBHIA [1992] TLR 182 at page 189 said:- In our view, when the point at issue is one alleging illegality of the decision being challenged the Court has a duty, even if it means extending the time for the purpose, to ascertain the 7

8 point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right. [Emphasis is ours] See also, KALUNGA AND COMPANY ADVOCATES V. NBC LTD, Civil Application No. 124 of 2005, VIP ENGINEERING & TWO OTHERS V. CITIBANK (TANZANIA) LIMITED, Consolidated References No. 6,7 and 8 of 2006 and PAUL JUMA V. DIESEL & AUTOELECTRIC SERVICES LTD & TWO OTHERS, Civil Application No. 54 of 2007 (all unreported) in which the holding in VALAMBHIA s case was followed. As already shown, the two parties herein contracted a lawful marriage under the Law of Marriage Act, 1971, Cap 29. As we understand this Act, its scheme is to preserve the sanctity of the institution of marriage, which is intended to last for life. For this reason, it is provided in section 99 that any married person may petition the court for a decree of separation or divorce on the ground that his or her marriage has broken down, but no decree of divorce shall be 8

9 granted unless the court is satisfied that the breakdown is irreparable. It is common ground in these proceedings that the petition for divorce between the parties herein never went through a formal trial. They settled for a consent decree without adducing any evidence to satisfy the courts that their marriage had broken down irreparably. The legal issue which we see here is the legality or otherwise of the consent divorce decree, in view of the mandatory provisions of section 99 referred to above. If the said decree was illegal, were the proceedings for review before the Dodoma District Court and proceedings on appeal to the High Court and all the decisions and orders made therein valid or invalid? This is a legal issue which unfortunately escaped the minds of the learned High Court judges. When the Court raised this issue suo motu Mr. Ruhimbika avoided answering it, insisting that these proceedings were simply vexatious. This Court, therefore, has a duty to ascertain this point, and if established to take appropriate measures to rectify the situation. This will be possible if the Court will grant extension of time to the applicant to lodge an application for leave to appeal out of time, so as to pursue her 9

10 appeal. We take this to be a point of law of great public importance to be decided by this Court whatever its consequences. For the above single reason, we accordingly grant the applicant extension of time within which to apply for leave to appeal against the decision of the High Court at Dodoma in Civil Appeal No. 2 of The said application should be lodged within two weeks of the date of this decision. Costs to be in the cause. DATED at DAR ES SALAAM this 11 th day of July, J.H. MSOFFE JUSTICE OF APPEAL E.M.K. RUTAKANGWA JUSTICE OF APPEAL B. LUANDA JUSTICE OF APPEAL I certify that this is a true copy of the original. J.S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL 10