Mhango (On behalf of 684 others) v Tanzania Shoe Co. Ltd and Another (Civil Application No. 37 of 2003) [2006] TZCA 39 (10 March 2006)

There is before me an application by way of notice of motion. It is supported by an affidavit sworn by one Marcky Mhango on behalf of 684 other applicants, former employees of the second respondent, Tanzania Shoe Co. Limited. Dr. M.K.B. Wambali, learned counsel, appeared for the applicants. The Court is being moved for an order that:

As this is the second time this matter is coming before this Court after the Courtfs decision of 1.10.1996 in Civil Appeal No. 36 of 1996, it is instructive to preface this ruling with a brief historical background giving rise to the matter. In High Court Civil Case No. 45 of 1994, the applicants had sued the respondents claiming for terminal benefits. The suit was dismissed (Kyando, J.). The appeal to this Court, Civil Appeal No. 36 of 1996, was also dismissed on 1.10.1996. On 29.10.1999, the applicants filed Civil Application No. 90 of 1999 seeking review of its decision of 1.10.1996. On 13.3.2003, the application for review was struck out on the ground that the application was incompetent in that it was filed well over three years after the decision of 1.10.1996, it was hopelessly out of time.

When the application was called on for hearing Mr. Maro, learned counsel for the respondent, raised a preliminary objection notice of which he had duly given before. The preliminary objection was based on the following grounds:

In support of the application, Mr. Maro submitted to the following effect. That this is an application for the Court to review its decision of 1.10.1996 in Civil Case No. 36 of 1996 which was dismissed on 13.3.2003. The application was dismissed upon the ground that the unexplained inordinate delay in filing the application for 37 months was appalling and unacceptable. The application having been dismissed in such circumstances, that was the end of the matter in so far as this Court was concerned. It is not proper to bring this matter back to the Court at this stage, Mr. Maro contended.

Furthermore, counsel urged that the application is based on unknown provision of the rules. It is therefore incompetent. It being an application for extension of time, perhaps the nearest enabling provision is rule 8 which could be cited in support of the application. Failure to cite the provision of the rule in support of the application was an incurable defect. The application was therefore incompetent, it should be struck out. In support of this submission Mr. Maro referred to the decision of the Court in Harish Amsaran Jina v. Abdulrazak Ajar Patel, ZNZ Civil Application No. 2 of 2003 (unreported) and Alliance Insurance Corporation Ltd. And 9 Others v. Commissioner of Insurance And Two Others, Civil Reference No. 5 of 2005 (unreported).

Dr. Wambali, learned counsel, for the applicants, vigorously opposed the preliminary objection. He firmly maintained that the application was competent because first, the court was properly moved and secondly, it was not time barred. Dr. Wambali also strongly urged that an application for extension of time cannot be time barred, it can be applied for at any time. This matter involves an important point of law and the applicants are still complaining.

With regard to the point raised that the court has not been properly moved, the learned counsel submitted that wrong citation of the rule does not render the application incompetent. First, he said wrong citation of a rule in an application such as this is not the same as non-citation of the rule. In this case, what happened is that no rule was cited in support of the application which he ardently maintained did not render the application incompetent. At any rate, Dr. Wambali further submitted, no authority was cited in support of the contention that non-citation of a rule renders the application incompetent. He urged that the authorities cited in support of the preliminary objection are not applicable in the circumstances of the case. He insisted that the application is properly before the Court and that the preliminary objection should be overruled.

I shall first deal with the issue whether the court was properly moved. It is common ground that the application relates to the decision of the Court of 1.10.1996 dismissing Civil Appeal No. 36 of 1996. The appeal having been dismissed, the applicants sought to move the Court to review its decision of 1.10.1996 which application was struck out on 13.3.2003 when the Court inter alia said:

It is not in dispute that it took over three years for this application to be made. Counsel for the applicants did not seek to offer any explanation but justified the delay on the ground that there is no prescribed period of limitation. However, despite the silence in the rules on this matter there are reasons for saying that an application for review cannot be delayed indefinitely or brought only at the convenience of the applicant.

In VIP Engineering & Marketing Ltd. v. S.S. Bakhressa Ltd., Civil Application No. 52 of 1998, a delay of 28 months was held to be grossly inordinate. The delay of 37 months in the instant case is, in the absence of any explanation, appalling and unacceptable.

It is common ground that with the striking out of the application, nothing remained on the plate of the Court, as it were. In that situation, is it proper for the applicants to come to the Court again seeking extension of time in which to reinstitute the same application? With respect, I do not think so. In my view, the Court should not allow what seems to me an unwarranted fishing expedition to the Court. All the more so where, as found by the Court in Civil Application No. 90 of 1999 there was no explanation at all for the delay.

It is elementary that extension of time where the court is properly moved can be granted where sufficient reason is shown for the delay. Here, the Court had already found there was no explanation let alone sufficient reason. It is to be observed that Dr. Wambali, like he did in Civil Application No. 90 of 1999, belaboured the same point that there is no limitation of time in applications for review. This much the Court accepted and I have no problem with that even though by case law the period of limitation in all applications is now settled. Even then, as already observed, still no explanation for the delay has been given in this case. So, in such circumstances, to entertain the application, the Court would be contradicting itself in the light of its decision in Civil Application No. 90 of 1996 where the Court found and described the unexplained delay as appalling. It is the duty of the Court to desist from entertaining delayed applications such as this the effect of which is to re-open a matter which was otherwise lawfully determined.

Furthermore, there is the question raised that no enabling rule has been cited in support of the application. This, according to Mr. Maro, rendered the application incompetent. This Court has consistently taken the view that wrong citation of a section of the law or rule in support of the notice of motion renders the application incompetent. In National Bank of Commerce v. Sadrudin Meghji, Civil Application No. 20 of 1997, the application for revision by way of a notice of motion was made under section 4 (2) of the Appellate Jurisdiction Act, 1979 instead of section 4 (3). Striking out the application, the Court among other things, stated:

It follows therefore that the application has been filed by notice of motion under an inapplicable section of the law. Consequently, as the Court was not properly moved, the application is, likewise incompetent.

In my view, the situation in the instant case is even worse. It was not a matter of wrong citation of the rule, but no rule at all was cited. With respect, I find Dr. Wambalifs insistence that non-citation of the rule in support of the application did not render the application incompetent, to say the least, is without any merit. Decided cases by this Court on this point are numerous. See for instance, Meghji (supra) and subsequently, Almas Iddie Mwinyi v. National Bank of Commerce and Another, Civil Application No. 88 of 1998 and Citibank Tanzania Ltd. v. Tanzania Telecommunications Company Limited, Civil Application No. 64 of 2003 (both unreported).

In the light of case law as reflected in these decisions of the Court, it is clear that Dr. Wambalifs contention that no authority was cited in support of the proposition that non-citation of the rule renders the application incompetent is not supported by any decided cases by the Court. As a matter of fact, decided cases are against his proposition. In the circumstances, I agree with Mr. Maro, learned counsel for the respondent, that the application was rendered incompetent on account of non-citation of the applicable provision of the rules in support of the application.

Tanzania: Court of Appeal

Mhango (On behalf of 684 others) v Tanzania Shoe Co. Ltd and Another (Civil Application No. 37 of 2003) [2006] TZCA 39 (10 March 2006)