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Gwaku and Others v National Agriculture and Food Corporation (NAFCO) and Another (Civil Application No. 67 of 2005) [2006] TZCA 65 (14 June 2006)
.RTF of original document
IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM
CIVIL APPLICATION NO. 67 OF 2005
1. YOKE GWAKU
2. GIDAMUHALED MABONJU
3. JOKU GIDARAGED
ccccccccc.
APPLICANTS
4. GICHENOGA YOKE
5. BAKARI QUADE
VERSUS
1. NATIONAL AGRICULTURE AND
FOOD CORPORATION (NAFCO)
ccccc RESPONDENTS
2. GAWAL WHEAT FARM LTD.
(Application for extension of time within which to apply to restore Civil Appeal No. 37 of 1998 from the Judgment and Decree of the
High Court
of Tanzania at Dar es Salaam)
(Msoffe, J.)
dated the 6th day of September, 1994
in
Civil Case No. 52 of 1988
R U L I N G
8 & 14 June 2006
MUNUO, J.A.:
In the Amended Notice of Motion, the applicants, through the services of Mr. S. Shayo, learned advocate, seek extension of time within
which to apply to restore Civil Appeal No. 37 of 1998 and furthermore upon such restoration, the said appeal proceeds to hearing.
The application is supported by affidavits deponed to by the 1st Applicant, Yoke Gwaku and the affidavit of one Duncan Getakanoda.
In his affidavit, Duncan stated that because a long period elapsed without hearing
from their then advocate about the fate of Civil Appeal No. 137 of 1998,he made inquiries at the Human Rights Centre at Dar-es-Salaam
in view of the fact the Human Rights Centre had been assisting the villagers in litigation. It was then that he was informed that
the appeal had been dismissed. He then sought more information from Dr. Mwaikusa who was representing the appellants in vain. He
visited the Registry and ultimately obtained a copy of the Order dismissing the appeal, Annexture D1, to the Amended Notice of Motion.
He subsequently relayed the news to the applicants. Hence the present application for restoration.
Mr. Shayo, learned advocate for the applicants, submitted that there is sufficient
cause for extending the period for restoring the appeal and for restoring the appeal itself because the applicant pastoralists suffered
a communication break down with their former counsel, Dr. Mwaikusa. He contended that the applicants have interest in the farm in
dispute so the Court should restore the civil appeal for determination on merit.
Mr. W. Chipeta, learned advocate, opposed the application. He pointed out that the
appeal in question was dismissed on 15th October, 2004 and the present application was filed seven months thereafter on the 17.5.2005 instead of being filed within a period
of thirty days under the law of limitation, inordinate delay by any standard. He faulted the applicants for not following up the
appeal seriously. He further stated that since Dr. Mwaikusa did not file an affidavit to substantiate the break down so it lacks
merit and ought to be dismissed with costs. Citing the cases of Alhaji Abdallah Talib versus Eshakwe Ndoto Kiweni Mushi (1990) TLR 108; Salum Sururu Nabhani versus Zahor Abdalla Zahor (1988) TLR 41 and John Chuwa versus Anthony Ciza (1992) TLR 233 in which the court refused to give extension of time for want of sufficient ground. He urged the Court to dismiss
the application with costs.
The issue is whether there is sufficient ground for extending the period for applying
for the restoration of Civil Appeal No. 137 of 1998 and for restoring the said appeal.
The Order dismissing Civil Appeal No. 137 of 1998 clearly states at Page 20 of the
record of appeal, paragraph 2:
Mr. Maro contended, and rightly so, that it is on record that the appellants were duly served and as they are now absent, after the
withdrawal of Professor Mwaikusa, then Rule 105 should apply. We dismiss the appeal under Rule 105 for the failure of the appellants
to turn up.
We make no order as to costs as Mr. Maro submitted.
Dated at Arusha this 15th day of October, 2004.
From the above Order of the Court, it is clear that the appellants, now applicants,
were duly served with notices for hearing. Their allegation that Dr. Mwaikusa disowned and did not communicate the hearing date to
them cannot hold water because they were duly served but they defaulted in appearance so when their counsel withdrew, they were not
in court to prosecute their appeal.
Under the circumstances, the application is lacking in merit. The application is
accordingly dismissed with costs.
DATED at DAR-ES-SALAAM this 14th day of June, 2006.
E.N. MUNUO
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
( S.M. RUMANYIKA )
DEPUTY REGISTRAR
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