RULING Wellworth Hotel

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY MISC. CIVIL APPLICATION No 5910 /2024 CASE REF NO 202403201000005910 (Originating from Civil Case no .326/2002 before Hon. Fovo DR) A H JAMAL, AS ADMINISTRATOR OF THE ESTATE OF THE LATE ALNOORD TAJDIN NANJI-------------------------1ST APPLICANT SONIX CORPORATION -------------------------------------------2ND APPLICANT VERSUS WELLWORTH HOTEL & LODGES LIMITED--------------------- 2nd RESPONDENT RULING: 6th Nov & 18th Nov. 2024. KIREKIANO J: This is an application for an extension of time within which the applicants can file a notice of appeal against the decision of this Court in execution no. 326 of 2002 dated 15.1.2021 (Hon. Fovo DR). The applicants have brought this application by way of chamber summons under section 11(1) of the Appellate Jurisdiction Act [Cap 141 RE 2019]. The application is supported by an affidavit from Mr. Audax Kahendaguza Vedasto, an advocate for the applicants. 1 The respondent had the service of Mr. Shalom Samwel Msacky, a learned advocate, who also filed a counter affidavit opposing the application. The brief facts of the application are that, the applicant filed an application for execution, execution no. 326 of 2002 in order to execute the decision of this Court. The execution was before Hon. Fovo- DR who on 15 January 2021 dismissed the same on the reason that the Court was functus official as the same Court before Hon. Mtaki- DR had closed the matter of execution in Misc. Civil Application No. 82 of 2014 in a decision dated 24.4.2014. Due to the dissatisfaction with the decision and determination to challenge the same, the applicant on 8/02/2021 lodged a notice of appeal to the Court of Appeal, which 11.3.2024 on was struck out in Misc. Civil Application No. 636/01/2021 for failure to take the essential steps. The applicant has come back to Court praying for the following orders; 1. That the honourable Court be pleased to make an order granting an extension of time within which the applicants can give a notice of intention to appeal against the decision of this Court (Honourable Fovo, DR) in execution No. 326 of 2002 dated 15.01.2021 2 2. Costs of this application. 3. Any other relief that this Honorable Court shall deem fit and just to grant. The applicant's reason for the delay as stated in the supporting affidavit is associated with technical delay. It is stated in the affidavit that he filed a notice of appeal on time that is, on 8/02/2021 while waiting to be supplied with the proceedings to lodge the appeal, he was served with the application filed by the respondent which was Civil application no. 636/01/2021 seeking to strike out the said notice of appeal. The Court of Appeal, after hearing both parties, on 11 March 2024, made an order to strike out the notice of appeal for failure to take the essential steps within the prescribed period as required by law. Determined to pursue the appeal, the applicant, therefore, came back to this Court seeking for an extension to time to file the notice of appeal. When this application was placed before me for hearing, it was heard orally. As indicated, the applicants had the services of Mr. Audax Kahendaguza Vedasto, and the respondent had the services of Mr. Shalom Samwel Msacky, a learned advocate. 3 Submitting in support of the application, Mr. Audax submitted that the applicant lodged a notice of appeal in time on 8 February 2021, which was struck out by the Court of Appeal under Rule 89 of Court of Appeal rules for failure to take essential steps. He submitted that Rule 83(2) of the Court of Appeal rules require the notice of appeal to be lodged within 30 days. He thus seeks this court extension of time to that effect under Rule 11(1) of the Court of Appeal rules. Mr. Audax relied on two reasons as the good cause: one, technical delay from 08.02.2021, when he filed the notice in time, to when it was struck out by the Court of Appeal on 11 March 2024. He referred to the case of Rashid Mussa Mchomba vs Siri Nassiri Hussein Siri (Civil Application No. 692/02 of 2021) [2023] TZCA 17692 (2 October 2023) on page 10, on technical delay as a reason for an extension of time. He further submitted that the applicant filed this application after nine days, from 11 March 2024 to 20 March 2024. He considered nine days to be the time spent in obtaining the copy of ruling and the filling process, and he 4 asked this Court to consider that the same was accounted for and not inordinate. The second ground relied upon was illegality. The same is indicated Under paragraph 8 of the affidavit that the decision that in the decision dismissing the application, the matter referred to involved different parties, thus causing an illegality worth being addressed in the appeal. He finally prayed the application to be granted in view of the decision of Ngerengere Estate Co. Ltd vs Edna William Sita. In his reply submission, Mr. Msacky argued that the applicant applied for leave to appeal, which was application no. 61/2021, the same was denied because an order from the Honourable Registrar is not appealable. Mr Msacky submitted that the decision of this Court by Mruma refusing to leave stands unless rectified. He said the applicant then filed a notice of appeal, which was struck out in Wellworth Hotels & Another vs A.H. Jamal & Another (Civil Application No. 636 of 2021) [2024] TZCA 171 (11 March 2024). He argued that the applicant had no automatic right to appeal. Thus, he could have taken steps to sort the issue of leave to the High Court. 5 He referred to the decision in Israel Malegesi & Another vs Tanganyika Bus Service Respondent (Civil Application No. 172 of 2020) [2022] TZCA 4 (1 February 2022) that is to say this Court should not grant an application for extension of time for a futile application. According to him the applicant's coming back to this Court is manifestation of abuse of court process as the applicant was already been denied a hearing at Court of appeal. On accounting for the days of delay, he argued that the days referred to that were used for preparation and obtaining the decision by the applicant were not supported by proof. On the issue of illegality, he replied that there is no illegality in the affidavit sufficient to grant the application. The issue of parties were clarified in the decision by hon Fovo DR. In rejoinder submission, Mr. Vedasto opposed the reliance on decisions by Hon. Mruma, citing the Mula Code of Civil Procedure on page 219, that the decision was to be attached in the pleading. He referred to Section 5(1) a, b, and c of the Appellate Jurisdiction Act and argued that the Court of Appeal did not say that the decision of the DR was not appealable; it was 6 thus appealable upon leave. He argued that if the Court of Appeal stated that there were essential steps to be taken, it was his view that it was right to re-apply for the extension of time. He referred to the case of Tanzania Breweries Ltd vs Anthony Nyingi and Fransica Kokunganya, Vs Musah Sale to the effect that the high court decision does not bar an appeal because the matters of withdrawal of notice are determined by Rule 89 (2) of the Court of Appeal Rules. On the issue of accounting for the delayed days, he rejoined that they have been accounted for and the days and the six days were used to take further action to present this application. On issue of illegality, he rejoined that, this was well addressed in the affidavit. On my part, I have considered the submissions by the parties and the decision cited that is Benedict Mumelo v Bank of Tanzania, Civil Appeal No. 12 of 2012, and Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) The principle in these decisions is that the discretion to grant or refuse the 7 application of extension of time has to be done judiciously; thus, an extension of time may only be given where it has been sufficiently established that the delay was with sufficient cause. Before addressing the grounds in support of the application, I wish to remark briefly on points raised by Mr. Msacky on competence of this application. First I note that, in the decision in Wellworth Hotels & Another vs A.H. Jamal & Another (supra) the applicant notice of appeal was strike out, Mr Msacky beseeched me to find that this application cannot be refiled, I have considered this and found of aid of excerpt from decision in Rashid Mussa Mchomba vs Siri Nassiri at page 13 thus; “The striking out of the notice of appeal following the failure of a party to take essential steps in itself does not mean that a party in whose notice was struck out may not commence an appeal process afresh” Since it is the notice that sets an appeal in to motion, I will thus pause here and focus on whether this application is merited. Now, looking at the grounds set out in the application for an extension of time, the Counsel for the applicant relied on two aspects as a ground for 8 an extension of time, one being the technical delay and the second on the illegality of the decision. I will start with the technical delay as a reason for the extension of time. Technical delay is among the good grounds in accounting for extension of time See the cases of Zahara Kitindi and Another vs Juma Swalehe & 9 others, Civil Application No. 4/05/2017, Yara Tanzania Limited vs D.B Shapriya and Co. Limited, Civil Application No. 498/16 of 2016, Rashid Mussa Mchomba (supra), in the latter case, the Court of Appeal considered the time taken in the notice of appeal which was struck out for failure to take the essential steps was technical delay. According to paragraphs 3,4,5, and 6 of the applicant's affidavit, the Counsel for the applicant indicated that there was step taken by filing the notice on 8/02/2021 which remained in Court until when it was struck out on 11.3.2024 and was issued, with copy of the same on 13 March 2024.From this period that 8/02/2021 till 11.3.2024, this period is undisputed, that the applicant was already in court. This constitutes what is known as technical delay, developed by caselaw from Fortunatus Masha v. William Shija and Another (supra) 9 followed by plenty of decisions, including Samweli Kobelo Muhuio v National Housing Corporation (NHC), Civil Application No. 302/17 of 2017. Tanga Cement Company Limited v. Jumanne O. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 Salvant K. A. Rwegasira v. China Henan International Group Co. Ltd., in the latter case, the Court of Appeal adopted the principle developed and held that; “A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. This period (8/02/2021 till 11.3.2024) is therefore considered as technical delay and equally excluded from the applicant burden to account for each day of delay. The applicants, stated that they were supplied with the copy of the order on 13.03.2024. Mr. Msacky argued, that ruling was available the very date it was delivered and as it could be accessed online. I take note of this. However, whether the same was actually made available to the applicant 10 immediately, this needed evidence. On balance of probability, I believe the applicant that they obtained the copy on 13.3.2024. Now, we remain with the seven days, from 13/03/2024 to 20/03/2024, when this application was filed online. The applicant at paragraph 7 and 8 stated that the same were used for discussion, deliberation and drawing the documents for this application. The respondent contested this and Mr. Msacky pressed for proof on this. Going by the applicant's deposition in paragraph 7 and 8 of the affidavits I am of the view that, the facts stated were worth of proof. Now, whether the seven days spent in preparation of the documents were reasonable, I shall borrow the wisdom of my brother Manyanda J. on Damari Watson Bijinja v Innocent Sangano, Civil Application no. 30 of 2021, whereby he said, "In the instant application, though the applicant had all the documents as argued by the Counsel for the respondent, he still needed time to prepare and file the application in Court. I find that the circumstances of this matter, the period of 12 days, were reasonable for the applicant to prepare the application. 11 I take the same position in this and thus find that the applicant has established good cause by accounting for days of delay. I shall end here without indulging in the aspect of illegality. In the end, I find that the applicant has illustrated good cause warranting this Court to grant an extension of time. The application is granted with the direction that the applicant should file a notice of appeal within 14 days from the date of this ruling. No orders as to costs. A J. KIREKIANO JUDGE 18.11.2024 12 COURT The ruling was delivered in the chamber in the presence of Mr. Joseph Rugambwa advocate for the applicant, and Mr. Shalom Msacky for the respondent. A J. KIREKIANO. JUDGE 18.11.2024 13