Abibu Rashidi Ntahigiye Extension of time Technical difficult

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE)

AT TEMEKE MISC. CIVIL APPLICATION NO. 5267 OF 2024 (Originating from the Matrimonial Cause No. 68 of2023 at the District Court of Temeke at One Stop Centre-Temeke) ABIBU RASHID NTAHIGIYE................................................................APPLICANT

VERSUS SUBIRA MAULID ABDALLAH........................................................ RESPONDENT

RULING 21st June & 05th August, 2024 BARTHY, X: The applicant, by way of chamber summons, moved this court under section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019, seeking the following reliefs; a) That the honourable court may be pleased to extend time within which the applicant may appeal to honourable court against the judgment and decree of in Matrimonial Cause 68 of 2023 in the district court of Temeke One Stop Judicial Centre 15.11.2023. b) Costs to be paid by the respondent. c) Any other order as the court may deem fit and proper to issue. i i ne application is supported oy tne affidavit of Mr. Juma Nassoro, the learned counsel advancing reasons for the consideration of this court. Throughout the trial, the applicant enjoyed the services of Ms. Fauzia M. Kajoki, while the respondent appeared in person. The application was opposed by the respondent in her counter­ affidavit. The hearing of the application was by way of written submissions, which were timely filed before this court, except that the applicant did not file his rejoinder submission. Ms. Kajoki argued that the main issue for determination is whether the applicant has advanced sufficient cause for delay. She explained that after the trial court's judgment, the applicant intended to appeal but couldn't upload his appeal in the judiciary case system because the trial magistrate didn't mark the suit as

decided. This problem was resolved only after the appeal period had passed. She cited Mobrama Gold Corporation Ltd v. Minister for Energy and Minerals and the Attorney General and East African Gold Mines Ltd as Intervenor f19981 TLR 425 to support her argument. Ms. Kajoki further stated that the appeal involves legal issues related to the right of worship, divorce, and Islamic 'talak' (divorce). Thus, questioning the court's jurisdiction to grant separation after 'talak has been issued. She cited the case of Principal Secretary, Ministry of Defence_and 2 National Service v, Deveram Valambhia [1992] TLR 387, arguing that allegations of illegalities are sufficient grounds for extending time. She further questioned the court's jurisdiction in granting a decree of separation while the parties had been separated for five years, reiterating that issue of illegality is the sufficient reasons for granting leave to file an appeal out of time. She again cited Principal Secretary, Ministry of Defence and National Service v, Deveram Valambhia (supra) and prayed for the application to be granted with costs. In the extensive reply submission made by the respondent herself, the following is a summary of her key points. The applicant argued that this application is without legal and factual basis. She stated the applicant has failed to account for each day of delay in lodging his appeal within

the prescribed statutory period, as there was no proof of any letter accounting for the delay. Pointing out that the trial court's decision was delivered on 15/11/2023, and the applicant filed this application on 27/06/2024, resulting in a delay of approximately 207 days. Also, there was no sufficient reasons or proof for the delay. She cited the case of Edward Msago vs. Aghakhan Sports Club, High Court of Tanzania at Dar Es Salaam, Civil Appeal No. 15 of 2002, the respondent noted the absence of documentary proof and failing to name the individuals responsible in justifying the delay. The respondent insisted that the applicant needed to advance sufficient cause to warrant an 3 extension of time, referencing Nqao Godwin Losero vs, Julius Mwarabu, Civil Application No. 10 of 2015, Court of Appeal, and Mbogo vs, Shah (1968) EA, which highlighted the necessity of considering the length and reason for the delay. The respondent also argued that before the court, there was a petition for separation, and the issue of Islamic 'talak' was never pleaded. Raising it on appeal is just an afterthought and not permissible. She insisted that in this matter, there are no points of law worth determining by the court, and each day of delay must be accounted for, citing various case laws to support her stance. The respondent further contended that the applicant had not requested certified copies

of the proceedings, judgment, and decree, indicating inaction on his part. She supported this argument with the case of Isack Sebeqele vs. Tanzania Portland Cement Co. Ltd, Civil Application No. 25 of 2002, where inaction and negligence were regarded as insufficient reasons for granting the application. The respondent by concluding stated that the applicant had agreed to the separation prayer, and thus no good reason was provided for extending the time to appeal. She prayed for the dismissal of the application with costs. In her rejoinder, Ms. Kajoki maintained that the reasons advanced by the applicant contained both factual and legal grounds. She urged the 4 k-muil lu uuioiuci uiebt! reasons in determining tne application, arguing that the cases cited by the respondent were distinguishable. She concluded by praying for the application to be granted with costs as prayed. Having swotted the submissions from both sides regarding this matter, this court will determine whether the application has merit by addressing the issue as to whether the applicant has advanced sufficient cause for this court to grant the application. The original matter from the district court involved a matrimonial proceedings, where the aggrieved party was required to appeal to the high court within 45 days from the date the impugned judgment was delivered, as stipulated under section 80(2) of the Law of Marriage Act, Cap 29 R.E.

2019. If this period expires, the party may seek leave from the high court to extend the time to appeal out of time. In accordance with section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019, requires the party to advance sufficient cause to justify the extension. Although the law does not explicitly define what constitutes sufficient cause, the court has established conditions to be considered. Numerous authorities address this, but to mention a few, the case of Lyamuva Construction Company Ltd vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), sets forth the following principles; (a) The applicant must account for a// the period of delay. ■ 5 (b) The delay should not be inordinate. (c) The applicant must show diligence and not apathy negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. The court will consider each condition to determine whether the applicant has advanced sufficient cause to warrant an extension of time. With regard to the first condition, the court will consider whether the applicant has been able to account for each day of delay. The impugned decision

was delivered by the trial court on November 15, 2023. According to the facts deposed in the affidavit and its annexures, the case status in the case management system remained pending until 9th of January 2024, when the applicant's advocate wrote a letter to the deputy registrar complaining about the inability to register the appeal. The letter indicated that the case was still pending in the system, even though the 45-day appeal period had already expired. It was only when the applicant learned that the case had been marked closed in the system, that is when he was able to file this application immediately. The respondent rebutted this claim, stating that there was no 6 proof of technical difficulties and alleging that the applicant was inactive and negligent. Under section 24(5) of the Judicature and Application of Laws (Electronic Filing) Rules, Cap. 358, there is an option for a person encountering difficulties in filing cases electronically to report the problem to the registrar or magistrate in charge. Although there was no response from the deputy registrar, the letter sent by the applicant was duly received by the court, with proof of endorsement seen on the letter. The respondent also argued that the applicant did not seek copies of the proceedings, judgment, and decree necessary for processing the appeal, which constituted negligence. However, this claim is

irrelevant as the applicant had already attached the petition to appeal and his grounds for consideration were not based on the delay in obtaining necessary documents from the trial court, as in the case of Emmanuel R. Maira vs. The District Executive Director Bunda District Council (Civil Application 66 of 2010) Court of Appeal at Dar es Salaam [2010] TZCA 87, the court considered technical delays sufficient to grant an extension of time. Therefore, the court finds that the applicant has adequately accounted for and justified the reasons for his delay in filing the appeal on time. As for the second and third conditions, the court is obliged to consider the extent of delay and if the applicant was responsible to take necessary steps to pursue his right. Considering the arguments of both sides, as well 7 as uie imuinyb rnaae on me nrst condition, the court finds that the delay was due to technical reasons beyond the applicant's control. The applicant did not simply neglect his right to appeal; he made efforts to follow up on the matter, but the issue was beyond his control. Hence, the applicant was not negligent. For the last condition, the court must assess if there is a significant point of law or any sufficient issue of illegality in the decision that needs to be challenged. As decided in the case of Laurent Simon Assenga & Another (Civil Application 50 of 2016) Court of

Appeal at Dar es Salaam [2016] TZCA 330 (30 May 2016), the grounds of illegality when proved are considered sufficient reason to grant the extension of time to appeal. The applicant argued that the trial court's issuance of a decree of separation while there was an Islamic 'ta/aR issued to the respondent constituted an illegality. However, the respondent stated that this issue was never pleaded or raised before the trial court, hence no point of law or issue of illegality is established. For the court to grant an application on the ground of illegality, the law is clear that the illegality should be apparent on the face of the record and does not require a lengthy process to decipher. This was reinforced in the case Ngao Godwin Losero vs. Julius Mwarabu (Civil Application No. 10 of 2015) Court of Appeal at Arusha [2016] TZCA 2099. The court finds that the alleged illegality cannot be easily determined without a long, drawn-out process, therefore, the issue of illegality in not apparent on the face of record and by itself it is not the sufficient reason for granting the extension of time. In applying the aforementioned principles, the court finds that the applicant has advanced sufficient reason for the delay, which was caused by technical difficulties that prevented him from registering his appeal on time. Consequently, the applicant is granted a 14-day extension to file his appeal before this court. Given the nature of this matter, no order as to costs is made. It is so ordered. Dated at Temeke this 5th of August, 2024. G. N. BARTHY

JUDGE Delivered in the presence of Ms. Fauzia Kajoki learned advocate for the applicant, respondent in person and Ms. Bernadina Tayari, RMA. 9