CIVIL APPLICATION NO 24 01 OF 2023 ACCESS BANK TANZANIA LIMITED ANOTHER VS THOBIAS JOHN MWACHA as the Administrator of the estate of the late PASCHAL JOHN MWACHA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 24/01 OF 2023 ACCESS BANK TANZANIA LIMITED................... ............. 1st APPLICANT TULVIN INVESTMENT COMPANY....................................... 2nd APPLICANT VERSUS THOBIAS JOHN MWACHA (as the Administrator of the estate of the late PASCHAL JOHN MWACHA)............................ ......... ........... RESPONDENT (Application for extension of time within which the applicants can serve a copy of the Memorandum and record of appeal lodged in the registry of the Court at Dar es Salaam) (Mlvambina. J.^ dated 15th day of August, 2019 in Civil Case No. 151 of 2013 RULING 5th & 11th July, 2024 MGEYEKWA. 3.A.: The applicants, ACCESS BANK TANZANIA LIMITED and TULVIN INVESTMENT COMPANY are seeking for an order for extension of time within which to serve on the respondents a copy of the memorandum and record of appeal in Civil Appeal No. 635 of 2022 lodged in the Registry of the Court at Dar es Salaam on 29th December, 2022. The l application was brought by way of notice of motion, made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by an affidavit deposed by Amon Meja, a Principal Officer of the first applicant. In addition, the applicants have filed written submissions to expound their quest. The respondent resisted the application and has demonstrated his resistance by filing two affidavits in reply deponed by Thomas Eustace Rwebangira, the respondent's learned advocate and Wivina Rwebangira, learned advocate as well as written submissions in opposition. For a better appreciation of the issues raised herein, it is important to explore the background of the matter and the factual setting giving rise to this application. According to the affidavit in support of the application, the respondent sued the applicants jointly and severally for specific order of the return of the confiscated goods in the marketable condition or alternatively payment of Tshs. 802, 256, 000/= being value of the confiscated goods, USD 265,000,000/= and Tshs. 65, 000, 000/= being cash money; monthly rent to the tune of Tshs. 2, 000, 000/= paid in advance from a date of invasion to the date of making good loss; interest at the tune of Tshs. 34, 095, 880/=; compounded commercial 2 interest at the rate of 4.25% per month exemplary damages' punitive damages; and costs of the suit. The High Court rendered a judgment in favour of the respondent. Discontented, on 2nd September, 2019, the applicant, lodged a notice of appeal and served the respondent and wrote a letter requesting for certified copy of judgment, decree and proceedings. Having accomplished the foregoing, the applicant then dawdled along and, in the result, he failed to serve on the respondent a copy of the memorandum and record of appeal in good time. To remedy the situation, he preferred the instant application. At the hearing of the application, the first applicant was represented by Messrs. Howard Macfarlane Msechu and Humphrey Mwasamboma, both learned counsel whereas the respondent was represented by Mr. Thomas Brash, learned counsel. Mr. Msechu commenced his submission by fully adopting the contents of the notice of motion, the supporting affidavit, as well as the first applicant's written submissions. In his written submission, Mr. Msechu argued that the application intends to seek the Court indulgence to serve the respondent with the memorandum and record 3 of appeal in Civil Appeal No. 635 of 2022. He exemplified that the memorandum and record of appeal was lodged to the Court on 29th December, 2022 being festival seasons, and followed by the weekend hence the said documents were collected in Court on Monday, the 2 January, 2023. He further submitted that on the following day, the applicants engaged the service of the Court Process Server one David Msangawale whose affidavit is attached as annexure AMBT- 5 to effect the services of the record of appeal to Mr. Eustace Rwebangira, the respondent's counsel through his firm Rwebangira Eustace and Company Advocates. Mr. Msechu continued to submit that the efforts by the said Court Process Server to effect services to Mr. Rwebangira on 4th January, 2023 did not bear fruits since the office of the said counsel was closed. He added that the court process server tried to reach the said counsel through his mobile number and he assured him to receive the documents once he is back from leave. The learned counsel continued to argue that the respondent's counsel admitted to be on leave on those days and he returned on 5th January, 2023. To bolster his submission, he referred me to paragraph 7 of the respondent's affidavit. Mr. Msechu also urged the Court to find that the applicants have filed the appeal and lodged the memorandum of appeal within time and engaged a qualified Court Process Server who was instructed to serve the respondent with copy of memorandum and record of appeal. Elaborating on the issue of accounting for each day of delay, Mr. Mwasamboma argued that from 5th January, 2023 to 9th January, 2023 was during the court vacation days and many offices were closed. He clarified that, the applicants spent the 12 days for preparation of the instant application and serve the respondent, when the court was in vacation. In conclusion, the learned counsel beckoned upon me to allow the applicants' application. In response, Mr. Brash strenuously opposed the application by arguing that the applicant has failed to show good cause for extension of time. Relying on the affidavit in reply and the written submission he had earlier on lodged, Mr. Brash contended that since the applicant delayed to serve the record of appeal to the respondent, he was 5 supposed to give good reasons for such delay and account for each day of delay. He argued that in the notice of motion, affidavit and written submission the applicants have failed to account for each day of delay from the date when they were out of time. Elaborating, Mr. Brash submitted that the applicants were supposed to account for the days of delay from 30th December, 2022 when the memorandum of appeal and record of appeal were filed to 19th January, 2023 when the instant application was filed. In his longwinded submission, the learned counsel for the respondent further argued that the applicants have failed to account for fourteen (14) days of delay. To reinforce his submission, he cited the cases of The Board of Trustees of the Free Pentecostal Church of Tanzania v. Asha Selemnai Chambanda & Another, Civil Application No. 63/07 of 2023 and Charles Richard Kombe v. Kinondoni Municipal Council, Civil Application No. 13 of 2019, this Court observed that failure to account for twenty (20) days of delay does not give room to the court to exercise its discretion to extent time as requested. 6 Mr. Brash continued to argue that the respondent in his affidavit in reply has countered the allegations that the office of Rwebangira Eustace & Co. Advocate was closed for holiday. Expounding, he argued that Mr. Thomas Eustace Rwebangira denied to have received a call through his mobile phone with number 0713611162 from the said Court Process Server of the applicants. The learned counsel further submitted that the applicants were in position to serve the respondent on 6thJanuary, 2023 which was a working day and Mr. Thomas Eustace Rwebangira was in the office as shown in the affidavit in reply. He valiantly argued that the applicants' ground on court vacation cannot hold water because they managed to file an appeal during the same period. In his brief rejoinder, Mr. Msechu challenged the submission made by Mr. Brash in relation to the applicants' duty to account for each day of delay that, the annexure R-3 was improperly retrieved from the electronic devise. He thus urged me to disregard the same. He then reiterated what he submitted earlier and emphasized that the Court should condone the delay of 14 days and grant the application. 7 I have carefully conserved the notice of motion, affidavits in support of the application and in reply, parties submissions and cited authorities. In determining the application, the main issue for my consideration is whether or not the applicants' affidavit discloses a good cause for extension of time, a prerequisite for the exercise of the Court's powers under Rule 10 of the Rules. For ease of reference, I reproduce the said rule hereunder: "10. The Court may, upon good cause shown, extend the time limited by these Ruies or by any decision o f the High Corut or tribunal for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. " Pursuant to the above-cited rule, an application of this nature will only be allowed if an applicant has shown good cause to warrant the Court exercise its discretion judiciously to extend time. In Lyamuya Construction v. Board of Registered Trustees, Civil 8 Application No. 2 of 2010, the Court provided the following guidelines that may be considered in ascertaining whether there is a good cause: a) The applicant must account for all the period o f delay; b) The delay should not be Inordinate; c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take; and d) I f the Court feels that there are other sufficient reasons, such as existence o f a point o f law for sufficient importance; such as the illegality o f the decision sought to be challenged" [Emphasis added] It is also settled law that an application for extension of time must be filed as soon as an applicant becomes aware of the need to do so and he is obliged to account of each day within the prescribed period. The requirement of accounting for each day of delay has been emphasized by the Court in numerous decisions, for instance the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 9 of 2007 (unreported) and Finca (T) Limited and Another v. Boniface Mwalukisa, Civil Application No, 587/12 of 2018 [2019] TZCA (15 May 2019). Following the above authorities, the factors I am supposed to take into consideration in the determination of an application of this nature the Court is required to consider; one, the length of the delay, two, reason for the delay; three, the degree of prejudice, if any, that each party stands to suffer depending on how the Court exercises its discretion; four, the conduct of the parties and five, the explanation must be reasonable enough to excuse the default. As stated by Mr. Brash, Mr. Thomas Rwebangira denied to have received a telephone call through his mobile phone, however, as rightly submitted by Mr. Msechu there is no cogent evidence to support his allegation because the annexure R-3 was retrieved from an electronic machine and the procedure stated under section 18 (1) of the Electronic Transaction Act, Cap. 442 was not adhered to, therefore, its authenticity is questionable. The issue whether or not the respondent's office was closed during holiday season will not serve a purpose at this juncture since 10 the applicants are already out of time to serve the respondent with the said documents. Therefore, they are required to show good cause and account for the delay to the standard required. It is evident from the record that the memorandum and record of appeal in Civil Appeal No. 635 of 2022 was lodged in Court on 29th December, 2022, which was within the prescribed time. According to paragraph 8 of the affidavit in support of the application, the applicants on the 4th January, 2023 made initiatives of serving the respondent through the Court Process server. The applicant however failed to serve the respondents with the said document as alluded to above, the respondent was on holiday vacation. The governing provision of the law in computing time where the issue of court vacation arises is rule 8 (b) of the Rules. For ease of reference, I reproduce it hereunder: "8. Any period o f time fixed by these Ruies or by any decision o f the Court for doing any act shaii be reckoned in accordance provisions (a) with the following a period o f days from the happening o f an event or the doing o f an act or thing shaii be 11 deemed to be exclusive o f the day in which the event happens or the act or thing is done; (b) if the iast day o f the period is a court vacation the period shaii include the next following day not being a court vacation..." The computation of time is limited; rule 9 of the Rules provides clearly that a court vacation shall not be reckoned unless that day is the last day of that time, in which case it shall be excluded from the computation. The above provision of the law read together with rule 3 of the Rules where the term court vacation is being defined to mean a Saturday, Sunday or a public holiday, including the 15th December to 31st January and from the second Saturday before Easter to the first Tuesday after inclusive, and any other day on which the Registry is closed. The exclusion does not cover the period when the Registries are open. I have also sought inspiration from the case of Mechmar Corporation (Malaysia) Berhard v. VIP Engineering and Marketing Ltd, Civil Application No. 9 of 2011, the Court held that: "... we agree with Mr. Tenga that Rule 9 does not in any way point out that court vacation days are to be excluded. It has to 12 be born in mind that during court vacation days the Court registries are open for service. It is oniy during Saturdays, Sundays and public holidays where court registries are dosed, hence a party cannot be able to file his/her documents. We do not think that it was ever intended that all court vacation days be excluded from the computation o f the period provided for in the Rules..."[Emphasis added] Looking closely the applicants' affidavit, the memorandum of appeal was lodged on 29th December, 2022, thus, the computation started on 30th December, 2022. However, 31st December, 2022, 1st January, 2023 were public holidays. The 7th and 8th January were weekends, 12th January, 2023 was a public holiday and the 14th and 15th January, 2023 were weekends. Therefore, the last day within the seven (7) days provided for serving the respondent with memorandum and record of appeal expired on 16thJanuary, 2023, the same is excluded. Therefore, the days of delay started to run from 17th January, 2023 to 19th January 2023 when the instant application was filed in the Court. 13 The discussion above culminates in the conclusion that the length of delay of two days is explained, bearing in mind that each case has to be decided according to its circumstances, I am convinced that this is among the exceptional circumstances which would allow me to extend time. In the upshot, this application is meritorious. It is granted as prayed. The applicant is given five (5) days reckoned from the date of delivery of this ruling within which to serve the respondent with the memorandum and record of appeal. In the circumstances of the application, I make no order as to the costs. Order accordingly. DATED at DAR ES SALAAM this 11th July, 2024. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 11th day of July, 2024 in the presence of Mr. Howard Macfarlane Msechu, learned counsel for the Applicants and Mr. Thomas Eustace Rwebangira, learned counsel for the true copy of the original. y— CHAUNGU REGISTRAR OF APPEAL