AFYA MICRO FINANCE FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA MISCELLANEOUS CIVIL CAUSE NO. 27236 OF 2024 (Arising from the decision of Chato District Court in Civil Appeal No. 8891 of 2024 beforeHon. Kagimbo- SRM.) AFYA MICRO FINANCE LTD------------------------------ APPLICANT VERSUS LILIAN KABASELA MNUBI------------------------------RESPONDENT RULING Date of the last order: 10 February 2025 Date of the Ruling: 10 March 2025. K. D. MHINA, J. This is an application for an extension of time within which to lodge an appeal against the decision of Chato District Court in Civil Appeal No. 8891 of 2024. The application has been preferred by way of chamber summons made under section 25 (1) (b) of the Magistrates’ Courts Act, Cap 11 R: E 2019. It 1 supported by the affidavit of Nancy J. Mosha, the counsel for the applicant, which expounds the grounds for the application. In the application, the applicant, inter-alia, is seeking the following orders: - i. The Applicant be granted an extension of time to file a memorandum of appeal out of time and ii. Any other relief (s) this Honourable Court may deem fit to grant In the affidavit, the applicant raised two grounds to support the application as follows; i. Technical delay and ii. Illegality The application proceeded by way of written submission. The applicant was represented by Ms. Rehema Kiariro, learned counsel, while the respondent was unrepresented/ appeared in person. In her submission, briefly, Ms. Kiariro in support of the ground raised in the affidavit submitted as follows. Regarding technical delay, she submitted that the impugned decision by Chato District Court was delivered on 12 September 2024, and the 2 deadline to file an appeal was 11 October 2024. On 9 October 2024, the applicant filed an appeal, which was given an admission no.000075172. However, it was returned for the reason that the document was not attached, while in fact, the document was attached as indicated in annexures AMIF 1 and 2. From above, she argued that the appeal was filed within time, and any developments after that filing were beyond the applicant’s control. Furthermore, Ms. Kiariro submitted that on 11 October 2024, the applicant made a second attempt by filing an appeal, which was given admission no. 0000758911. But again, on 12 October 2024, it was returned with instructions to draft and attach the grounds of appeal. She further argued that the delay was not caused by negligence on the part of the applicant; the delay was caused by the instability of the electronic case management system. She urged this court, since the delay was only three days, to grant an extension on the ground of technical delay. To bolster her argument, she cited Keith Horan & Another vs. Zameer Sherali Rashid & Another, Civil Application No. 105 of 2019 [Tanzlii]. 3 Regarding the 2nd ground in relation to illegality, Ms. Kiariro submitted that the District Court of Chato based its decision on the issue, which was neither pleaded on the respondent’s grounds of appeal nor in her submissions. She explained that the Magistrate came up with reasons for the decision which were unknown to the parties, and the parties were not availed the right to be heard as per the law. Therefore, the judgment was tainted with material illegalities. To substantiate her submission, she cited Moses Muchunguzi vs. Tanzania Cigarette Co. Ltd, Civil Reference No. 3 of 2018 [Tanzlii]. In responding to the 1st ground of the application, the respondent stated that Rule 20 (1) (d) and (2) of the Judicature and Application of Laws Act, Cap 358 (Electronic Filing) Rules G.N. No. 148 of 2018 instructed that a party who is facing difficulties in filing of documents electronically shall seek a remedy to the Registrar. She stated that nothing indicated that when the applicant encountered technical problems, she had approached the Registrar. 4 Furthermore, she submitted that the 30 days for the applicant to file an appeal was 9 October 2024. Therefore, the applicant failed to account for each day of delay as she had failed to substantiate her claims by evidence of technical difficulties, such as affidavits from the IT Officer or the Registrar. To substantiate her submission, she cited the cases of Cathelina Andrew Mushi and Another vs. Keneth John Razaro and Another, Misc. Civil Application No. 18445 of 2024 [Tanzlii], where this Court stated that, “Failure to provide Affidavits from relevant authorities, such as the IT Officer or Registrar, to corroborate the claims. The absence of such evidence undermines the credibility of the argument, and rendering it hearsay.” And Sabena Technics Dar Limited vs. Michael J. Luwunzu, Civil Application No. 451/18 of 2020[Tanzlii], which emphasized the importance of supporting affidavits when referring to other parties. On the 2nd ground, the respondent submitted that at the trial, the Court objected to the attachment and sale of the Matrimonial property without her consent given freely. The same argument was part of the grounds of Appeal at the District Court, which the Respondent in this Submission was contesting on the way she was forced and coerced by the Applicant’s representatives to be part of the Mortgage Contract of which prior she was not consulted to 5 consent for the same. Furthermore, she stated that as a trite principle, the first Appellate Court has the duty to re-evaluate the evidence of the trial Court and satisfy itself if it was correctly evaluated as held in Hassan Mzee Mfaume vs. Republic, (TLR) 167. She concluded by submitting that no illegality was made at the District Court. Therefore, the applicant had not demonstrated sufficient cause to justify an extension of time. In rejoinder. Ms. Kiariro submitted that the respondent had misinterpreted Rule 20(d) of the cited law because in the instant application, the applicant, when filing the appeal, did not need an exemption from the electronic filing system as the system itself was neither accessible nor available. Further, the contention that the applicant failed to account for the days delayed lacks merit because he accounted for each day delayed as he appealed on October 9, 2024, with admission number 000075172. Still, the application was returned because the document was not attached, while it 6 was properly attached, as demonstrated by annexures AMIF 2 and 3. Also, the argument that there must be an affidavit from a judicial officer to support the technical delay does not hold water because the applicant neither contacted the IT officer nor Registrar for exemption from electronic filing. On the ground of illegality, Ms. Kiariro submitted that the judgment delivered by the District Court was tainted with material illegalities, to wit, the judgment did not consider the submission issued by the applicant; instead, the magistrate considered his own issues when delivering the judgment. She explained that framing a new issue when delivering judgment was wrong and illegal. Having considered the chamber summons and its supporting affidavit, the affidavit in reply, and the written submission made by the parties, the issue that has to be resolved is whether the applicant has shown a good cause for this Court to exercise its discretion in granting an extension of time to file a notice of appeal and to apply for leave to appeal. 7 As to what may constitute a good case, the Court of Appeal in the case of Hamis Babu Ally vs. The Judicial Officers Ethics Committee and three others, Civil Application No 130/01 of 2020 (TanZlii), pointed out the following factors: - (a) To account for all period of delay (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 and (d) The existence of a point of law of sufficient importance, such as the illegality of the decision sought to be appealed against. In this application at hand, where the impugned decision was delivered on 12 September 2024, while this application was filed on 16 October 2024, therefore, there was a delay of four (4) days. In deliberation and determination of this application, I will start with the 2nd ground of illegality. On this, I will be guided by the decisions of the Court of Appeal, which already settled the position on the subject. 8 One, is the case of Principal Secretary, Ministry of Defence and National Service vs. Devram Valambia [1999] TLR 182, which held that illegality is sufficient ground to grant an extension of time. Two, the case of Lyamuya Construction Co. Ltd Vs. Board of Registered Trustees of Young Women’s Association of Tanzania, Civil Application No. 147 of 2006 (Tanzlii), where it was held that; “The Court there emphasized that such point of law must be that of sufficient importance, and I would add that it must also be apparent on the face of the record, such as the question of Jurisdiction, not one that would be discovered by a drawn argument or process.” What the applicant complains of as illegality is pleaded under paragraph 8 of the affidavit, which states that in the appeal, the District Court did not consider the grounds before it. Instead, it disposed of the appeal based on the issue raised by itself in the sense that the issue was not canvassed by the parties. In submission, the appellant's counsel cemented his complaint further by stating the parties were not availed an opportunity to address that issue raised by the court. In my opinion, this should not detain me long, because a quick glance of the ground of illegality raised by the applicant and having gone through 9 the District Court records, it is clear that the point of law raised deserves the attention of this court in appeal. My reason is based on the settled principle held in numerous decisions of this Court and the Court of Appeal, including Mwajuma Bakari (Administratrix of the estate of the late Bakari Mohamed vs. Julita Semgeni and another, Civil Appeal No. 71 of 2022 (Tanzlii), where it was held that; ” ...failure to consider the grounds is fatal to the decision”. Also, in Cheyonga Samson@ Nyambare vs. Republic, Criminal Appeal No. 510 of 2019 (Tanzlii), it was held that; “..the failure by the first appellate court to consider the grounds of appeal which the appellant presented through his petition of appeal was a fatal irregularity.” Flowing from above, to avoid falling into the “trap” of determining the merits or demerits of the issue raised, I shall end here. This is because it is not the duty of this Court to determine whether the illegality raised has merits or not. That is the duty of the appellate court. From the above findings, I hold that the applicant has brought a good cause for the delay to warrant the Court exercise its discretion to enlarge the time sought. This suffices to dispose of this application. I do not see any 10 point in considering the remaining ground in the instant application, for its determination will not change the outcome of this application. Therefore, this application is meritorious. I allow it and order that the applicant to file an appeal within fourteen (14) days from the date of this ruling. In the chamber summons, the applicant did not pray for costs. Therefore, I order no costs. It is so ordered. K. D. MHINA JUDGE 10/03/2025 11 Court: The right to appeal is fully explained to the parties. K. D. MHINA JUDGE 10/03/2025 12