CIVIL APPLICATION NO 560 01 OF 2021 AM STEEL IRON MILLS LIMITED VS ILLIYUN FATEHALI NAZARELI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 560/01 OF 2021 AM STEEL & IRON MILLS LIMITED........................................ APPLICANT VERUS ILLIYUN FATEHALI NAZARELI {As Administrator o f the Estate oAFATIMA FATEHALI JINAH)................. ........RESPONDENT (Application for Extension of Time to appeal against the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (SamejLJi) dated the 17th day of November, 2017 in Land Case No. 05 of 2012 RULING 3rd & 24th July, 2024 FIKIRINI. J.A.: The applicant, A. M. Steel and Iron Mills Ltd., found itself in a quagmire after purchasing a property from Fatehali Habibu Versi Rajani, who also bought the said property from Mohamed Alibhai Kassam on 31st August 2010. Mohamed Alibhai Kassam came about the property after he had petitioned and was granted letters of administration on 20th May 1998. According to the records, the estate was already under administration since 10th October 1974, as per Probate and Administration Cause No. 57 of 1974. Finding itself, is i the situation, the applicant unsuccessfully sued the respondent and another person (not part of this application) in Land Case No. 05 of 2012, the subject of the present application. Disgruntled by the High Court's decision dated 17th November 2017, as gathered from record, the applicant lodged a notice of appeal on 12th December 2017 (AMS-3) and wrote a letter requesting copies of the judgment and decree (AMS-4), and the respondent was duly served. Despite the timely lodging of the notice of appeal and the letter to the Registrar, the intended appeal was never filed. Consequently, the present application instituted by way of a notice of motion pursuant to Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking an extension of time to lodge the intended appeal against the entire High Court judgment and decree. The grounds on which the application is premised are that: 1. The statutory period for filing the appeal against the said decision has lapsed without filing the appeal due to inadvertence on the part of the applicant's former counsel; and 2. The said decision comprises illegalities. 2 The applicant filed a notice of motion with supporting affidavits deponed by Sheikh Shahid Majeed, the applicant's Managing Director; Captain Ibrahim Mbiu Bendera, the learned Counsel who had conduct of the matter initially; Mr. Paschal Kamala, learned Counsel from Vertex Law Chambers who took over from Captain Bendera; and Mr. Mpaya Kamara, learned Counsel currently prosecuting the application The application is opposed by the respondent, Illiyun Fatehali Nazareli (as Administrator of the Estate of Fatima Fatehali Jinah), through affidavits in reply to the four deponed in support of the application. At the hearing on the scheduled date, Mr. Mpaya Kamara and Mr. Joseph Rutabingwa, both learned Counsel, appeared for their respective parties. Invited to submit on the application, Mr. Kamara commenced by adopting the notice of motion and the four affidavits supporting the application. Expounding on the first ground, Mr. Kamara submitted that the applicant, being aggrieved by the High Court's decision, he did instruct his counsel to lodge a notice of appeal, which Captain Bendera complied with, as averred in paragraph 4 of Sheikh Majeed's affidavit. A letter to the Registrar requesting copies of the judgment and decree was lodged on 8th December, 2017, followed by the notice of appeal lodged on 12th December, 2017. Both the notice of appeal and the letter were duly served to the respondent. Another letter was written to the Registrar (AMS-8), requesting the necessary documents, but it was written far beyond the thirty days prescribed by the rules. For an undisclosed reason, the matter was later transferred to Vertex Law Firm and was handled by Mr. Kamala. Mr. Kamara went on submitting that Mr. Kamala's attempt to obtain a certificate of delay, besides being futile, was contrary to the procedure prescribed in law. Learning of the inaction prompted the applicant to seek assistance elsewhere. Mr. Kamara further contended that, upon reviewing the file, he noted the anomaly. After inquiring with the two previous Counsel, they admitted to the inadvertence on their part. It was his argument that it was impossible for the applicant to account for each day of the delay, and as a result, the applicant had been prejudiced without any fault of his own. Turning to the second ground, Mr. Kamara submitted that the applicant annexed a draft Memorandum of Appeal (AMS-9) demonstrating that the impugned decision is marred with illegality. He highlighted nearly seven instances in the judgment where the applicant's locus standi was referenced without being addressed by the parties, thus infringing the parties' right to be heard. According to Mr. Kamara, this is an apparent error on the face of the record. He supported his proposition by citing the case of Omary Yusuph {Legal Representative o f the Late Yusuph Haji) v. Albert Munuo, (Civil Appeal No. 12 of 2018) [2021] TZCA 605 (25th October 2021; TANZLII). Other authorities he referred to include Brazafric Enterprises Limited v. Kaderes Peasants Development (PLC), (Civil Application No. 421 of 2021) [2022] TZCA 624 (13th October 2022; TANZLII) and H. B. Worldwide Limited v. Godrej Consumer Products Limited, (Civil Application No. 2 of 2021) [2023] TZCA 100 (13th March 2023; TANZLII). The learned Counsel wound up his submission by praying for the grant of the application. Mr. Rutabingwa, reacting to the submissions, began by adopting the four affidavits in reply to the affidavits supporting the application. Apart from adopting the affidavits, he prefaced his reply by pointing 5 out two concerns: first, that it was applicant who initiated the present application and not the respondent. Second, he questioned how it was possible that all three affidavits supporting the application refer to Sheikh Majeed's affidavit, and that all four affidavits were taken on the same date and before the same advocate. Addressing the application itself, Mr. Rutabingwa pointed out that the letter dated 11th June 2018 from Captain Bendera was simply a request to be furnished with the necessary documents and did not mention the reason for the delay or the claimed inadvertence. Therefore, the period from the date of judgment up to June, when the letter (AMS-8) was written, is not accounted for. He went on to argue that the applicant had previously applied for an extension of time, vide Miscellaneous Land Application No. 43 of 2018. This application was later withdrawn due to the operation of the law, but the period from when the application was withdrawn on 30th September 2019 to when the present application was filed is not accounted for. Additionally, he contended that in the letter dated 22nd June 2020 (AMS-7) requesting a copy of the withdrawal order, the applicant also requested to be issued with a certificate of delay starting from 8th December 2017 when the applicant applied for copies of the judgment and decree, which was not the case. In short, the letter was misleading, he concluded. The learned Counsel finished on this point by stating that the entire unaccounted period cannot be attributed to inadvertence on the part of the counsel or applicant but was clearly an act of negligence. Canvassing on the issue of illegality, Mr. Rutabingwa submitted that none existed, arguing that a mere incorrect use of the term "focusstand/' did not constitute an illegality. He supported his position by pointing out that prior to the High Court decision, there was already a Court decision in Civil Appeal No. 85 of 2014, which quashed Probate and Administration Cause No. 56 of 2014, connoting that the original probate cause was acknowledged as the only valid one. In that regard, Mr. Rutabingwa questioned the applicant's seriousness and intention to approach the Court, considering that even if corrections were to be made, they would not affect the merits of the trial court's judgment. Supporting his submission, he cited the cases of Mtengeti Mohamed v. Blandina Macha, (Civil Application No. 344 of 2022) [2023] TZCA 17328 (12th June, 2023; TANZLII) and Nada Panga v. Asha Seif & Others, (Civil Application No. 312 of 2020) [2021] TZCA 245 (10th June, 2021; TANZLII), underlining that 7 the Court supports vigilant parties and not those who are indolent and fail to act. Based on the strength of his submission, he prayed for the application to be dismissed with costs for lack of merit. Rejoining, Mr. Kamara argued that while inadvertence may not have been explicitly reflected in the letter dated 11th June 2018, its explanation is found in paragraph 4 of Captain Bendera's affidavit. Regarding Mr. Kamala's letter requesting a certificate of delay, he contended that paragraphs 6 and 7 of Mr. Kamala's affidavit provided the explanation. Overall, Mr. Kamara emphasized that it was difficult to account for each day of the delay due to inadvertence. He urged consideration of the fact that the errors were not committed by the applicant, who cannot be deemed sloppy as Mr. Rutabingwa suggested, but rather vigilant. Addressing the issue of illegality, Mr. Kamara dismissed the assertion that it was merely a grammatical error. He reiterated that his colleague had not addressed the issue of the denial of the right to be heard, and thus, it should be considered as an acknowledgment of the fact. Mr. Kamara also refuted Mr. Rutabingwa's claim that the respondent was not part of the application, calling it misconceived. He pointed out that the application was called on for an inter partes hearing, meaning both the applicant and the respondent were involved. Finally, on the issue of affidavits, Mr. Kamara argued that the concern about the four affidavits being deposed on the same day and before the same advocate was a non-starter, as no law prevents this. In conclusion, he reiterated his prayer for the grant of the application. The only issue I am invited to determine is whether the application deserves to be granted or not. Under Rule 10, this Court has been vested with the discretionary power to extend the time sought upon showing good cause for the delay. Rule 10 provides thus: " The Court may, upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court 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” [Emphasis added] This discretionary power to grant an extension of time must, however, be exercised judiciously according to the rules of reason and justice, not personal whims. The paramount consideration is that there must be good cause for doing so. While "good cause" is not explicitly defined in the Rules, the Court has established guidelines through case laws to assist in determining what could be considered as good cause. The primary focus is that each case should be considered on its own peculiar facts. Illustrating on this point, in Regional Manager, TANROADS Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007 (unreported), the Court considered that the extension of time, being a matter within the Court's discretion, cannot be governed by hard and fast rules but will be determined by reference to all the circumstances of each particular case. Among the conditions that can be relied upon are those stated in Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, (Civil Application 10 No. 02 of 2010) [2011] TZCA 4 (3rd October, 2011; TANZLII). Some of which are: a) The applicant must account for all days o f the 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. d) I f the Court feels that there are other reasons, such as the existence o f a point o f law o f sufficient importance, such as the illegality o f the decision sought to be challenged. See also: Principal Secretary, Ministry of Defence and National Service v. DP Valambhia [1992] T.L.R, 185 and Kalunga and Company Advocates v. National Bank of Commerce [2006] T.L.R, 235. It is also a settled position of this Court that illegality by itself constitutes sufficient reason for granting an extension of time. In VIP Engineering and Marketing Limited and 2 Others v. Citibank Tanzania Limited, Consolidated References Nos. 6,7, and 8 of 2006 (unreported), the Court stated that: ii 'W e have already accepted it as established law in this country that where the point o f law at issue is the illegality or otherwise o f the decision being challenged, that by itself constitutes 'sufficient reason' within the meaning o f rule 8 (now rule 10) o f the Rules for extending time" Even so, this does not mean that an extension of time will be granted in every application whenever illegality is raised. The scope of application on the principle of illegality as a ground for an extension of time was elaborated by the Court in Lyamuya Construction Company Limited (supra) where the Court held that: "Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a genera! rule that every applicant who demonstrates that his intended appeal raises points o f law should as o f right be granted an extension o f time if he applies for one. The Court there emphasized that such point o f law must be that o f sufficient importance and, I would add that it must be apparent on the face o f the record, such as the question o f jurisdiction; not one that would be discovered by long drawn argument or process." [Emphasis supplied] Having set the stage by illustrating the governing principles, and dispassionately considering the notice of motion, affidavits for and against, and rival submissions from the Counsel for the parties, I am now ready to determine the application. It is undeniable fact that the period from the delivery of judgment in Land Case No. 5 of 2012 on 17th November, 2012, until the second letter was written remains unaccounted for. Unfortunately, following the letter dated 22nd June, 2018, the conduct of the case was transferred to Vertex Law Chambers, specifically handled by Mr. Paschal Kamala. Subsequently, Mr. Kamala filed Miscellaneous Land Application No. 43 of 2018, which was withdrawn on September 30, 2019. There is again no account of the period from the withdrawal of the application until the applicant decided to seek assistance elsewhere. The applicant engaged Mr. Kamara, and it was not until 23rd October, 2021, that the learned Counsel obtained the involved records from the applicant. Upon perusing the file, he noted the omission, 13 from which both Captain Bendera and Mr. Kamala admitted to inadvertent delays in filing the intended appeal, a reason contradicted by Mr. Rutabingwa. It is a well-established principle that the law favours those who diligently pursue their rights, as clarified in the case of Mtengeti Mohamed (supra). However, I am hesitant to conclusively assert that the applicant was not diligent or inactive in pursuing his rights. This hesitation stems from the fact that, firstly\ immediately after the trial court's decision dated 17th November 2017, a letter was lodged with the Registrar on 8th December, 2017, requesting the necessary documents, followed by a notice of appeal on 12th December, 2017, duly served to the respondent's Counsel. Secondly, upon discovering that no appeal had been filed, the applicant sought assistance after consulting with his current Counsel, who informed and advised him, as stated in paragraph 12 of his affidavit. The two previous Counsels acknowledged that it had inadvertently slipped their attention, resulting in the failure to file the intended appeal in a timely manner. As correctly pointed out by Mr. Rutabingwa, the alleged inadvertence was not explicitly mentioned in the letter dated 22nd 14 June, 2018. However, Captain Bendera and Mr. Kamala did attest to inadvertence in their affidavits. In paragraph 4 of Captain Bendera's affidavit, he candidly admitted that in his letter dated 8th December, 2017, he inadvertently omitted to request proceedings among the documents. By the time he sent the letter on 11th June, 2018, requesting a copy of the proceedings, it was already too late. In my opinion, under the circumstance of this application as explained earlier in this ruling, completely dismissing the inadvertence claimed in the affidavits, simply because it was not explicitly stated in the letter, would be unjustifiable. This could unfairly punish the applicant, who relied on the Counsel he had instructed, as indicated in paragraph 12 of the applicant's affidavit. Let me quote it verbatim: "Advocate Mpaya Kamara's advice as deposed in paragraph 11 (inclusive o f (a) and (b) thereunder) took me by utter dismay and consternation as ail along the applicant had acted diligently in the belief that its erstwhile advocates were properly following up its instructions to institute the appeal; thus, on the same day, that is on October 29, 2021, I contacted Captain Ibrahim Mbiu Bendera, Advocate, and Mr. Paschal Kamala, Advocate, and shared the advice I had obtained from Mr. Mpaya Kamara, Advocate; they severally concurred with Adv. Mpaya Kamara's view, each stating that the matter had inadvertently escaped their attention(s)" While negligence or sloppiness should not be condoned, I find no reason to doubt the applicant's statement that he relied on his Counsel to properly follow up on his instructions. In the case of Yusufu Same & Another v. Hadija Yusufu (Civil Appeal No. 1 of 2002) [2006] TZCA 141 (20th October, 2006; TANZLII), the Court addressed a similar predicament and held that: "Generally speaking, an error made by an advocate through negligence or lack of diligence is not sufficient grounds for an extension o f time. This principle has been upheld in numerous decisions o f the Court and similar jurisdictions, as cited by the appellant's advocate in his submission. However, there are instances, depending on the overall circumstances o f the case, where an extension o f time may be granted even in cases involving some negligence by the applicant's advocate, as was ruled by a Single Judge o f the Court 16 (Mfalila JA as he then was) in Felix Tumbo Kisima v. TTC Limited and Another, Civil Application No. 1 o f 1997 (unreported)." [Emphasis added] In Standard Chartered Bank v. Bata Shoes (T) Ltd, (Civil Application No. 101 of 2006) [2006] TZCA 151 (18th October, 2006; TANZLII), the Court also considered that: "Although plea o f inadvertence is generally insufficient\ an extension o f time may still be granted in certain cases, for instance, where the party demonstrating inadvertence acted reasonably diligently to discover the omission and promptly sought remedy upon its discovery [Emphasis mine] The applicant did not remain idle upon detecting inaction from his former Counsel; instead, he promptly sought assistance elsewhere, filing the present application without delay. This proactive approach contrasts with the situation in Nada Panga (supra), where although the applicant sought assistance quickly on 23rd March, 2018, it took over eighteen months for the application to be filed on 21st October, 2019. This is different from what transpired in the present application. 17 Despite a delay of nearly four years, when the matter was being handled by the two previous Counsel, the present application was lodged on 5th November, 2021 just a week after engaging Mr. Kamara on 29th October, 2021. This demonstrates diligence and vigilance in pursuing his rights, rather than complacency. Similarly, considering that Mr. Kamara was not involved in the circumstances leading to the present application, it is justified that he could not be able to account for each day of the delay. Mr. Kamara also argued that there was illegality in the High Court's decision, asserting that the determination of the applicant's locus standi without a hearing prejudiced him and violated his right to be heard. Mr. Rutabingwa countered this, suggesting that there was no issue of focus standi in the contested decision, but rather a misuse of terminology by the trial Judge. As noted in both Brazafric and H.B Worldwide Limited (supra), illegality can be a valid basis for granting an extension of time. In the present application, the assertion of infringement of the right to be heard makes granting this application inevitable, despite Mr. Rutabingwa's objections, since the 18 reason the applicant seeks to approach this Court cannot be answered at this stage. In conclusion, I find that the applicant has presented sufficient grounds warranting the granting of the application. The applicant is ordered to lodge the intended appeal within sixty (60) days from the date of this order. Costs to follow events. It is so ordered. DATED at DAR ES SALAAM this 18th day of July, 2024. P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 24th day of July, 2024 in the presence of the Ms. Lulu Mbinga, learned counsel also holding brief of Mr. Mpaya Kamara, learned counsel for the applicant and Mr. Joseph Rutabingwa, learned counsel for the respondent, is hereby certified as a true copy of the original. 19