AMINA GRACE PAUL SHAO AND ANOTHER VS MAGRETH PAUL SHAO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. CIVIL APPLICATION NO. 94538 OF 2023 (Arising from Land Case No. 01 of 2016 of the High Court of Tanzania at Moshi) AMINA GRACE PAUL SHAO …………………………. 1ST APPLICANT LIGHTNESS PAUL SHAO ………………………….…. 2ND APPLICANT VERSUS MAGRETH PAUL SHAO ……………………….……….. RESPONDENT RULING 21/08/2024 & 26/08/2024 SIMFUKWE, J. This application has been preferred under section 11 of the Appellate Jurisdiction Act, Cap 141 R.E. 2019, seeking extension of time to file 1 notice of appeal to the Court of Appeal of Tanzania against the judgment of this Court in Land Case No. 01 of 2016, dated 28th August 2019. In support of their chamber summons, each applicant filed her respective affidavit. Likewise, the respondent filed her counter-affidavit contesting the application. Brief facts of what prompted this application, as gathered from the respective affidavits of the parties, are to the effect that in 2016, the applicants filed Land Case No. 1 of 2016 in this court objecting the attachment of their land in execution of the decree of Matrimonial Cause No. 13/2006. On 28/08/2019, this court delivered a judgment which aggrieved the applicants. Thereafter, the applicants filed notice of appeal to the Court of Appeal on 30/08/2019. Copies of the proceedings, judgment and decree were supplied to the applicants on 27/12/2019. The applicants were also supplied with a certificate of delay of 120 days from the date of the impugned judgment. Then, they lodged their appeal to the Court of Appeal, thus, Civil Appeal No. 243 of 2020. However, the applicants withdrew the said appeal on 07/12/2023 after noting that it was defective. 2 The withdrawal of the appeal led to the automatic withdrawal of the notice of appeal, which had been filed within the prescribed time. Meanwhile, the applicants are keen to refile their appeal before the Court of Appeal. As they are out of time, they have no option, other than to apply for extension of time to refile the notice of appeal. During the hearing of this application, Mr. Erasto Kamani, learned counsel, appeared for the applicants, while the respondent was represented by Mr. Martini Kilasara, learned counsel. On the outset, Mr Kamani prayed to adopt the affidavits of the applicants to form part of his submission. Accounting for their delay after the withdrawal of their appeal, Mr. Kamani stated inter alia that a copy of the withdrawal order of the Court of Appeal was supplied to the applicants on 08/12/2023. From 09/12/2023 to 21/12/2023 the applicants were preparing this application which was filed on 22/12/2023. It was explained that, it is obvious that the delay has been caused by withdrawal of the previous notice of appeal which had been filed within the prescribed time. 3 The learned counsel for the applicants believed that, based on his submission, each day of delay has been accounted for. He concluded that it is in the interest of justice for the applicants to be granted time to file a notice of appeal to the Court of Appeal. In reply, Mr. Kilasara for the respondent prayed to adopt the respondent’s counter affidavit to form part of his written submission. The learned counsel noted that grant of extension of time is within the discretionary powers of the Court upon showing good cause. However, the preconditions thereto have been well articulated in several decisions of the Court, including in the case of Lyamuya Construction Company Limited versus Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010, Court of Appeal of Tanzania, in which factors constituting good cause were listed to include: "1. The Applicant must account for all the period of delay. 2. The delay should not be inordinate. 4 3. The Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. 4. If the Court feels that there are other reasons such as the existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged." Responding to the argument that the applicants were pursuing Civil Appeal No. 243 of 2020, Mr. Kilasara submitted that such a reason and this application are both frivolous, grossly misconceived and without any substance. He stated that Rule 83 (2) of the Tanzania Court of Appeal Rules (supra), prescribes a time limit to file notice of appeal within thirty days from the date of the decision against which it is desired to appeal. He argued that in the present matter, the notice of appeal against the impugned decision delivered on 28/08/2019 ought to have been filed by 28/09/2019. Responding to the reason that the applicants were pursuing Civil Appeal No. 243 of 2020, Mr. Kilasara contended that the purported letter dated 28/08/2019 applying for copies of proceedings, decree and judgment has never been served upon the Respondent in terms of Rule 90 (1) and 90 5 (3) of the Rules, to date. He supported his submission with the case of Leonard Rusumbanya Ngwanije vs. First National Bank of Tanzania Limited, Civil Appeal No. 54 of 2019 in which the Court of Appeal at page 6 held that: "With due respect, that letter could not have formed basis for the exclusion of days necessary for the preparation of the requisite documents for the purpose of the appeal. In effect, there was a total non-compliance with rule 90(1) and (3) of the Rules thereby disentitling the appellant from benefitting the exemption against time limitation for the institution of his appeal within 60 days from the date of lodging the notice of appeal in terms of rule 90 (1) of the Rules." It was Mr. Kilasara’s argument that the purported period from 28/08/2019 when the impugned decision was delivered, and copies allegedly applied for, to 07/12/2023 when the said appeal was withdrawn cannot thus be exempted and or excluded from the period of limitation. It was submitted further that the period of 1185 days between 28/08/2019 and 07/12/2023 was unnecessarily wasted which is 6 tantamount to an inordinate delay and as such does not amount to sufficient cause. Countering the argument that the period of 13 days between 09/12/2023 and 22/12/2023 was used in fetching an advocate, payments, and preparation of this application; Mr. Kilasara submitted that in the applicants’ application and their affidavit, there is no indication or proof that an advocate was ever engaged in such preparations or who was that advocate. No receipt of payment or other documentary evidence has been produced to substantiate such allegations. That, as a matter of fact and as apparent from the record, the application appears to have been drafted and filed solely by the applicants. Thus, the purported allegations are unfounded and mere afterthoughts. Moreover, Mr. Kilasara established that the application was presented for filing on 28th December 2023 and not on 22nd December 2023 as alleged by the applicants in their submission. Yet still, there is no account for those extra six days wasted. He referenced page 2 of the chamber summons and page 3 of the applicant’s affidavit. The learned counsel made reference to the case of Zilaje v. Feubora (1972) HCD 3 which held that: 7 "Court will not readily interfere in order to give remedy where the party seeking such remedy sat on his rights and did not act with reasonable promptitude." Also, Mr. Kilasara cited the case of Moto Matiko Mabanga vs. Ophir Energy PLC and 2 Others, Civil Application No. 463/01 of 2017 where at page 9 the Court of Appeal quoted with approval the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 03 of 2007 which held that: "... a delay of even a single day, has to be accounted for, otherwise there would be no point of having rules prescribing period within which certain steps have to be taken." Mr. Kilasara insisted that the period of over 1,200 days was unnecessarily wasted by the applicants and should not be excluded from the period of limitation. He commented that the delay is indeed inordinate whichever way it is viewed, and the applicants should be condemned for being indolent. The learned counsel was of the opinion that the Court cannot properly compute the period of limitation or the extent of the delay to exclude the time wasted. He said that the net effect renders the 8 application bad in law, grossly misconceived and devoid of merit as it was held in the case of Ibrahim Twahil Kusundwa and Another v. Epimak S. Makoi and Another, Civil Application No. 437/17 of 2022 CAT at Mwanza. In his final analysis, Mr. Kilasara submitted that no sufficient cause has been advanced to invoke the discretionary powers of this court to warrant the grant of this application or account for each day of delay given by the Applicants. He stressed that this application is devoid of any merit and ought to be dismissed in its entirety with costs. Having considered the learned counsels’ submissions and affidavits of both parties, the issue before this Court is whether the Applicants deserve the extension of time sought. First and foremost, as correctly submitted by Mr. Kilasara extension of time is at the discretion of the court. However, such discretion must be exercised judiciously, meaning the extension of time can only be granted upon good cause being shown and where the delay has not been caused or contributed by the dilatory conduct of the applicant. There are numerous decisions to that effect, including those cited by Mr. Kilasara in this application. In the case of Brazafric Enterprises Ltd vs Kaderes 9 Peasants Development (PLC) (Civil Application 421 of 2021) [2022] TZCA 624 (13 October 2022) [Tanzlii] at page 8 & 9 the Court of Appeal had this to say: “It is noteworthy that there is no universal definition of the term "good cause'. Therefore, good cause may mean among other things, satisfactory reasons of delay or other important factors which need attention of the Court, once advanced may be considered to extend time within which a certain act may be done...” Therefore, any party seeking extension of time before the court of law must establish good cause for the delay and account for each day of the delay. In the instant application, the only reason advanced by the applicants under paragraph 8 of the affidavit is that, having withdrawn their appeal, they found themselves out of time to refile the notice of appeal. Under paragraph 11, they stated that from 07/12/2023, when their appeal was withdrawn, up to 22/12/2023, when they filed this application, the applicants were preparing this application. 10 The learned counsel for the respondent included the period of delay from the date of delivery of the impugned decision to the date of withdrawal of the appeal before the Court of Appeal. With due respect to Mr. Kilasara, such period is termed a technical delay, which is a good reason for extension of time. The applicants should not be faulted for such a delay. In the case of National Bank of Commerce Limited vs. Ballast Construction Company Limited (Civil Application No. 445/01 of 2022) [2024] TZCA 570 (17 July 2024) Tanzlii, it was held that: “It is my considered view that, as for the period of delay between the filing of Civil Appeal No. 72 of 2017 and 22nd February, 2019, when it was struck out for being incompetent, that period can conveniently be termed as a technical delay on which the applicants are not to blame for the delay of the period during the pendency of Civil Appeal No. 72 of 2017…” Thus, the applicants are obliged to account for the period of 14 days only, from 07/12/2023 when the incompetent appeal was withdrawn to 22/12/2023 when they filed the instant application. The applicants argued that this period was used to prepare the present application. 11 Much as I agree with Mr. Kilasara on the requirement to account for each day of delay, in our case, I am of considered opinion that, 14 days which the applicants used to prepare this application was reasonable. The delay was not inordinate and the applicants, demonstrated diligence not apathy or sloppiness, in the prosecution of the action they intend to pursue. In totality, it is my findings that the applicants have succeeded to satisfy the legal requirements for being granted extension of time. Therefore, I hereby grant them 14 days to file their notice of appeal. No order as to costs. It is so ordered. Dated and delivered at Moshi this 26th August 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 26/08/2024 12