OCR tanzlii mwai 16 NGITIRI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB REGISTRY ONE STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 21063/2024 (Originating from Civil Application No. 7927of2024, in the District Court of Temeke One Stop Centre before Hon. M.X. Sanga, SRM)) BELINGTONE ELINGIA MARIKI....................................... APPELLANT VERSUS SINYATI LEMBERISI NGITIRI.................................... RESPONDENT JUDGEMENT Jate of last order: 9/10/2024 Oate of Judgement: 31/10/2024 S.D. MWAIPOPO, J The Appellant herein has filed an Appeal challenging the decision of the District Court of Temeke in Civil Application no. 7927of 2024 delivered by Hon. M.X Sanga SRM, denying him extension of time to file an appeal. The said decision was delivered on 24th July 2024, infavour of the Respondent. Sinyati Lemberisi Ngitiri. The Appellant herein seeks to challenge the decision of the District Court of Temeke One Stop Judicial Centre on multiple grounds, which will be addressed in detail below. Aggrieved by the said decision, the Appellant has approached this court, armed with five (5) grounds of appeal, as they appear in his Memorandum of appeal as follows; 1. That the District Court Magistrate erred in law and fact by fading to recognize that the Appellant's medical condition, specifically the mini-stroke and subsequent traditional treatment, constituted sufficient cause for the delay in filing the appeal 2. That the District Court magistrate erred in law and fact by not considering the exceptional circumstances of the Appellant's health, which prevented timely action, thereby justifying a more flexible approach to the delay. 3. That the District Court Magistrate erred in law and fact by dismissing the Appellant's claim of illegality without adequately investigating the alleged legal improprieties in the Primary Court's proceedings 4. That the District Court Magistrate erred in law and fact by applying a rigid standard for "sufficient cause" disregarding the Appellant's health challenges as a valid reason for the delay. 5. That the District Court Magistrate erred in law and fact by emphasizing procedural technicalities over ensuring substantialjustice. The hearing of the Appeal proceeded by way of written submissions pursuant to the timetable drawn by the court. At the commencement of hearing, both parties were represented. Arguing in support of the appeal, the Appellant began by dropping the third ground of appeal and proceeded to submit as follows; With regard to the first ground of appeal, he contended that the District Court Magistrate erred in law and fact by failing to recognize that the Appellant's medical condition, specifically the mini-stroke and subsequent traditional treatment, constituted sufficient cause for the delay in filing the appeal. The Appellant submitted that in determining an application for extension of time, the court has to determine if the applicant has established some material amounting to sufficient cause or good cause as to why the sought application is to be granted. He stated that the term 'sufficient cause' has not been defined. However, from decided cases a lot of factors have to be taken into consideration as stated in the case of Tanga Cement Co. Ltd vs Jumanne D. Masanqwa and another, Civil Application No.6 of 1001. In the present case, the Appellant made it clear that, the main reason for delay to lodge an appeal was due to mini-stroke and subsequent traditional treatment which prevented the Appellant to prosecute his appeal timely, he argued that it is undisputed that, sickness or ill health condition is good reason for extension of time for doing any act which is not done within the time prescribed by law as stated in the case of Alasai Josiah (suing by his Attorney Oscar Sawuka) vs, Lotus Valley Ltd, Civil Application Ho. 498/12 of 2019 {unreported} at page 8, in which it was held that; "Sickness is beyond human control and therefore nobody will fault the applicant for being sick." He contended that in the instant case, although the Appellant made it clear tnat he was suffering from mini-stroke, and consequently attended traditional treatment which prevented him from prosecuting his appeal timely, the trial Magistrate erroneously failed to recognize it as it constituted sufficient cause, thereby dismissing the application. Regarding the second ground of appeal, the Appellant contended that the D strict Court magistrate erred in law and fact by not considering the exceptional circumstances of the Appellant's health, which prevented timely action, thereby justifying a more flexible approach to the delay He submitted that, an application for extension of time is entirely in the discretion of the court to grant or to refuse it and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. However, there is no hard and fast rules or what constitutes sufficient reasons rather the same must be determined by reference to the circumstances of each particular case. That although there is no hard and fast rule as to what amounts sufficient cause, the Courts in several occasions have agreed that sickness or illness can be arrongst the circumstances warranting the extension of time. This position was well-stated in the case of Hamisi Macha Sancho vs. Joyce Sachubila, Civil Application No. 487/17 of 2016( unreported}, where the Court of Appeal of Tanzania had this to say; "It is settled law that, illness constitutes valid explanation and sufficient cause for the delay to do any act authorized or required under the rules" He also cited the case of Emmanuel R. Maira vs. the District Executive Director Bunda District Council Civil Application No. 66 c f 2Q1Q{ unreported}, where the Court of Appeal of Tanzania stated inter alia that; "Health matters, in most cases, are not the choice of a human being; cannot be shelved and nor can anyone be held to blame when they strike" He argued that although the Appellant stated that he was suffering from a mini-stroke and had undergone traditional medical treatment which prevented her from prosecuting the Appeal timely, the trial Magistrate still d d not consider these circumstances as sufficient cause to grant the etension of time. Moving to the fourth ground of appeal, the Appellant submitted that the District Court Magistrate erred in law and fact by applying a rigid standard for "sufficient cause" disregarding the Appellant's health challenges as a valid reason for the delay. "he learned counsel reiterated his earlier submissions that the main reason that prevented the Appellant from filing an appeal within the prescribed time, was health challenges specifically, the mini-stroke and subsequent traditional treatment which took longer than eight months. It was his submissions that the health challenges constituted sufficient reason for granting an application for an extension of time as shown in the authorities c ited herein above. Further he referred the court to the decision of the Court of Appeal of Tanzania in the case of Lyamuya Construction Company Ltd V, Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No, 2of 2010 (unreported) which has outlined other factors to be considered in an application for extension of time including, that the applicant must show ciligence, and not apathy, negligence or sloppiness in the prosecution of t ie action that he intends to take. He emphasized that the, Appellant was suffering from mini-stroke and subsequently had attended traditional treatment which took longer than eight months as a result failed to file an aopeal within time. He amplified further that; the decision from which this appeal originates was delivered by the Primary Court on 14/07/2023, and the Appellant was required to appeal within 30 days from the date of the said decision, but die to health challenges, and subsequent traditional treatment for longer than eight months she failed to do so in time, however, on 13/04/2024 f ^5^ immediately after recovery, he applied for an extension of time but the same was rejected. From the foregoing circumstances, it is clear that the Appellant showed diligence and acted promptly to rescue the situation and np even single negligence on her part for failure to prosecute the appeal timely, thus she established sufficient cause and entitled to be granted an application for extension of time as stated in the case of Director Ruhonqe Enterprises vs. Angary Lichinqa, Civil Application No.l of 2006 {unreported}, where the Court of Appeal of Tanzania stated among other things; . under normal circumstances, for a person who had health problems for six months, taking three weeks after recovery, to file this application, cannot be said to have delayed in filing the application. In my considered opinion he acted promptly" Being guided by the so-cited authorities, he contended that it was wrong fcr the trial Magistrate to dismiss the application by disregarding the Appellant's health challenges as a valid reason for delay. Submitting on the 5th ground of appeal, the Appellant contended that the D strict Court Magistrate erred in law and fact by emphasizing on procedural technicalities over ensuring substantial justice. He submitted that, Courts in the dispensation of justice are required focus on substantive justice without being tied up with technicalities as per Article 107A(l)(e) of the Constitution of the United Republic of Tanzania of 1977 as amended from time to time. He referred the court to the case of Mapigano, J in the case of Mobrama Gold Corporation Ltd v.Minister for Energy and Others, Miscellaneous Civil Cause No.42 of 1995 on extension of time where he had the following to say; "it is generally inappropriate to deny a party an extension of time where such denial will stifle his case; as the respondents' delay does not constitute a case of procedural abuse or contemptuous default and because the applicant will not suffer any prejudice, an extension should be granted' Mapigano J, went on to state that, "a party should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate". Therefore, the fact that granting of an application for extension of time will not prejudice the respondent in any way, he argued that the trial Meigistrate erred to dismiss the same in favour of the Respondent. He thus humbly prayed for the court to allow this Honourable court to allow the appeal with costs, and set aside the ruling and orders of the District Court in Civil Application No. 7927 of 2024. Submitting in rebuttal the learned counsel for the Respondent was very brief. He submitted against all the grounds together. He challenged the grounds of appeal for being frivolous and vexatious and contended that the Appellant is using some delaying tactics to avoid execution tactics filed against him for the maintenance of children. She contended that the decision of the District Court is proper and was made in accordance with the law. The Respondent submitted further that the Appellant failed to account for cood reasons on his failure to appeal timely and his allegation on sickness is unfounded and misconceived for want of a medical report. She contended that the Appellant failed to prove the alleged sickness by attaching a medical report or prescription forms to show that he was sick and the extent of illness and that it is the one which prevented from appealing on time. Further he did not attach evidence of sick leave him teing a public servant or an Affidavit from the person or clinic he was attending to. She argued that the delay was due to negligence and lack of diligence. She referred the court to the case of William Shija vs Fortunatus Masha (1997) TLR 213 where it was ruled that negligence is not a sufficient reason for extension of time. She also cited the case of Christina Alphonse Thomas (as an Administratix of estate of Didas Kasela (deceased) to support her contention the Appellant failed to attach a medical report hence the matter be dismissed. Ir rejoinder, the Appellant reiterated his submissions in chief. I shall not reproduce the submissions but will refer to them as appropriate. Suffices to state that they have been considered in the determination of this matter. Having gone through the rival submissions of the parties, the central issue to be resolved is whether the Appeal has merit. In determining this appeal, I will combine the 1, 2, and 4th grounds of appeal together and the 5th ground separately. With regard to ground no. 4 which deals with the alleged illegalities, I have noted that the Appellant in the course of his submissions dropped it. Therefore, this Judgement will focus on the remaining four grounds. The approach of combining grounds of appeal and addressing them separately has its support in the case of Malmo Montagekonsult AB Tanzania Branch vs Gama Civil Appeal no 86 of 200l(unreported) where the CAT stated that: an appellate court is expected to address the grounds of appeal before it. Even then, it does not have to deal seriatim with the grounds of appeal as listed in the Memorandum of Appeal. It may, if convenient, address the grounds generally or address the decisive ground of appeal only or discuss each ground separately. See also the case of Zuberi Bakari mwichikitu vs Selemani Bakari Mwichikiti, PC Civil Appeal No. 91353/2023. With regard to the 1, 2, and 4th grounds of appeal, I have gone through the rival submissions of the parties and observed that that, the Appellant herein filed an application for extension in the district arising from the decision of the Primary Court in matrimonial cause no 1599/2022, The said decision was dismissed by the District Court. The Appellant's main reason has been that he has been sick attending traditional clinic or using traditional treatments after suffering a ministroke. I have also observed that, the Appellant's Application for extension was denied due to his failure to account for each day of delay and also failure to cite the alleged illegalities. It is trite law that an order for extension of time is in the discretion of the ccurt and that the said discretion has to be exercised judiciously upon sufficient cause being provided by the Applicant. I agree with the Appellant that the term sufficient cause has not been defined however it depends on circumstances of each case. Indeed, in the case of Tanga Cement Co- Ltd vs Jumanne D. Masanqwa and another, (supra), the Court of Appeal of Tanzania clearly held that: "What amounts to sufficient cause has not been defined. From decided cases a number of factors has to be considered including whether or not the application has been brought promptly; the absence of any or valid explanation for delay; lack of diligence on the part of the applicant”. It is also an established principle of law that, in Applications for extension of time, the Applicant must account for each day of delay. See the case of Lyamuya Construction (supra), Bushiri Hassan Latifa Lujio Mashajo, Civil Application No. 3 of 2007, Bendict Mumello Vs Bank of Tanzania, Civil Appeal no 12/2012, Damas Asse and Another vs Raymond Mgonda Daula and others, Civil Application no 232 of 208 CAT and Maro wambura Vs Chacha Nyamahemba, Misc Land application No. 25 of 2021 MCT In dealing with this appeal, I have gone through the submissions of the pa ties and observed that, the Appellant has not stated on how he accounted for each day of delay and got denied extension of time. The, on y reason adduced for extension of time is that of sickness. While I agree that sickness can be a ground for extension of time if proved in court, I must also emphasize that accounting for each day of delay is a principle that is well built and the Appellant ought to have accounted for each day of delay based on his sickness, in terms of how and when he fell sick, the da/s which were used for treatment, the dates he filed the Application etc. but not throwing a blanket statement that he was sick and attending traditional treatments. The District Court in dismissing the Appellant's Application for extension of time stated on pg 2 as follows: In his Application the Applicant has stated that he encountered a ministroke so he was receiving traditional treatment from a traditional clinic, unfortunately the Applicant has failed to account for each day of delay. This is the requirement of the law that each delay should be accounted for. The Court went on to state on pg 3 that: In the case of Bushfire Hassan vs. Latina Lucia Masanya CiviL Application no 3 of 2017, the Court of Appeal held that; Delay of even a single day has to accounted for otherwise there will be no point of having rules prescribing periods within which certain steps have to be taken. I em of the position that for a serious disease like a ministroke, one is expected to have had a medical report be it from a modern or traditional clinic tendered before the District Court and argued before this court by way of record. I further agree with the Respondent that in an application for extension of time, one is expected to have attached an Affidavit in the District Court giving details of the persons or staff attending him, however there was no any proof submitted before the court. I thus agree with the case of Christina Alphonse Tomas (Administratix) of Didas Kasese (Supra) cited by the Respondent that the Appellant failed to prove before the District Court that he was prevented by the disease to file an appeal on time because there was no any medical support/proof of the same. In the cited case above by the Respondent, the CAT dismissed the Application. Therefore, I distinguish all the following cases cited by the Appellant on this ground of sickness for lack of proof. See the case of Alasai Josian(supra), Hamis Chacha (supra) and Emmanuel R Maira (supra). It is my position further, that sickness can be a ground for extension of time but it must be proved. However, in the case before the District Court the Appellant did not prove his case to the satisfaction of the court. Therefore, his appeal falls short of requirements of section 110 of the Evidence Act Cap 6 RE of the laws. Regarding the 5th ground of appeal, that is; the issue of the failure of the District Court to focus on substantive justice. The Respondent disputed this issue generally as being frivolous and vexatious. However, on my part, while I agree that Article 107A of the Constitution i.e. requires courts to focus on substantive justice but it is my settled view that, that Article cannot be used to gloss over non-compliance or violations of laws. The principle enunciated in the said Article is not an ancient greek goddess of un versal panacea such that its objective is to fix every kind of defects and omissions by the parties in court. Substantive justice also depends also on compliance with laws. Courts in this country are courts of law and would not entertain non-compliance with law or procedures. The case of Mobrama Gold Corporation Ltd v.Minister for Energy and Others, M scellaneous Civil Cause No.42 of 1995 (supra) cited by the Appellant is also distinguished in this regard. In the upshot, I agree with the learned counsel for the Respondent that the Decision of the District Court is proper and is hereby upheld. The Appeal has no merit and it is hereby dismissed with no order for costs. Order accordingly. The right of appeal is fully explained. Dated at Temeke this 31st Day of October 2024 S.D. MWAIPOPO JUDGE 31/10/2024