BENEZETH FINAL EXTENSION OF TIME RULING ON 29AUGUST 2024

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 25578 OF 2023 (Arising from Civil Appeal No. 360 of 2021) BENEZETH BUBERWA RWEYEMAMU …………….…………………… APPLICANT VERSUS BRITAM TANZANIA INSURANCE LTD ...…………………………… RESPONDENT RULING 28th June & 29th August, 2024 BWEGOGE J.: The applicant herein instituted an application in this court praying for an extension of time within which the same may lodge a notice of appeal to the court of appeal against the judgment and decree of this court in Civil Appeal No. 360 of 2021. The application is brought under the provision of section 11(1) of the Appellate Jurisdiction Act [Cap. 141 R.E 2019] and supported by the affidavit of the applicant herein. The affidavit supporting the application herein bears the following facts: The appellant commenced civil proceedings against the respondent herein in the resident Magistrate's Court of Dar es Salaam claiming a total of TZS. 1 27,284,843/= among others, for failure to timely compensate the appellant who was the beneficiary of the insurance policy (third party cover note). The trial court found the claim baseless and dismissed the same. The appellant was not amused. He preferred an appeal (Civil Appeal No. 360 of 2021) in this court. Likewise, the appeal was found devoid of merit and dismissed. Undaunted, the applicant lodged an appeal (Appeal No. 73 of 2023) in the Court of Appeal which was later withdrawn by the applicant having apprehended that it was filed out of time. Hence this application. The applicant and respondent herein were represented by Messrs Octavianus Mushukuma and Peter Leonard Kaozya, learned advocates, respectively. This application was heard by written submissions. In substantiating matters deponed in the affidavit, Mr. Mushukuma submitted that the provision of section 28; and Order XX, rule 1 of the Civil Procedure Code [Cap 33 R. E. 2019] instructs the court to give due notice to the parties on the date scheduled for judgment within prescribed period of ninety days. That the impugned judgment in Civil Appeal No. 360 of 2021 was delivered beyond the prescribed period and without notice to the parties; hence, the applicant failed to take appropriate steps within the prescribed time frame. 2 Further, in accounting for the period of delay, the counsel submitted that the applicant herein, on his own initiative became aware that the impugned judgement was delivered on 07th June, 2023, and promptly requested to be supplied with copies of the proceedings, judgement and decree. However, it was not until 29th July, 2023 that the applicant was supplied with court documents. And upon receipt of the court documents the applicant lodged the notice of appeal against the impugned judgment of this court and instituted an application in this court for leave to appeal to the Court of Appeal in Miscellaneous Civil Application No. 464 of 2023 on 29th August 2023. However, later on, the applicant discovered that the notice of appeal was filed beyond the prescribed time; hence, he filed the application for leave to withdraw the notice of appeal filed belatedly on 5th October, 2023 which was granted on 18th October, 2023. In tandem with the above, the counsel accounted that during the period from 29th July, 2023, the date upon which the applicant was supplied with court documents, to 5th October, 2023, the applicant was prosecuting the incompetent application (Misc. Civil Application No. 464 of 2023). And the period from 06th October, 2023 to 18th October, 2023, the applicant was prosecuting an application to withdraw notice of appeal filed Court of Appeal out of time. Lastly, in the period from 19th October, 2023 to 10th 3 November, 2023, the applicant was preparing the pleadings herein, seeking legal advice and filing the instant application. Hence, on the above account, the counsel opined that the delay in taking legal action was not deliberate but occasioned by the failure of this court to notify the appellant on the date of delivery of judgment and the late supply of court documents which denied him a fair trial. The counsel cited the case of David Mushi vs. Abdallah Msham Kitwanga (Civil Appeal 286 of 2016) [2022] TZCA 535 to buttress his point. Likewise, the counsel opined that the period of delay in which the applicant was prosecuting incompetent applications amounted to technical delay. The case of Bank M (Tanzania) Limited vs. Enock Mwakyusa, Civil Application No. 520/18 of 2017, CA was cited to bolster the point. In reply, Mr. Kaozya vehemently contested this application. In substance, the depositions in the counter affidavit and the submission in reply entail the following counter-arguments: One, that the applicant was not diligent in making a follow-up of his case and lost track of it which culminated in the inordinate delay in taking proper action. Two, the applicant doesn’t state when exactly he became aware of the decision on appeal rendered by this court and from whom the information was given to him which would allow this court to gauge his timeousness. Three, the purported technical delay in the circumstances of this case is misconceived as the 4 applicant deliberately filed notice of appeal in the Apex Court and commenced the abortive proceedings for grant of leave to appeal while, on the face of court documents supplied to him, he was out of the prescribed time to appeal. In the same vein, the proceedings for striking out the notice of appeal taken prior to the institution of this application were uncalled for, as the resultant order was not among the crucial documents for initiating the application herein. Four, assuming the purported technical delay is applicable in this case, yet the period from 18th October, 2023 upon which the Apex Court granted an order striking out the notice of appeal erroneously filed and 17th November, 2023 when the instant application was instituted is inordinate and unaccounted for. On the above premises, the respondent’s counsel prayed this court to dismiss the application herein with costs. It is noteworthy that the respondent didn’t reply to the point of law raised by the applicant herein. The question before this court is whether the application herein is merited. Primarily, it is trite law that the applicant seeking an extension of time is obliged to establish sufficient cause for delay to take the intended legal action within the prescribed time. See the cases; Tanga Cement Co. Ltd vs. Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 and Alliance Insurance Corporation Limited vs. 5 Arusha Art Limited (Civil Application 33 of 2015) [2016] TZCA 909; In particular, in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application 2 of 2010) [2011] TZCA 4, the Apex Court established the following guidelines to gauge the tenability of the application of like nature: 1. The applicant must account for each and every day of delay. 2. The delay should not be inordinate. 3. The applicant show diligence and not apathy, negligence or sloppiness in prosecution of the action he intends to take. 4. If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance, such as illegality of the decision sought to be challenged. Reverting to the matter at hand, as rightly submitted by the applicant’s counsel, it is a rule of law that the time spent in prosecuting the appeal/application which was lodged in time but found to be incompetent for one or another reason and a fresh appeal/application had to be instituted, amounts to what is termed as technical delay of which the appellant/applicant is not obliged to account. See the cases of Fortunatus Masha vs. William Shija and Another [1997] TLR 154 and Salvant K. A. Rwegasira vs. China Henan International Group Co. Ltd., Civil Reference No 18 of 2006, CA (unreported) in this respect. 6 However, as well contended by the respondent’s counsel, even if it is found that the time spent by the applicant in prosecuting the incompetent applications amounts to technical delay, yet the period between the conclusion of the proceeding in the Court of Appeal to the time the instant application was filed remains unaccounted for; and inordinate altogether. I refuse to purchase the explanation that seeking legal advice and preparation of court documents would need 30 days. I find that the applicant failed to account for each day of delay for the period of 18th October, 2023 to 17th November, 2023 as required by law in this respect. Notwithstanding my finding above, the point of law raised by the applicant herein in that the judgment was read in the absence of the parties, and the charge that no notice of the scheduled date for judgment was served to him, worth my attention. The respondent didn’t reply and, or controvert the point of law raised by the applicant. It is apparent on the face of court documents annexed to the pleadings filed hereto that the judgment was pronounced by the deputy registrar in the absence of parties to the case. The fact that the respondent refrained to enlighten this court that he was notified to appear in court on the date scheduled for judgment, entails that the complaint made by the applicant is valid. Suffices to point out that the provision of Order XX, rule 1 of the CPC is clear in that the court shall pronounce judgment on a date of which due 7 notice shall be given to the parties or their advocates. Moreso, the relevant provision has been restated in the case of Omary Shabani Nyambu vs. Dodoma Urban Water Supply & Sewerage Authority (DUWASA) (Civil Appeal No.303 of 2020) [2023] TZCA 17460, among many others, that: “......................it is crystal clear that the so-called judgment was pronounced in the absence of the parties. There is nothing to show that the notice for the judgment was issued to the parties as it was ordered earlier on. In the case of Aw adhi I ddi K ajass v. M ayfair I nvestm ent Lim ited, Civil Application No. 281/17 of 2017 (unreported), w hile discussing the com petence of the judgm ent that w as delivered in the absence of parties w ho had no notice of the date of its delivery, lik e in the case at hand, the Court held that there w as no operative, valid and effective judgm ent delivered in the absence of the parties w ho had no notice of the date of its delivery.” [Emphasis mine]. Further, the Court expounded: “As regards the effect of a judgment not delivered in accordance with the law, the Court, in the same case of Awadhi Idd Kajass (supra), relied on the case of Gilian's M odern Bakary vs. F. J. K untner (1954) 21 EACA 123 and held that the judgm ent w hich is not delivered in accordance w ith the law , could not be taken to have com e into existence as to be capable of being appealed against.” [Emphasis mine]. Based on the above premise, I would find the point of law raised by the applicant with substance. It is settled law of this land that the point law of 8 sufficient importance such as illegality of the decision sought to be challenged is sufficient cause for grant of extension of time, notwithstanding failure by the applicant to account for the whole period of delay. Given the foregoing, I find the application herein merited. Accordingly, the extension of time within which the applicant may file the notice of appeal in the Apex Court is hereby granted. The applicant to file the intended notice within a span of 14 days. So ordered. DATED at DAR ES SALAAM this 23rd August, 2024. O.F. BWEGOGE JUDGE 9