BGP ruling appli no 23672 wowrs word

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF DAR ES SALAAM) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO 23672 OF 2024 (Arising from the judgment and decree of the District Court of Ilala at Kinyerezi in Civil Case No. 95 of 2021 Delivered by Hon. G. Nkwera - RM) BETWEEN BGP INTERNATIONAL TANZANIA LIMITED.............. APPLICANT VERSUS NUZAH AUTOMOBILE ............................................ RESPONDENT RULING MKWIZUJ: The Applicant has initiated this application under section 14(1) of the Law of Limitation Act and Sections 93 and 95 of the Civil Procedure Code seeking an extension of time to file an appeal regarding a judgment of the District Court of Ilala at Kinyerezi delivered by Hon. G. Nkwera in Civil Case No. 95 of 2021 out of time. The applicant's counsel submissions were preceded by restating the guidelines for granting time extensions established in Lyamuya Construction Company Ltd versus the Board of Registered Trustee of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010. These guidelines require the Applicant to account for the delay, ensure it is not excessive, and demonstrate diligence. He explained the reasons for the delay, saying the delay stemmed from the late service of the 1 decree and technical delay. The judgment was delivered on October 9, 2023, immediately after the delivery of the Judgment, the Applicant wrote a letter requesting to be supplied with copies of the judgment, proceedings and decree, but the efforts ended in vain. He decided to file an appeal almost 22 days from the date of the judgment and proceed with following up on the decree, The Applicant’s counsel emphasised the diligent efforts to obtain the decree. He referred the court to the correspondences dated October 13, 2023, with reference number WA/BGP/KINYEREZI/01/2023 and 24th October 2023, with reference number WA/BGP/KINYEREZI/02/2023, reminding for the Decree. Still, the appeal could not proceed on merit after striking out for being incompetent on 19th August 2024. They then wrote another reminder letter requesting the Decree on 30th August 2024, with reference number WA/BGP/KINYEREZI/01/2024. Yet, still, the decree was not supplied in time. In the mid-dates, the Applicant made close follow-ups with the Court but was not provided with the necessary documents that could help the Applicant pursue his right until 19th September 2024 when the decree was issued, and this Application was brought forth on 26th September 2024. He argued that the delay was attributable to the Court’s failure to provide the decree. He thus prayed that the court grant the requested extension of time. The Respondent's counsel argued that the Applicant, represented by counsel in the original case, failed to explain why counsel did not follow up on the judgment or file the appeal with the decree within 22 days opposing the Applicant's claim of delay due to the District Court's inaction as a "tantalisation of the truth" because the certified copies of the judgment and decree were applied at 2the same time as the appeal was lodged, resulting in a halt to the preparation due to the higher court calling for records. This, the counsel argued, resulted from the counsel's negligence. Furthermore, the counsel asserted that filing an appeal within 22 days without the decree, as required by Order XIX Rule 1(1) of the Civil Procedure Code, did not justify the delay. He emphasised that the Applicant’s affidavit did not address this delay, instead solely attributing it to the District Court's failure to provide the decree. He contended that automatic extensions of time-based on blame alone would create chaos, citing CRDB Bank Limited Vs G. Kilindu & Attorney General, Civil Application No. 87 of 2009 (unreported), to support that negligence is insufficient to cause. Finally, the Respondent's counsel maintained that the application constituted an abuse of process because the Applicant had already lost Civil Appeal No. 213 of 2023 for being incompetent, failing to comply with the law arguing for the dismissal of the application with costs. Having thoroughly evaluated the affidavits filed for and against the application and the presented arguments, the central question before this court is whether the Applicant has provided sufficient justification for the requested extension of time. It is axiomatic that a request for extension of time is granted sparingly, contingent upon the demonstration of good cause guided by the established principles elucidated in Lyamuya Construction Company Ltd. v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, (Supra) to encompass a lucid explanation for the delay, an assessment of the duration of the delay, a thorough exam3ination of the applicant's diligence in pursuing the matter, and, where applicable, an inquiry into any potential illegality inherent in the impugned decision. The decision the applicant seeks to challenge was delivered on October 9, 2023; the applicant, in the supporting affidavit and his written submissions has narrated a chain of events explaining what transpired since the delivery of the decision to be challenged. Immediately after the delivery of the Judgment, he wrote a letter requesting to be supplied with copies of the judgment, proceedings and decree, but none was supplied on time. It is also undisputed that 22 days after the date of judgment, he filed an appeal, which was ultimately struck out for being incompetent on 19th August 2024. It is clear, therefore that the period from when the decision was delivered up to when his first appeal was struck out can be termed as a technical delay. See Fortunatus Masha vs. William Shija and Another [9997] T.L.R. 154 and Bharya Engineering & Contracting Co. Ltd v. Hamoud Ahmed Nassor, Civil Application No. 342 of 2017 (unreported) where it was stated : - "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling of the court striking out the first appeal. In these circumstances an extension oftime ought to be granted. " Upon careful consideration, the R4espondent's assertion that the Applicant's appeal filing was problematic due to the absence of the decree supports the Applicant's claim that he had not, at that particular time, been served with the decree. The Applicant diligently filed the appeal within the stipulated 22-day timeframe following the delivery of the judgment while concurrently taking proactive steps to procure the decree. The alleged negligence attributed to the counsel by the Respondent is a mischaracterisation not supported by evidence, and there is no indication of a lack of diligence on the Applicant's part. Instead, the delay was caused by the court's tardy provision of the decree, substantiated by multiple letters documenting the Applicant's repeated requests. Furthermore, the prompt filing of this application on 26 September 2024, upon receipt of the decree on 19 September 2024, illustrates the Applicant’s unwavering dedication to the cause. The Applicant has compellingly demonstrated "sufficient cause" for the delay. In light of these findings, I grant the application. The intended appeal must be filed within 30 days from the date of this order. Considering the cause for the delay, I order each party to bear its own costs. Order accordingly. DATED at DAR ES SALAAM, this 21st FEBRUARY 2025 E.Y. MKW5 IZU JUDGE 21/02/2025