BOARD OF TRUSTEES OF MARIADO SCHOOL AND ANOTHER VS JOSHI FEED MEAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. CIVIL APPLICATION NO. 13237 OF 2024 BOARD OF TRUSTEES OF MARIADO SCHOOLS.…. 1ST APPLICANT RISPA MATTO …………………………….………………2ND APPLICANT VERSUS JOSHI FEED MEAL LIMITED………….…………………RESPONDENT RULING 23/09/2024 & 17/10/2024 SIMFUKWE, J. This is an application for extension of time to appeal against the decision of the District Court of Moshi in Civil Case No. 8 of 2022. The application was filed pursuant to section 14(1) of the Law of Limitation Act [Cap 89 R.E 2022] and any other enabling law. It was supported by an affidavit 1 sworn by Simion Othniel Ahia, the administrator of the second respondent and Chairman of the School Board of Mariado Schools. Contesting the application, the respondent, filed her counter-affidavit deponed by Yunas Joseph Swai, Principal Officer of the respondent. During the hearing of this application, Mr. Asubuhi John Yoyo, learned Counsel appeared for the Applicants, while Mr. Stewart Emmanuel Shuma, appeared for the respondent. The application was ordered to be disposed of by way of written submissions. Supporting the application, at the outset, the learned counsel adopted the affidavit to form part of his submission. Responding to the question whether the application at hand has fully met the threshold required by law for an extension of time to be granted, Mr. Asubuhi argued that the application has fully met the legal threshold, as reflected in the affidavit by the administrator of the estate of the late Rispa Matto. He noted that the affidavit revealed that there was a practical impossibility to file the appeal within the statutory time due to the death of a party to the case. The learned counsel stated that the delay was caused by the time spent seeking the appointment of the administrator of the estate to obtain the requisite capacity to proceed. In addition, the affidavit demonstrates that 2 upon acquiring that capacity, the applicant acted promptly without any laxity. Further, Mr. Asubuhi submitted that the affidavit shows there is an overwhelming chance of overturning the impugned ex parte judgment and decree of the district court, as they were made in blatant violation of the principles of justice. Mr. Asubuhi reminded the court that it should act judiciously when attending applications like the one at hand, and that the legal test is whether sufficient materials have been placed before the court to enable it to act judiciously. He continued to submit that, as per the affidavit, the death was proven by a death certificate, and it took three months from the death to the appointment of the administrator. Mr. Asubuhi argued that the delay was beyond the applicant's control, and that there was a legal impossibility to file the appeal within the prescribed time. The learned counsel was of the view that, the same constitutes sufficient reason. Moreover, the learned counsel noted that the judgment and decree were made ex parte, resulting in a denial of the right to be heard. He pointed out that no summons was ever issued to the parties notifying them of the 3 date of the ex parte judgment, thus, preventing them from taking necessary action. He argued that the infringement of the right to be heard and failure to issue summons for the ex parte judgment are serious legal matters that warrant consideration by the appellate court. Mr. Asubuhi was of the opinion that since the present decree is likely to be executed against the beneficiary of a deceased person, it is in the interest of justice that they be afforded the right to appeal. The learned counsel further invited this court to be guided by the case of Zahara Kitindi & Another vs Juma Swalehe & Others, Civil Application No. 4/05 of 2017 (unreported), in which the Court of Appeal granted an extension of time on the ground that the death of a party to the case caused time to be wasted while awaiting the appointment of an administrator. In the said case, the Court held that time taken to appoint an administrator constituted a valid and sufficient reason for the delay in filing the appeal The learned counsel supported his argument with another case of Said Shaban Kamugisha vs Scholastica Sylvester, Civil Application No. 226/17 of 2019 (Unreported). 4 Submitting on the second issue, whether the pre-emption made by the respondent in the counter affidavit holds any merit to trigger the denial of the orders sought, Mr. Asubuhi argued that the pre-emption in the counter affidavit is devoid of merit. He contended that the respondent merely denied the facts presented in the application but failed to attach any tangible evidence capable of establishing contrary evidence to convince this court that the death of the party did not occur. In light of the foregoing, Mr. Asubuhi concluded that this application has merit. He prayed that it be allowed in the interest of justice. In rebuttal, Mr. Shuma adopted the respondent’s counter-affidavit to form part of his submission. Before submitting on the merits of the application, the learned counsel drew the court’s attention to a critical issue regarding the affidavit filed by the applicant, sworn by Simon Othiniel Ahia, on behalf of the applicants. He noted that, according to paragraph 1 of the affidavit, Simon Othiniel Ahia had been appointed as the administrator of the estate of the late Rispa Othiniel Ahia. However, the application discloses that the second applicant, who is deceased has purportedly instituted the application, instead of the same to be initiated by his personal legal representative. 5 Based on such anomaly, Mr. Shuma believed that the same renders the application incompetent, as it has been filed on behalf of a deceased person. To support his contention, he cited section 71 of the Probate and Administration of Estates Act [Cap 352 R.E. 2019], which stipulates that only the grantee of letters of administration may act as the legal representative of the deceased. He buttressed his argument with the case of Malietha Gabo vs Adam Mtengu, Civil Appeal No. 485 of 2022, [2023] TZCA (Tanzlii). Without prejudice to his earlier submission, Mr. Shuma contended that the period for which the applicant must account for is one year and four months (sic), from 26th January 2023, the date on which the impugned judgment was delivered, to 30th May 2023, when the present application was filed. In his analysis, Mr. Shuma observed that for an application for extension of time to be granted, the applicant must demonstrate sufficient cause for the delay and provide explanation including accounting for each day of the delay. He referred to the cases of Godwin Ndewesi and Karoli Ishengoma v. Tanzania Audit Corporation [1995] TLR 200 and Lyamuya Construction Co. Ltd v. Board of Trustees of Young 6 Women’s Christian Association, Civil Application No. 2 of 2010 [2011] TZCA 4 (3 October 2011), which outlined the criteria for establishing sufficient cause for the delay which are: a) The applicant must account for all period of delay b) The delay should not be inordinate c) The Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of action that he intends to take. d) If the courts feels that there are other reasons, as such the existence of point of law of sufficient importance, such as illegality of the decision sought to be challenged. In light of the aforementioned factors, the learned counsel contended that the applicants failed to establish any of them. Regarding the claim that the delay was caused by the death of the second applicant and the time taken to appoint the administrator of the estate, Mr. Shuma averred that these reasons were frivolous, unfounded, and without legal merit. The learned counsel explained further that the impugned judgment and decree were delivered on 26th January 2023, while the late Rispa Othiniel 7 passed away on 30th July 2023, six months later. He said that such period was neither accounted for in the applicants' affidavit nor in their submission. Mr. Shuma highlighted that the applicants failed to account for each day of delay, and as a result, the court should not exercise its discretion to extend the time for filing an appeal out of time. The respondent's counsel concluded by stating that the application lacks merit and urged the court to dismiss it with costs. After hearing the submissions from both parties, the key issue for determination is whether the applicant has presented sufficient reasons to warrant an extension of time. It is a well-established legal principle that the court has discretion to grant extension of time, but such discretion must be exercised judiciously. In order to properly do so, the court will assess whether the applicant has provided justifiable reasons for the delay. As repeatedly highlighted by this court and the Court of Appeal that factors for consideration include accounting for the entire period of delay, ensuring that the delay is not inordinate, and whether the applicant demonstrated diligence rather than negligence. The factors are stipulated in the landmark case of Lyamuya Construction Company Ltd (supra) which was cited by Mr. Shuma. 8 Also, in the case of Magori Nyabange & Another vs Kulwa Paul Mahamba & Others (Civil Application No. 978/08 of 2023) [2024] TZCA 695 (7 August 2024) Tanzlii at page 9 the Court of Appeal held that: “In determining whether sufficient reason for extension of time exists, the court seized of the matter should take into- account not only the considerations relevant to the applicant's inability or failure to take the essential procedural step in time, but also any other considerations that might impel a court of justice to excuse a procedural lapse and incline to a hearing on the merits. Such other considerations will depend on the circumstances of the individual cases and include, but are not limited to, such matters as: whether the applicant is able to account each day of delay, the promptitude with which the remedial application is brought, whether there was manifest breach of the rules of natural justice in the decision sought to be challenged on the merits, and the prejudice that may be occasioned to either party by the grant or refusal of the application for extension of time.” 9 Another factor that courts consider when granting extension of time is the existence of illegality in the impugned decision. It is well-established in law that for illegality to be a ground for extending time, it must be a point of law that is apparent on the face of the record. The applicant is required to demonstrate the existence of such illegality and not to prove it. In the case of VIP Engineering and Marketing Ltd v. City Bank Tanzania Limited, Civil Application No. 24 of 2019 [2021] TZCA 112 (14 April 2021.) (Tanzlii), the Court of Appeal underscored that the existence of illegality constitutes sufficient cause for the extension of time. Before determining whether the above-listed factors were satisfied by the applicants, I will first consider the point of law raised by Mr. Shuma, asserting that this application is incompetent on the ground that it discloses the second applicant, now deceased, as having purportedly instituted the application, instead of his personal legal representative. I have taken note of the alleged procedural irregularity. However, in my considered opinion, this does not render the application incompetent. This is because, at paragraphs 1 and 8 of the applicants' affidavit, Simion Othniel Ahia has stated that he is the administrator of the estate of the 10 second applicant. Furthermore, the letters of administration were attached to the affidavit. In the circumstances, I believe the overriding objective principle can be invoked to cure the anomaly. This principle requires courts to ensure timely dispensation of justice, without being hindered by technicalities that do not conclusively resolve the substantive rights of the parties. Turning to the merit of this application, I have carefully considered the applicants' affidavit as well as their submissions. The grounds upon which the applicants seek extension of time are illegality in the impugned judgment and the death of the second applicant which necessitated the appointment of an administrator, who was appointed on 27th October, 2023. Concerning death of the second applicant and the time spent for obtaining letters of administration, I have noted that Mr. Shuma for the respondent, referred to the date of delivery of ruling in respect of leave to proceed exparte, instead of the date of the impugned exparte judgment. The correct date of the impugned decision is 13th July 2023. In the supporting affidavit, it has been stated that the applicants became aware of the exparte judgment in mid-February 2024. Thus, the applicants must 11 account for the period between February 2024 and 30th May 2024 when they filed the instant application. Since the administrator of the estate of the deceased was appointed on 27/10/2024, it is clear that the applicants have not accounted for the period of delay from 01/02/2024 to 30/05/2024. The same is almost seven months. Mr. Asubuhi failed to provide any plausible explanation. It is a well-established legal principle that every day of delay must be accounted for. See: Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) and Lyamuya Construction Co. Ltd (supra). That said and done, the first reason of the death of the second applicant and the time taken to obtain letters of administration, lacks merit. Thus, the cases cited by Mr. Asubuhi are distinguishable from the present matter. Turning to the second ground of alleged illegality, Mr. Asubuhi argued that the applicants were denied right to be heard because the case proceeded ex-parte. He further claimed that no summons was issued to the parties, notifying them of the date of the ex-parte judgment which prevented the applicants from taking necessary actions within the prescribed period. 12 From the above submissions, it is the firm opinion of this court that the alleged illegality constitutes a pure point of law, apparent on the face of the record. The learned counsel for the applicant not only raised this issue of illegality at paragraph 5 and 10 of the applicants’ affidavit but also explained it in his submission. Consequently, this ground of illegality is sufficient to warrant the extension of time sought. In conclusion, this court finds that, due to the illegality in the impugned judgment and decree, there is sufficient cause to exercise discretion to grant the extension of time sought. Accordingly, the court hereby grant the applicants 21 days to file their appeal as sought. No order as to costs. It is so ordered. Dated and delivered at Moshi this 17th day of October 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 17/10/2024 13