Castory Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA MISC CIVIL APPLICATION NO. 29891 OF 2024 (Originating from Civil Appeal No. 24554 of 2024 of the High Court of Tanzania, Geita Sub Registry at Geita) CASTORY SUNGA ………….........................................................APPLICANT

VERSUS MOSHI STEVEN ..................................................................... RESPONDENT

RULING Date of last order: 28/01/2025 Date of Ruling: 24/02/2025 MWAKAPEJE, J.: The applicant, Castory Sunga, has approached this Court via chamber summons pursuant to Order XXXIX Rule 19 of the Civil Procedure Code, Cap. 33 R.E. 2019, seeking the restoration of Civil Appeal No. 24554 of 2024, which was previously dismissed for want of prosecution by this Court on 17/10/2024. The application is accompanied by an affidavit from Mr. Emmanuel Sululu, the learned counsel representing the applicant. In the affidavit, the applicant's counsel, Mr. Emmanuel, stated that the appeal had been scheduled for mention on 2 October, 10 October, and finally for hearing on 17 October 2024. He argued that the dismissal Page 1 of 6 of the appeal on 17 October caught him by surprise, as he had not been informed of its admission and reassignment due to an error in his contact information. His phone number was incorrectly recorded as 0755535360 instead of 0754535360, and the summons sent to his email had been diverted to his spam folder, preventing prompt receipt. Mr. Emmanuel explained that a significant amount of time had passed without notification of the appeal's admission. It was only after his client inquired about the appeal's status that he was informed of its dismissal for want of prosecution on 17 October and received the proceedings and dismissal order. He clarified that the failure to

appear was unintentional and due to circumstances beyond his control, as he was unaware of the appeal's acceptance or the scheduled dates for mention and hearing. The application was disposed of by written submissions. The applicant complied with the filing scheduling orders, but the respondent failed. It is trite that failure to file written submissions is equivalent to non-appearance. Therefore, the application will be disposed of by considering the affidavit and submission by the applicant. In his submission, Mr Emmanuel reiterated the averments contained in his affidavit, emphasising that his non-appearance was due to clerical Page 2 of 6 errors in recording his phone number, which resulted in communication failures and misdirected court emails that did not reach him in a timely manner. He maintained that his absence on the scheduled hearing date was not deliberate but occasioned by circumstances beyond his control. Following this, he recapped his prayers in the chamber summons that his application be granted. Upon a careful evaluation of the submissions advanced by the applicant's counsel, the central issue for determination is whether the applicant has demonstrated sufficient cause to justify the reinstatement of his appeal by this Court. However, before I proceeded with determining the matter, I noticed that the applicant had filed the application out of time and invited

them to address me on the same. The Applicant appeared in person, and the respondent was represented by Mr. George Alfred, a learned advocate. Considering the applicant is a layperson who had nothing to state, the Court had to call his advocate, Mr. Emmanuel Sululu. He at first acknowledged that if the application was filed on 19/11/2024 while it was dismissed for want of prosecution on 17/10/2024, it was indeed out of time. However, the advocate had requested additional time to verify the dates, which the court had granted. Despite this, when proceedings Page 3 of 6 resumed, the advocate failed to appear or respond to both his client's and the Court's calls. On the other hand, Mr Alfred submitted that the dismissal ruling was delivered on 17/10/2024, and if the applicant intended to seek readmission of his appeal, he was required to do so within 30 days, as stipulated by the relevant legal provisions. According to this timeline, the deadline for filing expired on 15/11/2024. However, the applicant only filed his application on 19/11/2024, with the necessary payment being made on 21/11/2024. As a result, the applicant was out of time by four (4) days at the time of filing and six (6) days at the time of payment. The respondent argued that since the application was filed beyond the prescribed period, it was contrary to the requirements of the law. Consequently, he submitted that the Court lacked jurisdiction to entertain the application, and he prayed for its dismissal with costs. It is well established that an applicant seeking the restoration of an appeal dismissed for want of prosecution must file the application within thirty (30) days from the date of dismissal, in accordance with Item 9 of Part III of the Schedule to the Law of Limitation Act, Cap. 89, R.E.

2019. Therefore, it should be noted from the onset that the court cannot exercise its discretion to extend the legally prescribed time unless an application for extension is properly made and granted. Page 4 of 6 In the present case, the applicant's appeal was dismissed for want of prosecution on 17 October 2024. As deposed in his affidavit, the applicant was supplied with the proceedings and the court's dismissal order on the same date. However, he submitted the application for restoration through the e-CMS on 19 November 2024 and made the requisite payments on 21 November 2024 which was out of the prescribed time. It is settled law that the date of issuance of the control number marks the official filing date of an application before the Court. See the case of NMB Bank PLC vs Fabiola Deogratius Maami t/s Fabiola Curio Shop (Civil Application No. 152/02 of 2024) [2024] TZCA 854 (5 September 2024). In that regard, the applicant delayed filing his restoration application by four (4) days beyond the prescribed limitation period. As the application is time-barred, this Court lacks jurisdiction to entertain it, as stated by Mr. Alfred. In the case of Nbc Limited & Another vs Bruno Vitus Swalo (Civil Appeal No. 331 of 2019) [2021] TZCA 122 (20 April 2021), it was explicitly stated that: "……The objective is to address the issue whether or not the suit instituted by the respondent

against the appellants was time barred as complained by the appellant in ground two (2) of appeal. The reason for considering this issue first is simple. It is that courts are enjoined not to entertain matters which are time-barred. Page 5 of 6 Limitation period has an impact on jurisdiction. Courts lack jurisdiction to entertain matters for which litigation period has expired." Emphasis supplied] It follows, therefore, that a case filed out the prescribed time, without prior leave for extension, is incompetent and liable to dismissal as far as section 3(1) of the Law of Limitation Act is concerned. Consequently, this application is hereby dismissed with costs. It is so ordered. DATED at GEITA this 24th day of February 2025. G.V. MWAKAPEJE

JUDGE Page 6 of 6