chama cha ushirika cha msingi wa wakulima wa miwa na mazao mengine and another v salumu rajabu kiduli 2023 tzhc 23283 12 december 2023

■Vf IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO MISC. CIVIL APPLICATION NO. 39 OF 2023 CHAMA CHA USHIRIKA CHA MSINGI WA WAKULIMA WA MIWA NA MAZAO MENGINE(TUCOCPRCOS) isr APPLICANT » MTIBWA SUGAR ESTATE LIMITED 2^° APPLICANT VERSUS SALUMU RAJABU KIDULI RESPONDENT RULING Pate of Ruling; 12^ December. 2023 LATIFA MANSOOR J Through the legal representation of Mr. Niragira T.E, the applicant's advocate from Niragira Advocates based In Morogoro, the Applicants Chama cha Ushirika cha Msingi cha Wakulima wa Miwa na Mazao Mengine (TUCOCPRCOS) and Mtibwa Sugar Estate Limited, preferred the instant application by way of chamber summons made under Section 14 (1) of the Law of Limitation Act [Cap 89 R.E 2019] and any other enabling provisions of the law seeking orders as hereunder: Page 1 of 11 1. That this Honourable Court be pleased to extend time within which the Applicants may lodge an Appeal out of time as per the Ruling of the High ,pourt of Tanzania at Morogoro all made by Hon.- Judge Chaba Cl\)ll Appeal No. 25 of 2022 dated 30"^ of June, 2023. 2. Costs of the application be borne by the respondent. 3. Any other order or rellef(s) this Honorable Court may deem fit to . ,! . ' grant. With the leave of the Co,urt, the hearing of the application was canvassed by way. of written submission by the order of this Court dated 31^ of -J. . - I _ ; 1 .C October,2023. !■ . ^1 , ■ . ■ . The applicants were represented by Mr. Niragira T.E the learned advocate, whereas on his part, the respondent had the services of Mr. Abdul B. ... 'i . : C '1 ' . Kuhabi the learned advocate. ■ - ' A b . \ i- " >'f . ; i,. ; . Submitting in support of the application Mr. Niragira started by notifying this court that, the parties to the instant application were parties in Civil ; ... _ ir'i! : A _ i; .f _ . , Appeal No.'25 of 2022 at High Court of Tanzania (Morogoro Sub Registry) .i ..r; . ' v .. at Morogoro which arose Troni Misc. Application No. 25 of 2021 at ^ j I ' Page 2 of 11 :i i ■ ^ . u : \ I. \ ■ '11 !'f Mopgoro f ■ Magistrate Court resident ^ at Morogoro. ■He depicted ■ further that, the said Civil Appeal No. 25 of 2022 was struck out on of June, I 20p by Hc|n. Judge Chaba vifith direction or leave to refile an appeal I within 14 days from the date of the Ruling: The Ruling of Hon Judge Chaba had upheld the preliminary objection raised by the respondent, and the appeal was found incompetent. 1 :>!' ■ i; f 'ilE' i'' . . vm ^ . Advocate Niragira argues that he has sufficient grounds as shall be amplified hereunder to convince the court to grant the extension of time sought. In his efforts to convince the Cburt that he has advanced sufficient ^ reasons for extension of time,' he referred this court to the case of Pita i tii. . : fr r ■ Kempap Ltd v Mohamed Abdul Hussein Civil Application No. 128 of 2004 and 69/2005 CAT DSM (unreported), Hamis Nohamed Anchi v ..^o: '"I I;,/ .c .c ' : Asha Saidi Makunga, High Court of Tanzania at Dodoma Misc. Civil I. .■ f ' v! Application No.03 of 2011 (urireported) and the caseof Ngoni-^Matengb .lur-: i . if'.. ': r.. - .. ' ■ ■ Cooperative Marketing'Uhloh Ltd v Alirnqhamed Osman [19591 EA 4-' ■' ■ . 570 to weigh his submission. d1 „.l;: ! ' .r ■ . - . _ Counsel Niragira submitted further that, the 14 days granted by Hon. . lU;,, .1 ... i . V: ' '■ : , - Chaba J to fi e an appeal expired on 13^^ of July 2023 and that there has , \kj:. ^ been a ppbr, netwoVk on the JSDS2 for online filing of cases for almost i: Ait J ^ Page 3 of 11 . ■ I. \ ^ i: _ ■ ii ■ '' " ' ' /■ i: '"'l' ' ' ' '' ■ ' . ' eigh:ton i-! ih|e days from of July 2023,and this caused the delay to refile thej'^ppea on the date extended by the Court through an appeal which :l.f was^ found to be Incompetent. The Counsel also contended that, on 13^^ i ' I •> iV 'i { i i:f h ■ i of July 2023 which was the last day to refile the said appeal, he was able to lodge the memorandum of appeal on JSDSII system, but, unfortunately f; the appeal was rejected by the Deputy Registrar. The Deputy Registrar . .. i'i : ,i "i • r ; advancing the reason that the appeal'was time barred. The Counsel for 1- t I : the applicant seems to challenge the decision of the Deputy Registrar of 1' ' -i 1' ■ •■ ■■ !the Court rejecting to admifthe appeal, he says, he filed the appeal on _ 'P| : ■ I- , r time, that is to say on 13"^ of July 2023. The Counsel highlighted further that, in computing time from 30 day of June, 2023 to 13''^ of day of July .','v : J . ^ . .. 2023, the appeal was filed exactly within 14 days from when the VC. applicants herein was granted leave by the Court to file the appeal. The :/ra • applicant's counsel argues that he complied with the Order of the Court which granted the applicants 14 days to file the appeal, and that the applicants filed the appeal on time to "the 14^ day which was 13^*^ day of kK i . 1 r . July, 2023. , T-: - i: d\ The Counsel for the Applicant further maintained that, the Deputy [:.i; o n c Registrar,could have been correct to reject the appeal, if the appeal was filed beyond Ithe 13^^ day of July, 2023. The Counsel highlighted further 1' i |til ■ I Page 4 of 11 i 4 , . I 'i! 1':! It. !'■ Ill' filed the appeal on time following the Order of this court issued by I fjpnourable'Judge ■ ■ I' '■ Chaba/ that the appeal was filed on 13^^ dayI of July, ihi y • I if llf -I i!' • 2023, right oh time counting 14 days from the date the order of I i, i ' ■ Hlbnourable Judge Chaba was given. The Counsel reminded this court oh I iis powers to extend time before or after the expiration of time for the i I [ disputant to file an application or appeal. He insisted that In adversarial i' !. 1^,. p . r I: . . . system a party cari^t lose his right due to technicalities and procedures iJi/: . L ■ . . , ^ , and he added further that these procedures were set only to help the 4.J . ^ -.i: ^ . court to deriyer justice and hot otherwise and on this, he referred this _ 'i ll i' , . . honourable ^court the case of Pariha and Another v Abdulrasul ip. . h;. i-i - V; „ : . Ahmed Jaffer and two others [Misc. Civil cause No. 48 of 1992. He submitted further that, there was no delay to file the appeal before this court as the appeal was filed oh 13^ of day of July, 2023, in compliance a-.:l n . of the order of the honourable Court. Counsel for the applicants urged this C'. ..ri ■ Court to find in iits infinite wisdom and in the interest of justice, there are h X. .i r C' sufficient reasons for allowing the application for extension of time. )' I' Replying to the applicant's submission Mr. Abdul, the Counsel representing the respondent, contended that the applicants re-filed the appeal through system (JSDSII) without attaching the drawn order of the C. 1 . IHl ■ ■ j- ■ ■ ,: . . . Rul ng which allpwed them an extension of 14 days to file the appeal. The I £(. Page 5 of11 if )it; l. A' I 'i Counsel insisted that, the drawn order was a vital document to be '? M ■ ' ir. : ^ i '■ ■ ■ ■ attached to show that the applicants were allowed to file an appeal out of^I ' granted leave of the court, by Hon Judge tjne,, and that they were I ^ H ■ ■ . . ' Che Da J. The Counsel was of the view that failure on the part of the applicants to attach the drawn order which gave them leave to re-flle the appeal out of time renders the appeal filed by them barred by limitations. ' T •. 1 1 ; -I'3 The Counsel for the respondeht concluded that, the Deputy Registrar of M ii" A' .1.1'!) the|]iHlgh Court of Tanzania, Morogoro sub-registry was correct to reject ' I the appeal lodged by the applicants through JSDSII on ground of it being ti .,^.1 time barred. ' ■ 5l| \(l' - i r , .1- • The Counsel for the respondent was of the view that, the reason assigried I'f-p r c j by jthej; applicants that the appeal was rejected by the Deputy Registrar ' 1^ . fprithe appeal for it was filed out of time does not constitute sufficient ■ 0 \ a, 4 . ■ icause enabling the Court to allow the application for extension of time to 'Iti 1'- / file an appeal out of time. Regarding the issue of network error, the Counsel depicted Rule 20(1) of b i the judicature and Application of Laws {Electronic Filing} and contended L . iii;. ill f ,, i . ■ that it allowsjexemption on application by a party from filing electronically JSi '.,1: I, Ml - ^ .. ',of the whole or part of the, pleadings or .'documents where inter alia t.. . Page 6 of11 t' I 1 I i> Aigc. j; ; ::u. ■it V fi !'f. il.d .liv t I i ia ; i eIectroni;f filing system is either inaccessible or not available. He mai ntained that, the provision cannot be applicable in the circumstances oftIIS case as the appeal was successfully filed in the system but it was j reje'eted bbduse it was filed out of time and there was no leave of the coujt allowing the applicants to file the appeal out of time, the counsel argdies that if at all there was leave granted by the court to the applicants r ."! to file the appeal out of time, the applicants were duty bound to attach the,Ruling or Drawn Order to the memorandum of appeal. He argued ■ IM j [' ; i. . further that the applicants did not access the remedy provided under Rule ■'"t" 20(l)(d) bf the Judicature and Appiication of Laws {Electronic Filing} o :s: ,.ii ^ ir because 'the jsystem: was accessible and available. The Counsel for the respondent was of the view that if the system was not available or 1 tc 1:.i. , ''"'f. • i;il' i inaccessible,]! the applicants were supposed to apply to the Deputy !ill' Registrar to jexempt them from filing electronically as the law allows fl J|i ' . ; rnanual filling if there is no network or when there is an error in^ the 11 . network! According to the Learned Counsel, the issue'of network error as ■!| C\\l i jit ■ submitted by the applicants also is not a good cause, because the appeal was successfjuliy filed in the system but it was rejected for being filed out of time and because no leave to file the appeal out of time was attached .i'[ i. k !' tb memorandurn of appeal. The Counsel for the Applicant urged this court ■u. .. ' to dismiss the appiication with costs. ri . ffc-C" li Page 7 of 11 ■ ^ f' S-l V [ :i • y Va r h fit" '("fi'' INow, ill' this is orie of the applications in which the court is vested with m || !S jj| 'Iif: ;i If powers to exercise its discretion. The court may only extend time for filing i¥ I' ill ■{ ' '! an appeal where the applicant has advanced sufficient cause for the delay. I'l I' :!>. ' T'' This positidh is Well stated in the cases of Sospter LuBenga v. Republic, Criminal Appeal' No. 107 of 2006, Court of Appeal of Tanzania at Dodoma (unfeporte^); Aidan Chale, v. Republic, Criminal Appeal No. 130 of i, I - ij ' M'.' ■ 2003, Court of Appeal of Tanzania at Mbeya (urireported) and Shanti v. e f tt ■, i ^ . Hindochi and Others [1973] EA 207. i;; jii , ' n r [ ■ I > In , this case, there, are two reasons for the delay advanced by the t applicants, one, the rejection of the appeal by the Deputy Registrar and ( iifh J , . two, the network error. That, it Was dtie to that improper rejection by the : id; ^ ■ I.. . Deputy Registrar to refile the appeal and that the JSDSII system was not operating as|there was a network problem. The applicants contend that they encountered a network failure when refiling the appeal, and this is . i:. l: _ what caused the delay to file the appeal on time. On the contrary^ the >- I', . v: . „ respondent opposed and challenged both grounds as not sufficient i. i\ i ^ r. T ' ■ . grpdnds for this coiirt to grant the extension of time to file an appeal L' pj , ■■ e . , ■ arguing that the-Deputy Registrar rightly rejected the memorandum of iri ! .i , appeal oh ground lof being time barred as it was not accorhpanied with ' -y i\' - nil" ^' V't ■ . ^ the decree or drawn 'order that allowed the applicants to refile the appeal .r Page 8 of11 .u: f 1 . l' :!t n'f L. / • ; ]' iiqii ' 'i- ^ 'I beyond the time prescribed or so extended by the court. Again, the issue • 1 (! ' ' ' s illI ' ' of netwbrk errbr cannot stand as a^ Sufficient cause as the applicant |] I' • '• I ■ attempted and succeeded to refile the application which was rejected by \i ' )■ i thefeepility Registrar. I' Reading'the attachment MSE4 attached to the affidavit of the applicants, it isiclearithat there is'no reason adduced by the Deputy Registrar to reject •fi . ^ 'jk , • t ' ; . thej appeal filed by the applicants, that being the case the respondent f ) iM ii ' - c i assertion that it was rejected due to non-attachment of the decree or drawn order is unfounded, however it is undisputed fact that the appeal • I was rejected by the Deputy Registrar for being time bared and thus this court is convinced that even on non-disclosure of the reason for rejection j. ^ li. . Ic ^ by [the Deputy Registrar,* it is undisputed fact that the appeal was not , 1 k.' accompanied with the order of the Court which allowed the applicants to file'the appeal outside the period that was either prescribed'or allowed by ^1. . - X : ll ' . ; the Court. The Regi^rar was not satisfied as to the appropriateness of the S ■ t: J ijj^ ^ memorandum of appeal to be filed and thus she rejected it, and as rightly J i. i.;{ : ,v;r Lc, I::', argued by the respondent's counsel, the rejection of the Memorandum of : 1.1 M' .... 'U ' . ■ r, Appeal by the Deputy Registrar cannot amount as sufficient grounds i! ,c , pr warranting the Court to extend time for filing an appeal. 3 .M,. ; M i ; :■ ■■' ' ■ Page 9 of 11 *1 .ik- lO' ; ■ : ji .■! i' i t . - J ' ^ 4^ - i iiy In relation tcl)| tlhfe issue of network error, and as was rightly argued by the responder^t,llthat the applicant could have applied for exemption from , h' ' ;I ■' liically as provided by the law and therefore, the applicant's i;i[ I if-; I. . ^' I. f! ] •: and[his cpun'selEhad no excuse to delay filling the memorandum of appeal. ^ h ij V> • ' ■ ', - . - - I find that the applicants were negligent in filling the memorandum of appeal timely, which and hence their reasons do not amount to sufficient ., 1 ■■ :|i: 'iiii '■ i l:i -It!! 11 r. >■ cause for the delayi This position is'stated in the case of Transport p' i. , EquipmentliiLtd Versus D.P. Valambhia [1993] TLR 91 (CA); Umoja ill!] ' -i ii ijbi i; Garage Versus National Bank of Commerce [1997] TLR 109 (CA) ' .:' j ■ i. T' :> ' - ■ , and Inspector Sadiki and others Versus Gerald Nkva [1997] TLR ii i' ojfc: 290 (CA)i ■ ] ' , - flF C ■ i 1 Sr , I uridersta nd; a delay even of a single day must be accounted for as it was stated in the case of Biishsri Hassan v. Latifa Lukio Mashayo f,- i J ■I" J where the Court of Appeal of Tanzania stated that: V jjdL. ,' Ij i i F '! .a day of even a single day has to be accounted for otherwise there wouldbe no point ofhaving rulesprescribing t hi , :!). periods within which certain steps have to be taken. - A e; y. .11 1 I ti ! .1 Page 10 of 11 . .. j.iti / , '■ I. hi • (ii'L, j'/.. li i)r Therefore, reckoning the date when the applicant was supposed to file the appeal to the date of its filing, the applicant had delayed for one day which have not been accounted for. Based on the reasons stated above, I hereby find no good reason advanced by the applicants to warrant this court extend time to file an appeal. I dismiss the application with costs. Order accordingly. DATED AND DELEIVERED AT IJC MOROGORO THIS 12™ DAY OF DECEMBER, 2023 OF I^A/ MANSOOR, L O JUDGE G 7^ 12/12/2023 X Page 11 of 11