CHARLES MOSES EXTENSION OF TIME New

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA MISC CIVIL APPLICATION No. 24941 OF 2024 (Arising from the Decision of Meatu District Court in Civil Appeal No. 7115 of 2024, originated from Mwandoya Primary Court in Civil Case No. 03/2024) CHARLES MOSES.………………………..……………….. APPLICANT VERSUS DEBORA MUGUNGUHYA…………………………………RESPONDENT (Administratrix of the Dunhu Njegeli) RULING 5th & 29th November, 2024 MASSAM, J: - The applicant filed application for extension of time within which the applicant to file an appeal out of time. The application was made by way of Chamber summons under Section 25 (1) (a), (b) of the Magistrates’ Courts Act Cap 11 R:E 2019 accompanied by an affidavit sworn by Daud Masunga advocate supporting the application and opposed by the counter affidavit dully sworn by the respondent. During the hearing of this application, the applicant enjoyed legal service of Mr. Daud Masunga, whilst the respondent appeared in person, unrepresented. Arguing in support of the application, the applicant’s counsel adopted the affidavit by the applicant to form part of his submission. 1 Mr. Masunga advocate argued that applicant was aggrieved with the decision given by the Meatu District Court in Civil Appeal No 7115/2024 which was decided in the favor of the respondent. He added that applicant was aggrived and appealed to this court on time as per exhibit DW1 which was attached in the affidavit. When the matter came for hearing on 30.9.2024 the said court found out that there were some errors in that appeal and was struck out as exhibit DW2. Additionally, Mr. Masunga said that after the case being struck out, applicant find himself out of time and on 1.10.2024 applicant brought an application for extension of time to file appeal out of time. According to that reasons the applicant was not the one who contributed as he was prosecuting other cases concerning this issue in the same High Court. Apparently, Mr. Masunga argued that it is the trite law that time which used to prosecute other cases in lower courts or the same courts it is sufficient cause for extension of time. He cemented his argument by citing the case of Geita Gold Mining Limited vs Antony Karangwa, Civil Appeal No. 42 of 2020 CAT MWANZA in the page no 9 last paragraph ,Also the same was held in the case of the Registered Trustees of St. Anita’s Greenland School (T) and 6 others vs 2 Azania Bank Ltd, Civil Application No. 168/16 of 2020 CAT DSM ,in page No 9 the last paragraph and second paragraph in page no 10 which was held that in order for a person to be extended time must proof that he was prosecuting other cases in good faith . Moreover, Mr. Masunga argued that the reasons for extension is stipulated under paragraph 3,4 and 5 of applicant affidavit and according to the same reasons applicant is praying the extension of time to file appeal out of time to the exhibit DW3 which is the intended appeal to challenge the Meatu District Court decision. Finally, Mr. Masunga prayed his prayers to be granted and applicant to be extended time to file appeal out of time. On the side of the respondent, opposed the application for because it is the fourth time now and applicant is filing cases in different court concerning this issue and she won the case but the applicant continued to file other cases. Additionally, the respondent prayed this court to order the applicant to pay her the costs which he was ordered to give her to the lower court. Moreover, she said that this case was already determined so it can not start again. Finally, she prayed to this court to order applicant to pay her the costs. 3 In rejoinder Mr. Masunga advocate insisted this court to consider his submission as it was not negligence of applicant to be out of time but he was prosecuting other cases after his appeal being struck out for having technical errors. Finally, Mr. Masunga prayed this court to extend him time to file his appeal out of time and costs of this case. Evaluating the arguments made by both parties, the main point for consideration and determination is whether sufficient reasons given by the applicant to warrant the prayer sought. To commence with, it is clear as stated in the case of Tanga Cement Company Limited Vs Masanga and Amos A. Mwalwanda, Civil application No. 6 of 2001, for a person to apply for extension of time, has to disclose sufficient reasons, which was defined as follows; " What amounts to sufficient cause had not been defined. From decided cases a number of factors have to be taken into account, including whether or not the application has been brought promptly, the absence of any valid explanation for delay, lack of diligence on the part of the applicant. " 4 However, there are also other factors that are used to determine whether the applicant has shown good and reasonable cause such as the length of the delay, whether or not the delay has been explained away, diligence on the part of the applicant. See Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010 (Tanzilii) in the Court of Appeal at page 6 of the decision gave a guideline of what should be considered in all application for extension of time as follow; “……………on the authorities however, the following guideline may be formulated; - a) The Applicant must be accountable 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 the action that he intends to take. d) If the court feels that, there are other sufficient reasons, such as existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. In the affidavit, the applicant deposed that the reasons for extension of time is that on 30/09/2024 his appeal was struck out for 5 being incompetent and hence the applicant find himself to be out of time on filing an appeal and hence on 1/10/2024 decided to file application for extension of time. On the other side, the respondent counted that the delay was due to the negligence of applicant through his advocate who filed incompetent appeal which was truck out. I am aware that extension of time is discretionary power of the court upon the good cause being shown. In the case of Republic vs Yona Kaponda and 9 others [1985] TLR 84 where the court of appeal held that ‘’In deciding whether or not to allow an application to appeal out of time, the court has to consider whether or not there is sufficient reasons not only for the delay, but also sufficient reasons for extending the time during which to entertain the appeal’’ . Similar situation was stated in the case of Tanzania Revenue Authority vs Tango Transport Company Limited, Civil Application No 5 of 2006, Addallah Salanga & 63 others vs Tanzania Habours Authority, Civil application No. 4 of 2001, Wankira Benteel vs Kaiku Foya, Civil reference No. 4 of 2000. I have scanned submission from both parties and going through the records. The records revealed that the applicant’s appeal was 6 struck out on 30/09/2024 however on the next day ie. 1/10/2024 the applicant filed application for extension of time. I agree with Mr Masunga that the time which used to prosecute other cases in lower courts or the same courts is sufficient cause for extension of time as it was held in the case of Geita Gold Mining Limited vs Antony Karangwa, (supra). Also, the same legal position is stipulated under section 21 (1) of the Law of Limitation Act Cap 89 R:E 2019 which reads that ‘’In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party, for the same relief, shall be excluded where such proceeding is prosecuted in good faith, in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it’’ Notably, after the appeal being struck out on 30/09/2024, instantly on 1/10/2024 the applicant took the necessary steps to file application for extension of time. In the premises, the applicant without any delay filed the application. Good enough the applicant was prosecuting the matter in good faith against the same party and time 7 must be excluded in computation of time. I disagree with the respondent that, she had won the case and applicant continued to open the case are reasons for not granting the prayers sought because the applicant had right to appeal and for the costs granted by the lower courts, respondent is advised to follow the procedure to claim the same. From above analysis, this court does not see the reason as to why this application should not be granted. That being said this court is fully satisfied that the applicant has demonstrated good cause to have the order sought granted. Subsequently, this application is allowed and the applicant is granted time for lodging an appeal from the decision of Meatu District Court in Civil Appeal No. 7115/2024 and shall be lodged within 14 days from the date of delivery of this ruling. I make no orders for costs. It is so ordered. DATED at SHINYANGA this 29th day of November, 2024. R. B. Massam JUDGE \ 8