dominika sisti mashoko vs sisti juliani mashoko 2020 tzhc 4564 14 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI CIVIL APPEAL NO. 19 OF 2020 (Arising from Misc. Civil Application No. 09 of 2020 Moshi District Court) (Originating from Matrimonial Cause No. 3/2019 Uru Primary Court) DOMINIKA SISTI MASHOKO......................................... APPELLANT VERSUS SISTI JULIANI MASHOKO.......................................... RESPONDENT JUDGMENT MUTUNGI .J, The appellant herein has raised one ground of appeal in support thereof. The same is as hereunder: - “That the trial court erred by not taking into account all principles governing extension of time.” The genesis of the matter is the appellant's application before the District Court seeking for extension of time to file her intended appeal against the decision delivered by the 1 trial Primary Court in a matrimonial matter against the respondent. Her major grounds were three fold One, that after the judgment in Matrimonial Cause No. 3 of 2020 delivered on 10/3/2020, the appellant immediately started a serious follow up requesting for copies of judgment and proceedings for appeal purposes. Two, that she made follow ups in the Primary Court until 29th April, 2020 when she was supplied with the requisite documents. Three, after securing the copies, she waited for one week and thereafter went to a lawyer, who informed her that she was already out of time. Having deliberated upon the submissions presented before the District Court, the Honourable Magistrate came to the conclusion that, the alleged serious follow ups on the necessary appeal documents was unsupported. Be as it may, the District Court found no sufficient evidence furnished by the appellant to show that, she was supplied with the said copies on 29/4/2020 after the disputed judgment was delivered on 21/2/2020 and not 10th March, 2020 as alleged. 2 To put salt to the wound, the honourable District Magistrate found the appellant had not substantiated how she diligently utilized the delayed period from 21st February, 2020 to 19th March, 2020 (three months). She was required in law to account for each day of delay. To cap it all the District Court reminded itself that, the alleged appeal documents were not a pre-condition in appeals originating from the Primary Courts to the District Courts. In the end, the court concluded there were no good reasons demonstrated by the appellant hence, the application dismissed for want of merits. Miss Elizabeth Minde submitting on the same lines, stated that, she is alive the application of the like before the District Court stand different tests. Among these is, each day of delay should be accounted for, the intended appeal should have chances of success and there should be triable issues. The District Court despite evaluating whether the appellant had accounted for each day of delay, did not consider the surrounding circumstances and hence occasioning the alleged delay. The learned counsel buttressed her argument that, the conditions before the trial court were not favourable. The trial 3 Primary Court had a visiting Magistrate who only appears twice on unknown days. It becomes a nightmare for one to access the services of the visiting Magistrate and the appellant lay as she is, faced the same hiccups. It was further submitted that, the burning issue before the trial court, was the division of the matrimonial assets acquired during the subsistence of the marriage between the two litigating parties. The trial court did not look into the contribution of each spouse in acquiring the same. It is thus necessary that this fundamental issues is looked into on appeal. This could only be deliberated upon if time was extended by the District Court. It is in the interest of justice that substantive justice is attained and this court should likewise allow the appeal. On the other side of the coin, Mr. Baraka advocating for the respondent contended, the appellant was supposed to be guided by Section 14 (1) of the Law of Limitation Cap 89 R.E. 2019. To the contrary the District Court did consider the principles enshrined in the said section and found the appellant had not demonstrated sufficient reasons for her delay. The appellant had a duty to show good causes of her 4 where about when time was ripe for her to appeal from 21/2/2020 when the impugned judgment was delivered. As though not enough, she was to assign reasons for each day of delay. The learned advocate was in further agreement with the District Court that, the appellant had no duty to make a follow up of the appeal documents from the trial tribunal and cited the case of Isioki Emmanuel vs. Zacharia Emmanuel, Civil Appeal No. 140/2016 (CAT - Arusha) to support his stance. All she had to do is to proceed to file her appeal on time. In the upshot, the learned counsel asserted, the delivered decision was fair and just, the issue of chances of success does not arise. On the same footing, this appeal should be dismissed. It is now an appropriate time to deal with the ground of appeal raised. The appellant’s counsel is aggrieved by the evaluation by the District Court in not taking into account the principles laid down in extending time. This will not task my mind much, since this has now become a well-known phenomena in our civil jurisdiction. It is settled that where extension of time is sought, the applicant will be granted such 5 upon demonstrating sufficient and good cause for the ly. Conversely, it is also well settled that the sufficient se sought depends on deliberations of various factors, e of which revolve around the nature of actions taken by applicant immediately before or after becoming aware the delay was imminent or might occur. This stance has n taken in a number of decisions just to mention a few is cases of Kalunqa & Company Advocate vs. National c of Commerce Ltd, [20061 TLR 235 and Wankira Benteal auku Fova, Civil Reference No. 4 of 2000 (unreported). court on the other hand has to exercise its discretion fher or not to grant the extension sought and this should one judiciously guided by factors such as: - The applicant must account for all the period of delay. The delay should not be inordinate. The applicant must show diligence, and not apathy, negligence or sloppiness of the action that he intends to take. ibove tests were set out by the Apex Court of this land in ases of Lvamuva Construction Company Ltd & Board of tered Trustees of Young Woman’s Christian Association 6 of Tanzania, Civil Application No. 2 of 2010 (unreported) and Tanga Cemenf Company Limited vs. Jumanne .D. Massanaa and Amos .A. Mwalwanda, Civil Application No, 6 of 2001. My perusal of the District Court’s judgment and the analysis made earlier in this judgment of what had transpired at the same court, I am satisfied that the honourable District Magistrate had gone at length and restricted herself to the guidelines in so far as the applications of extension of time are concerned. She had looked into the length of delay, the reasons advanced and found no good reasons supported with sufficient evidence. I have also gone keenly into the reasons advanced by the appellant and found as long as they were not supported they leave a lot to be desired and are as good as not made. The foregoing notwithstanding, the appellant had a duty to account for each day of delay which she hopelessly failed to achieve for the period from when the judgment was delivered to the time she filed her application before the District Court. On this, I am guided by the decision of the Supreme Court of this land in the case of Bushiri Hassan vs. 7 Latifg Lukio, Mashavo, Civil Application No. 3/2007 where the court stated: - “Delay of even a single day, has to be accounted for otherwise there would be no proof of having rules prescribing periods within which certain steps have to be taken.” The appellant’s counsel has complained the way the trial Primary Court was manned. The major problem being the absence of a permanent Primary Court Magistrate. As much as this court admits that this could be a nagging problem to the users but the documents so alleged are not a pre­ condition of filing an appeal before the District Court as per the findings in the case of Kisioki Emmanuel vs. Zakaria Emmanuel, Civil Appeal No. 140 of 2016 (CAT at Arusha). The appellant’s counsel is trying to press upon the court to find, there are triable issues by directing the court to issues of division of matrimonial assets. With due respect to the learned counsel, this will be overstepping the court's mandate at this stage and going into the issues subject of the appellant's intended appeal. It suffices to hold that, the District Court had directed itself to the relevant guiding 8 principle and had come to a correct finding. It follows as night follows day that, the appeal is devoid of merits and is accordingly dismissed. Considering the nature of the dispute and the parties thereto, I make no orders for costs. If-----------------o • B. R. MUTUNGI JUDGE 14/12/2020 Judgment read this day of 14/12/2020 in presence of both parties and Miss Minde for the Appellant and Mr. Baraka Tenga for the Respondent. *---------- B. R. MUTUNGI JUDGE 14/12/2020 RIGHT OF APPEAL EXPLAINED. B. R. MUTUNGI JUDGE 14/12/2020 9