OPIO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY [AT MOROGORO] MISC. CIVIL APPLICATION NO. 5755 OF 2024 {Arising from the decision in Probate Appeai No. 16 of2022 at the District Court ofMorogoro) ELIZABETH HOSEA OPIO APPLICANT JANETH HOSEA OPIO 2"° APPLICANT VERSUS IBRAHIM HOSEA OPIO (as Administrator of the estate of the late Hosea Opio) RESPONDENT RULING 23/05/2024 & 25/07/2024 KINYAKA, 3,: The applicants sought the indulgence of the Court to extend time within which they can re-file an appeal against the decision of District Court of Morogoro at Morogoro rendered in Probate Appeal No. 16 of 2022. The applicants' previous appeal. Extended Jurisdiction Civil Appeal No. 2 of 2023 was struck out on 12^'' February 2024 for being filed in the High Court instead of the District Court. In their joint affidavit in support of the application, the applicants contended that their delay was technical one which was occasioned by the striking out 1 of their previous appeal to the High Court. They added that they spent time in obtaining legal representation and preparation of the present application. The applicants alleged further that there was illegality in the decision of the District Court. The respondent opposed the application blaming the applicants for gross negligence and lack of proof of the time spent in obtaining legal services as the advocate who represented the applicants in the appeal that was struck out, is the one that prepared the present application. Hearing of the application was conducted in writing. While the applicants were represented by Mr. Gabriel Kitungutu, the respondent appeared in person and unrepresented. In the applicants' submissions in support of the application, Mr. Kitungutu reiterated the depositions in the affidavit in support of the application. He cited section 25(1) of the Magistrates Courts Act Cap. 11 R.E. hereinafter, the "MCA" and section 14(1) of the Law of Limitation Act Cap. 89 R.E. 2019 on the discretion of the Court to extend time of doing an act. In cementing his submission that the extension of time involves the discretionary powers of the Court upon the applicant showing good and sufficient cause, he relied on the decision in the case of Kaiunga and Company Advocates v. National Bank of Commerce Limited (2006) TLR 235 and Osward Masatu Mwizarubi v. Tanzania Fish Processing Ltd Civil Application No. 13 of 2010 (unreported). Cementing on the applicants' deposition that the delay was technical one, Mr, Kitungutu relied on the case of Fortunatus Masha v. William Shija & Another (1997) TLR 154. He added that the present application was filed a month later as the applicants faced financial difficulties but they managed to obtain an advocate who spent time In preparation of the present application culminating to Its filing on 18^^ March 2024. On the claim of Illegality, he relied on the decision in the case of Lyamuya Construction Co. Ltd V. Board of Registered of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (2011) TZCA 4(3 October 2011) to buttress that Illegality constitute good cause for extension of time. He concluded by praying for an order for extension of time to be granted. The respondent reiterated that the applicants acted negligently in filing their appeal at the High Court instead of the District Court contrary to section 25(3) and (4) of the MCA. He argued that ignorance of the law In pursuing wrong remedy constitute neither good cause nor technical delay. He relied on the decision in the case of Joyce Joram Lemanya v. Patricia Patrick Lemanya and Naomi Patrick Lemanya, Civil Application No. 430 of 2021. He opposed the applicants' claim that time was spent in the collection of the judgement, citing the decision of the Court of Appeal in the case of Methusela Enoka v. National Microfinance Bank Ltd, Civil Appeal No. 266 of 2019. The respondent prayed for dismissal of the application with costs for lack of merit. In applications of the present nature, the Court is enjoined to exercise discretion in granting or refusing the application. However, the discretionary powers must be exercised judiciously by assessing whether or not, the applicant demonstrates good or sufficient cause for delay which include the accounting for all the period of delay which should not be inordinate; diligence, and not apathy, negligence or sloppiness in the prosecution of the action that the Applicant intends to take; and if there are other sufficient reasons such as the existence of a point of law of sufficient importance including illegality of the decision sought to be challenged [See the decision in the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No, 2 of 2010 [2011] TZCA 4 (3 October 2011; TANZLII)]. I should point at the onset that I will not consider the respondent's argument relating to the applicants' delay due to time spent in collection a copy of the judgement. The reason being that the applicants did not raise such argument in their joint affidavit and submissions. [See the case of Luhimbo Investment Limited and Two Others v. National Bank of Commerce Ltd, Civil Appeal No.503 of 2020 TZCA 738(23 November 2022]. Turning on the merit of the application, the applicants raised three grounds constituting good cause for delay namely, the technical delay occasioned by the striking out of the previous appeal by the High Court; time spent in instructing their advocate as they faced financial difficulties; time spent in preparation of the present application; and illegality. In respect of the alleged illegality, the applicants failed to state either in their joint affidavit or their submissions in support of the application, the irregularity or illegality complained of. The applicants deposed in paragraph 8 of their joint affidavit that the decision they intend to appeal against is tainted with irregularities which led to illegality, but they did not state the illegality in the decision of the District Court complained of. It is a settled position of the law that illegality as a ground for extension of time should be clearly stated in the affidavit in support of the application and appear on the face of the record of the decision. In the case of Lyamuya Construction Company Ltd. (supra) the Court of Appeal on page 9 made the following observations:- "Since every party intending to appeai seeks to chailenge a decision either on points ofiaw or facts, it cannot in my view, be said that in VALAMBIA'S case, the court meant to draw a generai ruie that every appiicant who demonstrates that his intended appeai raises points of iaw shouid, as of right, be granted extension oftime ifhe appiies for one. The Court there emphasized that such point oflaw must be thatofsufficientimportance and,Iwouldadd thatit mustaiso be apparent on the face ofthe record,such as the question of jurisdiction;notone that would be discovered by a long drawn argument or process."[Emphasis Added]. [See also the decision in the case of Sriyanjit Perera v. Research Triangle Institute of Tanzania, Civil Application No. 409/17 2022) 2023 TZCA 176144(12 September 2023; TANZLII)]. It follows that the applicants failed to substantiate the illegality as a ground for extension of time. I find merit in the applicants' claim for technical delay as well articulated in the case of Fortunatus Masha (supra). The applicants' erroneous filing of an appeal at the High Court instead of the District Court constitutes an 6 ^ abrogation of the rule of procedure in filing their appeal. This does not constitute ignorance of the law as argued by the respondent. The applicants' filing of their appeal to this Court instead of the District Court had already been punished by the striking out of their appeal by the High Court. They cannot be punished twice to deny them extension of time for the same mistake of filing their appeal at an inappropriate registry. Amplifying the above position, the Court of Appeal in the case of Eliakim Swai and Another v. Thobias Karawa Shoo, Civil Application No. 2 of 2016 [2017] TZCA 162 (22 February 2017; TANZLII), the Court cited with approval the case of Fortunatus Masha (supra) where on page 155, it observed that: "...a distinction should be made between cases involving realoractualdelaysand those like the presentone which only involve what can be called technical delays in the sense that the original appeal waslodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetentand a fresh appeal has to be instituted. In the circumstances, the negligence ifany, really refers to the filing ofan incompetent appeal not the delay in filing it The filing ofan incompetentappealhaving been dulypenalized bystriking itout, thesame cannotbe used yet again to determine the timeousness ofapplying for filing the fresh appeal."[Emphasis added] It follows that the time spent by the applicants in litigating Civil Appeal No. 2 of 2023 up to 12^^ February 2024 when the same was struck out, constitute technical delay which is sufficient ground for extension of time. Coming to the applicants' delay of 34 days from 12^^ February 2024 when the previous appeal was struck out to 18^'^ March 2024 when the present application was filed, I find the same to have been duly explained by the applicants. The applicants contended that they faced financial hardships but spent time to engage their advocate who spent time to prepare the application culminating to its filing on March 2024. Although the advocate who represented the applicants in the present application is the one who represented them in the previous appeal as rightly argued by the respondent, the previous appeal and the present application are two distinct proceedings. The applicants were obliged to re-engage Mr. Kitungutu or engage another advocate to prosecute the present application on their behalf. In totality, I find the delay of 34 days to file the present application is not inordinate but reasonable in the essence that the applicants were to find an advocate, engage the advocate who prepared the present application, culminating to its filing on 18^'' March 2024. In view of the above observations, I find the applicants to have demonstrated good cause to warrant an order for extension of time. Consequently, I allow the application. I order the applicants to file their intended appeal against the decision of the District Court in Probate Appeal No. 16 of 2022 within 30 days from the date of this order. Considering the parties are blood relatives, I order each party to bear its own costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 2?^ day of July 2024 H. A. KINYAI^ JUDGE 25/07/2024