emmanuel fasheni ngamanya and 2 others vs zambi mbilikile nanze 2020 tzhc 3575 30 october 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA DISTRICT REGISTRY AT MBEYA MISC. CIVIL APPLICATION NO. 03 OF 2020 (Originated from the decision of the Momba District Court in Civil Case No. 9 of 2018) EMMANUEL FASHENI NGAMANYA.................................................. 1stAPPLICANT RED JULIUS.................................................................................... 2ndAPPLICANT TUNDUMA LULU SACCOS...................................................... .........3rdAPPLICANT VERSUS ZAMBI MBILIKILE NANZE............................................ RESPONDENT RULING Date of last order: 09/09/2020 Date of Ruling: 30/10/2020 NDUNGURU, J. This application preferred in term of Section 14 (1) of the Law of Limitation Act (Cap 89 R.E. 2002) and Section 95 of the Civil Procedure Code (Cap 33 R.E. 2002) the applicants through the service of Mr. Lucas Luvanda, learned advocate filed the present application seeking for an extension of time within which to file an appeal out of time against the judgment and decree of the District Court of Momba in Civil Case No. 9 of 2018 dated 31st day of May, 2019. The application is supported by an affidavit duly sworn by one, Lucas Luvanda, the applicant's counsel. The application is however, resisted through the counter affidavit of the respondent and the same sworn by the respondent himself. For better understanding of the essence of this application I find it pertinent to briefly narrate the background. The plaintiff, Zambi Mbilikile Nanze, the respondent herein, successfully sued the applicants herein for recovery of Tshs. 36,000,000/= being the value of 132 sacks of beans make of Kablanget and Tshs. 32,000,000/= as general damages and other related reliefs. After full trial, the trial Court that ordered the applicants to pay of the sum of Tshs. 36,000,000/= being the specific damages plus interest of 12% per annum per bank rate. In addition the applicants had to pay of the sum of Tshs. 500,000/= as the general damages and the cost of the suit. Being aggrieved with the decision of the trial Court, the applicants applied to the trial Court to be availed with the copy of the requisite documents for appeal but they found themselves out of time. Thereafter, the applicants filed the present application for extension of time in order to file an appeal out of time against the decision of the trial Court before this Court. At the hearing of this application, Mr. Lucas Luvanda appeared for the applicants whereas the respondent appeared in person and without the legal representation. Upon request of the parties, this Court then allowed the application be argued by way of written submission and they complied with filing schedule. Submitting in support of the application, Mr. Luvanda argued that, the applicants lodged a request for copies of judgment and proceedings so that the same be attached to the intended memorandum of appeal. He added that, the said copies were not granted in time to the applicants until when the time for appealing lapsed. He cited the Order XXXIX Rule 1 of the Civil Procedure Code (Cap 33 R.E. 2019) to support his submission. Also, the counsel for the applicants argued that, the failure of the applicants to file memorandum of appeal on time was caused by the trial Court delay to supply the copies of judgment and proceedings on time to the applicants and since there are overwhelming chances of success if the applicants are granted the prayer to file appeal out of time. Finally, he prayed this application be granted. Reacting on, the respondent contended that, the reason stated by the counsel for the applicants is not true since the necessary documents of judgment and decree were supplied to them on the same day and date when the judgment was delivered on 31st day of May, 2019. He added that, the applicants were present on the due date. Also, he stated that, it is trite law that, one who alleged must prove, the applicants in their written submission and sworn affidavit have stated that the District Court of Momba delayed to supply them the necessary copies but they fail to provide the said letter wrote to request the said documents. He continued to submit that, the applicants herein negligently delayed to file an appeal before this Court and the trial Court did not contribute by any means to the applicants' delay to file an appeal within time. He added that, the applicants want to cause the respondent delay to get his right. Having considered the rival submissions from the parties, the Court's record and pleadings filed in this Court, the question that I have to determine is whether there is a good cause for condonation of the delay. In the first place, I wish to state that, it is settled law that, in an application for enlargement of time, the applicant has to account for every day of theidelay involved and that failure to do so would result in the dismissal of the application. See the case of Bariki Israel vs. Republic, Criminal Application No. 04 of 2011, Court of Appeal of Tanzania and Crispian Juma Mkude vs. Republic, Criminal Application No. 34 of 2012, Court of Appeal of Tanzania (both unreported). Also it is settled law that, in order for the Court to exercise it discretionary power in extending time, good cause for the delay must be shown by the applicant. However good cause has not been defined. It is therefore up to the applicant to sufficiently convince the Court that good cause exists. That, this position is well stipulated in the case of Fares Munema vs. Asha Munema, Civil Application No. 122 of 2015, Court of Appeal of Tanzania (unreported) where the Court stated that: "The applicant has not advanced a reason or reasons to explain away the decision in filing the intended reference within time. It will therefore followsthat no reason (s) let alone sufficient reason (s) has/have been showmffp warrant the exercise of the Court's discretion any power under Rule 8." Again, the issue to be considered by the Court in the application of this nature is whether on the facts sufficient reason for the delay in lodging the appeal to this Court has been shown or rather whether the circumstances leading to the delay constitute sufficient reason within the ambit of the law. The Court has, accordingly flexibly exercised its unfettered discretion depending on the facts of a particular case. I think it is pertinent to begin by quoting the Proviso of the Item 1 of the Part Hof the schedule to the Law of Limitation Act (Cap 89 R.E. 2019) which states: "(1) An appeal under the Civil Procedure Code where the period of limitation is not otherwise provided for by any written law the period of limitation is ninety days." As it can be seen, the emphasis in the above provision, this is the same situation in the case subject to the present application, the applicants beings intended to appeal against the decision of the District Court and there being no specific provision in the Civil Procedure Code (Cap 33 R.E. 2019) that expounds time limitation for such appeal hence, the applicants required to file an appeal before this Court within 90 days. Turning to the merit of the application, the applicants alleged that the trial Court delayed to supply the copy of judgment and proceedings to the them. Unfortunate, the supporting affidavit does not state the date when the applicants wrote a letter for requesting the requisite documents. Also, the supporting affidavit is silent as to when the applicants, then, collected the said copies. It is clear from the Court's record that, the trial Court delivered its judgment on 31st day of May, 2019 but it does not shows if certified by the Court rather it was certified by the private advocate which was contrary to the law. Furthermore, in the simple calculation the applicants spent almost 162 days when accounting from the date when the judgment was delivered up to the date when they filed the present application which is beyond of 90 days the period of limitation of filing an appeal in this Court. Therefore, I seriously doubt if the applicants have managed to explain every day of delay. I hold so because the applicants have not attached even the copy of the said letter of requesting the requisite documents as alleged hence, failed to account for every day of delay. That this position is well emphasized by the Court of Appeal of Tanzania in the case of Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 03 of 2007, Court of Appeal of Tanzania (unreported) where the Court held that: "Delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing period within which certain steps have to be taken." From the above discussion and analysis, I find out that the applicants have failed to illustrate good cause that would entitle them extension of time as sought. Further this application is hereby dismissed with costs. It is so ordered. Date: 30/10/2020 Coram: D. B. Ndunguru, J 1st Applicant: Absent 2nd Applicant: Absent 3rd Applicant: Absent For the Applicants: Absent Respondent: Present B/C: M. Mihayo Court: Ruling delivered in the presence of the respondent and in the absence of the applicants D. B. NDUNGUR UUDGE 30/10/2020 Right of Appeal explained.