ephrahim gwaponile vs john lufegaadministrator of the estate of the late david lufega 2021 tzhc 6392 30 september 2021

IN THE HIGH COUR OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA MISC. CIVIL APPLICATION NO. 108 OF 2021 {Arising from the decision of the High Court of Mwanza at Mwanza. Original Civil Case No. 01/1996 of the District Court ofMagu) EPHRAHIM GWAPONILE .............................................................. APPLICANT versus JOHN LUFEGA (Administrator of the estate of the late David Lufega) k...................................... RESPONDENT RULING 15th & 30th September, 2021 RUMANYIKA, J:. With respect to the impugned decision of 25/02/2020 of Magu district court in Misc. Civil Application No. 01 of 2019, where, at the instance of Ephrahim Gwaponile (the applicant) the court was asked to order and compel John Lufega (the respondent) to pay shs. 11,501,063.60, with respect to judgment and decree in Civil Case No. 13B of 1996 cumulatively being the decretal interest accrued from 1995, having had appealed to this court (Ismail, J) but for some reasons his Appeal No. 14 of 2020, it appears without liberty to re file was withdrawn on 29/07/2020, yet the applicant's desire to appeal persisted, he now wanted to come back lately hence the i application for extension of time under S. 14(1) of the Law of Limitation Act Cap. 89 RE. 2019. When the application was, by way of audio teleconference called on 15/9/2021 for hearing the applicant had service of Mr. S. Kaijage learned counsel and the respondent appeared in person. I heard them through mobile numbers 0682 804 480 and 0756 810 448 respectively. In support of the application, one having had adopted contents of affidavit of Ephrahim Gwaponile, in a nutshell Mr. S. Kaijage learned counsel submitted that Appeal No. 14 of 2020 was within time filed but only for the wrong appellant's name then it was only for that reason with drawn hence the technical delay. That, thereafter the applicant fell sick between 30th July, 2020 - 21/08/2021 having had been admitted at Bugando hospital and he attended clinics until as late as November, 2021 sufficed the point Counsel further contended and he cited the case of Pimak Profefyonelmut fak Ltd Sirkati v. Pimak Tanzania Ltd Farha Abdulah Noor, Misc. Commercial Application No. 55 of 2018 He at Dar es Salaam (unreported). Two; that, due to illegalities namely typographical errors in the court order, the applicant withdrew the application for revision until late in the 2 day on 13/07/2021 when on that basis the court had rectified it. That pursuant to provisions of S. 19(2) of the Law of Limitation Act therefore, for the purposes of computation of limitation time the days he waited for the rectification be excluded. Three; that the impugned decision was tainted with illegality namely with respect to time bar the learned resident magistrate overruled his fellow and held that the application for execution was time barred suffices the point of illegality for extension of time (case of MB. Business Ltd v. Amos Kasanda & 2 Others, Civil Application No. 48/17 of 2018 (CA) unreported) that determination of the like applications courts need also to consider; (i) the reasons for delay (ii) the extent of the delay (iii) the likelihood of the parties suffering irreparable loss. That is all. On his part, having adopted contents of the counter affidavit the respondent submitted that without leave to re file it one having had withdrawn Appeal No. 14 of 2020 before Ismail, J on 29/07/2020 the instant application was not improperly before the court. That if anything, the applicant had leave only to re file the application for revision much as from the beginning he had service and well guided by the same S. Kaijage advocate. 3 The issue is whether the application is tenable under the circumstances. At least the parties are agreed that all began sometime after the district court had pronounced judgment in Civil Case No. 13B of 1996. In other words in that regard very unfortunately the parties had been occupied and busy on court corridors like it was life time business, say quarter a century ago. Wrongly or rightly, for the reason of time bar the lower court may have had dismissed the subsequent Misc. Civil Application No. 01 of 2019 for execution on 25/02/2020 yes, but the fact would remain that as he was not satisfied by the dismissal order, and, it appears without delay or fail he instituted Civil Appeal No. 14 of 2021, like it was, precisely so in my considered opinion argued by the respondent, the applicant withdrew it on 29/07/2021 in no express terms without liberty to re file it the reason for withdrawal reads:- ... Execution of the trial court decree which was refused and bred this appeal is no longer required. I realized this fact when I had already filed the appeal... 4 Essentially the point is not whether the applicant has assigned a sufficient ground for extension of time but whether, for some reason upon withdrawing the appeal the applicant had a room back for appeal purpose. I think the answer is no because the long established principle had been that litigation should not be endless. Unless, by a court order one applied to, and he withdrew the matter with liberty to re file it, like it happened here the applicant should not have just as of right come to court otherwise it tantamount to an abuse of the court process in disguise. Unless, which is not the case here, the withdrawal order was! not real, it was fraudulently or mistakenly procured etc. It is very unfortunate that the application was admitted in the first place. The cut place application is dismissed with costs. It is so ordered. Right of appeal explained. 7 S.M. RUMANYXKA 27/09/2921 The ruling delivered under my hand and seal of the court in chambers this 30/09/2021 in the ab nee of the parties. 5