20170602 TZHC Arusha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY ! AT ARUSHA MISC.CIVIL APPLICATION NO 223 OF 2016 '. I ( C/F High Court Civil application I'No 27 /2016, originating from District Court of Arusha at Arusha Civil case No 3 of 2015) I I EVA SIZYA Legal representative of the Estate I of the late INNOCENT GERVAS ....... ••..........•......•.• •••.•....•.. APPLICANT I VERSUS ; I MASESA MAFAJA MSHAURI ..... I. ............................... RESPONDENT I RULING Date of last Order: 17/05/2017 Date of Ruling: 02/06/2017 s. c. MOSHI, J. I This is a ruling following la Chamber Application made by the I applicant for an order of extension' of time within which the applicant may file notice to appeal to the Court! of Appeal of Tanzania. The application l was made under section 11(1) ofi the Appellate Jurisdiction Act Cap 141 (R.E. 2002). The application was support;ed by an affidavit of the applicant one I EVA SIZYA. The application was disposed of by the way of written I ' submission. In her written submission the applicant adopted her affidavit - 1 and submitted that the grounds of the present application is drowned from the supporting affidavit of the applicant in which the applicant prays for this court to extend time for her to file notice of appeal out of time after being aggrieved by the decision of the civil appeal No 5 of 2015. It was her submission that during the process of the appeal the applicant was engaged to one Mr. Theophil Apolinari Swai hence the preparation for wedding already started and she realjzed that the advocate should handle and prepare all the necessary documents for appeal. Unfortunately, she lost communication with her advocate she had no option but to proceed with her wedding. She said she is a legal representative of her late husband one innocent Gervas who passed away on 19th July, 2014. It was her submission further that, it is trite law that in order for the application for extension of time to be granted the party must disclose sufficient reasons for the delay. She referred this court to the case of Regional Manager, Tanroads Region Vs Ruaha Concrete Company Ltd CAT, Dar es salaam, Civil application No 96/2017 (unreported), She concluded that going through the material facts pleaded in her affidavit and records before this court the sufficient reasons for delay have been advanced by the applicant for this court to exercise its discretion and extend time. Opposing the application the respondent submitted that the applicant did not advance sufficient reasons for this court to extend the time as the reasons advanced by her is that she was engaged and was on her wedding preparation hence failed to communicate with her advocate as she lost the contacts. 2 It was the respondent's submission that, the applicant ought to have given account of each day delayed. The reasons that she failed to file the notice on time because of her wedding it is not sufficient for this court to exercise its discretionary power and extend time. The main issue for consideration and determination is whether or not good cause has been established; Black's Law Dictionary (Ninth edition) defines good cause as legally sufficient reason. The term good cause is a relative one and is dependent upon the prevailing circumstances of each case. There are no hard and fast rules to what constitute good cause. Section 11 (1) of the Appellate Jurisdiction Act (supra) provides thus "(1} Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal notwithstanding that the time for giving the notice or making the application has already expired." Section 11 (1) of the Appellate Jurisdiction Act (supra) confers the court with very wide discretionary powers to grant extension of time however it is upon the party to provide the relevant material in order for the court to exercise its discretion. See Ratnam Vs Cumarasamy (1964) 3 A II ER 933 Where it was stated thus 3 . ' 11 The rules of court must, prima facie be obeyed, and, in order to Justify a court extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conduct of litigation" In the case at hand, from the applicant's affidavit filed in support of the present application as well the written submission filed in this court by her advocate I have not seen any reason justifying the applicant's delay in timorously filing the notice of appeal to appeal to the Court of Appeal of Tanzania but rather a narration of how she was engaged and later married and how she lost communication with her lawyer. This lack of seriousness to pursue a matter whereby a person decides to move the court at his/ her own convenience cannot be entertained. Since the applicant has not shown any sufficient or good cause warranting the exercise of this Court's discretion in granting the extension of time as sought in the Chamber application, this application is hereby dismissed with costs. It is so ordered. s.c.~ JUDGE 02/06/2017 4