fatuma mohamed vs chausiku selema 2022 tzca 805 8 december 2022

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA CIVIL APPLICATION NO. 228/08 OF 2022 FATUMA MOHAMED ..... ...... .................. ........... APPLICANT

VERSUS CHAUSIKU SELEM A......... ..... .......... ................ RESPONDENT (Application for extension of time to lodge a notice of appeal from the Judgment and Decree of the High Court of Tanzania Mwanza District Registry) fHon. Ebrahim, J. Dated 8th day of April, 2016 in Land Case No. 13 of 2012

RULING 2nd & 7th December, 2022 MAIGE J.A.: Under rules 10 and 45 A (1) (a) of the Tanzania Court of Appeal, 2009 (the Rules), the applicant applies for an extension of time to lodge a notice of appeal from the Judgment and Decree of the High Court of Tanzania at Mwanza (Ebrahim, J). The application comes as a second bite after a similar application has been dismissed by the High Court. In accordance with the notice of motion, the application is premised on two grounds. First, the applicant delayed to file the notice because of good cause. Two, the decision sought to be appealed against is tainted with illegalities, irregularities and improprieties. The factual substantiation of the grounds have been deposed in the affidavit of the applicant which i supports the motion. However, the respondent has deposed an affidavit in reply to rebut some of the facts in the affidavit. At the hearing, the applicant appeared in person without representation whereas Mr. Deocles Rutahindurwa, learned advocate appeared for the respondent. When I invited her to address the Gourt on the application, the applicant fully adopted her written submissions in support of the application with no further comments. Mr. Rutahindurwa followed the same approach with some few clarifications. I have duly considered the rival submissions in line with the affidavit and the affidavit in reply. I will hereinafter

consider the merit or otherwise of the same. In her written submissions, the applicant attacks paragraphs 4,5 and 8 of the affidavit in reply to be defective in so far as they contain legal conclusions by way of inference. This, she submits, offends the rules on affidavit which prohibit an affidavit to contain extraneous matters by way of legal conclusion. In rebuttal, Mr. Rutahindurwa while criticizing the applicant for raising a preliminary objection by way of written submissions, he does not agree with her that the respective paragraphs consist of legal conclusions. In any event, submits the counsel, even if the whole affidavit in reply was to be struck out, yet the respondent would be entitled to challenge the application by way of submissions. I have casted a glance over the respective factual depositions in the respondent's affidavit in reply. On the face of them, they would appear to contain some legal conclusions inferred from the facts therein pleaded. Strictly speaking, that is not permitted both in pleadings and affidavits. In practice however, they are sometimes used for the purpose of clarity and courts have been flexible and thus tolerable where the same do not result into failure of justice or embarrassment to the adverse party. I am inspired on this by the following commentary of the learned author Mogha, in his Moaha's Law of Pleadings in India. 15th

Edition: "But, w hile the stric t rule o fpleadings requires that such le g a l inferences need not be pleaded, s till som etim es in addition to the facts which are clearly pleaded, the inference is also pleaded, either fo r the sake o fclearness o r fo r con venience, as that som etim es m akes the statem ents o f facts m ore in te llig ib le and shows th eir connection w ith each other. This has been tolerated even in England, as such pleading is , a t most, unnecessary and does not affect o r in any way em barrass the other party. For exam ple, in a su it on hypothecation bond, if the defendant pleads that the bond was not attested by two w itnesses, an d does n o t therefore am ount to a m ortgage, the la tte r pleading m ay strictly be against rules, ye t it m ay be tolerated", (page 24) In addition, the learned Professor Bernard C. Gavit in his article entitled "LegalConclusions"pub\\s\\ex\ in Indiana Law Journal. Vol.9, Issue 2,1933, article 2, commenting on the relevancy of using liberal approach in determining whether a statement is factual or a legal conclusion stated: "There is necessarily much latitude involved in the decision of the question as to whether o r not a given w ord o r phrase is a leg al conclusion o r an operative fa ct and does o r does not give su fficien t notice. What the common m eaning o f the w ord is som etim es a poin t which reasonable men m

ay reasonably d iffe r" (page 126 thereof) Indeed, the commentaries herein above, are in line with the principle of Overriding Objective under rule 3A(1) of the Rules which require courts of law in dispensation of justice to give precedence to substantive justice over procedural technicalities. In view of the foregoing discussion, therefore, I am satisfied that the inferences made in the respondent's affidavit in reply much as they neither lead to failure of justice nor embarrassment to the applicant, can be tolerated without affecting the substantial validity of the affidavit. It is on that account that I will overrule the objection. This now takes me to the substance of the application. As the law requires, the issue which I have to consider is whether good cause has been established. Certainly, what amounts to good cause is not defined in the Rules. Nonetheless, case law provides some criteria relevant in determining its existence or non-existence . As for instance, in Henry Muyanga v. Tanzania Communication Company Ltd, BK Civil Application No. 8 of 2014 (unreported), it was held: "77?e discretion o f the Court to extend tim e under Ruie 10 is unfettered, but it has aiso been held that, in considering an application under the ruie, the Court m ay take into consideration, such factors as, the length o f the delay, the reason fo r the delay, the chance o f success o f the

intended appeal, and the degree o f prejudice that the respondent may suffer if the application is granted" A similar view was stated in R. v. Yona Kaponda & Others [1985] T.L.R. 84 in the following wards: "... as I understand it/ ''sufficient reasons " here does not refer only, and is not confined to delay. Rather, it is su fficien t reasons fo r extending tim e, and fo r th is I have to take into account also the decision intended to be appealed against, the surrounding circum stances, and the w eight and im plications o f the issue o r issues involved." The decision of the High Court the subject of the intended appeal was pronounced on 2nd May, 2016. The initial application for extension of time at the High Court was lodged on 2nd day of May, 2019. There is an interval of three years in between. The period from 2nd May, 2016 to 8th day of April, 2019 is justified on prosecution of Civil Appeal No. 225 of 2017 which was, on 2nd day of April, 2019, struck out for being incompetent. These facts are pleaded in paragraphs 1-7 of the affidavit and have not been denied in the affidavit in reply. As the incompetent appeal was timely filed and there being no claim of negligence in prosecuting the same, it was, in view of the authority in William Shija vs. Fortunatus Masha, [1997] T.L.R. 213 a mere excusable technical delay. Without much ado, I hold, in the circumstance that, the

period between the pronouncement of the judgment to 7th May, 2019 when the initial application at the High Court was filed has been justified. The period between 10th April, 2019 to 18th April, 2019 has been justified on account that, the applicant was preparing and compiling the initial application. As a matter of common sense, 8 days is a reasonable period for preparation of a second bite application. I thus accept the applicant's justification for the said period. I now remain with the 14 days period between 18th April, 2019 to 2nd May, 2019. In the affidavit, the applicant associates the delay with the court's admission and registration process. In paragraphs 10, 11,12 and 13 of the affidavit, she claims to have presented the documents for filing on 18th day of April, 2019 and which were endorsed by a court clerk to that effect. Despite her several follows up, she deposes, it was not until on 2nd May, 2019 when she was informed that the admission process was complete. That, when she was supplied with the documents, she noted that, by correction fluid, the date for receipt in the rubber stamp had been altered to read 2nd day of May, 2019. On enquiry, it is in her affidavit, she was notified that the change was made so as to reflect the correct date when the admission process came into completion. She went on deposing that, she could not make payment of filing fees on the

same day because the control number was not available due to network problem. She was able to procure the control number on 7th day of May, 2019 and on the same day she paid the filling fees and completed the filing process. The applicant submits, correctly in our view that, in accordance with paragraphs 4,5 and 8 of the affidavit in reply, the said claim has not been seriously denied. The affidavit in support of the application, I have noted, was signed on 17th April, 2019 and attested on 18th April, 2019. This would support the applicant's claim that, she presented the application for admission on 19th April, 2019. There being no specific denial in the affidavit in reply of the claim, I find no justification why I should not believe it. I have also considered the fact that the applicant is unrepresentative layperson. Since I have accepted the factual justification for the delay, I shall not consider the second ground as to illegality. In the upshot and for the reasons as afore stated, I find the application with merit. It is accordingly granted with costs. The notice of appeal should be filed within 30 days from the date hereof. Ordered accordingly. DATED at MWANZA this 5th day of December, 2022. I. J. MAIGE

JUSTICE OF APPEAL The Judgment delivered on 2nd day of December, 2022 in the presence of the Fatuma Mohamed, applicant present in person and Ms. Chausiku Selema, respondent present in person, is hereby certified as a true copy of the original. C.

DEPUTY REGISTRAR

COUTY OF APPEAL 8