felician kuyela

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 8064 OF 2023 (Arising from the Kinondoni District Court in Civil Revision No.46 of 2021) BETWEEN FELICIAN EDWARD KUYELA................................................. APPLICANT VERSUS LODHIA STEEL INDUSTRIES LTD..................................... RESPONDENT RULING 4th Sept. & 23rd Oct.,2024 DYANSOBERA, J.: The applicant has filed this application under section 25 (1) (b) of the Magistrates' Court Act, [Cap 11 R.E 2019], (hereinafter referred to as the MCA), seeking enlargement of time for him to file an appeal against the judgment and decree of the Kinondoni District Court at Kinondoni in Civil Revision No. 46 of 2021. This application is supported by an affidavit sworn by Felician Edward Kuyela. The respondent lodged counter affidavit contesting the application. The brief facts according to the record are the following. The applicant filed Civil Case No.203 of 2020 at Sinza Primary Court. The suit was heard ex-parte and judgement was entered in applicant's favor on 29/06/2020. The cause of action of the claim arose from the contract the applicant had i with the respondent for the supply and sell of square pipe hardware. The applicant paid the respondent Tshs 26,000,000/= by depositing into the bank account of the respondent. The respondent, it is said, did not discharge his part of the contract despite constant reminder and follow­ ups by the applicant. The applicant commenced civil proceeding against the respondent at Sinza Primary Court which at the end of trial entered judgment in favour of the applicant and ordered respondent to pay the applicant Tshs 26,000,000/= as specific damages and Tshs 54,000,000/= as general damages. Aggrieved, the respondent lodged Civil Revision No. 46 of 2021 in Kinondoni District Court, whereby the learned Resident Magistrate quashed and set aside the ex-parte judgment and decree respectively on account of being tainted with irregularities and ordered the suit be heard afresh. The applicant thought that the decision flew into his face. He filed Civil Revision No.8 of 2024 in this court. Fortunate was not on his side as the revision was struck out for being in competent, hence this application. The application was canvassed by way of written submissions. Mr. Emmanuel Julius Mashamba, learned advocate, represented the applicant while Mr. Andrew Mathew Chima, also learned advocate, acted for the respondent. Submitting in support of the application Mr. Mashamba argued the applicant was all the times in court corridor pursuing his application for revision via Miscellaneous Civil Application No.8 of 2023. It is the counsel's further argument that the applicant spent almost 360 days prosecuting the matter but which was later on struck out on 25th March 2024 for being incompetent. Counsel pleaded that the applicant was not negligent in filing the appeal out of time. He also added that since the application was struck 2 out on technical ground and not on negligence, the applicant cannot be denied of his right in so far as he had a genuine justification to have time extended. To support his argument, counsel for the applicant placed reliance on the case of Antony John Kazembe v. Intertek Testing Services (Ea) (Pty) Ltd, Misc Application No. 71 of 2022, High Court of Tanzania (Unreported). He also cited the case of Bank M (Tanzania) Limited Vs. Enock Mtwakyusa, Court of Appeal of Tanzania, Civil Application No 520/18 of 2017 (Unreported). Further, he submitted further that when Revision No.8 of 2023 was struck out for being incompetent, the applicant acted promptly by filing this application on 5th April,2024, the very date he obtained the copy of the ruling. In his view, the applicant accounted for each day of delay and he was not idle but prompt on pursuing his right. To bolster his argument, counsel called in aid to the case of Johan Harald Ciirlster Abramson v. Exim Bank (T) Limited and 3 Others, Civil Application No. 224/16 of 2018, Court of Appeal of Tanzania, Page 8 (Unreported). Regarding to the issue of illegality, counsel for the applicant contented that Civil Case No. 203 of 2020 at the Primary Court of Sinza/Manzese was decided on the 29th day of June, 2020 and the impugned Civil Revision No. 46 of 2021 was filed before the District Court of Kinondoni at Kinondoni on the 16th October, 2021, this was after Sixteen (16) months from the termination of the proceedings in Civil Case No. 203 of 2020 at the Primary Court of Sinza/Manzese. Hence it was time barred. Relying on Section 22 (4) of the Magistrates' Courts Act, [Cap 11 R.E 2019], counsel for the applicant pointed out that the District Court of Kinondoni lacked jurisdiction to entertain Civil Revision No. 46 of 2021 due to time bar which is a jurisdictional issue. 3 With this submission, counsel for the applicant prayed the application to be granted with costs and time be extended. In reply, Mr. Chima, opposing the application contended that the applicant has failed to adduce sufficient reason to warrant this court grant the application. It was his argument that the applicant exhibited negligence and inaction in filing an application for revision instead of appeal. He argued that the applicant had enough time to file appeal but the same opted to file a revision which was struck out for being incompetent. To support his argument, he referred the case of Bahati Ngowi v. Paul Aidan Ulungi, Misc Civil Application No 490/13 of 2020 and the case of Paul Martin v Bertha Anderson, Civil Application No 7 of 2005. Counsel for the respondent further submitted that the applicant has not accounted for entire period of 21 days. That failure by the applicant herein to account for 21 days' delay and spending 360 days in court corridors pursing incompetent case implies that there is no good cause for the delay to warrant extension of time. Continuing his submission, counsel for the respondent asserted that, apart from failure to account for each and every day delayed, the delay of 21 days is very inordinate and no any reason whatsoever has been advanced by the applicant explaining what they were doing for all those days. This court was urged to dismiss this application with costs. In his rejoinder, counsel for the applicant reiterated his submission in chief. I have considered the trial court's record, the submissions made by counsel for the parties and the cited authorities. I agree with counsel for the respondent that, the applicant is supposed to account for each day of delay. In the case of Bushiri Hassan Vs. Latifa Lukio Mashayo Civil Appeal No. 3 of 2007(unreported) where the court had this to say: "Delay of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps has to be taken." The decision of the district court which is subject to this application was delivered on 22nd February,2024. After the decision of the district court the applicant filed application for revision which was struck out for being incompetent on 25.3.2024 and the instant application was filed on 5th April 2024. Looking at the steps taken by the applicant after the application for revision was struck out, it is without doubt that he acted promptly and diligently. After his application revision was struck out for being incompetent, within 10 days he filed the instant application. I am satisfied that not only the applicant has advanced sufficient reason for the delay but has also managed to account for each day of delay. Another reason advanced by the applicant is that the decision sought to be challenged is tainted with illegality. He alleged that the revision filed in the district court was time barred as the law require the revision to the district court to be filed within 12 months. It is settled law that a claim of illegality of the challenged decision constitutes sufficient cause for the extension of time regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for delay. This was so held in the case of VIP Engineering and Marketing Limited and Three Others v. Citibank Tanzania 5 Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006 CA (unreported) thus: 'It is, therefore; settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay." Looking at the records it shows that Civil Case No.203 of 2020 at the Primary court was decided on 29th June,2020, and the impugned Civil Revision was filed on 16th October,2021 after the 16 months which is contrary to the law. It is provided under Section 22(4) of the Magistrates' Courts Act [Cap. 11 R.E.2019] thus: 'No proceedings shall be revised under this section after the expiration of twelve months from the termination of such proceedings in the primary court and no proceedings shall be further revised under this section in respect of any matter arising thereon which has previously been the subject of a revisionai order under this section Going by the above provision, it my firm but considered opinion that the alleged illegality seems to cause injustice if not addressed to by the court. Such illegality requires intervention and consideration of the court so that there is no miscarriage of justice occasioned. It has been held by the Court in Principal Secretary of Defence and National Service v. Devram Valambhia [1992] TLR 185 and VIP Engineering and Marketing Limited and 3 Others v. Citibank Tanzania Limited, Consolidated Civil Reference No.6, 7 and 8 of 2006 (Unreported), that 6 illegality may constitute sufficient cause for court to exercise its discretion and extend time as prayed. From the above exposition, I am satisfied that the applicant has advanced sufficient reasons for the court to exercise its discretion in his favour. The application is, accordingly, granted and time for the applicant to appeal to this court is extended. The applicant shall file his appeal within thirty (30) days from the date of this ruling. Costs of this application shall abide^he outcome of the intended appeal. It is so ordered. W.P. Dyfinsobera JUDGE 23. 10.2024 This ruling is delivered under my hand and the seal of this Court on this 23rd day of October, 2024 in the presence of Mr. Emmanuel Julisu Mashamba, learned counsel for the appellant and Mr. Andrew Chima, learned advocate for the respondent. /C? W.P. Dyansobera x JUDGE 7