Fidelis Kigodi vs The Board of Trustees Usokami Parish

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA AT IRINGA MISCELLENEOUS CIVIL APPLICATION NO. 09 OF 2023 (Arising from Civil Appeal No. 05 of 2021) FIDELIS KIGODI..... ........................ ............ .............. ...... .......... ... APPLICANT VERSUS THE BOARD OF THE REGISTERED TRUSTEE OF THE ROMAN CATHOLIC CHURCH USOKAMI PARISH IRINGA DIOCESE ........... ..... RESPONDENT RULING 05/11/2024 & 02/12/2024. S.M. KALUNDE, J.: The issue in this application is whether the applicant, Fidelis Kigodi, has advanced "good cause" within the: meaning envisaged under section 11(1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] (the "AJA") for this court to extend time for the applicant to lodge , to the Court of Appeal, a notice of appeal out of time against the decision of this court dated 07th day of December 2021, in DC- Civil Appeal No. 05 of 2021. The brief factual background to the matter is that before the District Court of Mufindi, the applicant lodged Civil Case NO:. 02 of 201'9 against the respondent. In the suit at the trial court, the applicant alleged that the respondent breached a contract for the supply of bricks. He thus prayed for payment of TZS. 8,000,000 being the value of bricks supplied; TZS. 2,000,000 in compensation for disturbance; general damages as may be assessed by the court and costs of the suit. After a full trial, the applicant's suit was dismissed for want of merits. Through DC-Civil Appeal No. 05 of 2Q21, the applicant unsuccessfully appealed to this court. Still aggrieved, the applicant wishes to approach the Court of Appeal on a second appeal. However, he is out of time to lodge a notice of appeal hence the present application. The instant application has been preferred by way of a chamber summons made under section 11(1) of AJA. The application is also supported by an affidavit duly sworn by the applicant. The respondent resisted the application by lodging a counter affidavit dully sworn by Francisco Msofu, principal officer of the respondent. TO argue the application, the applicant engaged the services of Mr. Leonard Lazaro Sweke, learned Advocate, whilst the respondent had the services of learned counsel Ms. Mgaya. In support of the application, Mr. Sweke argued that the impugned decision was delivered on the 07th day of December 2021, and the applicant was supplied with copies of the impugned decision on the 20th day of December 2021. The counsel added that on the same day, the applicant suffered gastric illness and got admitted at Saint Theresa Health Centre, at Wenda, Iringa Region for medical treatment. He was discharged on the 29th day of December 2021. However, he did not completely recover. Consequently, he decided to seek medical services from a traditional healer, one Shimba Sallu Bucheyeki. He obtained treatment from the said traditional healer until around the 19th day of June 2023, He was discharged and on the 20th day of June 2023, he realized that he was out of time and hence the present application. Mr. Sweke argued that the delay in lodging the notice of appeal was not the applicants' own fault but rather due to his sickness. To 2 support his argument, the learned counsel cited the case of Fortunatus Masha vs William Shija and Another [1997] T.LR 94; Mumello vs Bank of Tanzania [2006] T.L.R 154; and Kalunga and Company Advocates vs National Bank of Commerce Ltd 2006] T.L.R 235. Finally, the learned counsel submitted that the applicant has managed to advance "good cause" for this court to grant the orders for extension of time to lodge a notice of appeal out of time. He prayed that the application be granted. Replying to the above submissions, Ms. Mgaya argued that in terms of rule 83(3) of the Court of Appeal Rules, 2009, the notice of appeal was supposed to be filed within thirty days from the date of delivery of the impugned decision. She added that the present application was filed after about one year and six months from the date of delivery of the decision sought to be challenged. Ms. Mgaya submitted further that, in accordance with rule 10 of the Rules, this court has discretion to extend time upon demonstration of "good cause". Relying in the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) TanzLII, Ms. Mgaya argued that for the present application to succeed the applicant must account for all the period of delay; show that the delay is not inordinate; show diligence, and not apathy, negligence or sloppiness in the prosecution of the action; and demonstrate any other reasons such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. The learned counsel submitted further that, in the instant application, the applicant has failed to account for each day of the delay. To support his argument Ms. Mgaya cited the case of and 3 Wambele Mtumwa Shahame vs Mohamed Hamis (Civil Reference No.8 of 2016) [2018] TZCA39; (06 August 2018) TanzUI. The learned counsel argued further that the medical chits appended by the applicant were not worthy of consideration as they did not meet a threshold for being considered legitimate. She also argued that the affidavit of the traditional healer did not provide any details of the applicant's medical treatment. Commenting on the applicant's laxity, Ms. Mgaya argued that the applicant was not being truthful because on the 27th day of March 2023 the applicant entered appearance in Execution Application No. 01 of 2023 which was pending at Mufindi District Court in Mafinga. The learned counsel contended that it was implausible for the applicant to appear in an execution application in March 2023 and fail to file an application for extension of time during that period and wait until around June 2023. In view of that, Ms. Mgaya argued that, in the application under consideration, the applicant has failed to demonstrate good cause. She prayed that the application be dismissed with costs. In his rejoinder, Mr. Sweke contended that the period of delay must be reckoned from the 5fi1 day of January 2022 when the thirty days expired and not from the 07th day of December 2021 when the decision was made. Regarding appearance in Execution Application No. 01 of 2023, Mr. Sweke conceded that on the 27th day of March 2023 the applicant entered appearance in the said application. However, the learned counsel maintained that even with the said appearance, the applicant was still sick. The learned counsel insisted that the applicant has demonstrated "good cause" sufficient for the court to exercise its discretion in granting the orders sought. He thus prayed that the application be granted. 4 I have dispassionately considered and weighed the rival arguments advanced by both parties. To begin With, it is instructive to reiterate, as a matter of general principle, that whether to grant or refuse an application like the one at hand is entirely in the discretion of the Court, This discretion is also provided under section 11(1) of the AJA to which this application is based. The said section provides that: - "11.-(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." [Emphasis is mine] I am also mindful that any judicial discretion is the exercise of judgment by a judge or court based on what is fair, under the circumstances and guided by the rules and principles of law the Court must demonstrate, however briefly, how that discretion has been exercised to reach the decision it takes. See MZA RTC Trading Company Limited vs Export Trading Company Limited (Civil Application No. 12 of 2015) [2016] TZCA 12 (27 October 2016) TanzLII. As for the reasons to be considered before exercising the discretion under section 11(1) of the AJA, case law has established that there must be sufficient materials before the court for it to consider whether the applicant has accounted for the delay. For this 5 reasons/ all relevant factors must be taken into account including the length of the delay, the reason for the delay, whether the applicant has accounted for each day of the delay, whether the applicant was diligent in the prosecution of the action and whether there are any other reasons such as the existence of a point of law of sufficient importance. See Mbogo vs Shah [1968] EA; Lyamuya Construction (supra) and Ngao Godwin Losero vs Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 37 (18 October 2016) TanzLIL In the case under consideration, the applicant attributes the delay in lodging the notice of appeal to his sickness. He alleges that upon delivery of the: impugned decision, and before he could process the appeal, he fell sick. As a result, he was admitted for medical treatment at Saint Theresa Health Centre, Wehda, Iringa Region. For ease of reference paragraphs 3, 4 and 5 of the flanking affidavits are reproduced hereunder: "3. That, after the delivery of the impugned judgment herein, I was disgruntled with the said decision but on 20™ day of December, 2021 while on the process of appealing to the court of appeal of Tanzania sustained some gastric illness; and from the impugned date I was attending medical treatment at Saint Theresa Center (WENDA IRINGA) to 29™ day of November 2022 (copies of medical report are annexed hereto marked with a letter "B" collectively to which I will crave leave of this Honourable Court to refer as this Affidavit). 4. That through I was discharged on 29th day of November, 2022 the predicament was not resolved a hundred percent; and in the same period of time I decided to attend medical checkup to a tribunal magician one Shimba Sallu Bucheyeki (A copy of his annexed hereto marked with a letter "C" 6 to which I will crave leave of this Honourable Court to refer as part of a ffidavit) 5. That, on 19® day ofJune 2023 I managed to get a recovery; and on 20th day of June 2023, I realized that my time to lodge a notice of appeal to the court of Appeal of Tanzania has elapsed, hence the gist of this Application." As pointed out from the above paragraphs, the applicant's main contention in this application is that he failed to process the application due to sickness, It is common knowledge that in our jurisdiction sickness has come to be accepted as a "good cause" for grant of extension of time. Inspiration for this may be derived from the decision of the Court of Appeal in the case of Director Ruhonge Enterprises vs January Lichinga, Civil Application No 1 of 2006 and John David Kashekya vs The Attorney General, Civil Application No. 1 of 2012 (all unreported). In the case of Melchiad Peter Kimaro & Another vs Riziki Samuel (Civil Application No. 257/05 of 2023) [2023] TZCA 17691 (3 October 2023) TanzLII, the Court relied in its previous decision in the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021) TanzLII to hold that: "Z am in the total agreement with Ms. Erick that, for sickness to be a ground for extension of time, it has to be the sole cause for the delay." It is also trite that for sickness to amount to good cause, an applicant must demonstrate before the court that sickness, and sickness only, is the reason which prohibited him from taking the necessary actions to prosecute the matter. For this, the Court of 7 Appeal in the case of Hawa Issa Nchirya vs Ramadhani Iddi Nchirya And 2 Others (Civil Application No. 27 of 2021) [2021] TZCA450 (7 September 2021) TanzLII, stated: "Admittedly, the medical report; annexure HAWA 7 to the affidavit shows that the applicant was to attend medical clinic at OPD on monthly basis and physiotherapy on daily basis. Bed that as it may, it is not indicated for how long was the applicant required to attend physiotherapy just as it is not clear from the affidavit when did the physiotherapy end. Under the circumstances, it cannot be said with any degree of certitude whether the delay in instituting the appeal was wholly attributable to the applicant’s illness and her admission in a hospital for one week." [Emphasis is mine] In the instant case, there is no dispute that the impugned decision was delivered on the 07th day of December 2021 and copies were supplied to both parties. In accordance with rule 83(2) of the Court of Appeal Rules the notice of appeal was supposed to be lodged within thirty days from the date of the decision sought to be challenged. Computed from the 08th day of December 2021, the thirty days window provided for under rule 83(2) expired on the 6th day of January 2022. In his affidavit, as quoted above, the applicant did not provide any explanation on what transpired between the 08th day of December 2021, to the 20th day of December 2021 when he allegedly fell sick. He contended further that he was discharged on the 29th day of December 2021. However, the medical chits appended to the affidavit paint a different picture. The first discharge summary form shows that on the 20th day of December 2021 the applicant was admitted at Saint Theresa Health Centre, at Wenda, Iringa Region 8 and discharged from the hospital on the 17th day of April 2022. The second discharge summary form indicates that the applicant was readmitted on the 16th day of May 2022. This time he was discharged two months later on the 29th day of June 2022. The third and final discharge summary form demonstrates that the applicant was readmitted for a third time on the 24th day of August 2022 and discharged on the 29th day of November 2022. Next, I shall consider whether, from the above set of facts, the applicant has accounted for each day of the delay and thus has demonstrated "good cause." See Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 2 of 2007 (unreported). In the case at hand, I hasten to say that I agree with Ms. Mgaya that the applicant has miserably failed to account for each day of the delay. First, as I have pointed out above it is clear from the affidavit that the applicant did not account for the period between the 08th day of December 2021, when the clock of limitation started to run to the 20th day of December 2021 when he allegedly got sick. Secondly, the affidavit and appended medical chits show that the applicant is deceitful. In his affidavit, at paragraph 3, the applicant alleges that he was admitted on the 20th day of December 2021 and got discharged on the 29th day of December 2021. However, the appended medical chits shows that he was discharged from the hospital on the 17th day of April 2022. Thirdly, even assuming without deciding that the applicant was indeed sick, he has also failed to explain why he did hot take the requisite action each time he was discharged. For example, the applicant failed to account for 29 days between the 17th day of April 2022 when he was first discharged to the 16th day of May 2022 when he was readmitted for the second time. Additionally, the medical chits 9 show that the applicant was discharged for the second time on the 29th day of June 2022. He stayed out of hospital for 55 days before his third re-admission on the 24th of August 2022. Yet the affidavit filed in support of the application did not provide any explanation why the applicant did not take any action during the entire period of almost two months. The failure by the applicant to take the necessary action in the first 29 days and thereafter for the next 55 days is a clear indication of negligence, sloppiness, and laziness on the part of the applicant. It is trite that for the extension of time to be granted a full detailed and accurate account of the delay's causes and its effects must be furnished to enable the Court to clearly understand the reasons and assess their responsibility. For this see Ludger Bemad Nypni vs National Housing Corporation (Civil Appl No.372/01 of 2018) [2019] TZCA 154; (06 May 2019) TANZLII. In the instant case, the applicant failed to provide a detailed and accurate account of what transpired. As such, there is no material before the court for it to ascertain the applicant's responsibility. Fourthly, even if it was true that the applicant was sick, he has failed to establish that illness contributed to the delay in lodging the notice of appeal. In the case of Hawa Issa Nchirya vs Ramadhani Iddi Nchirya And 2 Others (supra) the Court stated: "In Juto Ally vs Lukas Komba & Another, Civil Application No. 484/17 of 2017 (unreported), the applicant had delayed in serving copies of the notice of appeal on the respondents together with a letter to the Registrar to be supplied with requisite copies for the purpose of the intended appeal. Like in the instant application, the applicant attributed her delay to sickness. Rejecting that assertion, the Court stated that where the applicant's delay is due to illness, she must show how that illness io contributed to the delay as opposed to a general statement as it were. In a subsequent decision in Sabena Technics Limited vs Michael J. Luwungu, Civil Application No. 451/18 of 2020 citing Juto Ally, the Court reiterated its stance holding that to amount to a. good cause for the delay, there must be evidence that sickness had a bearing on the delay." [Emphasis is mine] In the present case, the applicant failed to provide evidence that sickness had: a bearing on the delay in lodging the notice of appeal. All that he did in the affidavit was to show that he was admitted to hospital on several occasions and got discharged. However, he did not provide any explanations or materials to convince the court that sickness resulted in failure to take the necessary actions. Fifthly, the counsel for the applicant conceded that in on the 27th day of March 2023 the applicant entered appearance in Execution Application No. 01 of 2023 which intended to execute the impugned decision. However, according to the affidavit of the traditional healer, the applicant attended his services from the 29tfl day of November 2023 to the 19th day of June 2023. Again, the sworn statement tells an unashamed lie because it is implausible that the applicant was seriously sick and admitted at the traditional healer while at the same time entering appearance before a court to prosecute an application for execution. Yet he failed to: file the present application for almost three months from March to June 2023. At any rate, the sworn statement of the traditional healer is thus of no value given that the period from the 08th day of December 2021 remains unaccounted for by the applicant. From the records and submissions, it is clear that the applicant failed to not only account for the reasons to file the notice within the ii prescribed 30 days' time limit provided by law but also failed to account for the reasons to lodge the application for extension of time for a period of almost 500 days (about 1 and a half years). It was stated in Melchiad Peter Kimaro & Another vs Riziki Samuel (supra) that for sickness to be a ground for extension of time, it must be the sole cause for the delay. In the instant case, even if it was to be accepted that the applicant was sick. Sickness was not the only reason for the delay, the applicant in this case was excessively negligent and sloppy in prosecution of the case even when he recovered. In the end, I am not persuaded that sickness was the reason for the applicants' failure to lodge the notice of appeal on time. To that end, I must conclude that the applicant has not demonstrated any "good cause" that would entitle him extension of time to lodge the notice of appeal out of time. In the result, this application fails and is, accordingly, dismissed with costs. It is so ordered. DATED at IRINGA this 02nd day of DECEMBER, 2024. JUDGE 12