civil decision 2024 GEORGE HELMAN MASHAURI

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 000016016 OF 2024 GEORGE HELMAN MASHAURI .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MWIKWABE GIMASE NYABAHERE AND GM. BIGAS CO. LTD .............................. RESPONDENT / DEFENDANT RULING A. MATUMA, J, In the District Court of Nyamagana at Mwanza, the first Respondent herein Mwikwabe Gimase Nyabahere successfully sued the Applicant and the second Respondent for breach of contract. It was alleged that the Applicant obtained a total of Tshs. 114,230,000/= from the first Respondent to run his businesses in which the first respondent was made a partner so as to get 50% of the profit to be generated from the business. The first Respondent later complained that the applicant did not repay the loan nor gave him any profit as agreed. He thus sued the Applicant and his company now the second Respondent for breach of contract and successfully established his claim. The trial court on 30th August, 2019 entered its judgment in favour of the first Respondent and awarded him Tshs. 114,230,500/= as specific damages, General damages to the tune of Tshs. 15,000,000/=, interest of 12% per annum and costs of the suit. The Applicant did not appeal since then to date and he is now before me seeking extension of time within which he may appeal against such judgment and Decree. At the hearing of this application, Mr. Arsein Molland learned advocate appeared for the Applicant while Mr. Dioniz Lubango learned advocate appeared for the second Respondent. The first Respondent was absent without notice and thus this application proceeded for hearing in his absence. Mr. Arsein Molland arguing in support of this application submitted on a sole ground upon which extension of time is sought. This is illegality allegedly apparent on the face of records. He submitted that the proceedings of the trial court is tainted with illegalities because Exhibit P1 which was cleared and admitted in evidence was not read out before the court which is a legal requirement as it was held in the case of Redempta Nyaonge Faustine versus The Republic, Criminal Appeal no. 651 of 2020 at page 7. He Page. 1 insisted that failure to read the contents of the exhibit formed part of illegality. He also referred this court to the case of Attorney General Versus MICCO'S INTERNATIONAL (T) LTD and Another, Civil Application no. 495/16 of 2022 CAT. The learned advocate further argued that the impugned judgment did not specify as against whom among the two defendants it was pronounced. With those arguments, the learned advocate pressed for this application to be granted with costs. Mr. Dioniz Lubango supported this application on the same grounds advanced by the Applicant’s advocate. He only added that currently there is a pending application for execution in the District Court in which an order for arrest and detention as a Civil Prisoner against the Applicant is sought. He thus considered this application to have merits so as to do away with the impugned decision by way of appeal. Having heard the parties as herein above reflected, it is plainly true that the applicant did not attempt to account for even a single day of the delay as from 30/08/2019 when the impugned judgment was delivered up to 6th July, 2024 when this application was filed. That is a period of five years and almost three months. Instead, he has chosen to argue illegality as the sole ground for extension of time. The alleged illegalities are coached in two limbs; 1. That the contents of exhibit P1 which is a loan contract were not read after its admission. 2. That the impugned judgment does not specify as against whom among the two defendants now the Applicant and the second Respondent, the Judgment was pronounced. Starting with the first alleged illegality, I find it to have not been sufficiently established. The rationale for having the contents of a documentary exhibit to be read out is to enable the opponent party to understand the substance of evidence against him which is contained in the document. In the instant matter it is on record at page 16 that PW1 Mwikwabe Gimase Nyabahere explained the contents of such exhibit and it is him who tendered it in evidence. He explained that such contract was entered on 29/09/2018 before the lawyer for the money to be given in two installments. The first instalment was Tshs. 60,235,000/= and the second instalment was Tshs. 53, 995,000/=. The substance of the exhibit was thus sufficiently explained to enable the applicant to understand that such exhibit was intended to establish that he was given Tshs. 114,235,000/= which was advanced to him under two instalments. A mere missing of words like; “the contents of exhibit P1 is read over” does not vitiate the proceedings to constitute illegality sufficiently to warrant the extension of time provided that the substance of such exhibit was explained. I therefore do not find any illegality of sufficient importance on this claim to warrant extension of time. The second limb of the alleged illegalities is in my firm finding not an illegality within the meaning of illegalities as defined in the case of The Attorney General versus Micco’s International (T) LTD and Another supra in which the court of appeal held that illegality does not cover errors of either law or facts but material defects of procedure. If at all the impugned decision did not specify as against which defendant it was pronounced, that would be substantive errors in the decision itself and not procedural error. In that respect it is not illegality at all. Even though, the records are very clear that the defendants were one thing. The applicant was pleaded as Director and signatory of the second Respondent. The evidence to that effect was given and not contested. PW3 Charles Page. 2 Mwikwabe Gimase was an employee of the second Respondent GM Bigas CO. LTD and testified in court that the applicant was the owner of such company. In that respect, the applicant and the second respondent are technically different parties but substantially they are same and one person since it is the applicant who operates the second Respondent. That is why it is not even surprising that the second respondent supported this application and complained that the applicant is in danger of being detained as a Civil Prisoner if this application is not granted for the impugned decision to be challenged. I therefore, find that this ground is misplaced in this application because it is not an illegality at all to warrant the sought extension. Before I put down my pen, let me say something on the ground of illegality as a sufficient ground for extension of time. It has been a tendency of advocates and their clients in each application for extension of time to plead illegality against the judgment upon which extension of time is sought to be challenged. It has turned to be a fishing ground in every application of such nature and any appeal therefrom. The role of an applicant in an application for extension of time is to account for each day of the delay. Illegality is not a substitute of the duty to account for each day of the delay. It is not there either as a safeguard to those who have no any sufficient cause for the delay. Illegality as a ground for extension of time is not there for condoning sloppiness. The Court of Appeal in Lyamuya Construction Company Ltd V. Board of Registered Trustees of Young Womens Christian Association of Tanzania, Civil Application No. 2 of 2010 set the guidelines for factors to be considered by the Court in the exercise of its discretion to extend time or not. The guidelines are:- 1. The applicant must account for the all period of delay. 2. The delay must not be inordinate 3. The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intended to take. 4. If the court feels there are sufficient 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 ground of illegality is thus for the Superior court itself having observed it from the records of the lower court. It is not for the applicant to take it as his supporting weapon and prolong arguments on it as if it is an appeal argued as happened in this application. The role of Applicant is to account for the whole period of the delay. One should not therefore relax without appealing in time merely because he shall at any time come up and raise allegations of illegality to frustrate the findings of the lower court which has otherwise come to an end many years ago. In the instant matter for instance the matter ended five years ago and no action was taken by the applicant to challenge such decision. That is inordinate delay. The applicant has shown apathy, negligence and sloppiness which has been forbidden as per Lyamuya Construction supra. The applicant having been dragged in court for execution, it is when he tried to raise allegations of illegalities. That is an afterthought and an abuse of court process which cannot be allowed. The Court of appeal has in a number of cases warned that illegality is not always necessary to warrant extension of time. In the case of Star Media (Tanzania) Limited v. The Tanzania Revenue Authority, Civil Appeal No. 211 of Page. 3 2019 the Court of Appeal held; “We agree with the Tribunal that there was no illegality, and that in any event, not every time illegality is raised, it should entitle a party to extension of time.” Also, in the case of Tanzania Harbours Authority v. Mohamed R. Mohamed [2003] T. L.R. 76 it was held; “Admittedly, this Court has said in a number of decisions that time would be extended if there is an illegality to be rectified. However, this Court has not said that time must be extended in every situation. Each situation has to be looked at on its own merits.” Not only that but also in Jeremia Mugonya Eyembe v. Hamisi Selemani, Civil Application No. 440/08 of 2020 the Court of Appeal held; “However, for illegality to be the basis of the grant, it is now settled, it must be apparent on the face of the record and of significant importance to deserve the attention of the appellate court.” With the herein quotations from the court of appeal decisions, it is obvious that illegality is not a fishing ground for those who cannot account for each day of the delay by reasons of either sloppiness or laziness. In the instant matter the applicant stayed mute for five years and almost three months after the impugned decision. He has been triggered to come with this application just to frustrate the ongoing execution process. I cannot allow such a trend. I therefore find that this application has been brought without any sufficient cause. It is hereby dismissed in its entirety with costs. Dated at MWANZA ZONE this 5th of November 2024. A. . MATUMA, J JUDGE OF THE HIGH COURT Page. 4