GERALD MUSSA NGONI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA PC. CIVIL APPEAL NO. 11 OF 2023 (Arising from Misc. Civii Application No. 83 o f2022 in the District Court of Dodoma at Dodoma; Originating from Civil Case No. 143 o f2022 in the Urban Primary Court at Dodoma) GERALD MUSSA NG'ONI.............................................. APPELLANT VERSUS UHUMA FINANCIAL SERVICES................................. RESPONDENT JUDGMENT 2 jd & 1stJune, 2024. MUSOKWA, J: Before the District Court of Dodoma, the appellant herein filed an application for extension of time to file an appeal against the decision of the Urban Primary Court at Dodoma (trial Court). The District Court found the application to be devoid of merit and the same was dismissed, hence the present appeal. In the trial Court, the respondent herein filed a suit against the appellant alleging breach of contract for the repayment of a loan facility. It is alleged that on 11th August 2021, the respondent advanced a loan of 1 I Pag e TZS 3,000,000/= to the appellant, to be repaid within thirty (30) days. The terms of the agreement provided that the total amount to be repaid would be TZS 3,600,000/= being the principal sum including the accrued interest. The respondent successfully instituted the suit at the trial court upon failure by the appellant to repay the loan amount, as agreed. In the hearing of this appeal which was premised on four (4) grounds of appeal, the appellant was represented by Mr. Robert Owino, learned counsel. The respondent was represented by the learned counsel, Mr. Sedrick Mbunda. Mr. Robert Owino, the learned counsel for the appellant prayed, and was allowed by this Court, to drop the 1st, 3rd and 4th grounds of appeal and remained with the 2nd ground of appeal only. Submitting in support of the sole ground of appeal, Mr. Robert Owino was brief but focused. Proceeding with his submission, the counsel for the appellant asserted that before the District Court, as reflected at page 14 of the typed proceedings, the appellant averred that he was faced with a family problem that resulted in his failure to file the appeal within time. In addition, the appellant, submitted before the District Court, that he was attending to his sister who was indisposed. Essentially, this was the reason which prevented him from lodging the appeal within the prescribed time. Mr. Owino emphasized that this was a valid reason, and that the District Court should have considered it accordingly. The counsel for the appellant prayed that this Court should consider the prayers in this appeal, explaining further that the delay was not the result of negligence on the part of the appellant. In reply, Mr. Mbunda, counsel for the respondent invited this Court to consider the general rule in an application for extension of time. Mr. Mbunda asserted that for the Court to grant an extension of time, the applicant must adduce sufficient reasons explaining the reasons for failure to file the appeal within the prescribed time. Contending further, the respondent's counsel argued that the reasons advanced by the appellant do not amount to sufficient reasons in the eyes of the law. Mr. Mbunda, submitted that the appellant failed to provide evidence before the District Court to substantiate his claims. For instance, no proof was supplied by the appellant to confirm the dates the sister was sick, or the hospital she was attending for medical treatment. 3 |P a g e According to the learned counsel, it was necessary for the appellant to provide medical records to support the application. Mr. Mbunda reiterated that failure to provide such evidence resulted in the denial by the District Court to extend time for the lodging of the appeal. Submitting further, Mr. Mbunda contended that the decision of the trial Court was issued on 13th September 2022, and was certified on the same date. However, the applicant filed the application for extension of time on 12th December, 2022. In emphasis, the counsel for the respondent restated that the applicant in the District Court, the appellant herein, was supposed to account for each day of delay but he failed to do so. Mr. Mbunda stated that the mere claim of the appellant that he was taking care of his ailing sister was not sufficient reason under the circumstances. Before this Court, the appellant still, has not provided the Court with the necessary details to explain the delay. In the circumstances, the respondent's counsel stated that the decision of the District Court was justifiable and should remain intact. Finally, Mr. Mbunda prayed for dismissal of the appeal with costs. In rejoinder, Mr. Owino, prayed to adopt his submission in chief and had nothing more to add. Upon careful scrutiny of the submissions by the parties and the court records, the issue for determination by this Court is whether or not the appeal has merits. To begin with, I wish to quote the Court of Appeal of Tanzania (CAT) holding in the case of Bashir Ally vs Anyegile Andendekisye Mwamaluka and two others Civil Appeal No. 49 of 2021 (unreported) as follows: - "We wish to point out at this juncture, that the iaw applicable in applications for extension o f time is so settled that in determining those applications, powers o f the court are broad exercisable with discretion of the presiding judge. Equally important to note is that it is a settled law that there is no universal definition o f what is good cause or sufficient ground as the bottom line for the grant o f such applications. It all depends on the obtaining circumstances o f each particular case and the material presented before the court, Equally, it is a trite iaw that in considering to granting an extension o f time among the factors to be considered are; the length and the reasons for delay", [emphasis added] Notably, the facts of the matter before me are brief. The decision of the trial Court was delivered on 13th September, 2022. Again, the certified copies of 5 |P a g e the judgment and decree of the trial Court were ready for collection on the same day, to wit, on 13th September, 2022. Section 20 (3) of the Magistrates' Courts Act, Cap. 11 R.E. 2019 provides that:- "Every appeal to a district court shall be by way o f petition and shall be filed in the district court within thirty days after the date o f the decision or order against which the appeal is brought". However, the appellant filed his application for extension of time before the trial Court on 12th December, 2022. Counting after the date of the decision of the trial Court, the subject of the current appeal, to the date of filing the application for extension of time, makes an aggregate of 90 days. Indeed, the law is clear that in an application for extension of time, the applicant must account for each day of the delay. For instance, the CAT, in the case of Elius Mwakalinga vs. Domina Kagaruka and 5 others. Civil Application No. 120/17 of 2018 (unreported) held that: - "...a delay of even a single day has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken"[emphasis added] 6 |P a g e Similarly, the requirement of the applicant to account for each day of delay was stressed in the case of Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 2 of 2007, Crispin Juma Juma Mkude vs. Republic, Criminal Appeal No. 34 of 2012, Sebastian Ndaula vs. Grace Rwamafa (Legal Representative of Joshua Rwamafa), Civil Application No. 4 of 2014 (all unreported). Thus, the applicant ought to have accounted for each of the 90 days of delay, from 14th September, 2022 to 12th December, 2022. Unfortunately, that was not done by the appellant, which was, obviously, to his detriment. According to the records and submissions before me, the appellant alleges that he was faced with a family problem that resulted in his failure to file the appeal within time. To be specific, the appellant submitted that he was attending his sister who was indisposed. However, the appellant failed to account for each day of delay or submit proof regarding the illness of his sister, if any. This challenge was also observed by the District Court which stated that: - "...in the circumstances o f this case at hand, the applicant has failed to account for each day o f delay and also failed to show that the failure to file an appeal within the prescribed time as per Rule 4 ofG.NNo. 312 o f 1964 (supra) 7 |P a g e was due to good cause and that it was not caused by tack o f diligence on his part...and in the affidavit submitted there is no any annexed document to support the argument by the applicant"[emphasis added] In that regard, I entirely agree with Mr. Mbunda learned counsel for the respondent that the appellant failed to advance sufficient reasons for the court to exercise its discretion for grant of extension of time. In the final result and for the foregoing reasons, the appeal is devoid of merits and it is accordingly dismissed with costs. It is so ordered. Right of appeal explained. DATED at DODOMA this 21st day of June, 2024. Ruling delivered in the presence of the appellant; and in the absence of the respondent.