hafife said vs dotto j ndagala and another 2022 tzhc 15568 15 december 2022

IN THE HIGH COURT OF TANZANIA

IN THE DISTRICT REGISTRY OF DAR ES SALAAM

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 522 OF 2017 (Arising from Civil Appeal No. 88 of 2016 Ilala District Court, Origin Probate and Administration Cause No. 3 of 2016 Ilala Primary Court) HAFIFE SAID …..….……………………………………….. APPLICANT

VERSUS DOTTO J. NDAGALA …………..…………...….……1ST RESPONDENT BABUALLY S. NDAGALA …………….……..………2ND RESPONDENT

RULING 19/08/2021 & 15/12/2022. S.M. KULITA, J. This is an application for extension of time to appeal before this court against the decision of Ilala District Court in Civil Appeal No. 88 of 2016, delivered on 27th April, 2017. The application originates from the Probate and Administration Cause No. 3 of 2016 Ilala Primary Court. It has been made under the provisions of Section 14(1) of the Law of Limitation Act [Cap. 1 89 RE 2002] and section 95 of the Civil Procedure Code [Cap 33 RE 2002]. It is supported with an affidavit affirmed by Hafife Said, the Applicant on the 17th day of July, 2017. In a nutshell, information as can be gathered from the pleadings and submissions provides that, having been aggrieved with the decision of the trial Primary Court in the valuation and distribution of the estate of the late Juma Omary Ndagala, the Applicant herein, HAFIFE SAID lodged the Civil Appeal No. 88 of 2016 at Ilala District Court unsuccessfully. Further aggrieved but having been out of time to lodge the appeal at High Court, the Applicant preferred this application seeking for leave to file appeal out of time. The matter was argued by way of written submissions. The Applicant is represented by the Leaned Counsel E.N. Massawe, from Masera Massawe Advocate while the Respondents enjoy the legal service of Mr. Tazan Keneth Mwaiteleke, Advocate from Eloquent Law Attorneys. In his

written submission in support of the application, Advocate for the Applicant, Massawe stated that the contention of appeal based on the distribution of the deceased’s estates. He said that in the division of the 2 estates the trial court and the District Court were wrong for the total disregard of the deceased’s will in determining the matter. He also submitted that the trial court was wrong to rely on the valuation report which had never been shown to the Applicant who is the deceased’s wife. As for the issue of delay to lodge the appeal in time which is a core subject matter of the application, the Applicant’s Counsel submitted that it was caused by change of Magistrates and later on Judges in courts. That was the end of the submission by the Applicant’s Counsel, Mr. Massawe. In the reply thereto, Advocate for the Respondent, Mr. Tazan Keneth Mwaiteleke vehemently disputed the applicants submission by stating that the judgment at the District Court was delivered on 27/04/2017, meaning thereby the appeal at the High Court was to be lodged by 27/05/2017 which was the 30th day from the date that the impugned judgment was delivered. He said that the prescribed period for lodging appeal according to Section 25(1)(b) of the Magistrates’ Courts Act [Cap 11 RE 2002] is 30 (thirty) days. The counsel further submitted that from 27/04/2017 when the judgment was delivered by the District

Court to 24/08/2017 when this 3 application was lodged at High Court, a period that had passed was 116 days. He said that the applicant has not accounted for this inordinate delay of 116 days which is equivalent to almost four months period. Further arguing on the reasons for delay, Mr. Mwaiteleke submitted that the Applicant has not advanced sufficient reasons for this court to grant the application. It was just stated in the Applicant’s affidavit that the reason for delay was the change of Advocates without any explanation as to how the same led to the occurrence of the said delay. Mr. Mwaiteleke further argued that, apart from giving that reason in the affidavit, the Applicant also stated in her submission that the cause of delay was the change of Judges and Magistrates. On that, Mr. Mwaitebele was of the opinion that the Applicant is uncertain as to what caused the delay. The counsel concluded by praying for the application to be dismissed with costs for having no merit. In the rejoinder, the Applicant’s counsel reiterated what he had stated in the submission in chief. 4 From the submissions that have been adduced, as well as the pleadings available, the issue to be determined is whether the applicant has submitted sufficient causes for the application to be granted. It is common in law that an order for extension of time may be granted by the Court in the exercise of its

discretionary powers. I wish to follow the reasoning of the Court of Appeal in the case of Yusufu Same and Another V. Hadija Yusufu, Civil Appeal No. 1 of 2002 CAT at DSM (http.//tanzlii.orgJ) in which the court stated; “It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it. This discretion however has to be exercised judiciously, and the overriding consideration is that there must be sufficient cause for so doing” What amounts to “sufficient cause” has not been defined, but, in granting the application a number of factors have to be taken into account, including whether the application has been brought promptly, valid explanation for the delay, diligence on the part of the applicant or any other ground that amounts to sufficient cause. Moreover, for the extension of time to be granted or not, it also depend on the circumstances of each case. 5 Generally, there is no precise definition of what amounts to reasonable cause, however, I am in consensus view with what was stated in the case of FELIX TUMBO KISSIMA V. TANZANIA TELE-COMMUNICATION CO. LTD. AND ANOTHER [1997] TLR 57 (CA) where the court observed that; “It should be observed that ‘sufficient cause’ should not be interpreted narrowly but should be given a wide interpretation to encompass all the reasons or cause which are outside the applicant's power to

control or influence, resulting in delay in taking any necessary steps” In the application at hand, the main reason for the prayer of extension of time to file appeal are found in paragraph 5 of the applicant's affidavit. According to it the reason is the change of Advocate by the Applicant. However, the Applicant never provided any explanation as to why she changed the Advocate, and how that led to the said delay. Worse enough, contrary to what she had deponed in her affidavit, the applicant stated in her submission that the cause of delay is the change of Judges and Magistrates in her case. Apart from the fact that the Applicant gives a different story as compared to what she had affirmed in her affidavit, 6 the Applicant also failed to clarify on the said changes of Judges and Magistrates in the Civil Appeal No. 88 of 2016 Ilala District Court. Further, the Applicant never stated in the affidavit nor in the submission as to how the purported change of Judges and/or Magistrates, if real happened, prevented her from filing the appeal within the prescribed time. Be it noted that, the Applicant’s act of submitting different story, contrary to what she had deponed in her affidavit, implies that the applicant lies somewhere, either in the submission or in the affidavit. The affidavit being a substitute to oral evidence, what the applicant has done amounts to the application having

no legal weight. In that sense, the said affidavit is likewise incompetent, hence should be expunged and I so order. This was also held in a case of MABETE MASELE V. MASENGWA LIFA, Misc. Civil Application No. 19 of 2021, High Court at Shinyanga (unreported). In upshot I find the application with no merit, hence dismissed. As the same involves family matters, I grant no order as to costs. 7 S.M. KULITA

JUDGE 15/12/2022 8