hawa mashaka maftah as administratrix of the estates of the late mashaka maftah mwinyihami vs mtani mashaka maftah another 2022 tzhc 11274 29 july 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA DISTRICT REGISTRY) AT IRINGA MISCELLENEOUS LAND APPLICATION NO. 25 OF 2021 (Originating from DC Civil Appeal No. 05 of 2008) HAWA MASHAKA MAFTAH (As the Administrator of the Estate of the Late MASHAKA MAFTAH MWINYIHAMI) APPLICANT VERSUS 1, MTAMI MASHAKA MAFTAH RESPONDENTS 2. FADHILI MFILINGE(As the Administrator of the Estate of the Late MODESTUS MFILINGE) RULING Date of Last Order: 21/06/2022 & Date of Ruling: 29/07/2022 S.M. KALUNDE.3.: The present application has a rather chequered history. To appreciate the nature of the present application, I find it apt to narrate It, albeit briefly, as I could assemble from the records. It goes like this: being aggrieved by the decision of this Court (Hon. Shangali, 3) dated lO"' October, 2014 In DC-Civil Appeai No. 05 of 2008, on 17^ October, 2014 the applicant, HAWA MASHAKA MAFTAH In her capacity as the Administrator of the estate of the late Mashaka Maftah MwlnylhamI who passed on 24'^ October, 1985, through the services of Mwamglga Advocate, lodged a Notice of Appeai. Subsequently, the applicant prepared a Memorandum of Appeai which was filed before the Court of Appeai on 13'*^ October, 2016 and registered as Civil Appeal No. 11 of 2017. On the 30'^ May, 2018 when the appeal was called In for hearing the learned counsel for the applicant the late Mr. KIngwe informed the Court that he had noticed that the Notice of Appeal did not comply with Rule 83 of the Tanzania Court of Appeal Rules, 2009. For that reason, he prayed that the matter be struck out. Following that prayer, the Court(Mkuye,3.A.) struck out the appeal for being accompanied by a defective Notice of Appeal. Undeterred, and still eager to prosecute the appeal and being out of time seven months later on 15''^ January, 2019 the applicant lodged, before this Court, an application for extension of time to file a Notice of Appeal out of time. The application was registered as Misc. Civil Application No. 33 of 2018. On 28'^ August, 2020, this Court (Hon. Matogolo, 3) granted the application and ordered the Notice of Appeal to be lodged within ten (10) days. In compliance with order of the Court, seven days later on 04'^ September, 2020, the applicant filed Notice of Appeal. Armed with the Notice, on 25'^ September, 2020, in terms of section 5(l)(c) of the Appellate Jurisdiction Act [Cap. 141. R.E. 2019], the applicant filed Misc. Civil Application No. 40 of 2020 requesting for leave to appeal to the Court of Appeal against the decision of this Court in DC-Civil Appeal No. 05 of 2008. Unbeknown to the applicant, the application had been filed out of time, as a result on 26^^ August, 2021 this Court (Hon. Miyambina, 3) struck out the application for being time barred. The applicant has now approached this Court this time seeking an extension of time within which to lodge an application for leave to appeal to the Court of Appeal against the decision of this Court in 2 DC-Civil Appeai No. 05 of 2008. The application has been preferred by a chamber summons under section 11(1) of CAP. 141. R.E. 2019 and supported by the affidavit dully sworn by Mr. Alfred Thomas Kingwe, learned counsel for the applicant. At the outset, and for obvious reasons, the 1^ respondent conceded to the application. On his part, the respondent objected the application through a counter affidavit sworn by Mr. Edmund Mkwata, iearned advocate. The application was argued by way of written submissions. Unrepresented the applicant prepared and fiied her submissions, whiist those of the respondent were prepared and filed by learned counsel Mr. Edmund Mkwata. Submissions were dully filed as scheduled by the court hence the present ruling. I wish to point out that I took a iiberty to reproduce the above background in detail because, in his affidavit and submissions, the applicant contends that there is a technical delay. To support that the applicant argued that there was no negligent on her part in the prosecution of the appeal. In support of that position, the applicant cited the case of Fortunatus Masha vs. William Shija and Another [1997] TLR 154. In addition to that the appiicant alleged that the Court was partly to blame for delay for falling to supply her with copies of an order In Misc. Civil Application No. 33 of 2018. For that the applicant cited the case of Felix Tumbo Kissima vs Tanzania Tele- Communication Co Ltd & Another 1997 TLR 57 (TZCA). In response Mr. Mkwata argued that the applicant was negligent in the prosecution of the appeai. He argued that on the 15"^ January, 2019 when the applicant lodged Misc. Civil Application No. 33 of 2018 extension of time to file a Notice of Appeal out of time she should have filed another application for extension of time to file an application for leave. He argued that being represented by an experienced and abled counsel Mr. Kingwe the applicant lodged Misc. Civil Application No. 40 of 2020 requesting for leave in utter disregard of the period of limitation and without leave of the Court leading to its dismissal on 26^^ August, 2021. In his view the applicant could have lodged the two applications simultaneously. In conclusion the counsel argued that the applicant had failed to account for each day of the delay to warrant the grant of the application. In his view the applicant has been applying delaying tactics in denying his client to enjoy the benefits earned since 2001. He, therefore, prayed the application be dismissed with costs. In discussing the present application, I propose to start by examining the provisions of section 11(1) of the Appellate Jurisdiction Act (supra) which the present application is based. The respective section reads: "ll.'(l) 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 ofintention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an appiication for ieave to appeai or for a certificate that the case is a fit case for appeai, notwithstanding that the time for giving the notice or making the appiication has aiready expired. [Emphasis is mine] My reading of the above section leads me to a conclusion that it is in the discretion of this Court to grant or refuse an application for extension of time. However, like any other discretionary powers of the court, this power has to be exercised judiciously according to the rules of reasoning and justice, and not according to private opinion. Applications of the present nature are grantable upon demonstration of "good or sufficient cause". Whilst there is consensus that it might be difficult to define what constitute "good or sufficient cause", through decisions, courts have developed principles for consideration in determining whether there is "good or sufficient cause". They include looking into: (a) whether the applicant has accounted for all the period of delay; (b) whether the delay is inordinate; (c) whether the applicant has exhibited diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and lastly (d) where the court feels that there are 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. Guided by the above principles I will now proceed to determine the application. Admittedly, the position of law is that filing of an incompetent application, or an appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh application or appeal should be considered as a technical delay hence excluded in computation of the limitation period. I need not list the supporting authorities for this, for the list is long. Suffice to note that, in the present case the records demonstrate that the impugned decision was 10''" October, 2014 immediately thereafter on 17"^ October, 2014 the applicant, lodged a Notice of Appeal. I am not informed whether the applicant lodged an application for leave to appeal to the Court of Appeal. However, It is on record that two years later on 13'*^ October, 2016 the applicant lodged Civil Appeal No. 11 of 2017 which was subsequently struck out on the 30'^ May, 2018 for being accompanied by a defective Notice of Appeal. Having considered the records, I am satisfied that the period between 10"^ October, 2014 to 30"^ May, 2018 when Civil Appeal No. 11 of 2017 was struck out is covered by what is now known as a technical delay. For that matter that period cannot be considered in determining the timeous of the appeal. The same Is excluded from the delay period. That notwithstanding, I do not think the applicant has been able to explain away the delay period. I agree with Mr. Mkwata that through his affidavit and submissions, the applicant has failed to explain why she did not file an application for extension of time to file an application for leave, immediately, after Civil Appeal No. 11 of 2017 was struck. There is no dispute that seven (7) months later on 15'^ January, 2019 the applicant lodged Misc. Civil Application No. 33 of 2018, before this Court, seeking to extend time to file a Notice of Appeal out of time. Again, as was rightly argued by Mr. Mkwata, there is no explanation why the applicant did not file an application for extension of time file an application for leave alongside the application for extension time to file a Notice of Appeal. As if that was not enough, even after Misc. Civil Application No. 33 of 2018 was granted, the applicant did not hassle to lodge an application for extension of time to file an application for leave, instead he straightaway proceeded to file Misc. Civil Application No. 40 of 2020 seeking for leave to appeal to the Court of Appeal in utter disregard of the period of limitation and without leave of the Court. It was until Misc. Civil Application No. 40 of 2020 was struck out that the applicant realized that the law required her to lodge an application for extension of time. All this time she was being and the abled hands of the learned advocate the late Mr. Alfred Thomas Kingwe. However, it would appear that both the applicant and the counsel were either ignorant on the position of law or failed to correctly check the requirement of the law; or otherwise, they were being negligent. Unfortunately, neither of the above is a good ground for extension of time. See AM Vuai AM vs. Suwedi Mzee Suwedi, Civil Application No. 1 of 2006; Bariki Israel vs. The Republic, Criminal Application No. 4 of 2011 -; Charles Machota Salugi vs. The Republic, Criminal Application No. 3 of 2011; Ngao Godwin Losero vs. Julius Mwarabu, Civil Application No. 10 of 2015; Wambele Mtumwa Shahame vs Mohamed Hamis (Civil Reference No.8 of 2016)[2018] TZCA 39;(06 August 2018 TANZLII); and most recently in Farlda F. Mbarak & Another vs Domina Kagaruki & Others (Civil Reference 14 of 2019) [2021] TZCA 600 (20 October 2021 TANZLII)(all unreported). In Ngao Godwin Losero vs. Julius Mwarabu (supra) the Court of Appeal held that: "As has been held times out ofnumber;ignorance of law has never featured as a good cause for extension of time (see, for instance, the unreported ARS. Criminal Application No. 4 of 2011 - Bariki Israel vs. The Republic; and MZA. Criminal Application No. 3of2011 - Charles Salugi vs. The Republic.)" Equally, in H, Muhimbira & 2 Others vs. John K. Mwanguku, Civil Application No. 13 of 2005 (unreported), the Court of Appeal sitting at Mbeya observed that: "As inaction, laxity and or negligence on the part of the counsel does not constitute reason for extending time, I am not persuaded to grant the application sought On the other hand, even If It accepted that the applicants themselves did not know the law the correct legal position to follow. It is It Is trite principle that Ignorance of legal procedure would also not constitute sufficient reason for extending time." In dealing with the complaint that the Court was to blame for the delay in filing the application, I have gone through the records and failed to connect the dots how delay in being supplied with the decision in Misc. Civil Application No. 33 of 2018 delayed the applicant in filing the present application since the year 2018 when her appeal to the Court of Appeal was struck out. Afterali, Misc. Civil Application No. 33 of 2018 was granted and the applicant lodged the Notice on time. I have read between the lines and found nothing in her affidavit or submissions to Illustrate how she could not file the present application because of failure In being supplied with the said decision. Neither did she present any materials showing that she requested the same on time or that there was delay in being supplied with the same. This argument is also baseless, and the same is dismissed. Considering the circumstances in the present case cumulatively, I am satisfied that: First, that the delay in seeking extension of time in which to appiy for leave to appeal out of time for a period of over three (3) years is inordinate. Second, that the applicant and her counsel were responsible for the delay due to their inaction and/or lack of diligence. Third, that the applicant has failed to establish that there are any other special circumstances that would otherwise warrant the application to be granted. That said, it is my finding that, the appiicant has failed to meet the conditions sufficient to warrant the court's exercise of its discretionary powers to grant the application. For the forgoing reasons, I am satisfied that the applicant has failed to demonstrate "good or sufficient cause" warranting the exercise of my discretion in granting the application. That said, it is my finding that this appiication is devoid of merits, and I hereby proceed to dismiss the same. Given the nature of the matter I find it to be fair that parties share the costs. It is so ordered. DATED at IRINGA this 29^^ day of JULY, 2022. .'KALUNDE JUDGE 9