DICKSON EDITED 1

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 17247 OF 2024 (Arising from Civil Case No. 194 of 1999) HYDROX INDUSTRIAL SERVICES LIMITED……………….1ST APPLICANT DICKSON KASHURA…………………………..………………..2ND APPLICANT

VERSUS CRDB (1996) LIMITED……………………………………….... 1STRESPONDENT ANGELO PASTORY MUTA……………………………..……..….2NDRESPONDENT OLDONYOLENGAI AUCTION MART……………….…………...3RD RESPONDENT

RULING 7th & 18th November, 2024 MWANGA, J. In this application, this court is called upon to grant an extension of time to file a Notice of Appeal to appeal to the Court of Appeal of Tanzania against the Judgment and Decree of this Honorable Court (Muruke, J) dated 17th October 2011. The application is brought through chamber summons, preferred under section 11 (1) of the Appellate Jurisdiction Act. Grounds supporting the application are found in the affidavit duly sworn by Dickson Kashura, the applicant. 1 Gathered from the affidavit, it is stated that the 2nd applicant is one of the Directors of Hyrdox Industrial Services Ltd, the 1 stapplicant in this application, that sometime in June 1999, the applicants instituted Civil Case No. 194 of 1999 against the respondents for their unlawful attempt to sell the 1st applicant’s property on Plot No. 33 Tabata Industrial area under CT No.45667 which Certificate was also then held by the 1 st Respondent. The case was fully heard, and on 17 th October 2011, the judgment was delivered, and a decree was passed in favor of the 1st respondent, the 1st defendant in the suit. Aggrieved, the applicants decided to appeal to the Court of Appeal of Tanzania by lodging a Notice of Appeal and then writing a letter to request certified copies of the judgment, decree, and proceedings on 27th October 2011. It was further stated that, for more than

ten years, that is between 2011 and 2022, the applicants were busy following up to be supplied with copies of the requested documents until 2022, when they were supplied with the same together with a Certificate of Delay dated 18th February 2022 which enabled them to file Civil Appeal No. 140 of 2022 to the Court of Appeal on 19th April 2022. It was stated that when the matter was called for hearing on Friday, 12 th July 2024, it was struck out on a technical point of law on the same date. Applicant avers that, 2 since the appeal was not heard on merits and since the applicants are still aggrieved by the whole decision of this Honourable Court in Civil Case No. 194 of 1999, have been advised by Dr. Abdon Rwegasira, advocate from Law Care Chambers, to re-institute the appeal by filling a fresh notice of appeal and that since time for doing so has already passed, they have to file this application to request the Honorable Court for leave to file the Notice of Appeal out of the prescribed time. According to the applicant, the delay in filing the Notice of Appeal is not attributed to the applicant’s inaction, negligence, or recklessness. Still, it is a technical delay in nature in the first place. It is also attributed to the unfortunate situation at the instance of the former advocate who prepared and filed the record of appeal as he omitted to attach the 2 nd page of the letter

requesting copies of the judgment, decree, and proceedings, which should have indicated the status of service of the same to the respondents. Thus, the non-service of the letter caused the appeal to be struck out by the Court of Appeal on 12 th July 2024. The applicant stated further that, since the 13th and 14th of July 2024 were Saturday and Sunday, respectively, the Deputy Registrar of the Court of Appeal advised them to collect a copy of the Court of Appeal's ruling on Monday, 15th July 2024. On the same date, Monday, 15 th July 3 2024, they instructed Dr. Abdon Rwegasira, advocate, to proceed to prepare and lodge the application without any delay. Applicant averred that the intended appeal has an overwhelming chance of success since the decision which is intended to be appealed against is tainted with an illegality, which is that the mortgage of the 1st applicant’s property on Plot No. 33 Tabata Industrial is under CT No. 45667 was made illegally and without the authority of the 1 st applicant. It is for the reasons stated above that the applicant seeks this court for enlargement of time for filing the Notice of appeal to the Court of Appeal of Tanzania out of time, which, according to the applicant, was made bonafide and in the interest of justice as there exist sufficient reasons warranting for granting the same. The application met strong resistance from the 1

strespondent. The contention, as contained in the affidavit sworn by Pascal Thomas Mihayo, officer of the 1st respondent, is that the delay resulted from the negligence of the applicant’s former counsel, which in law cannot be grounds for extending time. When the matter was fixed for hearing, which took the form of a written submission, the applicant was represented by Mr. Abdon Rwegasira. At the same time, the respondent had a representation of Mr. 4 Mpale Kaba Mpoki, who was a learned counsel. In support of the application, Mr. Rwegasira repeated the factual background of the matter as explained in the affidavit and what bred the instant application. He then stated legal principles governing application for extension of time as described in different authorities, including the case of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 CAT at Arusha. Mr. Rwegasira further submitted reasons for the delay as explained in the affidavit clarifying that, as per Rule 83 (I) of the Court of Appeal Rules, 2019, the Notice of Appeal is supposed to be lodged within thirty (30) days from the date of the Judgment which is sought to be challenged in which, the applicants had lodged the first Notice of Appeal timely on 27th October 2011, which was ten days after the judgment, followed by

lodging of Civil Appeal No 140 of 2022, which was struck out on technicality on Friday 12th July 2024. After that, they looked for and obtained a copy of the Order of the Court of Appeal on Monday, 15th July 2024, and instructed the advocate to prepare and file this application, which was eventually signed on Tuesday, 16th July 2024, filed in Court on Wednesday 17th July 2024 and registered in Court on Thursday 18th July 2024. He believed that the delay is attributed to the time spent by the applicants in pursuing Civil Appeal No. 140 of 2022 and, 5 secondly, following the striking of the appeal, to the time taken to prepare and file this application. To him, this is what this Court and the Court of Appeal have always termed as technical delay and accurate or actual delay where the former automatically justifies the grant of an extension time while the latter has to be accounted for before an order for extension of time issues. He referred the Court to the case of The Director General LAPF Pensions Fund vs. Pascal Ngalo, Court of Appeal of Tanzania at Mwanza, Civil Application No. 76/08 of 2018, which cited with approval the earlier case of Salvant K. A, Rwegasira vs. China Henan International Group Co. LTD), civil reference no. 18 of 2006 (unreported) where the Court stated the principle that: "A distinction had to be drawn between cases involving real or actual delays and

those such as the present one, which dearly only involved technical delays in the sense that the original appeal was lodged in time but was incompetent for one or another reason and a fresh appeal had to be instituted in the present case the applicant had acted immediately after the pronouncement of the ruling of the Court striking out the first appeal. In these circumstances, an extension of time ought to be granted." 6 He implored the court to allow the application based on the above authority. He said the advocate worked on the draft application, which was completed on Tuesday, 16th July 2024. submitted in court on Wednesday, 17th July 2024, and admitted, then paid for and registered on Thursday, 18th July 2024. He took the view that the applicant had accounted for the delay period. He added that the delay of five calendar days, or three working days, could be more inordinate when considered in this case. Instead, the applicants, in this case, acted with the required or expected promptness. According to the counsel the intended appeal stands greater chances of success. success since the decision of the trial Court is based on illegality: the mortgage of the 1st Applicant’s property on Plot No. 33 Tabata Industrial area under CT. No. 45667 was made without the authority of the 1st applicant. In other words, the trial Judge decided the case in favor of the 1st Respondent but

in total violation of the principle of law that requires the affairs of the company to be carried under the authority of the company through a Board of Directors’ Resolution, which was never passed in this case to authorize whoever purported to mortgage the said property to the 1st Respondent. In conclusion, it was his submission that if the application is 7 granted, the Respondents, in this case, will not be prejudiced in any way because the 1st Respondent, who is an active participant in this application, will have the chance to be heard on the intended appeal. In contrast, the 2nd and 3rd Respondents have deliberately decided to waive their rights to be heard because they have decided not to participate in these proceedings despite being served by substitution. He finally prayed before this court that the application be granted. In rebuttal, Mr. Mpoki argued that the respondent agrees with the principles underlying the applicability of section 11 of the appellate jurisdiction Act Cap 141, as explained in different cases cited by Mr. Rwegasira. He contended that the said guidelines must be looked at together, not in isolation from other points, and the applicant must show that they exist. None of them ought to be left out. He argued that the courts have insisted that negligence of Counsel cannot be a reason for the extension of time. He said the reasons for the appeal to be

struck out, as can be seen on page 3 of the Order of the Court paragraph 2, is that the counsel conceded that the appellant's letter, which requested a certified copy of the High Court proceedings for appeal purposes was not served on the respondents as required by Rule 90(3) of the Rules”.To him, the same proves that the reason for striking out the 8 appeal was no other than negligence counsel by failure to serve the letter requesting a copy as per the Rule's requirements. To support his stance, he cited a plethora of authorities that propounds the principle that negligence of the counsel cannot be a ground for extension of time, including the case of Debora Masatu vs Phillipo Pail, Miscellaneous Land Application No 656 of 2021 (unreported) and Omari Ibrahim Vs. Ndege Commercial Services Misc—civil Application No 83 of 2020 [2021] TZCA 64. Based on the above authorities, he took the view that the counsel for the applicant's failure to serve a copy of the letter as per the requirements of the rules was a negligent act on the part of the counsel, which led to the striking out of the appeal. It was his submission, therefore, that the then-applicant's counsel needed to be more diligent in handling this matter. Submitting with regard to illegality, the view held by Mr.Mpoki was that the applicant has not been able to demonstrate in his affidavit or his submissions any illegality in

the proceedings and judgment subject to the appeal in the Court of Appeal, which would give him the benefit of extension of time. According to him, the point of illegality mentioned by the applicant under paragraph 10 of his affidavit cannot be grounds for 9 illegality for the court to extend the time to serve a notice of appeal. He relied on the Lyamuya Construction (supra) case, which explains what amounts to illegality. He was of the view that what has been raised in paragraph 10 of the applicant’s affidavit does not qualify to be an issue of illegality as no question of law apparent on the face of the record has been shown to exist, and also, no point of jurisdiction has been raised. Concerning being prejudiced, he said the Respondent will suffer more if the extension is granted as prayed because a decree holder is entitled to enjoy the fruits of his decree. He argued that it is now more than 13 years since the case was decided, a period in which the Respondent herein has not enjoyed the fruits; thus, granting of an extension of time will prejudice the Respondent to a great extent. Ultimately, he submitted that the applicant was not entitled to the reliefs sought. He thus implored the court to dismiss the application with costs. In a short rejoinder, Mr. Rwegasira contended that, in this application, the applicants must show good cause or sufficient reason as to why they

did not file the notice of appeal within the prescribed time, the duty which he asserts to have discharged. Concerning the submission by Mr. Mpoki that the applicant's counsel acted negligently, he submitted 10 that not every case of negligence or carelessness disqualifies an application for an extension of time from being granted by the court since the principle governing applications for an extension of time requires each case to be decided on its own merits depending on its peculiar circumstances. To bolster his position, he cited the cases of Zuberi Mussa v Shinyanga Town Council, Court of Appeal of Tanzania at Tabora, Civil Application No. 3 of 2007 Zuberi Mussa argued that the Court of Appeal refused to dismiss an application on a mere allegation of negligence of the applicant’s counsel. On the two cases cited by the 1st Respondent in support of her submission, he contended that the same is quite distinguishable from the facts of this case as in the Debora Masatu, as the applicant’s application was not granted because the applicant had failed to account for the delay in applying. Moreover, negligence was not pleaded in the application for an extension of time, but there was a lack of proper advice from the applicant’s counsel. Added that, in Omari R. Ibrahim, negligence was not connected to the defects in the record of appeal but to the failure of the applicant to account

for the length of delay, which was about nine months. He said this is not the case with the present application before the Court in which the applicants have accounted for 11 all days of delay. To him, the issue of negligence, as raised and argued by the 1st respondent in this case, does not hold water. He argued that illegality is not confined to the court’s jurisdiction alone when it comes to applications for an extension of time. Instead, it covers other matters, such as where the 2nd Respondent’s property is on Plot No. 33 Tabata Industrial area under CT. 45667 was mortgaged to the 1st respondent without the Board of Director’s resolution to authorize the mortgage. He took the view that this is an illegality which is apparent on the face of the record and which, therefore, does not need a long process of reasoning as the 1st respondent wants the court to believe. I have considered the affidavit, counter affidavit, and submissions supporting and against the application. The issue that requires this court's determination is whether the applicant has advanced good cause for the grant of an extension of time to file a notice to appeal to the court of appeal. Undisputedly, the powers of this Court to extend the time within which the application for extension of time can be filed as provided for under Section 11 of the Appellate Jurisdiction Act [Cap 141 R.E 2019] is

discretionary exercised upon the applicant demonstrating to the 12 satisfaction of this Court that the delay was occasioned by good cause. Conversely, it is also well settled that the sufficient cause sought depends on the deliberation of various factors, some of which revolve around the nature of actions taken by the applicant immediately before or after becoming aware that the delay is imminent or might occur. It is also significant to state that what constitutes sufficient cause has been widely covered in many court decisions. For instance, in the case of Lyamuya Construction Company Limited (supra), the Court of Appeal of Tanzania set out essential conditions constituting the applicant’s basis for the quest for an extension of time. These conditions are: “(a) The applicant must account for all the period of delay. (b) The delay should not be inordinate. The applicant must show diligence, not apathy, negligence, or sloppiness, in prosecuting the action he intends to take. (d) If the Court feels that there are other 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.” See also the cases of Regional Manager, Tanroads Kagera v. Ruaha Concrete Company Ltd, Civil Application No 96 of 2007 CAT at 13 Tanga (unreported) and Tanzania Coffee Board v. Rombo Millers Ltd, Civil Application

No 13 of 2015 (unreported) Further, in assigning reasons, the applicant must account for every day of delay, as stated in the case of Bushiri Hassan Vs. Latina Lukio, Mashayo, Civil Application No. 3 of 2007 (CAT-unreported) Exercising his duty, the applicant has advanced two reasons for the delay: illegality and technical delay. I wish to start with the issue of illegality, It is settled that illegality by itself suffices for an extension of time, and it does not matter whether the applicant has accounted for delayed days. This position was articulated in the case of VIP Engineering and Marketing Limited and Three Others Vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006 CA (Unreported) where the Court of Appeal patently stated: "It is, therefore, settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay”. 14 Nevertheless, it is also worth noting that the invocation of illegality as a ground is not without any condition precedent. The settled position is that the alleged illegality must be in moulid of sufficient importance and on the face of the record. If illegality is straightforward and would only be discovered with a long-drawn argument or

process, it fails the test or the threshold requisite for having it as a ground. This principle was adumbrated in the case of Lyamuya Construction Company Limited (supra) In the present application, the applicant alleges in paragraph 10 of the affidavit that the decision of the trial Court is based on illegality: the mortgage of the 1st Applicant’s property on Plot No. 33 Tabata Industrial area under CT. No. 45667 was made without the authority of the 1 st applicant. In my profound view, and being guided by the decision in the case of Lyamuya Construction Company Limited (supra), that point cannot be illegal on the face of record as the same is not on the face of records. Concerning technical delay, the applicant alleges that he filed Civil Appeal No 140 of 2022 on time. Still, the same was struck out on technicality on Friday, 12th July 2024, as the appellants' letter requesting a certified copy of the High Court proceedings for appeal purposes was not served to the 1st respondents as required by Rule 90(3) of the Rules”. 15 I believe this was negligence on the side of the then-applicant’s counsel. It is the law that the advocate’s negligence or ignorance of the law and lack of diligence on his part has never been a good cause for an extension of time. See the Tanga Hardware & Auto Parts Limited cases and 6 Others Vs. CRDB Bank Ltd, Civil Application No. 114 of 2005 and Omari

R. Ibrahim vs. Ndege Commercial Services LTD, (supra) However, as stated in the case of Zuberi Musa (supra), each case should be decided according to its circumstances. Since the applicant has been able to account for each day of delay, and since he has been very prompt in acting after his appeal was struck out, I believe he should not be punished for negligence acts or incompetence of the lawyers she believed to be legal practitioners. Thus, the applicant has advanced sufficient reason for this court to exercise discretion in granting the prayers sought in the chamber summons. In the upshot, I grant the application. I order that the applicant file the notice of appeal within fourteen (14) days from the date of this ruling. It is so ordered.

MWANGA J 16 JUDGE. 18/11/2024 COURT: The ruling was delivered at Dar es Salaam on 18 th November 2024 in the presence of Dr. Abdul Rwegasira for the applicant, who also held a brief of Adv—Mpale Moki for the Respondent.

MWANGA

JUDGE 18/11/2024 17