Johari Rental Carsv Ltd vs William Kweka

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DISTRICT REGISTRY OF DODOMA AT DODOMA MISC. CIVIL APPLICATION NO. 4284 OF 2024 (Originating from judgment of the District Court of Dodoma at Dodoma in Civil Case No. 8 of 2023) JOHARI RENTAL CARS LTD.................................................. APPLICANT VERSUS WILLIAM KWEKA.............................................................RESPONDENT RULING Date of last Order: 11/7/2024 Date of the Ruling: 29/7/2024 KHALFAN, J. The applicant has filed the present application under section 14(1) of the Law of Limitation Act [Cap. 89 R.E 2019] (hereinafter referred to as the LLA), seeking for one substantive relief that this court be pleased to grant an extension of time for it to file an appeal out of time against the decision of the district court of Dodoma in Civil Case No. 8 of 2023 which was decided on 13/10/2023. The application is being supported by an affidavit sworn by Johari Mwamba, the applicant's director. On the other hand, the respondent filed a counter affidavit to contest the application. i This court ordered the application to be disposed of by way of written submissions. In its submission, the applicant urged the court to grant the reliefs sought since the deponent, namely, Mr. Johari Mwamba who is one of the directors, was not informed of the respondent's claim. He argued that the company had never convened any extra ordinary meeting and agreed on the respondent's claims. He therefore maintained that; the admission of the respondent's claims was made by one director only. It was further submitted that; the applicant was aware of the matter when the respondent was in the process of execution of the decree. It was argued by the applicant that the delay in filing the appeal was caused by inevitable circumstance and not negligence or intentional delay on the part of the applicant. In reply, the respondent argued that the applicant had not advanced strong reasons to convince the court to grant extension of time. He submitted that the applicant has not given an explanation as to why it did not appeal in time as it was at all material time present when the matter was filed up to the date the judgment was delivered. The respondent submitted further that it is a settled principle that, in the application for extension of time the applicant must show the reasons for the delay and account for each day of the delay. To buttress 2 his arguments the respondent referred to the case of Ally Salum Said (Administrator of the estate of the late Antar Said Kleb) vs. Idd Athumani Ndaki, Civil Application No. 450/17 of 2021 Court of Appeal of Tanzania at Dar es Salaam (unreported). The respondent therefore urged the court to dismiss the application with costs. Having gone through the parties' rival submissions and the record, the sole issue for my determination is whether the application has merits. This application has been preferred under section 14 (1) of the LLA. The said provision provides that: Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application. [Emphasis added]. From the foregoing provision, it is clear that before the court can exercise its discretion for extension of time, it is imperative for the applicant to show reasonable and sufficient cause. But the provision of 3 the law quoted above does not state what amounts to reasonable and sufficient cause. In the case of Osward Masatu Mwizarubi vs. Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010 (unreported) the Court of Appeal stated that: " What constitutes good cause cannot be laid down by any hard and fast rules. The term 'good cause' is a relative one and is dependent upon the party seeking extension of time to provide the relevant material in order to move the Court to exercise its discretion." It follows therefore that what constitutes good cause depends on the circumstance of each case. However, from decided cases, certain factors provide guidance on whether or not the applicant has shown good cause. Amongst the factors to be taken into account were succinctly stated in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported) as follows: "(a) The applicant must account for all the period for delay; (b) The delay should not be Inordinate; (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (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." In the instant application, the applicant intends to challenge the judgment on admission arising from Civil Case No. 8 of 2023. In that case, the respondent sued the applicant for payment of TZS 77,140,000/=. It is on record that upon filing the written statement of defence, the applicant admitted the respondent's claim at the sum of TZS 52,140,00/=. The trial court duly entered judgment on admission in favour of the respondent to the claim admitted by the applicant. The impugned judgment was delivered on 13/10/2023. Hence, if the applicant intended to appeal against it, it should have done so within 90 days from the date of the judgment. Thus, the appeal should have been filed on or before 11/1/2024. This application was filed in court on 4/3/2024. Therefore, counting from the last date the applicant was required to appeal to the date the instant application was filed, 53 days Lapsed. Accordingly, the applicant was required to advance not only sufficient reason but also accounting for each day of the delay. I have gone through the affidavit in support of the application, but I could not see any reason let alone sufficient reason for the delay. The applicant did not say anything which prevented it from filing the appeal, such as whether it was making follow up of the copy of the judgment or proceedings. In its submission, the applicant just claimed that the failure to file the appeal on time was caused by inevitable circumstance. However, the inevitable circumstance claimed by the applicant was not disclosed. I have however considered the arguments that the decision to admit the claim was made by one director in exclusion of the other director who is the deponent in the affidavit in support of the application. This presupposes that the deponent was not aware of the judgment until the respondent embarked on execution process. But the affidavit lacks important information as to when the deponent (Mr. Johari Mwamba) became aware of the impugned judgment and the steps taken immediately after becoming aware. This was vital piece of information to enable the court to gauge the extent of delay and if there was any reason for the delay. The affidavit in support of the application is also silent on what transpired on each day of the delay. As I have pointed out before, a total of 53 days lapsed. The applicant had a burden of accounting on each day of the delay. It is settled principle that, in application for extension of time the applicant is required to account for each day of the delay. Hence, the applicant was strictly required to account for each day of the delay. The need to account for each day of the delay has been restated in a number of cases. To mention but a few, Elifazi Nyatega and 3 Others vs. Caspian Mining Ltd, Civil Application No. 44/08 of 2017 and Moses Mchunguzi vs. Tanzania Cigarette Co. Ltd, Civil Application No. 531/4 of 2016 (both unreported). The applicant has not discharged its duty of accounting for each day of the delay as the affidavit in supporting of the application is conspicuously silent on what transpired on each day of the delay. Consequently, I find the application lacking in merits and the same is dismissed. In the circumstances, I will not make an order as to costs. Dated at Dodoma this 29th July 2024. F. R. KHALFAN JUDGE 29/7/2024 7