Joseph Sikuku Tsaxarra v Julius Sabas Tsaxarra

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI MISCELLANEOUS CIVIL APPLICATION NO. 15374 OF 2024 (Arising from Civil Appeal No. 6 of2023 in the District Court ofHanang') JOSEPH SIKUKU TSAXARRA........................................................ APPLICANT VERSUS JULIUS SABAS TSAXARRA...................................................... RESPONDENT RULING 28th October and 7th November 2024 MIRINDO, J.: The applicant, Joseph Sikuku Tsaxarra, has been to different courts in a civil action against Julius Sabas Tsaxarra. He has been to Katesh Primary Court, Hanang District Court and the High Court of Tanzania Manyara. Nevertheless, his appeal to the High Court in (PC) Civil Appeal 9028 of 2024 was dismiised by the High Court (Kahyoza, J.) for being out of time. Joseph Sikuku Tsaxarra has now filed an application for extension of time to lodge his appeal out of time. His application was argued by Mr. Joseph Masanja and Mr. Joseph Mniko, learned advocates and Mr. Julius Sabas Tsaxarra was represented by Mr. Festo Jackson, learned advocate. Mr. Masanja adopted the affidavit sworn by the applicant and argued that the failure to file an appeal within time was due to the delay in obtaining copies of the proceedings and internet instability. Mr. Mniko added that the application for extension of time has been promptly filed in this Court. On the other hand, Mr. 1 Jackson stated that the applicant has failed to account for days of delay as there are ten days of delay remain unaccounted for. At the conclusion of counsel submissions this Court directed counsel to address it on the legal status of a subsequent application for extension of time to appeal after the purported appeal was declared time-barred. Mr. Masanja stated that the ruling of Kahyoza J directs that the applicant may apply for extension of time and the appeal before the court was dismissed. Mr. Festo left it to the Court to decide. This question has been considered in various cases including Hashim Madongo and Two Others v Minister for Industry and Trade and Two Others, Civil Appeal 27 of 2003 (unreported), East African Development Bank v Blueline Enterprises Ltd, Civil Appeal 101 of 2009 (unreported), MM Worldwide Trading Company Limited and Others v National Bank of Commerce Limited (Civil Appeal 258 of 2017) [2021] TZCA 192 and Anderson Mwankusye v Martine Ndunguru (Miscellaneous Land Application 119 of 2020) [2022] TZHC 10530. I had the occasion to consider these authorities in some detail in Charles Gidanyesh v Hanot Gidamurjang and another (Miscellaneous Civil Application No. 26 of 2023) [2024] TZHC 388. Suffice it to say that in the leading case of East African Development Bank the Court of Appeal held that once an appeal is declared to be time-barred, the issue of time limitation is thereby decided and the aggrieved party is entitled to review in same court or a remedy in a higher court but is barred from bringing a file a fresh application for extension of time: 2 ...it follows that once an order of dismissal is made under section 3 (1) it is not open to an aggrieved party to go back to the same court and institute an application for extension of time. The remedy is to seek review before the same court or to lodge an appeal or a revision before a higher court. The rationale is simple. That is, as far as the court is concerned the issue of time limitation has been determined. So, a party cannot go back to the same court on the same issue.... It follows that, after the order of dismissal was made by Mandia, J. on 22/6/2007 it was not open to the appellant to go back to the same court and institute the application for extension of time before Sheikh J. In short, the application before Sheikh, J. was res judicata. In the instant case, the issue of limitation of time has already been determined by this Court (Kahyoza, J) on 24 June 2024 in (PC) Civil Appeal No. 9028 of 2024. It follows that the that the present application is res judicata and is hereby dismissed with costs. DATED at BABATI this 7th day of November 2024 F.M. MIRINDO JUDGE COURT: Ruling delivered in chambers this 7th day of November 2024 in the presence of the applicant in person and in the absence of the respondent. Right of appeal explained F.M. MIRINDO JUDGE 3