CIV

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR CIVIL APPLICATION NO. 153/15 OF 2021 KATIBU MTENDAJI KAMISHENI YA WAKFU NA MALI YA AMANA ZANZIBAR (Akisimamiwa na HIMIDI RAMADHAN MKUYA Msimamizi wa mali za marehemu MWAJUMA AHMADA MZEE) ......... APPLICANT VERSUS 1. HADIA AHMADA MZEE 2. AHMADA MZEE AHMADA RESPONDENTS 3. KAMISHENI YA WAQFU NA MALI YA AMANA ZANZIBAR (Application for extension of time to lodge notice of appeal out of time against the decision of the High Court of Zanzibar at Vuga) (Makunqu, C. 30 dated the 24th day of March, 2015 in Civil Case No. 30 of 2012 RULING 22nd April, & 2nd May, 2024 MLAC HA, J.A.: The applicant, Katibu Mtendaji Kamisheni ya Wakfu na Mali za Amana Zanzibar (Akisimamiwa na Himid Ramadhani Mkuya, Msimamizi wa Mali za Marehemu Mwajuma Ahamada Mzee) filed an application for extension of time within which to lodge an application for extension of time to lodge an appeal to this Court, as a second bite, against the decision of the High Court of Zanzibar made in Civil Case No. 30 of 2012 (Makungu, C. J., as he then was). The application is made by way of notice of motion made under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by affidavit of the applicant. The respondents to this application are Hadia Ahmada Mzee, Ahmada Mzee Ahmada and Kamisheni ya wakfu na Mali za Amana Zanzibar (hereinafter referred to as the first, second and third respondents). They filed affidavits in reply. Briefly stated, the history of the matter can be put as follows: Mwajuma Ahmada Mzee (now deceased) filed Civil Case No. 30 of 2012 against the respondents claiming distribution of the estate of the late Ahmada Mzee Mbarouk to eligible heirs which included two houses; house No. 5/751 at Mwembeladu and a house on Plot No. 7/88, Block 7, Michenzani, Zanzibar and 9.7 grams of gold. The High Court of Zanzibar, in its decision made on 24th March, 2015, found that the houses are properties of the first respondent and gave them to her. As for the gold, it was found that they are properties of the deceased and subject to distribution to heirs who included the appellant and the first and second respondents. Mwajuma Ahmada Mzee was aggrieved by the decision of the High Court and lodged Civil Appeal No. 178 of 2017 before the Court after obtaining orders of extension of time from the High Court made in Civil Application No. 1 of 2016. The Court was moved on a preliminary point of objection to find that Civil Application No. 1 of 2016 was premised on wrong provisions of the law rendering the ruling and orders made therefrom bad in law. The Court upheld the objection and the appeal was struck out on 5th December, 2017. Mwajuma returned to the High Court again and filed Civil Application No. 6 of 2018 seeking extension of time within which to lodge the appeal afresh. The application was dismissed. Still undaunted, she came to this Court in Civil application No. 104/15 of 2019, seeking orders for extension of time to lodge the appeal as a second bite. This application was found to have been lodged after 14 days, contrary to rule 45A (1), and struck out. Mwajuma passed away somewhere in between. Her son, Himid Ramadhani Mkuya, took over the dispute after obtaining letters of administration from the High Court. He has now lodged the application before the Court seeking extension of time to file the second bite application before the Court. The grounds upon which this application is based, as can be picked from the affidavit supporting the application, can be put as follows: one, that he was engaged in the application which was dismissed; two, that he was attacked by some people and hospitalized in hospital for some days. 3 The applicant and second respondent appeared in person. The first respondent was represented by Mr. Rajab Abdalah Rajab, learned advocate. The third respondent could not enter appearance despite service. The application was heard in her absence, The applicant adopted the affidavit in support of the application as part of his submission. Amplifying, he told the Court that he was beaten by some people and lost consciousness. He was admitted for some days. He went on to submit that her mother opened cases but were all dismissed. He had to file the application to take over the matter from where she had ended to defend her rights. In reply, Mr. Rajab reiterated the history of the matter as shown above and contended that the applicant had a chance to seek for a certificate of delay but could not use it. That, if he had written a letter to the Registrar to apply for copies of proceedings and ruling of Aziza, J. (who refused to extend the time) he could be given the documents with a certificate which could exclude the days. He could benefit and the application could not be struck out. He argued the Court to dismiss the application. The submission of the second respondent was in line with the submission of the applicant. He supported the applicant and urged the Court to grant the application. In rejoinder, the applicant submitted that his mother might have applied and given the certificate of delay, but given her age and poor knowledge, she could not fix it in the record of appeal. He reiterated his earlier position and argued the Court to extend the time. The Court has power to extend time under rule 10 of the Rules, upon good cause being shown. As a general rule, the applicant is required to account for each day of delay as we said in Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4: [3rd October 2011: TanzLII] and Dar es Salaam City Council v. S. Group Security Co. Ltd, Civil Application No. 234 of 2015 [2016] TZCA 641: [11th May 2016: TanzLII]. He can also point out an illegality in the decision of the lower court, if any, to convince the Court to extend time as we said in Lyamuya Construction Co. Ltd (supra) and Principal Secretary Ministry of Defence and National Service v. Devram Vallambia [1992] TLR 185. The issue in this application is not on illegality of the decision but on what followed thereafter. The relevant period is between 19/9/2018 when Civil Application No. 6 of 2018 was dismissed by Aziza, J. and 23/3/2020 when this application was filed. In between there is Civil Application No. 104/15 of 2019 which was filed in time as a second bite but dismissed on reason stated. Parties agree that they were in court pursing their respective rights in this application during the period. They also agree that the present application was filed without delay. The applicant see the delay as technical and excusable. The respondent does not agree. The contention of Mr. Rajabu is that the application was withdrawn due to some negligence. He submitted strongly that the applicant should not complain because he had a chance to get a certificate of delay which was not used. That, if he had applied for copies of proceedings, ruling and drawn order formeriy, they could be released formerly by the Registrar with a certificate of delay which could cover the delay and protect the application. The applicant contend that his mother was an old lady who had no legal knowledge. She might have been given the certificate but did not use it. Only a copy of the ruling and drawn order are available and it is not known how they came to her. He adds that he was in hospital in those days after being attacked by some people. I think that the fact that the applicant's mother was an old lady who had no legal representation and who died shortly thereafter, is relevant in determining the ends of justice in this matter. This fact coupled with the fact that the parties were engaged in this Court in the application which was withdrawn, give an account for the delay between 19/9/2018 when Civil Application No. 6 of 2018 was dismissed by Aziza, J. and 23/3/2020 when this application was filed. There is good cause for extending time because the time spent in this Court could not have been included in the certificate of delay as argued by Mr. Rajab. The application is accordingly granted. The applicant is given 30 days within which to lodge an application for extension of time, as a second bite, within which to lodge an appeal to this Court. I make no order as to costs. It is ordered so. DATED at ZANZIBAR this 30th day of April, 2024. L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 2nd day of May, 2024 in the presence of the Mr. Himid Ramadhani, the applicant and Mr. Emmanuel Asam, counsel for the 1st Respondent, 2nd and 3rd the Respondents absent is hereby certified as a true copy of the original. D. 10 DEPUTY REGISTRAR COURT OF APPEAL