Kilombero Valley Teak

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO MISC. CIVIL APPLICATION NO. 14337 OF 2024 KILOMBERO VALLET TEAK COMPANY ....APPLICANT VERSUS ULANGA DISTRICT COUNCIL RESPONDENT Date of Last Order: 25.02.2025 Date of Ruling: 21.03.2025 RULING MAGOIGA. J. The Applicant, KILOMBERO VALLEY TEAK COMPANY being aggrieved by the Ruiing and Drawn Order deiivered by Hon. Chaba, J on 25th August 2023 in Misc. Civil Application No. 07 of 2022, arising from Civii Case No. 01 of 2020 in Ulanga District Court s,eeks to chaiienge that decision. The concise facts of this appiication are not compiicated. The respondent herein instituted a summary procedure suit against r the applicant. The attempts to seek ieave to defend was struck out, resulting into defauit judgment ordering the appiicant to pay Tshs.43,562,380/- to the respondent. The applicant preferred a revision which was dismissed by Hon. Ngwembe, J on the grounds that the matter was more suited for appeai. Again, the applicant preferred an appiication for extension for time to appeai but which was dismissed by Hon. Chaba, J for failure to attach the required judgment, decree, and proceedings. The appiicant, stiii dissatisfied with this decision, instructed Advocate Simon Bariow Lyimo to chaiienge the ruling of this court, but due to advocate Lyimo's illness, delays occurred, and the matter was transferred to Thomas Mathias, Adv on 8^^ June, 2024. Once again, the application was dismissed on 29^*^ June 2024, on the grounds of irreguiprities in the originai proceedings. Stiii daunted, by way of chamber summons made i under the provisions of section 10(1) of the Appellate Jurisdictipn Act [Cap 11 R.E. 2019] and Rule 47 of the Court of Appealrpf Tanzania preferred the ipstant appiication for extension of timp ,to file jiptice pf appeai. The appjicatipn was accompanied by affidavit of FARES KABITINA., , ,, When this matter was scheduled on for hParing, the applicant was represented by Mr. Thomas Mathias," iearned -advocate, while the respondents was enjoying the legai service of Eikareem Samwei Tyeah, learned State Attorney. Mr. Mathias told court that this application for extension of time to file notice of appeal arising from the ruling and drawn order by Hon.Chaba, J and prayed to adopt the affidavit and reply to counter affidavit in support to it. In support of this he cited the case of Lyamuya Construction Co. Limited vs Board of Registered Trusteed Young Women Christian Associations of Tanzania, Civil Application No.02 of 2010, CAT where it was enumerated on four prliiciples that vyere established that they ought to be considered by the court which are: account for each day of delay, the delay should not. be inordinate, the applicant,rnust show diligence and if the court feels there are sufficient point of law worth to consider. Guided by the above principles, Mr. Mathias submitted that the applicant complied with the first threePprinciples as articulated from paragraphs 8 to 17 of the affidalvit in Support of the application. '^ ' Further Mr. Mathias submitted that, on the issue of illegality the act of Hon. Chaba, J dismissing the application instead of striking out, was an act that was wrong and hence amounts to an illegality. Henceforth, prayed to this court to grant the extension, so as they can challenge the decision by Hon.Chaba, J. In response, Mr. Tyeah opposing the application prayed to adopt the counter affidavit. Starting with the Lyamuya's case cited above pointed out that in that case the Court was very loud that for the applicant to be granted an extension must clearly show sufficient cause of the delay and all that transpired. According to Mr. Tyeah the applicant didn't do that in this application. He went on pointing out that paragraphs 8-17 of the affidavit none of them showed and accounted for each delay of delay. The learned Attorney went on pointing out that, the issue of sickness cannot save this because he suffered from 15.05.2024 to, 18.05.2024 for three days but the application was filed in 18,06.2024 which is more than 30 days of delay. Mr.Tyeah further attacking the grant of this application told the court that the applicant was supplied with the proceedings on 08-05-2024 but yet filed on 18.06.2024 which was inordinate delay. - '- It was further argument of Mr. Tyeah that change of the advocate has never and will never be a ground for extension of time and pointed out that the firm that represented the applicant at different times sent four different advocates, which clearly indicates that the applicant and-his lawyers are not diligent, hence ho good cause was shown and account of each day of delay. - y Responding on the issue of iiiegality, Mr. Tyeah propounded that no iilegality can be imputed in the said ruiing, as from page 15 to 17 nothing "of any sort of iiiegai was seen rather the determination on merits. Hence/ the learned Attorney prayed the application to be dismissed with costs. In rejoinder, Mr. Mathias reiterated that the principles for extension of time were grouped in paragraphs 8-17 of the affidavit which were factual. Further re-joining argued that argument that the applicant w^ represented by four advocates was statement from the bar and should not be considered at all. And that the reasoning of the judge is wanting and that the applicant complied with all the conditions for extension of time. Mr. Mathias winded up his subnrjissipns by reiterating his earlier prayer for grant of this application. This marked the epd of the hearing of this application. This application was brought under Section 10(1) of the Appellate Jurisdiction Act [Cap. 11 R.E. 2019] and Rule 47 of the Court of Appeal Rules. The provisions which empower this court to grant extension Of time to an act which may not have been done for paving an appeal process.T have painstakingly considered the rivalling affidavit, counter affidavit, reply to counter affidavit and oral arguments by legal trained minds for parties, but with due respect to the applicant, the instant application is akin to fail. I will explain. One,the only reason for failure to file notice of appeal as amply demonstrated in the affidavit in paragraphs 7-18 is late supply of the proceedings, ruling and drawn order but which documents are not legal requirement of filihg a notice of appeal as amply provided for under Rule 83(5) of the Court of Appeal Rules, 2009 as amended from time to time. Two, one would expect the advocate for the applicant to file notice of appeal wjthin 30 days of the decision and comply wijth the requirements under Rule 83(1)and (2)of the Court of Appeal Rules, 2Q09 along with the letters requesting the proceedings, rgljng and drawn order but this was not done. Three, qs that is not enough, no single paragraph in the affidavit or reply to counter affidavit stated vyhy notice was not filed within time along with the letters requesting the prqceedings, ruling and drawn order which were to be used later vyhen they are availed to the applicant and the applicant could use that asking for certificate of delay. Four, from 25^^ August, 2023 when the ruling subject of this application was delivered to when this application for filing notice of appeal was fiie|J is more than 9 months down the road, vyhich, in rny considered opinion, is inordinate delay that remined unaccounted for. The notice of appeal in accordance to the Court of Appeal Rules was to be filed vyithin 30 days from the date of the decision but none was done and the applicant and his advocates seems to mix up matter of what vyas required and when ■ ^ MiiKi r-Oiia: , ■. ■- ■' :jut v'" anc: c'pOh 0:0.: was to be done. Five, according to paragraph 10 of the affidavit the applicant was on 26-08-2023(one day after the ruling) aware of the ruling subject of this application and instructed his advocate to take necessary steps to challenge the decision but unfortunately, half of the steps vyere taken but forgotten to file a notice of appeal which is prerequisite and unavoidable step in appealing to the Court of Appeal. This is other than negligence of the highest order that this court cannot close its eyes. Tjie first and imperative step skipped the learned advocate and eyen in this application nothing was stated as to why notice was not filed, what I gathered from the affidavit and oral submissions is the late supply of the proceedings, rulings and drawn order which as observed above had nothing to do with filing of notice of appeal. Six, ail stated in the affidavit and reply to counter, on the aboye reasons was misconceived on the pqrt of Mr. Mathias, learned advocate for the applicant and are jiereby found wanting for failure to file notice. On that note, I find that the applicant has utterly: 'failed demonstrate sufficient cause before this court as to why notice was'not filed as required under the Court of Appeal Rules/2009 as amended frorh timetotime. n ; u h; ^: On the foregoing, I would have ended up here and dismiss this application for want of sufficient reasons but the applicant raised an issue of illegality in that the High Gourt judge dismissed the application instead of striking it out and argued that it amounts to good ground for extension. This point will not detain me much. The mixing up of the dismissal and striking out orders in an application cannot be said to be an iiiegaiity. Taking the guidance in the cas^s of Ngoni- Matengo Cooperatlye Marketing Union Limited Vs. Aiimahomed Osman (1959) EA 577 and Hashim Madongp and 2 Others Vs. Minister for IndustiYja^^^ Trade and 2 Others, Civil Appeal No27 of 2003 in whiqh it was held that one has to look at the substance of the matter and nqt the phrase used. :: , u; ; .. .'i- :•» On the same note, in the instant application it cannot be said that amounts to an iiiegaiity but justa mixing^up of the two phrases which I be cured at looking at the subkahce rather than what was used/^T Hi That said and done, I find this application devoid of any useful merits and same is hereby dismissed for failure to demonstrate sufficient ground for extension of time to file notice with costs. It is so ordered. -V; I. * OT, Dated at Morogoro this 21®^ day Marc ,,2025. OF O c CD -y S.M. MAGO] %■ > JUDGE ■x t>"£ 21.03.2025 COURT: Ruling delivered in chambers at Morogoro in the presence of Mr. Koheleth Julius, learned advocate holding brief for Mr. Thomas Mathias, learned advocate for the applicant and Mr. Tyeah for the respondent on 2P^ day of March, 2025 at Moroc 0V3RT 0^ C -5^ CD czr Uj 7' S.M. MAGOrcA X w» >£ i1 Sf\. 21.03.2025 COURT: Right of appeal fully 0C -t CD S.iv UU Z I w JUDGE M 21.03.2025