MISC CIVIL APPL NO 41 OF 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE STOP JUDICIAL CENTRE) AT TEMEKE MISC. CIVIL APPLICATION NO. 41 OF 2023 (Arising from Matrimonial Cause No. 5 of 2021 of the district court of Mkuranga at Mkuranga) LEILA VISRAM MEGHJI..................................................................... APPLICANT VERSUS SILVESTER ALBIN AWETT............................................................. RESPONDENT RULING 23rd May & 25th June, 2024 BARTHY, J.: The applicant, by way of an amended chamber summons, moved this court under Section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019, seeking the following orders; i. That, the honourable court be pleased to extend time within which, the applicant to file an appeal out of time. ii. Any other order(s) as the honourable court may deem just to grant. i The application was supported by an amended affidavit of the applicant, detailing the reasons for the court to consider granting the extension. The respondent contested this application with an amended counter-affidavit, opposing the application. Both parties presented their arguments through oral submissions: Mr. Marwa Magau represented the applicant, while Ms. Georgina Basil represented the respondent. Mr. Magau adopted the applicant's affidavit as part of his submission, arguing that extending the time to file an appeal is at the court's discretion under section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019. He 4 emphasized that the applicant must demonstrate reasonable and sufficient cause for the delay. He explained that the appeal was delayed by 53 days, primarily because the copy of the judgment was provided 36 days after the 45-day appeal period had expired, as stated in the applicant's affidavit. The judgment was delivered on 24th April, 2023, and the copy was ready for collection on 14th July, 2023. Mr. Magau argued that the delay in receiving the judgment copy is sufficient reason for the court to grant the extension, citing the case of Alliance Insurance Corporation Ltd, v. Arusha Art Limited, which recognized such delays as valid grounds for extending the filing period. He 2 also invoked section 19(2) of the Law of Limitation Act to exclude the 36- day delay from the calculation. Regarding the remaining days, Mr. Magau pointed out that the applicant spent 6 days securing an advocate and 11 days for the advocate to prepare the application, as detailed in the affidavit. He cited the case of Damari Watson Bijinja v. Innocent Sangano, where the court deemed a 12-day preparation period reasonable, reinforcing his argument for the extension. Mr. Magau further highlighted an issue of illegality, as mentioned in the applicant's affidavit. He argued that the trial court improperly treated the presumption of marriage as a valid form of marriage, leading to the dissolution of a non-existing union and the division of matrimonial assets. He cited the case of Principal Secretary and Minister of Security and Defence v. Valambia, which held that illegality is a sufficient reason for granting an extension. Additionally, he referenced the case of Hidaya Ally v, Amiri Mluqu, where the court stated that a presumption of marriage is not grounds for dissolution by the court. In conclusion, Mr. Magau asserted that the applicant demonstrated diligence and accounted for each day of the delay, emphasizing that the 3 delay was not due to her negligence. He prayed for the court to exercise its discretion and find the reasons sufficient to grant the application. Ms. Basil, in her reply to the submission regarding the application, first adopted the respondent's amended counter-affidavit as part of her submission. She argued that the applicant failed to establish good cause for not filing the appeal within the prescribed time frame. Ms. Basil emphasized that the applicant must demonstrate sufficient reasons for an extension to file her appeal. She referenced the applicant's affidavit, which stated that she received the judgment and decree on 14th July, 2023, approximately three months after the judgment was delivered on 24th April, 2023. However, Ms. Basil pointed out that the applicant did not provide any evidence, such as correspondence with the court, to support this claim. Furthermore, Ms. Basil argued that the applicant failed to account for each day of the delay as required. She found the claim of using several days to find an advocate unrealistic since the applicant already had legal representation and there are many available lawyers. She contended that the applicant did not act diligently, as she waited three months to secure a lawyer. In support of her argument, she cited the case of Bahati Nqowi 4 v. Paulo Iden Udunqi, Misc. Civil Application No. 490 of 2020, where the Court of Appeal held that the applicant must account for each day of delay, even a single day. Regarding the claim of illegality mentioned in paragraph 7 of the applicant's affidavit, Ms. Basil argued that illegality is only a sufficient ground for extending time if it is clearly evident from the record and does not require a lengthy process to decipher from the impugned decision. She referred to the case of Registered Trustees of Calvary Assemblies of God v. Tanzania Steel Pipes and 2 others, Misc. Civil Application No. 730/17 of 2023, where the Court of Appeal held that illegality must be apparent on the face of the record. Ms. Basil concluded that the applicant had not demonstrated sufficient cause for the court to grant the extension of time and prayed for the application to be dismissed for lack of merit. In his rejoinder, Mr. Magau argued that despite the absence of proof of correspondence, the date and seal on the judgment copy served as proof of when the copies were collected from the court. He concluded by stating that the applicant had accounted for each day of delay and —fen <>*yyv~a 5 demonstrated sufficient cause for the court to exercise its discretion to grant the application. Having heard the arguments from both sides, this court will address whether the applicant has demonstrated sufficient cause to warrant the granting of an extension of time. As a general principle, the decision to grant an application for an extension of time is entirely at the discretion of the court. However, this discretion must be exercised according to the law. Section 14(1) of the Law of Limitation Act provides; "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 is supplied]. Since there is no clear definition of what constitutes reasonable or sufficient cause, the court has developed through case law certain factors to consider when evaluating an application for an extension of time. In 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 (unreported), the court outlined several factors to be considered: i. The applicant must account for all the period of delay. ii. The delay should not be inordinate. Hi. The applicant must show diligence and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take. iv. 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 this matter, Mr. Magau stated that he was unable to obtain a copy of the judgment within the required time, resulting in this application for an extension of time. He added that the judgment copy was provided 36 days after the 45-day appeal period had expired, with the judgment being 7 delivered on 24th April, 2023, and the copy being ready for collection on 14th July, 2023. Refuting this claim, Ms. Basil argued that the applicant could not account for each day of delay, as she could not show any correspondence with the court to demonstrate that she had requested and followed up on the copy of the judgment and decree. Since she was required to account for each day of delay, the absence of proof that the applicant requested the copies and that they were supplied late implies that she did not act promptly to obtain the judgment and decree. Additionally, the applicant stated that after receiving the copies, she spent about six days looking for an advocate to represent her. However, it was not made clear how she was searching for an advocate during all those days. Since it is now the settled principle that each day of delay must be accounted for, her failure to do so suggests that she was not diligent in prosecuting her case, showing signs of apathy and sloppiness. This principle was emphasized in the case of TAN ESCO vs. Mufunqo Leonard Majura & Others (Civil Application No. 94 of 2016) Court of Appeal at Dar es Salaam [2017] TanzLII TZCA 239, and reiterated 8 in the case of Usweqe Webb Luhanqa & Another vs. Mussa Mohamed Mnasi & Another (Civil Appeal No. 218/2021) [2024] TZCA (2024) TanzLII. Accordingly, I find that the applicant has failed to establish sufficient cause to be granted the application. The applicant also advanced another reason of illegality, stating that there was illegality in the trial court's decision. Mr. Magau submitted that the trial court had improperly treated the presumption of marriage as a valid form of marriage, leading to the dissolution of a non-existing union and the division of matrimonial assets. He insisted that this point of illegality was of utmost importance. Ms. Basil argued that illegality is only a sufficient ground for extending time if it is clearly evident from the record and does not require a lengthy process to decipher from the impugned decision. It has been stated numerous times by the court that such a point of law must be of sufficient importance and must also be apparent on the face of the record, such as a question of jurisdiction, not one that would be discovered through a long-drawn argument or process. This was well stressed in the case of Nqao Godwin Losero vs. Julius Mwarabu (Civil Application No. 9 10 of 2015) Court of Appeal at Arusha [2016] TZCA 2099, citing with approval the case of Lyamuya (supra). Applying the foregoing principle to the case at hand, I find that the alleged illegality is clearly not apparent on the face of the impugned decision. Certainly, it would take a long, drawn-out process to decipher the alleged misdirection or non-directions on points of law from the impugned decision. To that end, I must conclude that the applicant has not demonstrated any good cause that would entitle her to an extension of time. In conclusion, this application fails and is accordingly dismissed. It is so ordered. Dated at Dar es Salaam this 25th day of June, 2024. Delivered in the presence of the applicant in person, Mr. Marwa Magao advocate for the applicant also holding brief of Ms. Georgina Basil for the respondent, the respondent in person and RMA Ms. Bernadina io