LEONARD RUSUMBANYA NGWANIJE VS FIRST NATIONAL BANK T LTD MISC

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE COMMERCIAL DIVISION AT DAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 191 OF 2023 LEONARD RUSUMBANYA NGWANIJE........................................ APPLICANT VERSUS FIRST NATIONAL BANK TANZANIA LIMITED............................... RESPONDENT RULING March 19th, 2024 & May 3rd, 2024 Morris, J Through this application, the applicant above is moving the Court to grant him extension of time for him to file a notice of appeal. The affidavit sworn by Leonard Rusumbanya Ngwanije supports the application. The application is contested. Innocent Felix Mushi filed his counter affidavit in that regard. From the record, the respondent sued the applicant with six other defendants in Commercial Case No. 125 of 2014. He won. This Court delivered its judgment on November 22nd, 2016. The applicant was late to appeal. So, he applied for extension of time. He lost. His application was 2 struck out for want of competency. Still resolute he filed another application for the similar remedy. This time he stood a victor. Upon securing the foregoing order of extension of time, he ultimately filed his appeal no. 54 of 2019 before the Court of Appeal. However, the said appeal was struck out for it was filed out of time. The applicant was discontented. He therefore applied for review at the Court of Appeal. On November 1st, 2023 he withdrew his application for review. Nonetheless, the record does not bear the reason for such withdrawal. He is now before this Court, once again, seeking for extension of time, in order to commence the appeal processes anew. The chronology of events, as summarised above, forms the applicant’s major ground for extension of time. The respondent, though, refers to it as gross negligence on the part of the applicant. The Court ordered the application to be argued by way of written submissions. Parties complied with the filing schedule set by the Court. Advocate Lt. Col S J Nnko represented the applicant. The respondent had services of Mr. Innocent Felix Mushi, learned Advocate. In his submissions, the applicant mainly reiterated the depositions in the affidavit. The most 3 basic point to the fact that he has been pursuing justice in this Court and the Court of Appeal for a long time now. He cites section 21(2) of the Law ofLimitation Act, Cap 89 R.E. 2019 to buttress his argument that the time he spent in the two courts, albeit unsuccessfully, should be excluded in computation of his time of delay. The applicant asserts that he was diligently pursuing justice. That is, from the date of judgement in commercial case no. 125 of 2014 (22.11.2016) to the time he withdrew his application for review before the Court of Appeal (01.11.2023). The respondent started off by praying to adopt the counter affidavit as part of his submissions. From the outset, it was contested by the respondent that the applicant does not deserve prayers in this matter howsoever. To him, the principles in Lyamuya Construction Ltd v Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Appl. No. 2 of 2010 warranting extension of time have not been satisfied by the applicant. He further argued that the applicant has exhibited excessive negligence in pursuing his courses herein. In addition, he submitted that the applicant is also purposely misleading this Court by concealing the critical 4 fact that the Court of Appeal struck out his appeal on his failure to comply with dictates of the law. He referred to page 5 of Leonard Rusumbanya Ngwanije v First National Bank (T) Ltd, Civ. Appeal No. 54 of 2019 (unreported) for emphasis. Furthermore, the respondent submitted that the present application is misconceived and amounts to abuse of court processes because this Court granted extension of time to the applicant way back (under application no. 66 of 2018). In conclusion, the respondent reiterated that because the applicant has all along been negligent, this application should be denied with costs. Having passed through the affidavital depositions and submissions of the parties, I will now determine the application. The major task hereof is to answer whether or not the ground(s) advanced by the applicant suffice in making this Court to allow the present application. Principally, the law requires that the applicant should demonstrate sufficient reason(s) as to why he/she did not take the necessary step(s) in time. In so doing, he/she will discharge the obligation of proving how each day of delay justifiably passed by at no applicant's fault. Such position is also contained in Hamis 5 Babu Bally v The Judicial Officers Ethics Committee and 3 Others, Civil Application No. 130/01 of 2020 (unreported); among many other cases in such line. Moreover, the law sets time limits not for cosmetic reasons. There are objectives to achieve. One, to promote the expeditious dispatch of litigation [Costellow v Somerset County Council (1993) IWLR 256]. Two, to provide certainty of timeframe for the conduct of litigation [Ratman v Cumara Samy (1965) IWLR 8]. Three, to enhance public trust to the judicial system. Four, to manage resources effectively. Consequently, it works in the advantage of party’s proper management time and money. Moreover, court’s power to extend time sought by parties is discretional. However, such discretion should be exercised judiciously. That is, free from personal whims, sympathy, empathy or sentiment. See, for instance, Bakari Abdallah Masudi v Republic, CoA Criminal Application No. 123/07 of 2018 and Bank ofTanzania v Lucas Masiga, Civil Appeal No. 323/02 of 2017 (both unreported). Times and again, courts grant extensions of time if: the applicant accounts for delay; or his delay is 6 inordinate; or he proves that he exerted necessary diligence; and/or there is presence of illegality to be cured. Additionally, under Rule 83 (1) of the Court ofAppeal Rules, 2009 the notice of appeal must be filed within thirty (30) days of the decision. From the applicant’s affidavit, the sole ground advanced in support of this application is his pursuit of justice through various courts proceedings since when he lost in the original suit herein. Hence, the applicant alleges that he was prevented by sufficient cause to take up necessary measures hereof. In law, such ground is known as ‘technical delay’. Reference is made to the case of Eliakim Swai and Frank Swai v Thobias Karawa Shoo, Civil Appl. No 2 of 2016; and Mathew T. Kitambala v Rabson Grayson and another, Criminal Appeal No. 330 of 2018 (both unreported). In principle, it is now settled in this country’s legal jurisdiction that ‘technical delay’ constitutes a sufficient ground for extending time otherwise wasted by the applicant. To me, however, ‘technical delay’ ground needs to be guarded so that it is not abused or used as a hideout of professional negligence, incompetence, or a vehicle for delaying justice. In this matter, the applicant’s 7 affidavit has it that he has been in this Court thrice for similar reliefs. That is extension of time. Further, he has been in the Court of Appeal two times and he is longing to go still. Worse still, the applicant deposes that he initiated review processes only to withdraw the application thereafter. But no reason is disclosed as to why he took such step. By its face, the applicant is portraying that he can commence proceedings and withdraw them now-and- again. To allow him to do so habitually is to reduce or equate the courts of law to scientific laboratories in which specimens are tested to prove certain findings or hypotheses of studies. On this point, I subscribe to the respondent’s argument that to condone such behaviour is to promote abuse of court processes. Besides, the applicant was represented by advocates in all proceedings. Hence, the legal professionals are less expected to commit awful or hopeless mistakes by litigating in wrong fora or initiating imaginary proceedings for the sake of it. That is the essence of the rule that ignorance of the law or counsel's mistakes do not constitute a good cause for extension of time. See, for instance, Bariki Israel v R, Criminal Application No. 4 of 2011; Charles Salungi v R, Criminal Application No. 3 of 2011 (both 8 unreported); and Umoja Garage v National BankofCommerce [1997] TLR 109. Further, according to the applicant and his counsel, the application for review was withdrawn from the Court of Appeal on November 1st 2023. The present application was lodged in this Court on December 7th 2023. I have taken adequate interest to read the applicant’s affidavit. In this connection, the same is soundless as a tomb yard regarding what transpired during the period in between the two dates. Consequently, the time from November 1st, 2023 to December 7th, 2023 remains to be the unaccounted time of the delay. The applicant has failed to satisfactorily prove how 35 days elapsed at his no-fault inaction. It is cardinal principle of law that, one applying for extension of time must account for each and every day of the delay. In the case of Hassan Bushiri v Latifa Mashayo, Civil Application No. 3 of 2007 (unreported), the Court held that delay “of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken”. See also the cases of Yazidi Kassim Mbakileki v CRDB (1996) Ltd Bukoba Branch & Another, Civil 9 Application No. 412/04 of 2018; Sebastian Ndaula v Grace Rwamafa (legal personal representative ofJoshua Rwamafa), Civil Application No. 4 of 2014; Dar es Salaam City Council v Group Security Co. Ltd, Civil Application No. 234 of 2015; and Muse Zongori Kisere v Richard Kisika Mugendi, Civil Application No. 244/01 of 2019 (all unreported). In the fine, I find that this Court has not been legitimately moved to extend the time hereof. That is, the applicant has not exhibited sufficient reason(s) to justify extension of time. This application, thus, lacks merits. It is accordingly dismissed. Each party will bear own costs. It is so ordered. Judge May 3rd, 2024 10 Ruling delivered this 3rd day of May 2024 in the presence of Mr. Leonard Ngwanije, the Applicant and Advocate Innocent Mushi for the respondent. C.K.K7Morris Judge May 3rd, 2024