Leveliana Ruling Final

Page 1 of 12 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA MISC. CIVIL APPLICATION NO. 14507 OF 2024 LEVELIANA HENERICO PETRO….……………………………………….....APPLICANT VERSUS MONICA LUSOBANGIJA…..……………………………………….……..RESPONDENT RULING Date of last order: 25/07/2024 Date of Ruling: 05/08/2024 MWAKAPEJE, J.: The applicant herein has approached this Court for an extension of time to file an appeal out of time. The application is made pursuant to section 25(b) of the Magistrate Courts Act, Cap 11 R.E 2019, through chamber summons accompanied by the Applicant’s advocate affidavit. The concise facts leading to this application reveal that the respondent successfully petitioned for the letters of administration of her deceased spouse's estate in the Nyankumbu Primary Court, Geita District. The applicant then sought to include her children, fathered by the deceased, as heirs. The respondent reported the deceased owed Tshs 128,719,500/= to three creditors, which the applicant suspected was falsified to disinherit her children. The applicant's contestation of the debt was rejected by the trial and Geita District Court. She then filed an appeal Page 2 of 12 with the High Court Mwanza Registry, but her legal counsel was unaware of the registration due to confusion over the case number. The applicant now seeks an extension to appeal the Geita District Court's decision, citing delays due to case number confusion and communication breakdown between the advocate and the applicant as she was out of Geita. At the hearing of the application, the Applicant and the respondent were represented by Mr Liberatus John and Mr Jethro Tulyamwesiga, both learned advocates, respectively. Mr John, on his part, submitted that the delay was occasioned by the inaccuracy in recording the case number, which, from the judgment and other documents, features as Appeal No. 2 of 2021. He stated that he diligently lodged an appeal in time at the Geita District Court as required and expected that the appeal would be forwarded to the High Court. However, having assigned appeal No. 269876 of 2023 on 19 October 2023, the case was settled while remaining silent as to scheduling. The letter of enquiry of 25/3/2024 to the Deputy Registrar of Mwanza was not replied to, and it was not until the reply from the Deputy Registrar of Geita on 29/4/2024 which revealed that the appeal was incorrectly recorded as it ought to have been appeal No. 2 of 2023 unlike 2 of 2021. Page 3 of 12 The learned advocate further told the court that the errors were not their fault but the District Court’s fault, which wrongly recorded the case number in its judgment. He cited the case of Justus P. Mutakyawa vs Bernadetha Kanyankole (Land Case Appeal 54 of 2019) [2021] TZHC 3473 on page 8 while referring to the case of Mount Meru Flowers Tanzania Ltd vs Box Board Tanzania Ltd (Civil Appeal No. 260 of 2018) [2019] TZCA 434 (3 December 2019), which he contended that parties should not be held accountable for the mistakes made by the court. The learned advocate also submitted that they acted diligently, and since diligence is one of the grounds for granting an extension, the court should grant it. To bolster his argument, he cited the case of Wilbard Mathew Senga vs Mkwega George Mathew Senga and Another (Civil Application 508 of 2020) [2023] TZCA 241 (10 May 2023). Moreover, Mr John told the court that in the respondent’s counter affidavit, she refuted the contents of paragraphs 11 and 12 without justification, thus placing the burden on the applicants, which is improper. He maintained that facts must be refuted with reasons, as stated in the case of East African Cable (T) vs Spencorn Services Limited, HC, Commercial Division, Misc. Application no. 61 of 2016 on page 7. Page 4 of 12 On the other side, while responding to the applicant’s submissions, Mr Tulyamwesiga argued that the applicant failed to avail the copy of the memorandum of appeal filed at the District Court as required under section 25 (3) of the Magistrate Courts Act, Cap 11 RE 2019. However, he only submitted his printout from his e-CMS page. He added that throughout that period, the advocate ought to have deployed other mechanisms of follow-up, including visiting the Court personally rather than writing a letter, which was not the only means of communication with the Deputy Registrar. He maintained that the advocate, being an officer of the court, was aware and that even in the letter to Deputy Registrar Geita, the applicant failed to prove whether he was so directed by the High Court in Mwanza to approach this court. Concerning the inaccuracy in numbering the case number, he argued that it was the learned advocate who represented the applicant and that there was no specification as to the application of the proceedings or a copy of the judgment. He maintained that had the advocate so applied; he would have discovered the clerical error before lodging an appeal and seeking rectification. He further stated that it was not the court’s fault but advocates for lack of diligence. And submitted that the case of Mount Meru Flowers (supra) is distinguishable as this was the fault of the advocate, not the court. Page 5 of 12 Regarding the contents of the affidavit, the advocate submitted that the burden of proof lies with the party claiming. Hence, the applicant should prove. And maintained that the East African Cables case (supra) is distinguishable. It is the submission of the respondent that the advocate for the applicant did swear an affidavit without acknowledging whether he was permitted to do that by the applicant. The advocate for the respondent further argued that the case in which an extension of time is sought, even if granted, would not mature as it is appeal case No. 2 of 2021. He submitted that the proper procedure would have been to approach the District Court to rectify the case number, followed by the application for an extension of time. In his rejoinder, Mr John argued that the counter-affidavit cannot be challenged without strict proof, which is the position of the law. He added that the electronic filing justifies the lack of a copy of the memorandum of appeal. The period between 19 October to 29 March 2023 cannot be considered a delay as the appeal was lodged adequately in court. Again, it added that the transmission of appeal from the District to the High Court was an administrative function which was not the advocate’s fault. Page 6 of 12 Having considered the submissions by the counsels of the parties, I should commence by reiterating that it is the discretion of the court to grant or deny an application for an extension of time and that the same may only be granted where it has been sufficiently established that the delay was with sufficient cause. This was clearly stated in the case of Kalunga and Company Advocates v National Bank of Commerce Ltd [2006] TLR 235. In the present application, an extension is being sought for the following reasons: first, the appeal was duly and promptly lodged before the High Court Mwanza Registry. Second, the appeal was not heard due to the District Court of Geita's erroneous recording of the case number. Third, the applicant's legal counsel diligently pursued the matter until it was discovered that there was a discrepancy in the records. Lastly, the applicant was absent from Geita during this time. The crucial issue, therefore, is whether the grounds advanced by the applicant amount to sufficient cause. Here, I may pause and ask what amounts to sufficient cause? A similar issue was answered in the case of Tanga Cement Company Limited vs Jumanne D. Masangwa and Another (Civil Application No. 6 of 2001) [2004] TZCA 45; it had this to say: Page 7 of 12 “What amounts to sufficient cause has not been defined. From decided cases a number of factors has to be taken into account, including whether or not the application has been brought promptly; the absence of any or valid explanation for the delay; lack of diligence on the part of applicant.” Furthermore, a good cause was elaborated in the case of Dar es Salaam City Council vs Jayantilal P. Rajani, Civil Application No. 27 of 1987 (CAT) (unreported), which, in turn, drew inspiration from the decision rendered in the case of C.M. Van Stillevoldtl v El Carrier Inc. (1983) 1 All ER 699, where it was expounded that: “...in my judgment, all the relevant factors must be taken into account when deciding how to exercise discretion to extend time. Those factors include the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal, and the degree of prejudice to the defendant if time is extended.” [Emphasis ssupplied] Good cause incorporates various factors when the same is considered in granting an order for the extension of time. Among them is for the applicant to count for each day of delay which has been underscored in a plethora of judicial pronouncements in the land. Notable among these decisions are the cases of Lyamuya Construction Co. Ltd vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA Page 8 of 12 4; Paradise Holiday Resort Ltd vs Theodore N. Lyimo, Civil Application No. 435/01 of 2018 [2019] TZCA 670; and Bushiri Hassan vs Latifa Lukiyo Mashayo, Civil Application No. 3 of 2007 (unreported) which require an application to meticulously justify each day of delay. In the instant application, it is common that the applicant’s advocate filed an appeal in time before the High Court Mwanza Registry, but it was due to an error in the case number from the District Court of Geita which restrained the hearing of the appeal as it was not properly lodged; thus the High Court Mwanza Registry was unable to proceed with the appeal, as there was no record of Appeal No. 2 of 2021 in the system, therefore lacking a reference number, though no proof was submitted in this court to that effect. It was the submission of the applicant’s advocate in his affidavit that he waited for a reply from the High Court, Mwanza sub- registry, for so long without any success, including his letter, which was not replied to. Upon receiving clarification from the Geita Registry, he prepared and submitted them to this court. I am compelled to concur with the argument of the respondent’s advocate that as a prudent person, the applicant’s advocate, being an officer of the court, was in a position to understand that a letter was not the only available communication mechanism to the court. Had the advocate for the applicant approached the office of the Deputy Registrar Page 9 of 12 in person, he would have obtained sufficient information regarding the status of his appeal. I, therefore, hold that the delay was caused by his reluctance from the period of filing an appeal, which was 19 October 2023, to the period he received a letter from the Deputy Registrar High Court Geita Registry on 29 April 2024. Apart from the follow-up letters of 25 March 2023 and 19 April 2024 to the High Court Mwanza and Geita sub- registries, respectively, there is nothing seen or stated that was done by the applicant between October 2023 and March 2024. Therefore, this period was not accounted for by the applicant. Concerning the discrepancy in documenting the case number, I acknowledge that errors made by the court can serve as grounds for the court to grant an extension of time. The applicant's counsel argues that the mistake was the court's fault, which inaccurately documented the number in its version of the judgment, causing confusion. While I concord that the decision from the first appellate court displays Appeal No. 2 of 2021 instead of the correct No. 2 of 2023, this information was provided to the applicant's counsel before initiating the second appeal at the High Court Mwanza Sub-Registry. Consequently, the counsel, who was aware of the appeal numbers at the first appellate court, should have detected this error prior to filing the appeal and could have sought the rectification of the same as argued by the counsel for the respondent. Page 10 of 12 The requirement to attach a copy of the decision being appealed is intended to ensure that the appellant is certain that the judgment contents are indeed satisfactory and warrant challenge. Evidently, the applicant's counsel did not exhibit the necessary diligence, thereby rendering his actions negligent, which does not constitute a good cause for extending the time. In the case of Paul Martin v. Bertha Anderson, Civil Application No. 07 of 2005 (unreported), it was explicitly stated that: “unexplained inordinate delay, which exhibits sloppiness, negligence, and inaction on the part of the applicant and her advocates, and further that the said inaction and negligence of the advocates is not an excuse for extension of time.” Furthermore, it is common for the applicant’s advocate to be supplied with the letter from the Deputy Registrar High Court Geita on 29/04/2024 and file an application on 24/5/2024. In my view, such an unexplained long period through which he took to file his application depicts the negligence of the applicant. The argument that the applicant was out of Geita is immaterial as her physical presence was not mandatorily required to make an application, considering that she had an advocate’s representation, who did swear and, in his affidavit, stated that since then, i.e. October 2023, he was making a follow-up. Page 11 of 12 Had the advocate promptly filed the application before this court immediately after he received a letter from the Deputy Registrar of High Court Geita, which he received on 29/04/2024, it would have been different because prompt action had been taken in pursuing the application, as was held in the case of Mumello vs Bank of Tanzania (Civil Appeal No. 12 of 2002) [2006] TZCA 12. In the case of Royal Insurance Tanzania Limited vs Kiwengwa Strand Hotel Limited, Civil Application No. 166 of 2008 (unreported), the Court stressed that: “It is trite law that an application before the court must satisfy the court that since becoming aware of the fact that he is out of time, act very expeditiously and that the application has been brought in good faith.” [Emphasis supplied] In the present application, even counting from the time when the applicant became aware of the fate of the appeal lodged in Mwanza Registry, he should have approached this court within a short period of time instead of waiting for about 25 days and claiming for the applicant's absence in Geita. To me, even these 25 days have not been accounted for, and the fact that the applicant was not in Geita is not a good cause. In short, for the reasons stated above, the applicant failed to state a good cause of delay and failed to account for the delayed days. In that Page 12 of 12 vein, this application is denied, and I hereby dismiss it. However, in the circumstances of this application, I make no order as to costs. It is so ordered. DATED at GEITA this 05th August 2024. G.V. MWAKAPEJE JUDGE This ruling is delivered this 05th August 2024 in the presence of the Applicant and the Respondent both in person. G.V. MWAKAPEJE JUDGE