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IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 272/08 OF 2021 LILIAN RICHARD (The Administratrix of the Estates of the Late Esther Ishengoma).........................................APPLICANT VERSUS IDDI HAMIS....................................................................... RESPONDENT (Application for extension of time to lodge notice of appeal against the decision of the High Court at Mwanza) (IsmaiLJi.) dated the 3rd day of July, 2020 in Miscellaneous Land Application No. 139 of 2019 RULING 8th & 12* July, 2024 MASOUD, J.A.: This is a second bite application for extension of time to file notice of appeal out of time. It was brought under rule 45A (1) (a) and (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and was supported by an affidavit of the applicant. The application was opposed by the respondent who filed an affidavit in reply. The reasons advanced in the applicant's affidavit to account for delay in order to justify granting of the sought extension are hinged on allegations that the applicant was seriously ill from June, 2020, she was being treated at Buzuruga Health Centre from 18/6/2020 up to 25/7/2020, she subsequently left Mwanza on 13/7/2020 for Karagwe, Kaisho where she was being treated by a traditional healer and came back to Mwanza on 02/12/2020 only to learn that the ruling sought to be appealed from had been delivered on 03/7/2020 against her, and allegations of an illegality regarding number of days she could not account for as per the impugned ruling and regarding conflict of interest involving the learned counsel for the respondent. The respondent in his affidavit in reply opposed the application and the reasons advanced in the affidavit in support. The thrust of the opposition is that the affidavit contained lies because the applicant was all along in Mwanza as evidenced by service of summons effected on her, her subsequent court appearance, and her attendance in hospital on 25/7/2020 and the finding of the medical doctor that she had improved. Thus, if at all she was ill, she was an outpatient. Thus, she could still have taken necessary steps timeously to challenge the impugned ruling. The other point in the affidavit in reply was that the assertion that the applicant was being treated by a traditional healer at Karagwe is not supported by an affidavit of the alleged traditional healer, let alone of a local leader of the village where the applicant was receiving the treatment. Both parties were at the hearing represented by learned counsel. Whereas the applicant was represented by Mr. Julius Mushobozi, the respondent was advocated by Mr. Kassim Seleman Gilla. They adopted their affidavits in support and in reply to form part of their oral submissions respectively. Indeed, their oral submissions for and against the application expounded on their respective affidavits whose substances were highlighted above. Mr. Mushobozi, however, abandoned the allegation of existence of an illegality relating to Mr. Gilla's conflict of interest. He, nonetheless, retained the remaining reasons including allegation of illegality on wrongful counting of number of days of the delay in his bid to persuade me to consider exercising my discretion in favour of the extension. In the learned counsel's view, the alleged illegality is apparent on the face of the record and was clearly presented in the affidavit in support. He besieged me to pay a close attention to the annexures in the affidavit to find that the applicant was indeed seriously ill and had to be treated 3 at Mwanza as from June 2020, before relocating to Karagwe on 13/7/2020 for traditional treatment and never came back until 02/12/2020. He did not support his oral submissions with any authority. In so far as Mr. Gilla was concerned, the applicant did not account for the entire period of delay from 03/7/2020 when the impugned ruling was delivered. Accordingly, Mr. Gilla argued that there was no good cause to warrant granting the extension because the affidavit in support is tainted with untruths as shown in the affidavit in reply. In that regard, it cannot be relied and acted upon to support the application. He implored me to be guided by the cases of Ignazio Messina v. Willow Investments SPRL, Civil Application No. 21 of 2001 and Heritage Insurance Company Ltd v. Sabians Mchau and 2 Others (Civil Application No.284 of 2019) [2021] TZCA 523 (27 September 2021, TANZLII) in finding that the said affidavit cannot, in the circumstances, be acted upon to resolve the issue on whether good cause exists. On the allegation of illegality relating to wrongful counting of number of the days of the delay as a sufficient cause, Mr. Gilla contended that the applicant's argument that the delay was not of three days but a day could still not help her as a ground of illegality because a delay even of a day has to be accounted for which was not the case. He relied on Vodacom Tanzania Ltd v. Innocent Daniel Njau (Civil Appeal No. 60 of 2019) [2022] TZCA 639 (7 October 2022, TANZLII). Nonetheless, it was submitted that the alleged illegality is not apparent on the record. The respondent's counsel was of the view that even if the applicant's story was to be believed, her affidavit could still not support her claim as it is not supported by an affidavit of the traditional healer who allegedly attended her or an affidavit of a village official who is aware of the traditional healer and the fact that the applicant was being treated by him during that time at Isingilo Village (Kaisho). He was of that view because apart from only mentioning the name of the traditional healer, there was nothing else substantiating the averment. I have carefully examined the record and considered the rival arguments of both counsels. The issue before me is whether the applicant in her affidavit in support demonstrated good or sufficient cause for the Court to exercise its discretion in extending the time. In order to determine this issue, I will first painstakingly consider whether the affidavit in support contains untruths and ought not to be relied and acted upon to support the application. It is common ground that the impugned ruling which the applicant wants to appeal against was delivered on 03/7/2020. It is likewise common ground that the applicant's first bite application was filed on 23/12/2020 which is 21 days after she allegedly came back on 02/12/2020 from Karagwe where she was getting traditional medical treatment. As to whether the applicant was indeed in Karagwe, Kaisho, being attended by a traditional healer, it is apparent that whilst it is stated in the affidavit that the applicant left for Karagwe, Kaisho on 13/7/2020 and never came back until 02/12/2020, the medical chits annexed to the affidavit shows that she was attended by a medical doctor at Buzuruga Government Health Centre in Mwanza on 25/7/2020 and was found to have improved. Thus, if at all she was seriously ill and was already in Karagwe between 13/7/2020 and 02/12/2020, one wonders how she could have at the same time attended her clinic on 25/7/2020 at the said Health Centre in Mwanza. It is in this respect noteworthy that there was no averment to the effect that the appellant travelled to Mwanza from Karagwe for her clinic on 25/7/2020. Likewise, the affidavit in reply is evident that the applicant received summons for Misc. Application No. 119B of 2020 on 25/8/2020 and 09/09/2020 and attended the proceedings thereof on 02/11/2020, and 09/11/2020 whilst on 01/10/2020 she was in the course of the court proceedings reported absent because she was attending a funeral. Besides the averment that the applicant came back on 02/12/2022 from Karagwe, it is elsewhere in the very affidavit contradictorily stated that she came back on 22/12/2022. Furthermore, the assertion that the applicant was so ill that she could not mingle with the public runs counter to the fact that the applicant was allegedly attending outpatient clinic and used public transport. Indeed, in the case of Ignazio Messina (supra), when dealing with a similar situation which involved the question whether the credibility of the deponent in that case could affect the competence of the application before it, the Court had this to say: "An affidavit which is tainted with untruths is no affidavit at aii and cannot be retied upon to support an application. False evidence cannot be acted upon to resolve any issue. The falsehood in this case goes to the root o fthe application...." In view of that position of the law and what I have found herein above, I am in agreement with Mr. Gilla that the applicant's affidavit herein above not only that it failed to account for the delay of each day, but it also contains untruthful information. The affidavit cannot, therefore, be relied and acted upon by the Court to support and determine the instant application in the favour of the applicant. See also Kidodi Sugar Estate and 5 Others v. Tanga Petroleum Co. Ltd, Civil Application No. 110 of 2009, (both unreported); Damas Assesy and Another v. Raymond Mgonda Paulo and Others (Civil Application No. 32 of 2018) [2019] TZCA 161 (17 April 2019, TANZLII); and Jaliya Felix Rutaihwa v. Kalokora Bwesha and Another (Civil Application No. 392 of 2020) [2021] TZCA 62 (4 March 2021, TANZLII). Consequently, as there is no affidavit to be relied and acted upon in support of the instant application, there are no grounds or reasons to be considered in favour of granting the extension sought in the notice of motion under rule 45A(l)(a) and (3) of the Rules. It means, 8 therefore, that the applicant did not demonstrate any good cause that would entitle her to the sought extension. In the result, the application is not merited. It is accordingly dismissed in its entirety. It is so ordered. DATED at MWANZA this 11th day of July, 2024. B. S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 12th day of July, 2024 in the presence of Mr. Kassim Seleman Gilla, learned counsel for the respondent, also holding brief for Mr. Julius Mushobozi, learned counsel for the applicant, is hereby certifie true copy of the original. ip. R. LYIMO TY REGISTRAR ^jfrURT OF APPEAL 9