ANNA APOLO RULING

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISCELLANEOUS CIVIL APPLICATION NO. 154 OF 2023 (Arising from the judgment of the Resident Magistrate’s Court of Mwanza at Mwanza in RM civil case No.19 of 2022) LIVING WATER TELEVISION CO.LTD…..…………………………1ST APPLICANT LAURENT MAHONA MAGIKE……………………………………….2ND APPLICANT VERSUS ANNA APOLLO TIBAIJUKA …………………..………………………. RESPONDENT RULING 3rd & 14th JUNE, 2024 CHUMA, J. This ruling is in respect of an application for an extension of time for filing an appeal to this court against the decision of the Resident Magistrate’s Court of Mwanza at Mwanza in RM Civil Case No.19 of 2022 by Hon Ndyekobora PRM. The application is supported by the affidavit of the applicant counted by the counter affidavit of the respondent. The application is preferred under section Section 14 (1) and (2) of the Law of Limitation Act Cap 89 RE 2019 and Section 95 of CPC Cap 33 RE:2019. The applicant was represented by Mr. Kulwa Learned counsel and the respondent was represented by Mr.Amos Gondwe Learned counsel. 1 In his submission, Mr. Kulwa advocate for the applicant at first instance and prayed to adopt the applicant's affidavit to form part of my submission and court record. It was his argument that they initially filed an appeal on 10/8/2023 and registered it as appeal No 28/2023 which was struck out for being wrongly instituted or instituted against a wrong party. And by then the time for lodging an appeal had expired. The applicant then on 29/9/2023 applied for a copy of the ruling as per the tenth paragraph though were not availed with the sought ruling despite their follow-ups. To avoid further delays they opted to file this application attaching the prior filed appeal. That two-month delay is because of the court process in pursuing appeal No 28/2023 and the time seeking a copy of the ruling delivered on 26/9/2023. The present application was lodged electronically on 11/10/2023 and admitted on 15/10/2023. The summons was issued on 4/12/2023. All this effort indicates their struggle for the right to be heard on the appeal stage. Mr. Kulwa termed it a technical delay and that under section five of the Law of Limitation Act, the time spent in following up on necessary court records has to be excluded. Section 21 (1) of the Act excludes the time spent during the prosecution of another case. In this case, then the time spent in prosecuting Civil Appeal No 28/2023 has to be excluded in 2 computing the delay. This position was decided in the case of Bank M (Tanzania Limited) V Enock Mwakyusa Civil application No 520/18 of 2017 on pages 5,6 & 7 last paragraphs. The circumstance of the cited case is similar to the instant application. He cited another case of Okech Boaz Othiambo and another V. Salama Idi Kanyorota Civil Application no 900/15/2021 in which on page 7 last paragraph the court of appeal had a similar position to the above case. He then prayed this court to consider the cited case in its findings and added that the issue of technical delay suffices to warrant this court grant the sought order. Mr. Kulwa further submitted that there was some mistake beyond human fault and that they filed an appeal timely but was mistakenly filed or filed against the wrong party which in his view amounts to technical delay. He also referred this court to the case of Lyamuya Construction Company Ltd V Board of Registered Trustee of Young Women's Christian Association of Tanzania Civil appeal No. 2/2010. In this case, the Court of Appeal established grounds for consideration before granting such an application or not. On page 6 last paragraph, the court stated such conditions including accounting for all periods of delay, and that delay should not be inordinate, the applicant must show diligence 3 and any other sufficient reasons the court will deem fit. The Learned advocate explained further that the intended impugned judgment was issued on 12/7/2023, the appeal was filed on 10/8/2023, and was struck out on 26/9/2023. On 29/9/2023 requested a copy of the ruling but we were not availed of it till the date of filling this application. Hence, they have managed to account for the period of delay. As to the issue of delay that it should not be inordinate, the interval of the mentioned date indicates or does not amount to inordinate delay. As to the issue of diligence, the affidavit clearly explained, and his submission of their prompt in lodging an appeal timely shows our diligence. As to the issue of other reasons which this court may consider, this court may consider factors that are inevitable for human beings, and advocates are not angels that can avoid unavoidable matters. He finally concluded by arguing that the instant application meets all requirements to attain the sought relief. In response, Mr. Amos Gondo's advocate challenged the application for failure to meet legal requirements. Having adopted a counter affidavit to form part of his submission and court record contended that the case of Principle Secretary Ministry of Defence and National Service v Valambia 1992 TLR 4 387 and Lyamuya Construction Company Ltd cited by Mr Kulwa advocate on page 6 of those cases provides for conditions before granting such order including accounting for all period of delays. In this case, the applicant failed to account for all days of delay. He only rushed to a technical delay but failed to explain the steps taken after that technical delay. There is no doubt that the appeal referred was struck out on 26/9/2023 and the instant application was filed and paid in court on 22/10/2023, 26 days after the decision though it is alleged that the same was filed electronically on 12/10/2023. Paragraphs 10 to 12 of the applicant’s affidavit, the reason for the delay is because of his follow-up in obtaining a ruling as per annexture LA6. But the said evidence is not attached in the affidavit and more so to date the same is un availed to them. Thus, being so why they have failed to file prior to without the same as they did now? It is the Law requirement that extension of time not on point of law, the duty to account for each day of delay is vital. This position was stated in the case of Hamis Babu Bally V. Judicial Ethics Committee and three others Civil application No 130/01 of 2020 on page 15 it was insisted that a delay of even a single day has to be accounted for. This point might not be considered only where the application is on the illegality on the face of the record. In this 5 matter, there is no allegation of illegality for this court to waive the grounds of accounting for each day of delay by the applicant. This position was stated in the case of Exim Bank Tanzania Limited V Johan Harad Abrahmsson V and three others Civil Reference No 11 of 2018. Since the issue of illegality is not reflected in the affidavit and in his submission the applicant ought to account for after the said technical delay. Section 19(5) of the Law of Limitation Act is misplaced in the present circumstance. The provision is all about the exclusion of days spent while waiting issuance of the ruling, but in this matter, the sought documents were never obtained hence there is nothing to exclude. S. 21(1) of LMA talks about computing of period used to prosecute other cases of which we have no doubt on technical delay. Regarding the case of Boaz and Bank M, the same are distinguishable because they are all about technical delay but in our case the applicant failed to account for after technical delay. Mr Gondo admitted that enlargement of time is a court discretion however it has to be exercised judiciously and is after the applicant meets prerequisite conditions including accounting for the period of delay. Because the applicant failed to account for he prayed the application to be dismissed with cost as it was decided in Hamis Babu's case. 6 In his rejoinder, Mr. Kulwa submitted that technical delay includes all periods spent in prosecuting that appeal and following copies of the ruling. The cited cases of Exim Bank and Hamis Bally differ from the circumstance of this application because while they admit to not alleging illegality but they have accounted for the period of delay both in the affidavit and submission. Regarding failure to attach annextures in the affidavit, because the notice is there failure to attach in the affidavit is not fatal to amount to defectiveness. And that they managed to convince this court of all efforts taken towards processing this application. The delay is not inordinate as they took a short period of time to lodge this application. He once again insisted on his prayer for this court to allow this application with cost. Having considered the parties' submission and after going through the court records and the relevant laws, the court has found the issue to determine in this application is whether the applicant has established sufficient or good reasons for the delay in filing an appeal in the court within the prescribed time. From the party’s submission, all are in consensus on a settled position of law that an extension of time is granted subject to the establishment of sufficient cause. The conditions were set out in the case 7 of Lyamuya Construction Company Ltd V Board of Registered Trustee of Young Women's Christian Association of Tanzania Civil appeal No 2/2010. What amounts to sufficient or good cause has been discussed in a range of cases including the Court of Appeal case of John Mosses and Three Others v. The Republic, Criminal Appeal No. 145 of 2006 where the position of the law stated in the case of Elias Msonde v. The Republic, Criminal Appeal No. 93 of 2005 was quoted. The Court of Appeal stated “We need not belabour the fact that it is now settled law that in application for extension of time to do an act required by law, all that is expected by the applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part”. It was also stated by the Court of Appeal in the case of Blue Line Enterprises Ltd. V. East African Development Bank, Misc. Application No. 135 of 1995 (unreported) that:- 8 “It is trite law that extension of time must be for sufficient cause and that extension of time cannot be claimed as of right, that the power to grant this concession is discretionary, which discretion is to be exercised judicially, 'upon sufficient cause being shown which has to be objectively assessed by Court." Guided by the above position this court found that the reason advanced by the applicant to substantiate his delay is the court process in pursuing appeal No. 28/2023 and the time seeking a copy of the ruling delivered on 26/9/2023.This to Mr. Kulwa Samson termed it a technical delay. This contention however was challenged by Mr. Gondo by alleging that the applicant failed to account for a delay after the so-called technical delay. According to him, the applicant ought to have accounted for each day of delay as it was held in the case of Hamis Babu Bally (supra) cited by Mr. Gondo's advocate on page 15 that delay of even a single day, has to be accounted for. I am in agreement with him on what the court said on this point, which again Mr. Kulwa Samson contested that the cited case is distinguishable though with no convincing explanation on how the same differs and hence failed to assist this court on this point. Having gone through that case despite siding with Mr. Gondo on one aspect of the 9 need to account for even a single day of delay, but the circumstance of that case and its material facts do not match with the instant application. This is because reading between the lines in that case the applicant lodged his application after a lapse of 24 days on the pretext of preparing the notice of motion and affidavit. Now what was decided by the court on page 15 is that, I quote; “Using 24 days preparing the said documents having in mind the advocate was all along handling this matter is an inordinate delay in my view and has made his diligence questionable. I thus found this ground to have no merit”. But also, in the case of Lyamuya (supra), the applicant failed to account for days of delay between the date of obtaining necessary documents ie ruling, and the date of filling application which again its circumstances differ from the present one because in this application the applicant never availed with the sought copy of the ruling. In the same vein I tend to differ from the argument by Mr. Kulwa Samson which is also a stance of Mr. Gondo on the deduction of the time spent while waiting issuance of the ruling, but in this matter the sought documents never obtained hence there is nothing to exclude. 10 It is my further observation that at first according to Mr Kulwa Samson, the appeal was lodged timely only that it was struck out. As rightly pointed out by Mr. Kulwa technical delay includes all period spent in prosecuting that appeal and following copies of the ruling, which I tend to side with and since the striking out of the appeal was not in my view caused by the negligence on the applicant, the subsequent efforts taken by the applicant in the process of lodging this application seems to be convincing. The issue of technical delay as a factor to be considered by the court in application like the instant one was well discussed in a number of cases including that of Fortunatus Masha V William Shija and Another [1997] TLR 154.Bank M (Tanzania Ltd.) (supra) and Okech Boaz Othiambo (supra). In the end result, I find merit in the instant application which is hereby granted. The applicant is to lodge his appeal within 14 days from the date of this ruling. Parties to shoulder their own cost. I so order. DATED at MWANZA this 14th day of June 2024. W.M. CHUMA JUDGE 11 Ruling delivered in court before Mr. Kulwa Samson and Mr. Amos Gondwe Learned counsels for applicant and respondents respectively this 14th day of June 2024 W.M. CHUMA JUDGE 12