LUCAS MWAIPOPO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR-ES-SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 17990 OF 2024 LUCAS MWAIPOPO MWAKABANGA APPLICANT VERSUS THE MANAGING DIRECTOR OF TANZANIA PORTLAND CEMENT COMPANY LIMITED RESPONDENT RULING S.M. MAGHIMBI.3: The applicants have moved the court under the provisions of Sections 93, 95 and 68(e) of the Civil Procedure Code [Cap. 33 R.E. 2019]. They are moving the court to grant extension of time within which the Applicants can file an Application for Review out of time against the Judgment of this court in Civil Case No 215 of 2005 dated 12"^ February, 2015 delivered by Her Ladyship Madam Upendo Msuya, Judge (as she then was). The applicants further moved the court for any other order that the court may deem fit and just to grant. Hearing of the application was by written submissions, the applicant's submissions were drawn and filed by Mr. AJ. Kanonyele, learned advocate while the respondent's reply submissions were drawn and filed by Mr. Chali Juma, learned Advocate. In their affidavit to support the Chamber Summons and the submissions in support of the application, the applicants' ground of delay were that after the impugned struck out, the Applicants did not sleep over their efforts to rescue the case. They made several attempts to rescue it in court corridors vide Misc. Civil Application No, 351/2015 and Misc. Civil Application No. 113/2018 which they later on realized that they were taking a wrong approach or running on a wrong foot. That they have now come again to this court through the present Application targeting for extension of time for to file Review of the decision of Her Ladyship Upendo Msuya, J (as she then was) in Civil Case No. 215/2005. The applicants also moved the court to grant the application on the ground of illegality of the decision that was reached by the trial judge, condemning the striking out of their originating suit on 12^^ February, 2015 on reasons that the trial judge raised an issue on court fees suo motto without giving them an opportunity to address the court or be heard on that particular issue. Further that the issue was not among the issues framed by the court for determination. They argued that the impugned case was fully heard. That however, surprisingly on reaching the point of delivery of the Judgment, this being after the said suit been assigned and reassigned to several Judges about nine of them and lastly placed before Madam Judge Upendo Msuya, (as she then was), her ladyship decided to struck out the suit on the ground that it was not evidenced that court fees were paid accordingly as expressed above. Mr. Kanonyele submitted that the striking out of the impugned case heavily premised on illegality on reasons that in raising an issue suo motto "whether the Court fees were accordingly paid or nott'dir\6 proceeded to strike out the case without giving an opportunity to the parties to address the court in that regard. He submitted further that in doing that the Honourable Judge, denied the Applicants the right to be heard, a principle of natural justice as enshrined in the Constitution of the United Republic of Tanzania, 1977 as amended from time to time. It is well understood that violating or contravening any article of our constitution or its part thereof is unconstitutional and therefore illegal. He then argued that it has now come to be trite law in our jurisdiction that it is illegal for our courts to raise an issue suo /noffa without giving the parties an opportunity to address the court or be heard on it. That the gist of this application for extension of time the applicants lies on the complained illegality, supported with other reasons demonstrated in the affidavits. That the complained illegality has been discussed in a number of decisions that wherever there is a claim of illegality in any application for extension of time, the court, regardless of other reasons so advanced by the applicant, 'whether or nota reasonable explanation has been given'\he court ought to grant the application in view of determining the illegality and cure the complained illegality if found to exist. So in this regard, he submitted, the court is duty bound to regard its precedence to positively consider the application and grant it so as to cure the existing illegality. He supported his argument by citing the case of VIP Engineering Marketing Limited & 2 Others Vs Citibank Tanzania Limited, Consolidated Reference No.6,7 and 8 of 2006, Court of Appeal of Tanzania (Unreported) which repeatedly discussed in Citibank Tanzania Ltd Vs. Tanzania Teie- Communications Company Ltd &4 Others, Misc. Commercial Case No, 202 of2017, High Court of Tanzania (Commercial Division)(Unreported). That a similar situation as it happened in Civil Case No. 215/2005 where the Court considered a similar Application for extension of time to make application to deal with an iilegality and regardless of other reasons for the delay, the court granted it. He further cited the case of VIP Engineering Marketing Limited & 2 Others where the court held that: a claim of illegality of the challenged decision constitutes sufficient reason for extension of time regardless of whether or not a reasonable explanation has been given by the applicantto accountfor the delay." He also cited the case of Kalunge Company Advocate Vs- National Bank of Commerce Ltd Civil Application No. 124 of 2005, Court of Appeal of Tanzania at Dares salaam (Unreported), the court of appeal extensively held that; "...when the point at issue is one alleging iiiegaiity of the decision being chaiienged the court has a duty, even ifit means extending the time for purpose, to ascertain the point and, if the alleged Illegality be established to take appropriate measures to put the matter and the record straight/' He further cited the case of the Principal Secretary, Ministry of Defence and National Service Vs. Devran Valambhia,[1992] T.L.R. 185 and the decision of the Fair Competition Tribunal at Dares Salaam led by Her Ladyship Razia H. Sheik, Judge between National OH(Tanzania) Ltd vs Energy and Water Utility Regulatory ^t/f;^or/fx(EWURA) Application No. 8 of 2011, where the same position was held. Basing on those submissions, he prayed that the honorable court to adhere to the doctrine of precedence and find the reasons advanced as sufficient grounds to have the application granted with its deserving costs. In reply, Mr. Chali submitted that the Application is misconceived as the Applicants have not accounted for delay of each day and that the alleged illegality is not the illegality by itself. He argued that the present Application should not be granted on the reasons that; one; the Applicant have failed to account delay of each day of delay, two that the Order which is the basis of the present Application was made on 12^^ February 2015. That the only ground which the Applicants are bringing forward is that they have been in Court corridors, and they have relied on nurner trying to rescue their case by citing the Misc. Civil Application No, 351 /2015 and Misc. Civil Application No, 113/2018. His reply was that the Applicants have failed to account each day of delay as required by the law as it is almost nine years now since the matter was struck out but unfortunately the applicants were not able even to account a single delay. Mr. Chali went on submitting that it is legendary principle, the delay of each day of delay has accounted for as stated by the Court of Appeal of Tanzania, in the case of Airtel Tanzania limited Vs. Misterligihit Electrical Installation Co. Limited (Unreported) where at page 10 and 11 it was ruled that delay, even a single day, must be accounted for. That the Applicant in the said case failed to account only "11 days",consequently the application was dismissed. Mr. Chali then argued that the law requires the Applicants herein to state and give reasonable reasons for delay of each day of delay, the present Application has been filed more than 9 years, the Applicants have failed to account for delay of each day, the Application deserves to be dismissed. The Respondent further submitted that the Applicants have failed to adduce any other ground worth of consideration to have the Application granted. That the complaint by the Applicants that were not afforded right to be heard requires a long-drawn argument and proof. That the reasons which led the suit to be struck out were obvious, lack of proof that the Court fees were paid was not only the reason to striking out the Applicants' suit but also the Plaint did not show when it was presented for filing in Court, the fact which the Applicants are trying their level best to have the some hidden. The respondent submitted further that the Applicants have failed to demonstrate to what extent the right to be heard was not exercised. It is a trite law that, he who alleges must prove. The Respondent submitted the Applicants were obliged to supply the Court with the proof of payment when such query arose, but for the reasons best known to them they failed to do so. The question now is, he submitted, had there been an alternative following non submission/ presentation of the evidence as to payment of Court fees?, the answer he said is a big no, therefore, the Trial Judge rightly struck out the Suit. Basing on the submissions above and authorities, Mr. Chali submitted that the Applicants have failed to advance sufficient reasons to move this court to condone the delay and prayed for the dismissal of the suit. Having heard the parties, I have considered the grounds of delay and the reasons thereof as submitted by the parties. I have in mind the decision of the defunct Court of Appeal for Eastern Africa in the case of Mbogo v. Shah [1968] E. A where it was held:- "AH relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factorsinclude the length ofthe delay, the reason for the delay, whether there is an arguable case on the appeal, and the degree ofprejudice to the defendant if time is extended.'' The applicants argued the application in two folds, the first is the alleged illegality in the decision of this court whereby they argued that the trial Judge made the decision to strike out the application without affording the applicant the right to be heard, designating this act as an illegality in the impugned decision. However, the question as to whether or not such illegality exists should also be explained along with the reason why it took the applicants such a long time to realise it and file the application nine years later. In the case of Ally Salum Said vs Idd Athumani Ndaki (Civil ADDllcatlon 450 of 2021) [20231 TZCA 191 ^19 April 20231. her Ladyship Madame Justice Fikirini JA held at page 18 that: 'While I agree that Illegality can constitute sufficient cause but it does not mean accounting for each day of the delay was not required. The reasons for the delay must be explained whether or not illegality is pleaded, one must explain why it also took nine years to realize the illegality. On the second fold, the applicants have also alleged that despite of the illegality, their delay in pursuing Review in time is not on negligence, it has been noted that after the impugned struck out, the Applicants did not sleep over their efforts to rescue the case, they made several attempts to rescue it in court corridors vide Misc. Civil Application No. 351/2015 and Misc. Civil Application No. 113/2018 which they later on, through their decisions, realized that they were taking a wrong approach or running on a wrong foot. The applicants wish for the court to be convinced of their actions and complement them for being active in pursuing their rights as opposed to being apathy. However, the fact that there are several applications lodged to me is nothing but forum shopping 10 whereby the applicants were applying a trial and error mode in court. Had they been focused and know that there was the alleged illegality then the situation would have been different. I have further looked at the applications which the applicants argued that they show them being active in pursuing their rights. TTie iast application cited was Misc. Civil Application No, 113/2019 cited in Tanziii as Lucas Mwaioopo Mwakabanca & 2 Others vs Manaaina Director of Tanzania Portland Cement Comoanv Limited (Misc. Civil Application 113 of 2019) r20221 TZHC 197(16 February 20221, first and foremost, the decision of this court came out on 16^^ February, 2022 dismissing the applicants' application to extend time to appeal to the Court of Appeal. It took another two years and five months till July 2024 to file this application. What happened in the two years between 2022 and 2024 remains unexplained. Just an advice" from an advocate, is that a sufficient ground to extend time? The answer is no. Further to the above, at page 3-4 of the ruling in the case of Lucas MwalDODO Mwakabanoa & 2 Others vs Manaaina Director of Tanzania Portland Cement Companv Limited (Misc. Civil Aopiication 113 of 20191 (20221 TZHC 197(16 Februarv 2Q22V this Court(Hon. Mruma J) held: 11 "7776 Applicant's suit was not dismissed butit wasstruck out on the ground that it was notproperly presented for filing as there was no evidence ofpayment ofcourtfees. It is trite iaw that no appeal lies from an order for striking out a matter. Appeal is available oniy for a matter which uses from a dismissal order. After the striking outordersinstead offiling thesuitafresh they lodged and application searching for restoration by way ofreview(whichIthink it was a correct forum) but worse still after the review was denied on the ground of time limitation, instead offiling thesuitafresh,(ofcoursesubject to limitation period), the Applicants resorted to application for extension of time. This constitutes negligence which is not a good reason for extension of time. That said, the application is dismissed with no order as to costs. From the holding above, it is obvious that the applicants, after the striking out orders, the applicant had previously lodged an application searching for restoration by way of review but worse still, after the review was denied on the ground of time limitation, instead 12 of filing the suit afresh,(of course subject to limitation period), the Applicants resorted to application for extension of time. Which means an attempt was already made to make an application of this which the applicants are seeking extension of time to re-do again. The same was dismissed for being time barred hence they cannot come again and attempt to relodge the same application. This is what I called earlier as forum shopping. Having made the above analysis and findings, it is to the satisfaction of this court that the applicants have failed to convince the court on the reasons for the delay, as the reasons advanced do not suffice to warrant extension of time. That being the case, this application is hereby dismissed for lack of merits. Given the employer employee relationship that existed between the parties, I make no order as to costs. Dated at Dar-es-salaam this day of March, 2025. M •Ax ■si\ >!; S.M. MAGHIMBI JUDGE 13