CIVIL APPLICATION NO 978 08 OF 2023 MAGORI NYABANGE ANOTHER VS KULWA PAUL MAHAMBA 3 OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 978/08 OF 2023 MAGORI NYABANGE............................................................1st APPLICANT MASASI MWITA (Administrator of the Estate of CHACHA MWITA)....................................................... 2nd APPLICANT VERSUS KULWA PAUL MAH AM B A ....................................................1st RESPONDENT THOMAS PAULO NYANDORA............. ................................ 2nd RESPONDENT KULWA PAULO NYANDORA................................................3rd RESPONDENT SABI PAULO NYANDORA....................................................4™ RESPONDENT (Application for extension of time to file Revision from the Ruling of the Court of Resident Magistrate at Mwanza) fTenowa. SRM (Ext JurV) dated the 31st day of January, 2023 in Misc. Civil Application No. 28 of 2021 RULING 15th July & 7th August, 2024 KIHWELO. J.A.: In the instant application the applicants are seeking enlargement of time within which to lodge an application for Revision against the decision of the Court of Resident Magistrate in Miscellaneous Application No. 28 of 2021 in which Hon. Tengwa, (SRM-Ext Jur) allowed the application for objection proceedings in respect of the original Land Case No. 42 of 2015 and Execution No. 11 of 2020. The application is by way i of Notice of Motion which has been taken out under the provisions of rule 10 of the Tanzania Court of Appeal Rules 2009, (the Rules). The same is supported by an affidavit, duly sworn by Mr. Vedastus Laurean, learned counsel for the applicants to support their quest. The application has been sturdily resisted by the first respondent who through his learned counsel Mr. Wilbard Kilenzi filed an affidavit in reply as well as written submissions in opposition. In this application there is somewhat scanty information on records to enable me provide a better appreciation of the gist of the background from which this matter stemmed. Under those circumstances, I will only limit myself to the information on record which merely relates to this application for extension of time. According to the scanty information on record, the applicants are disgruntled by the decision of the Court of Resident Magistrate in Miscellaneous Application No. 28 of 2021 (the impugned application) whose origin is Land Case No. 42 of 2015 and Execution No. 11 of 2020. The first respondent lodged the impugned application against the applicants herein and the second, third and the fourth respondents seeking to object the attachment of properties he claimed were his. According to his affidavit in support of that application, he had never been 2 part to neither Land Case No. 42 of 2015 nor Execution No. 11 of 2020, He further averred that, the property subject of attachment was not the subject of either Land Case No. 42 of 2015 or Execution No. 11 of 2020. The application for objection of attachment of properties was gallantly resisted by the respondents therein. Apart from resting the application, the applicants herein raised a preliminary point of objection to the effect that, the court was not seized with jurisdiction to investigate the application for objection proceedings. That application was disposed through written submissions which were duly lodged by the parties and the court ordered that, both the ruling on preliminary objection and the application were to be determined simultaneously. According to the applicants herein, to their surprise the court determined the main application in which it was granted but leaving the preliminary objection undetermined and without assigning any reasons. This is the core of what the applicants term irregularity which moved them to come to this Court. Unamused, the applicants on 22nd February, 2023 wrote a letter to the Deputy Registrar High Court Mwanza requesting for certified copies of the ruling of the court in the impugned decision. Furthermore, on 13th March, 2023 the applicants wrote a reminder letter to the Deputy Registrar but in vain. It was not until on 5th March, 2023 that is when the applicants were supplied with certified copies of the ruling. Having accomplished the foregoing, the applicants failed to lodge the application for revision in good time. To remedy the situation, they have lodged the instant application seeking extension of time to lodge an application for revision in order to challenge the apparent irregularity. As alluded before, the respondents have sturdily resisted the application. At the hearing of the application before me, the applicants were represented by Mr. Vedastus Laurean, learned counsel, whereas the first respondent was represented by Mr. Wilbard Kilenzi. Ahead of the hearing of the application, Mr. Laurean prayed and was granted leave to proceed with the hearing of the application in the absence of the 2nd, 3rd and 4th respondents in terms of rule 63 (2) of the Rules, since they were duly served through substituted service by publication in Mwananchi Newspaper of 25th June, 2024. Mr. Laurean commenced his submission by fully adopting the contents of the Notice of Motion as well as the affidavit in support of the application. In his explanation, he reiterated that there is an illegality on the face of record which if permitted they will address it further on revision since it touches upon the jurisdiction of the court. But, in addition, the 4 learned counsel contended that the applicants delayed to receive the necessary documents for lodging the application. However, he took the view that, at this moment the applicants are merely required to show that there is an illegality required to be addressed by the court. He paid homage to the cases of Mary Rwabizi T/A Amuga Enterprises v. National Microfinance Pic (Civil Application No. 378/01 of 2019) [2020] TZCA 355 (15 July 2020; TANZLII) and VIP Engineering and Marketing Limited and Two Others v. City Bank Tanzania Limited (Consolidated Civil Reference 6, 7 and 8 of 2006) [2007] TZCA 165 (26 September 2007; TANZLII) for the proposition that a claim of illegality constitutes sufficient reason for extension of time regardless of whether or not a reasonable explanation has been assigned by the applicant to account for the delay. He therefore urged me to grant the application. Upon my prompting, the counsel for the applicants admittedly argued that, there was no evidence to indicate that the applicant was supplied with certified copies of the ruling on 5th May, 2023 as averred at paragraph 12 of the affidavit in support of the application. For his part, Mr. Kilenzi, premised his submission by praying and was granted leave to adopt the affidavit in reply which was lodged in Court on 17th August, 2023 as well as written submissions contesting the 5 application lodged on 11th October 2023 to form part of his oral arguments. He then went ahead to contend that, the issue of illegality is neither here nor there, and therefore, the applicants cannot be heard to rely on it since it was not averred in their affidavit in support of the application. In his view, the applicants throughout their affidavit in support of the application they are referring to irregularity which is not illegality and that the two are not synonymous citing Black's Law Dictionary, Eighth Edition by Bryan Garner which defines the two terms differently. In his view, the issue of irregularity which is averred in the affidavit is not supported by the submissions in support which the learned counsel advanced. According to him, rule 115 of the Rules, is very categorical that, irregularity cannot be a reason for extension of time. However, I wish to interject a remark by way of postscript that the provisions of rule 115 of the Rules is not relevant to the application before us since it relates to appeals and not application. As regards the explanation given by the applicant for the delay, he submitted that, the impugned decision was delivered on 31st January, 2023 and the applicants claims to have received certified copies of the ruling on 5th May, 2023 while the application was lodged on 25th July, 2023, hence, even if you assume that they received the certified copies 6 of the ruling on that date yet the applicants have not accounted the delay of over 80 days. Citing the case of Mtengeti Mohamed v. Blandina Macha (Civil Application No. 344 of 2022) [2023] TZCA 17328 (12 June 2023; TANZLII), he argued that illegality cannot be used as a shield to hide against inaction on the part of the applicants. On the cases cited by the applicants, he argued that, they are all distinguishable since they relate to illegality while the submission of the counsel is on irregularity. The learned counsel contended further that, the law is settled and clear that, whoever seeks the court to extend time for doing an act which is otherwise time barred should furnish good cause for the delay and he should account each day of delay. In his view much as granting of the extension of time is the discretion of the court but that discretion must be judiciously exercised. He therefore urged me not to grant the application. The learned counsel submitted that the applicant did not only fail to account for each day of delay but also, he has not demonstrated that he was diligent in pursuing the matter. In all, he implored me to dismiss the application with costs. In rejoinder submission the counsel for the applicants reiterated his earlier submissions, apart from admittedly contending that the affidavit in support of the application do not address illegality but rather 7 irregularity but insisted that the Court can still determine it. He further admitted that the applicants delayed for 80 days from the date certified copies of the ruling was supplied to him. He insistently argued that, the Court may still exercise its discretion by allowing the application. Responding on the cited case of Mtengeti Mohamed v. Blandina Macha (supra) the learned counsel argued that, this case is distinguishable since in that case the delay was 9 years. I have given due consideration to the rival submissions of the learned trained minds and the vexing issue that requires my deliberation is whether the application before me is meritorious or not. I find it appropriate to predicate my deliberation with the reproduction of the relevant provisions that governs extension of time which is rule 10 of the Rules which reads inter alia that: "The Court may, upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal' for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after doing o f that act: and any reference in these Rules to any such time shall be construed as a reference to that time as so extended." 8 I have reproduced the above provision deliberately in order to facilitate an easy determination on whether the application is founded on sound basis. The outset, I wish to point out that, the court's discretion to extend time under rule 10 only comes into existence after sufficient reasons for extending time have been established. In determining whether sufficient reason for extension of time exists, the court seized of the matter should take into-account not only the considerations relevant to the applicant's inability or failure to take the essential procedural step in time, but also any other considerations that might impel a court of justice to excuse a procedural lapse and incline to a hearing on the merits. Such other considerations will depend on the circumstances of the individual cases and include, but are not limited to, such matters as: whether the applicant is able to account each day of delay, the promptitude with which the remedial application is brought, whether there was manifest breach of the rules of natural justice in the decision sought to be challenged on the merits, and the prejudice that may be occasioned to either party by the grant or refusal of the application for extension of time. This broad approach is preferable as a judicial discretion is a tool, or device in the hands of a court for doing justice or, in the converse, avoiding injustice. 9 Although rule 10 does not go further to define as to what amounts to good cause. However, case law has it that extension of time being a matter within the court's discretion, cannot be laid down by any hard and fast rules but will be determined by reference to all the circumstances of each particular case. There is, in this regard, a considerable body of case iaw. See, for instance, the case of Osward Masatu Mwizarubi v. Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010 (unreported) in which this Court stated that: "What constitutes good cause cannot be laid down by any hard and fast rules. The term "good cause" is relative one and is dependent upon the party seeking extension o f time to provide the relevant material in order to move the court to exercise its discretion." The question is therefore, whether or not the applicants in the instant application have complied with the conditions for the grant of this application or not. Indeed, records bears out that the impugned decision was delivered on 31st January, 2023 and the applicants claim to have received certified copies of the ruling on 5th May, 2023 while the application was lodged on 25th July, 2023. Indeed, the applicants, even if assuming for the sake of arguments that they were supplied with certified copies of the ruling on 5th May, 2023, yet the applicants will be late for 80 10 days and quite unfortunate the applicants have not accounted each day of the delay. I would like first to deliberate on the applicants' contention that since there is an alleged illegality which relates to failure by the court to rule on the preliminary objection, that by itself, is a sufficient reason for granting extension of time. In my view, and as rightly argued by the counsel for the first respondent, the applicants did not aver illegality in their affidavit in support of the application and in the contrary, this was raised during the submission of the learned counsel from the bar. A cursory perusal of the affidavit indicates clearly that what was averred in the affidavit was irregularity and not illegality but unfortunately, the counsel raised illegality during his submission from the bar which makes his submissions worthless. In this regard, I find inspiration in the decision of the Court of Appeal of Uganda in Transafrica Assurance Co. Ltd v. Cimbria (EA) Ltd (2002) E.A 627 in which the court stated that: "As is well known, a statement o f fact by counsel from the bar is not evidence and therefore, court cannot act on i t " This position has also been amplified in a number of decisions made by the Court in which the Court has decidedly made it clear that, failure to lodge an affidavit in reply, save for legal matters, the factual 11 matters deposed in the affidavit are taken not to have been disputed. See, for instance, Irene Temu v. Ngasa M. Dindi and Two Others, Civil Application No. 278/17 of 2017, Fweda Mwanajoma and Another v. Republic, Criminal Appeal No. 174 of 2004 and Jonas Betwel Temba v. Paul Kisamo & Another, Civil Application No. 10 of 2013 (all unreported). In my view therefore, the counsel for the applicants cannot be heard to raise the issue of illegality which was not averred in the affidavit in support of the application. Now turning to the second aspect, there was a convergence of submissions that the applicants were late for eighty (80) days and quite unfortunate for an obscure cause, the applicants could not assign any reason leave alone plausible reason for the delay of eighty (80) days from the 5th May, 2023 when they allege to have received certified copies of the impugned ruling to 25th July, 2023 when they lodged the instant application. In my considered view, the applicants have not been able to account for each day of delay, the delay which is very inordinate and that there is no way out the applicants can demonstrate that they were diligent In the circumstances, the applicants did not meet the settled 12 criteria for extension of time, which is to account for each day of delay, the delay should not be inordinate and lack of diligence. By any stretch of imagination, the applicants had no any grain of diligence in pursuing their application. There is a considerable body of case law in this area to the effect that in an application for extension of time, the applicant is duty bound to account for each day of delay. In the case of Bushfire Hassan v. Latina Lucia Masanya, Civil Application No. 3 of 2007 (unreported), faced with analogous situation we held that: "Delay o f even a single day has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken." Corresponding observations were also made in the case of Bariki Israel v. Republic, Criminal Appeal No. 4 of 2011 (unreported). In the instant application before me the applicants' delay was inordinate as they were late for eighty (80) days in lodging the application which defeats common sense and logic. Ithink that counsel should always keep in mind that judicial legislation is in millimeters and not in kilometers. I am asserting so deliberately to remind parties to stick to the time set by law or the court. 13 This Court has emphasized the need to dutiful follow rules of the court. This was amplified in the case of Godwin Ndewesi and Karoli Ishengoma v. Tanzania Audit Corporation [1995] T.L.R. 200 in which the Court held that: "The rules o f the court must prima facie be obeyed and[ in order to justify a court in extending time during which some steps in procedure requires to be taken there must be some materiai on which the Court can exercise its discretion. I f the law were otherwise any party in breach would ha ve an unqualified right to extension o f time which would defeat the purpose o f the rules which is to provide a timetable for the conduct o f litigation." Similarly, the applicant is duty bound to have brought the application in question with reasonable promptness which is not the case in theinstant application in which the applicants took eighty (80)days. ThisCourt has considered the issue of delay in lodging the application as one of the grounds for not granting the application for enlargement of time. In the case of Attorney General v. Tanzania Ports Authority and Another, Civil Application No. 87 of 2016 the Court held that: "What amounts to good cause includes whether the application has been brought promptly, 14 absence o f any invalid explanation for the delay and negligence on the part o f the applicant." To that end, I must conclude that the applicants have not demonstrated any good cause that would entitle them extension of time. In the result, this application fails and is, accordingly, dismissed with costs for the first respondent only. DATED at DAR ES SALAAM this 5th day of August, 2024. P. F. KIHWELO JUSTICE OF APPEAL The Ruling delivered this 7th day of August, 2024 in the presence of Mr. Vedastus Laurian, learned counsel for the Applicants, Mr. Wilberd Kilenzi, learned counsel for the 1st Respondent and in the absence of 2nd and 3rd Respondents; is hereby certified as a true copy of the original. 15