MISC

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 6233 OF 2024 (Originating from the District Court of Ilala in Execution Case No. 8 of 2010) MAL1GISA MANYANGU ……………………………………..……..…. 1ST APPLICANT K1L1MBA PETER K1LIMBA………………………………………..….. 2ND APPLICANT EMILY MTAUKA …………………………………………………..…….3RD APPLICANT MOHAMED PAMBA ………………………………………………….……4TH APPLICANT AUSTERIA MIHAYO…………………………………………………….…5TH APPLICANT HABIBA MAHITI ……………………………………………………….… 6TH APPLICANT MAGRET S. MANYAFU ………………………………………………….. 7TH APPLICANT LUCY MARTIN …………………………………………………………….. 8TH APPLICANT MUNIRA AMANI ………………………………………………………….. 9TH APPLICANT FATUMA WAZ1RI ……………………………………… ……….……….10TH APPLICANT VINCENTMASANULA…………………………………………………….11TH APPLICANT FLORA NASUA ……………………………………………………..……..12TH APPLICANT ALIMOSA ANOS1SYE ………………………………………….….…… 13TH APPLICANT SHAIBU NG’EVE ……………………………………………………...…. 14TH APPLICANT MATILDA LY.AMBA …………………………………………………….. 15TH APPLICANT PETER LUBUWA …………………………………………………………. 16TH APPLICANT MAGOTI MUFUELE ………………………………………………..……..17TH APPLICANT ELIZABETH KASAMBALA …………………………………………….…18TH APPLICANT JOHN KITIME (Administrator of Janet Chidosa) ……………………... 19TH APPLICANT MUSSA RUZYEGO (Administrator of Hassan Ruzyego) ………….…. 20TH APPLICANT KHADIJA NGUA ………………………………………………………. 21ST APPLICANT 1 ANNA NGONYOLI ……………………………………………………… 22ND APPLICANT ROSE KISAKA …………………………………………………………… 23RD APPLICANT VERSUS THE NATIONAL INSURANCE CORPORATION(T) LIMITED …… 1ST RESPONDENT THE ATTORNEY GENERAL …………………………………………... 2ND RESPONDENT RULING 15th August & 17th October, 2024 BWEGOGE, J.: The applicants herein instituted an application in this court praying for an extension of time within which they may lodge revision proceedings intended to move this Court to call and examine the decision and proceedings in Execution Case No. 8 of 2010 of Ilala District Court to satisfy itself as to the correctness, legality and propriety of the impugned decision. The application is brought under the provision of section 14 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019], sections 3A (1) and (2), 3B (1) and (2) and 95 of the Civil Procedure Code [Cap. 33 R.E. 2019] and supported by the joint affidavit of the applicants herein. 2 The factual background of this case, albeit briefly, is as follows: The applicants herein were employees of the 1st respondent in various capacities. The 1st respondent initiated criminal proceedings [Criminal Case No. 508 of 1999] against the applicants herein in the Resident Magistrate Court of Dar Es Salaam, at Kisutu. Consequent to the commencement of the criminal proceedings, the applicants herein were terminated from employment. The applicants successfully challenged their dismissal from employment in the District Conciliation Board (Ilala). The Board quashed the dismissal of the applicants from employment and entered an order for the reinstatement of the same to the payroll. The 1st respondent was not amused. She preferred a reference to the Minister for Labour. However, the respective Minister confirmed the decision of the Board and made specific orders that in tandem with the reinstatement, the applicants should be paid all their salary withheld during the dismissal period, among others. The 1st respondent was reluctant to allow the reinstatement of applicants to the payroll; hence, challenged the decision of the Minister in this court in Miscellaneous Civil Application Case No. 263 of 2002. Likewise, the application was dismissed for being bereft of merit. 3 After all the impediments were cleared, the applicants commenced execution proceedings (Execution Case No. 8 of 2010) in the District Court of the District Court of Ilala seeking to enforce the reliefs emanating from the decision of the Board and Minister, claiming the decretal sum of TZS 685,275,826.20. The 1st respondent conceded to pay only part of the reliefs comprised in the decretal sum and contested the remaining reliefs thereof. Hence, the trial magistrate ordered the 1st respondent to pay what was not disputed and ordered the 1st respondent to file a breakdown of the paid/undisputed reliefs comprised in the decretal sum. The 1st respondent, having paid for the undisputed decretal sum, refrained to file the breakdown of the paid decretal sum; and proceeded to file Civil Revision No. 17 of 2017 in this court challenging the order of the trial magistrate. This court upheld the decision of the trial District Court and further ordered the 1st Respondent to present the breakdown as ordered by the trial court within one month. However, when the case file was remitted back to the trial court for the 1st respondent to comply with the order of this court; the trial Magistrate vacated her previous decision and struck out the execution proceedings [Execution No. 8 of 2010]. 4 Undaunted, the applicants filed an appeal against the ruling and order of the trial court in this court. Unfortunately, the appeal was struck off with instructions that the right way to challenge the decision of the trial court was through instituting an application for revision. However, the time to file an application for revision had already expired. The previous attempt to institute an application for the enlargement of time in Miscellaneous Civil Application No 458 of 2023 proved abortive on technical ground. Hence, this application. The applicants were represented by Mr. Barnaba Luguwa, learned advocate; and the respondents were represented by Mr. Elias Evelius Mwendwa, the learned state attorney. In substantiating this application, Mr. Luguwa submitted that as a matter of law, in an application of like nature, it is the discretion of the court to grant extension of time. The discretionary power of this court, the counsel opined, ought to be exercised according to the rules of reason and justice. The counsel asserted that it is apparently shown in the supporting affidavit that the applicants did not sleep on their rights but pursued the matter diligently to this date and they have accounted for the delay. In buttressing the point, the counsel cited the case of Lyamuya Construction Company Limited 5 vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4. Further, the counsel charged that the trial magistrate contravened the law by disregarding the decision of the High Court. That the High Court ordered the respondents to file a breakdown of the part of the decretal sum paid to enable the trial court to rule on the contested appropriate figure yet to be paid. Hence, it was illegal for the trial court to vacate from the decision and instruction of this court for no justifiable reason. In this respect, the counsel asserted that the trial court’s decision is tainted with illegality which is a sufficient reason to grant extension. The case of Lyamuya Construction Company Limited (supra) was cited to bolster the point. On the above grounds, the counsel prayed this court to grant the application. In reply, Mr. Mwendwa contended that the applicants failed to account for the period of delay. That the trial Court delivered its ruling and Order on 28th day of April, 2021. That the applicants were supposed to challenge the decision within 30 days pursuant to the provision under Part III of the 1st Schedule of Laws of Limitation Act [CAP. 89 R.E 2019], but failed to. 6 In the same vein, the counsel charged that the applicants herein preferred an appeal which was struck out for being incompetent; thereafter, the applicants filed an application for extension of time which was also struck out for being incompetent on 06th day of December, 2023. And this application was filed on 21st March 2024. Thus, from 06th day of December, 2023 to 21st March, 2024 the applicants have been delayed for almost 106 days which are unaccounted for. The counsel cited the case of Jubilee Insurance Company (T) Ltd vs. Mohamed Sameer Khan, Civil Application 439 of 2020(2022) TZCA 623 to validate his point. Further, the counsel submitted that the applicants’ appeal in this court was struck out on the ground that it was an inappropriate remedy, which denotes negligence. Hence, the striking out of the preferred appeal for incompetence cannot be fronted as an excuse for extension of time. Likewise, the counsel asserted that the previous application for extension of time preferred by the applicants herein was also struck on technical ground (lacking valid jurat of attestation) which implies negligence. The case of Jubilee Insurance Company (T) Ltd vs. Mohamed Sameer Khan(supra) and William Shija vs. Fortunatus Masha (1997) TLR 213 were cited to bring the point home. 7 Pertaining to the plea of illegality, the counsel contended that the decision of the trial magistrate is not tainted with illegality to suffice extension of time as the impugned decision was premised on computation as per the deed of settlement entered between the 1st respondent and the applicants herein. Therefore, the applicants have failed to adduce sufficient reasons for the Court to grant extension of time. The counsel referred the mind of this court to the case of Bahati Matimba vs. Jagro Enterprises Limited, Misc. Civil Application No.42 of 2022(2023) TZHC 17355 to buttress his point. The counsel closed his submission in reply by opining that the applicants have failed to adduce sufficient reasons for the grant extension sought. Hence, the application ought to be dismissed. Having anxiously considered the submissions of both parties in this case, the pertinent question for determination arising herein is whether the application herein is merited to warrant grant of extension sought. Foremost, it has been restated in times without a number, that the applicant seeking an extension of time to pursue his legal rights is obliged to 8 demonstrate sufficient cause which prevented him from taking the intended action within the prescribed time. See in this respect cases: Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania (supra); AI Outdoor Tanzania Limited & Another vs Alliance Media Tanzania Limited (Civil Application No. 178 of 2008) [2009] TZCA 70 and Laurent Simon Assenga vs Joseph Magoso & Another (Civil Application No. 50 of 2016) [2016] TZCA 80. In particular, in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania (supra), the following factors for consideration in grant of extension of time were formulated: 1. The applicant must account for each and every day of delay. 2. The delay should not be inordinate. 3. The applicant shows diligence and not apathy, negligence or sloppiness in prosecution of the action he intends to take. 4. If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance, such as illegality of the decision sought to be challenged. Looking at the matrix of eventful factual background of this court previously revisited, it is uncontroverted fact that the first appeal presided by Hon. 9 Justice Nkwabi was lodged in this court within the prescribed time but struck out for being improperly filed. Likewise, it is undisputed fact that the earlier application (Misc. Civil Application No.458 of 2023) instituted in this court by the applicants herein for extension of time was also struck out on 6th December, 2023 on technical ground. Consequently, the applicants filed this application. Admittedly, it is settled law that the filing of an incompetent appeal and, or application having been duly penalized by striking it out, the same cannot be yet again used to gauge the timeousness for filing the fresh application. The delay occasioned is an excusable technical delay on the part of the applicant which constitutes good and, or sufficient cause. See the cases; Director General LAPF Pension Fund vs. Pascal Ngalo (Civil Application 76 of 2018) [2020] TZCA 289; and Salvand K.A. Rwegasira vs. China Henan International Group Ltd, Civil Reference No. 18 of 2016, CA (unreported). As rightly asserted by the respondent’s counsel, it is a rule of law that failure to take appropriate legal action is no sufficient cause for grant of extension. See the cases; Umoja Garage vs. NBC [1997] TLR 109; Exim Bank (Tanzania) Ltd vs. Jacqueline Kweka, Civil Application No. 348/18 of 10 2020, CA (unreported); and William Shija vs. Fortus Masha [1997] TLR 213, among others. However, depending on the circumstances surrounding the case, application for grant of extension of time may be considered notwithstanding the failure of the engaged legal practitioner to take appropriate legal action (and, or negligence). See the case of Abdallah Juma Kambale vs. Noradi Tiliko Mongelwa, Civil Appeal No. 231 of 2018 in this respect. Considering the circumstances of this case, specifically the circumstances around the striking out of the appeal and application preferred by the applicants in this court, I find it in the interest of justice not to bring the applicants herein to account for their counsel’s failure to take the appropriate legal action. Therefore, I find that the time spent by the applicants in prosecuting the appeal and application for extension of time in this court which were struck out on technical grounds, amounts to technical delay of which the applicants should not be called upon to account. The above finding notwithstanding, this court considered the time lapsed from 06th December, 2022 to 21st March, 2024 when this application was filed in this court. The applicants deponed in their joint affidavit that they 11 are numerous and scattered all over the country; hence, it took them time to come into agreement to file this application and appear before the commissioner for oath to append their signature to the supporting affidavit as well as the documents constituting this application. Upon scrutiny, I observed that the previous application of extension of time (Misc. Civil Application No.458 of 2023) was struck out for want of valid jurat of attestation. Therefore, it was necessary for all the applicants herein to sign the pleadings of this application. As aforementioned, the applicants are scattered all over the country; hence, it took time for the same to effect their signatures on the court documents. Given the foregoing, I find that the time lapsed, is not ordinate in the circumstances of this case. Moreso, the applicants herein alleged illegality on the impugned decision of the trial court sought to be challenged. In substantiating his point of illegality Mr. Luguwa alleged that the trial magistrate the trial magistrate disregarded the decision of this court. That this court ordered the respondents to file a breakdown of the part of the decretal sum paid to enable the trial court to rule on the contested appropriate figure yet to be paid. Hence, it was illegal for the trial court to vacate from the decision and instruction of this court for no justifiable reason. 12 In ascertaining the veracity of the charge made by the applicant’s counsel, I painstakingly scrutinized the record of the trial court. It is apparent on record that the trial (executing) court allowed the 1st respondent to satisfy the decree respecting the claims that were not disputed and refrain from paying for the claims that were disputed to afford the trial court the opportunity to hear the parties on the contested aspect of the decretal sum. Consequently, the parties hereto entered into an agreement for settlement of undisputed claims. Thereafter, the trial court entered an order requiring the respondents to provide a breakdown of what was paid for to enable it to ascertain the claims that remained due. The respondent, feeling aggrieved, lodged an application for revision to this court. And this court blessed the decision of the trial court and further ordered the respondents to comply with the order of the trial court by submitting the breakdown within 30 days lest be liable for contempt of court. It seems, in the later proceedings before the trial court, the respondents filed a pleading in that their breakdown was zero. Then the trial magistrate succumbed in purporting to interpret the settlement agreement and arrived at the conclusion that the settlement was intended to satisfy the decree in 13 whole; otherwise, the settlement deed would have clearly stated that the unpaid sum in dispute would be determined during the hearing in the executing court. I find the impugned decision of the trial court disturbing for two reasons: One, the purported interpretation of the settlement deed, in itself, is questionable owing to the plain language employed on disputed matters. Secondly, the trial court has made a decision with an order requiring the respondents to provide a breakdown of what was paid for to enable it to ascertain the claims that remained due; which was certified by this court whereas the timeline for compliance was set, it is strange that the trial court purported to revise its own order and eventually vacated the same to the detriment of the applicants. It is settled law that illegality of the decisions sought to be challenged constitutes sufficient cause for grant of extension of time notwithstanding failure on the part of the applicant to furnish reasons for delay. See the cases; VIP Engineering and Marketing Limited and Two Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006, (2007) TZCA 165; Principal Secretary, Ministry of Defence 14 and National Services vs. Devram Valambhia [1992] TLR 185; Mohamed Salum Nahdi vs. Elizabeth Jeremiah, Civil Reference No. 14 of 2017, CA (unreported); FINCA (T) Limited & Another vs. Boniface Mwalukisa, Civil Application No. 589/12 of 2018; CA (unreported), among many others in this respect. In particular, in the case of Principal Secretary, Ministry of Defence & National Service vs. Devram Valambhia (supra) the Apex Court held: “Where, as here, the point of law at issue is the illegality or otherwise of the decision being challenged, that is of sufficient importance to constitute ‘sufficient reason’………… for extending time. “ Further, the Court opined: “…. when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right." In the same vein, in the case of VIP Engineering and Marketing Limited and Two Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006, (2007) TZCA 165 pg. 18 when it held thus: 15 "It is settled law 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 applicant under the Rules to account for the delay. " Having considered the contradictory order and ruling of the trial court upon which revision proceeding is sought, I find the allegation of illegality raised by the applications herein merited. I am of the considered view that the applicants have established the point of law for consideration by this court which amounts to sufficient cause for grant of extension sought. For the foregoing reasons, I find that the applicants have furnished sufficient cause for grant of the extension sought. Accordingly, I find the application herein meritorious. The application herein is hereby granted. The applicants to lodge their application within 30 days. Based on the circumstances of this case, I make no order for costs. So ordered. DATED at DAR ES SALAAM this 17th day of October, 2024 O. F. BWEGOGE JUDGE 16