mohamed yusuf mpingilwa vs mwasa said 2010 tzhc 249 29 march 2010

IN THE HIGH COURT OF TANZANIA

AT PAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 105 OF 2006 MOHAMED YUSUF MPINGILWA.......................APPELLANT

VERSUS MWASA SAID................................................. RESPONDENT Date o f last Order 08/05/09 Date o f Judgment 24/7/09

RULING MWARIJA, J. The applicant has applied for extension of time to institute an appeal against the decision of the district court of Kinondoni dated 30/12/2004. Earlier on, the applicant had instituted his appeal on 5/4/2005 but was struck out by this court on 16/3/2006 for having been filed out of time. He was represented in this application by Mr. Galikano, learned counsel. In his affidavit, the learned counsel stated the main cause for delay by the applicant in filing the intended appeal within 30 days from the date of the district court judgment. He said that after the decision on 30/12/2004, the applicant applied for copies of judgment, proceedings and decree. He was supplied with the copies on 9/3/2006. The learned counsel deponed therefore that by filing the struck out appeal on 5/4/2006, the application was in time. Another cause advanced by the learned Counsel for grant of extension of time is likelihood of success of the intended appeal and the fact that the validity of a will was disputed. The application was on 8/5/2009 ordered to be argued by way of written submissions. The applicant was to file his submissions on 16/6/09 and the respondent was to file replies on 30/6/09. The learned Counsel for the applicant duly filed his written submissions according to the schedule but the respondent did not file her replies on the fixed date. She claimed that she was not

served with a copy of the written submissions. She was then served with a copy and ordered to file her replies on or before 10/8/2009. She did not comply with that order and instead she filed the replies on 14/8/2009. It is now a settled position of the law that failure to file submissions on a fixed date amounts to a failure to prosecute 2 or non-appearance. This position was reiterated in a full bench decision of this court in the case of Mohamed Ally & 35 Others v.Bora Industries Ltd. & Anr. Misc. Civil Cause No. 106 of 2003 (DSM) (unreported). In that case, the 1st respondent filed its submissions on 23/11/2004 instead of 17/11/2004. The court held that “ legally there is no respondent’s submissions on record in support of the preliminary objections raised on which this court can exert its minds to hand down a decision on merits”. • The court had earlier on in that decision, cited a number of authorities which support that position. They include the Court of Appeal decision in the case of Tanganyika Motors Ltd & Ors v Bahaduli Shafttji, Civil Application No. 65 of 2001 (unreported) in which the court held that; “ ... submissions which have been filed two days after the scheduled date have to be ignored by the court". From the position of the law as stated above, the reply submissions filed by the respondent in this application four days beyond the date on which she was

required to file them cannot be acted upon by the court. The respondent does not therefore have any replies which this court can consider. Turning now to the applicant's submissions, as pointed out above, the applicant has raised two factors as being sufficient causes for grant of the application. The first one concerns the time spent to obtain copies of proceedings, judgirient and decree. With due respect to the learned counsel for the applicant, that cause for delay ought to have been raised before Oriyo, J (as she then was) in the proceedings which led to the striking out of the appeal. It is legally . improper to raise it in this application because that amounts to requiring this court to sit on its own decision. The submissions on that ground are thus misconceived and cannot be entertained. The second cause from which an application for grant of extension of time is prayed is likelihood of success of the appeal. The issue is whether likelihood of success of the appeal constitutes a sufficient cause. The learned Counsel for the applicant did not cite any authority in his submission on that point. In my considered view the provisions of S. 25 (1) 4 (b) of the Magistrates’ Courts Act, Cap.ll.R.E 2002 are wide enough to cover a grant of extension, of time on the ground of the likelihood of success of the intended appeal. In the case of Martha Daniel v Peter Thomas Nko (1992)

TLR 359, Mroso, J (as he then was) considered that similar application in the same view. He cited the case of Mugo & Anr. v Wanjiru & Anr. (1970) E.A 481 in which extension of time was granted by the East African Court of Appeal because there was distinct possibility that the proceedings in the supreme court had been conducted in breach of principles of natural justice in that the parties had not been given opportunity to be heard”. His Lordship could not however grant the application before him because a copy of the judgment against which an appeal was intended was not annexed to the application. According to that decision therefore, the principle is that where it is found that there is likelihood of success of an intended appeal, an application for extension of time to appeal may be granted. In the present application, the point which has been raised for consideration in the intended appeal is the validity of the will which was relied upon in the primary court’s decision, the decision which was upheld by the district court. Having gone'through the proceedings and the judgments of the lower courts, I am of the view that the issue on the validity of the disputed will was not properly death with. The will which was tendered in the primary court was a photocopy and in his judgment the learned appellate Senior District Magistrate did not consider and make a finding on its admissibility or otherwise, although he referred to it as a “purported will”. In my considered view that point raised by the applicant is a sufficient cause upon which this application should be granted. Accordingly, I -hereby grant the application. The applicant is given a period of twenty one days from the date of this ruling to file his appeal. Each party to bear its own costs. a .g1$/w a r ij a

JUDGE 29/3/2010 6