Mosati Final

Page 1 of 13 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA. MISCELLANEOUS CIVIL APPLICATION 26040 OF 2024 (Arising from Civil Case No.01 of 2022 of the District Court of Bukombe) MOSET CHACHA MWITA........................................................ APPLICANT VERSUS 1. BERNADETHA WILLIAM LUFUNGILO (The Administratrix of the Late DEOGRATIUS KISENA CHAI)..........................................1ST RESPONDENT 2. IBRAHIM DAVID MWITA…………………….……………….2ND RESPONDENT 3. BUMACO INSURANCE LTD………………………………......3RD RESPONDENT RULING Date of last order: 05/11/2024 Date of Ruling: 16/12/2024 MWAKAPEJE, J.: The Applicant filed this application under Section 14(1) of the Law of Limitation Act, Cap 89, R.E. 2019, seeking an order of this Court to extend the time within which he may file an appeal out of time. This application is brought by Chamber Summons and supported by an Affidavit of the Applicant. Brief facts leading to this application are as follows: The Applicant owns a Toyota Hiace Minibus with registration number T 803 DMT, which the 2nd Respondent, Ibrahim David Mwita, was driving. While in operation, Page 2 of 13 the minibus was involved in an accident, striking Deogratias Kisena Chai and causing his death. Following the demise of the late Deogratias Kisena Chai, the 1st Respondent was appointed administratrix of the deceased's estate. Subsequently, the 1st Respondent instituted Civil Case No. 1 of 2022, claiming several reliefs, jointly and severally, against the Applicant, the 2nd Respondent, and the 3rd Respondent. After a full trial, the Court awarded general damages amounting to Tshs. 6,000,000/= against the applicant. The Applicant now seeks an extension of time to file his appeal on the grounds stipulated in his affidavit that he was not served with the summons to attend or to hear the judgment, which was delivered on 24 February 2023, contrary to the requirements of Order XX Rule 2 of the Civil Procedure Code (CPC) [Cap. 33, R.E. 2019]. The fact was refuted by the respondents in their counter affidavit. The application was argued by written submissions according to the Court's scheduling order, which the parties complied with. The applicant was represented by Mr Cosmas Tuthuru, a learned advocate. At the same time, the 1st Respondent had the services of Francis Mwaka, a learned advocate, and the 3rd Respondent was represented by Mr Andrew Luhigo, a learned Advocate. The 2nd respondent never showed up. Page 3 of 13 In his submission, while citing Order XX R. 2 of the CPC, Mr Tuthuru contended that the provision is expressed in mandatory terms, compliance was a requirement as emphasised in the case of Awadhi H. Iddi Kajass v. Mayfair Investment Limited, Civil Application No. 281/17 of 2017 (Court of Appeal of Tanzania, Dar es Salaam Registry, at page 6), where the Court cited with approval the decision of the Court of Appeal for Eastern Africa in Gillan Modern Bakery v. F.J. Kuntzler [1954] 21 EACA 123. In that case, it was held that a judgment not delivered in accordance with the law has no legal existence and, as a result, cannot form the basis for an appeal. Mr Tuthuru contended that the 3rd Respondent, through his counter- affidavit, opposed the application by asserting that the Applicant was represented throughout the proceedings and, therefore, cannot claim ignorance of the date of delivery of the judgment. However, he insisted that the Counter-Affidavit of the 3rd Respondent lacks any attachment to substantiate the claim, such as proof that the Applicant or their advocate was duly notified of the summons or the judgment delivery date before the Bukombe District Court. According to him, the omission raises serious doubts about the assertion that proper notice was served to the applicant. In support of this position, he referred to the case of Cosmas Construction Co. Ltd. v. Arrow Garments Ltd. [1992] TLR 127. Page 4 of 13 Mr Tuthuru further argued that the Applicant's lack of notification regarding the date of delivery of the judgment constitutes sufficient cause for an extension of time. He bolstered his argument with the case of Coca- Cola Kwanza v. Charles Mpunga and 103 Others, Civil Application No. 208 of 2023, Court of Appeal, Dar es Salaam Registry. Mr Tuthuru emphasised that the Applicant had been denied their right to fair notice, thereby infringing on their ability to act promptly. The Court's procedural omission underscores the need for justice to rectify the matter. In light of the above submissions, Mr Tuthuru prayed that this Court grants the Applicant an extension of time to appeal against the Bukombe District Court's decision, with costs. In reply, Mr Mwaka, counsel for the 1st respondent, argued that both parties were duly notified of the judgment date following the hearing, in accordance with Order XX Rule 2 of the Civil Procedure Code CAP. 33 R.E. 2019, which requires parties to be informed of the judgment date. He pointed out that the Applicant and his Advocate exhibited negligence, failing to make follow-ups or inquiries regarding the judgment for over 605 days (approximately one year and eight months). This lack of promptness contradicts the settled principle that an applicant must account for every day of delay, as established in Ramadhan Mohamed v. Thabiti Kitwana, Page 5 of 13 Land Application No. 52 of 2017 (unreported), and reaffirmed by the Court of Appeal in Elfazi Nyatega & 3 Others v. Caspian Mining Ltd, Civil Application No. 44/08 of 2017 (unreported). Mr Mwaka further argued that the Applicant's reliance on the cases of Awadh Idd Kajass v. Mayfair Investment Limited and Coca-Cola Kwanza v. Charles Mpunga is misplaced, as the facts in those cases differ significantly. In the present case, the judgment was delivered in the presence of the 1st Respondent and their Advocate, who had been duly notified of the judgment date, even after an adjournment. The Respondent also dismissed the Applicant's claim of being misinformed by their former Advocate, stating that such issues fall within the client-advocate relationship and cannot justify an extension of time. The Applicant failed to provide evidence of any follow-up actions to demonstrate diligence or promptness. In conclusion, he submitted that the Applicant had not advanced sufficient reasons or material facts to warrant judicial discretion to extend the limitation period under Section 14(1) of the Law of Limitation Act. Consequently, the Respondent prayed that the application be dismissed with costs. Page 6 of 13 On behalf of the 3rd Respondent, Mr Luhigo contended that the claim that the Applicant was not notified of the judgment date is weak, considering the Applicant was represented by an advocate throughout the trial proceedings. This fact is evident in the trial Court's records and acknowledged in the Applicant's affidavit, particularly in paragraphs 3 and 8. He further argued that the authorities cited by the Applicant are inapplicable, as they pertain to scenarios where judgments were delivered ex parte and without proper notice to the parties. In contrast, the present case involved both parties and the judgment was not delivered ex parte. Mr Luhigo further stated that even assuming, for argument's sake, that notice of the judgment delivery date was necessary and was not given, the Applicant's failure to file an affidavit from their advocate confirming the lack of notice significantly weakens their claim. Additionally, he said the applicant was represented by an advocate, an officer of the Court, and it was his advocate's duty to monitor the case's progress and ensure compliance with procedural requirements. In the end he submitted that the Applicant's application is devoid of merit and prayed that it be dismissed with costs. After considering the parties' submissions, this Court had only one question to answer: whether the present application has merits. Page 7 of 13 This application has been brought under the provisions of section 14(1) of the Law of Limitation Act, which empowers the Court to extend time where sufficient cause has been established by the applicant. It is trite law, therefore, that whoever wishes to move the Court to exercise its discretionary power has to provide a sufficient cause. Though not defined, what amounts to sufficient cause has been established in various cases such as the cases of The Regional Manager, Tanroads Kagera vs Ruaha Concrete Company, Civil Application No. 96 of 2007 (unreported) as cited in the case of TANESCO vs Mufungo Leonard Majura & Others (Civil Application 94 of 2016) [2017] TZCA 239 (5 June 2017). Additionally, in the cases of Tanga Cement Co. Ltd vs Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 (8 April 2004) and Joel Silomba vs Republic (Criminal Application 5 of 2012) [2013] TZCA 332, sufficient cause has to consider the following factors: "(i) The length of the delay; (ii) The reason for the delay: Was the delay caused or contributed to by the dilatory conduct of the applicant? (iii)Whether there is an arguable case, such as whether there is a point of law or the illegality or otherwise of the decision sought to be challenged; and Page 8 of 13 (iv) The degree of prejudice to the opposite party if the application is granted. In the present case, the applicant's main reason for the delay is that on the date of the decision, he was not issued with a notice. Later, he was transferred to Sumbawanga in May 2024, and he received a copy of the judgment in September 2024, while appeal time had already passed. In addition, in paragraphs 3 and 8 of his affidavit, however, he stated that throughout, he was represented by an advocate, one Laurent Bugoti, with whom he lost contact, and whenever he called his number, the same was with no response. However, it is trite law that when an affidavit names the other person, the other person also has to swear; otherwise, the statement would be hearsay. See the case of Tanzania Milling and Co. Ltd v. Zacharia Aman t/a All Gold Co. & Another, Civil Application No. 415 of 2018, (Unreported) HCTZ at DSM as referred in the case of Deogratius Bakinahe and 2 Others vs Shirika La Usafiri Dar Es Salaam(UDA) and Another (Misc. Labour Application No. 361 of 2020) [2021] TZHCLD 305 (6 August 2021). In this application, advocate Bugoti has not sworn an affidavit to prove the contention by the applicant. Making them baseless. Page 9 of 13 The applicant also challenges the decision made without him being notified according to Order XX R. 1 of the CPC. I wish to quote the same, and it provides that: "The court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their advocates" [Emphasis supplied] This provision mandates that once a case has been heard, the Court should deliver its judgment transparently, either immediately or at a later date, and provide prior notice to the parties or their advocates if the pronouncement is deferred. The intention in enacting this provision is to uphold transparency, fairness, and accountability in the judicial process. The stipulation for notifying parties of the judgment date is particularly aimed at preventing any unfair disadvantage, ensuring that all parties have an equal opportunity to be present when the judgment is pronounced. In the case at hand, there is no dispute that the appellant was represented by an advocate throughout the proceedings in the trial Court. Since there is no evidence from his advocate of him being issued with the notice or not of the date the judgment was delivered, the appellant cannot claim that he personally was not informed. Much as I agree with the counsel for the applicant that a judgment should be rendered in the presence of the Page 10 of 13 parties on or differed upon notice, however, in the circumstances of the present case, the applicant was represented, and he has not told us whether the decision differed for the issuance of a notice or not or whether or not the said notice was given to his advocate. Additionally, the appellant failed to attach trial Court proceedings in his affidavit showing the Court's last orders before the judgment date. His reliance solely on his absence, as noted on the last page of the judgment, does not substantiate his claim of non-notification. Without the proceedings, the Court cannot verify these allegations. It is the position of law that the one alleging must prove as far as section 110 of the Evidence Act, Cap 6, R.E. 2019 is concerned. Also, in the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha (Civil Appeal No. 45 of 2017) [2019] TZCA 453 (11 December 2019), it was explicitly stated that: "It is again trite that the burden of proof never shifts to the adverse party until the party on whom onus lies discharges his and that the burden of proof is not diluted on account of the weakness of the opposite party's case." [Emphasis supplied] I, therefore, concur with the 1st and 3rd respondents that the cases cited by the applicant regarding this aspect are distinguishable from the current matter. Given that the appellant was represented and aware of the pending case, his duty was to monitor the progress. Waiting over a year Page 11 of 13 after judgment to claim lack of notice undermines his position. It is well established that negligence or inaction by an applicant or their advocate does not constitute good cause for an extension of time. See the case of Paul Martin v. Bertha Anderson, Civil Application No. 07 of 2005 (unreported). To me, this argument is an afterthought. Another issue raised by the applicant to justify his delay is his transfer to Sumbawanga in May 2024. However, this argument lacks merit for several reasons. First, the transfer occurred a year and three months after the judgment was delivered, and the applicant has not demonstrated how this event materially affected his ability to follow up on the progress of his case within the critical period immediately following the decision. Second, it is undisputed that the applicant was represented by an advocate throughout the trial proceedings. As an officer of the Court, the advocate had the professional duty to remain informed of all developments in the case, including the delivery of the judgment, regardless of the applicant's physical location. That notwithstanding, before his transfer, and despite his claim that his advocate was not responding to phone calls, the applicant could have taken reasonable steps, such as visiting the advocate's office in Geita to inquire about the status of his case. Therefore, the transfer of the applicant Page 12 of 13 to Sumbawanga does not absolve him of the obligation to monitor his case through his legal representative. Additionally, it is a well-settled principle of law that a party seeking the Court's discretion to grant an extension of time must account for each day of the delay. See the cases of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 and Lyamuya Construction Co. Ltd v. Board of Trustees of Young Women's Christian Association of Tanzania, Civ. Appeal no. 2 of 2010 (All unreported). In the case of Bushiri Hassan v. Latifa Lukio Mashayo (Supra), it was stated that: "Delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken." In the present case, even if it is assumed that the applicant received the copy of the judgment in September 2024, he has failed to explain why he waited until 17/10/2024 to file this application. The applicant has not accounted for the delay of nearly 30 days between the purported receipt of the judgment and the filing of the present application. This failure to provide a clear and satisfactory explanation renders his application deficient. I should emphasise that the requirement to account for every single day of delay is not a mere formality but a substantive obligation. In the circumstances of Page 13 of 13 this case, the applicant's silence regarding the 30-day delay indicates a lack of diligence. Consequently, this omission undermines the credibility of his application and further supports the conclusion that he has failed to meet the legal threshold for an extension of time. For these reasons, I find the applicant's application devoid of merit and dismiss it in its entirety with cost. It is so ordered. DATED at GEITA this 16th day of December 2024. G.V. MWAKAPEJE JUDGE