MISC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000029247 OF 2024 MOSHI SEIF MUSSA AND AMINA YAHAYA MZEE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ANGELICA ERNEST RUPAKI .............................. RESPONDENT / DEFENDANT RULING RWIZILE, J, This application originates from Civil Case No. 88 of 2023 of Ujiji Primary Court. The respondent filed a claim of TZS 7,674,000.00 against applicants. After a hearing, it was decided in her favour. Being aggrieved, the applicants appealed to the district court in Civil Case No. 26 of 2023. Again, they lost. Despite being aggrieved, they could not appeal in time. This application therefore is for extension of time to file an appeal out of time. The reasons for delay have been stated in their affidavit sworn by Mr. Michael Mwangati learned advocate that the impugned judgement contained an illegality, since they were not afforded the right to be heard. It was further averred that the judgment was delivered in their absence and they were supplied with copies of the judgment and proceedings days out of time. Mr. Michael Mwangati, learned advocate appeared for the applicants, while Mr. Method RG Kabuguzi, learned advocate was for the respondent. The applicants’ submission was that they were not heard, when the case was scheduled for hearing, they were informed that the magistrate was on holiday. On another scheduled date for hearing, they were informed that the magistrate was sick, and will be informed when it will be scheduled for hearing. After a long time without information about their case, they decided to make a follow-up and it is when they were informed that their case was already decided since 29.4.2024. They were therefore not heard. The applicants cited cases of Mumelo vs Bank of Tanzania (2006) EACA CA 227 and Mwita Mhere and Ibrahim Mhere vs Republic, 2005 TLR 107 to support the finding that, it is at the discretion of the court to grant an extension of time. Further this court was asked to follow the case of The Page. 1 Administrator General vs Mwanaaraba Rajabu and others (1980) TLR 303 where it was decided that in granting extension of time, good and sufficient cause ought to be shown. In their view, things to be considered in granting extension of time includes illegality, serious legal matters, numbers of days delayed, promptness and lack of diligence. Stressing on illegality, it was submitted that the applicants were not given the right to be heard. On this, article 13(6)(a) of the Constitution of the United Republic of Tanzania, and the cases of Osward Masatu Mwizaburi vs Tanzania Fishing Processing Ltd, Civil Application No. 13 of 2010 and Republic vs Y. Kaponda and 85 others, [1985], TLR 84 were referred to support the point. The case of Arcopar (O.M) S.A vs Harbert Marwa and Family Investments Co. Ltd and 3 others, Civil application No. 94/2013 was cited to stress the point of illegality as sufficient cause to grant an extension of time. It was further submitted that the judgment was delivered on 29.4.2024, but it came to their knowledge on 16.10.2024 after receiving a summons for execution from Ujiji primary court, for that matter the case of Alliance Insurance Corporation Limited vs Arusha Art Limited, Civil Application No. 33of 2015, where it was held that when documents are not supplied in time by the court, it is a sufficient cause to grant an extension of time. In response, it was submitted by the respondent that applicants did not account for each day of delay from 29.4.2024 to the time they filed this application in December 2024, which is almost 7 months later. The case of Lyamuya Construction Company Ltd vs Board of Registered Trustee of Young Women’s Association of Tanzania, (CAT), Civil application No. 2. of 2010. On the right to be heard, it was submitted that they were given the right to be heard. It was argued, the judgement does not show, it was delivered exparte, therefore the applicants were heard. On illegality, it was argued that there no such a thing on the face of the record. It was the respondent’s prayer that the application be dismissed. Having heard the parties, the issue to be determined is whether the application has merit. The main reason advance is an illegality which means that the applicants were not afforded the right to be heard. In order to appreciate what transpired in court, the record has it that on 27th November 2023 before the Magistrate who hear the appeal, both parties were present. They were all ready for hearing. It is recorded that the (appellant) was present and the (respondent) as well. The case was then heard by brief oral submissions. When they were all done, the matter was fixed for judgement on 13th January 2024, see pages 4 and 5 of the typed proceeding. Thereafter, the record is silent on when the judgement was delivered, but it is Page. 2 enough to say, until 22nd April the judgement was not delivered due to the absence of the Magistrate who heard the parties. The proceeding does not show anything further. Looking at the judgement, it seems, it was delivered on 29th April 2024, because it is the date it was signed. The record is not clear as to whether parties were present or absent when the same was delivered. It is therefore clear to me that although the case was not heard exparte as the applicants tried to deceive the court, but the record is not “clean and sanct” to speak for itself on what transpired after the hearing of the appeal. This in my opinion acts in favour of the applicants. The proceeding of the district court is not clean enough to dispute what the applicants have alleged. That being the case, I give applicants the benefit of the doubt. I grant this application. They are given 30 days from today (2nd May 2025) to file their appeal. I make no order as to costs. Dated at KIGOMA this 4th of April 2025 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 3