MURTAZA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL COURT DIVISION) AT DAR ES SALAAM MISC CIVIL APPLICATION NO. 18273 OF 2024 (Arising from Commercial Case No 281 of 2002) MURTAZA MOHAMED RAZA VIRANI..................................... 1st APPLICANT MRS RUBAB MOHAMED RAZA VIRANI............................... 2nd APPLICANT VERSUS MEHBOOB HASSANALI VERSI............................................... RESPONDENT RULING Date of last order:19/08/2024 Date of ruling: 04/10/2024 AGATHO, J.: This application has been preferred under Section 11 (1) of the Appellate Jurisdiction Act, Cap 141 R.E 2019. The applicants, through the services of Mr. Sylvester Eusebi Shayo, learned advocate, are seeking extension of time to file a Notice of Appeal against the decision in Commercial Case No 281 of 2002 of this court delivered on 13th December 2016. The application is supported by an affidavit deponed by advocate Sylvester Eusebi Shayo and is contested by the respondent who filed his counter affidavit. 1 At paragraph 7 of the applicants’ affidavit, Mr. Shayo lays down the reasons for the delay in filing the notice of appeal within time being that the applicants first filed a notice of appeal timely on 16th Dec 2016 and actually filed an appeal which was however struck out by the court of appeal on 15th July 2024 rendering the notice of appeal which was filed timely to be struck out as well. This application for a fresh notice of appeal was presented for filing on 29th July 2024. Another reason for seeking extension of time can be traced under paragraph 8 of the affidavit being that the decision sought to be challenged contains serious illegality as the advocate who prepared and attested the loan agreement (Exh P2) and deed of transfer (Exh P3) also drew and filed the plaint, reply to WSD and submissions on the preliminary objections which were upheld by the court and further, the same advocate testified as PW1. The case was argued by way of written submissions. The applicants were represented by learned counsel Sylvester E Shayo and the respondent by Mr. Eustace Rwebangira also an advocate. In essence, in the written submissions, the applicants reiterated what was already pleaded in their affidavits. To solidify their case, they cited the case of Principal Secretary Ministry of Defence, National 2 Service V Devram Valambhia, 1992 TLR 185 which among other principles provides that where the point of law at issue is the illegality of the decision being challenged, that constitutes sufficient reason for extending time. Also, KAIRO, J.A in Ramadhani Bakari & Others vs Aga Khan Hospital (Civil Application No.5/01 of 2022 in praying that the application be granted so as a higher court may cure an illegality complained of. The respondent in his written submission in passing, noted that the applicants’ affidavit did not contain any annexture as alleged by the applicants but later after the respondent complained about that anomaly, the applicants annexed some of the documents in their reply to counter affidavit. Also, that in their affidavit the applicants did not explain the alleged illegality of the decision sought to be challenged but later annexed what they termed as annexure M-1 to substantiate the claim of illegality. The respondent contends that this abnormal practice denied him the right to comment on the annexure and so the court must disregard it accordingly. With regard to the application, the respondent totally opposes it asserting that the applicant has not been obstinate enough and has been negligent in following up his causes in court. 3 The respondent explained that through Civil Application No 449/01 of 2020 the first applicant applied in the CAT for leave to amend the record of appeal which mistakenly reflected only the first applicant. The applicant was granted 14 days to amend the record. However, he did not pay heed to the order of amendment. The applicant thereafter filed an application for extension of time to amend the record via Civil Application No 428/01 of 2023 which was dismissed with costs. On the same day, the court struck out the defective appeal (Civil Appeal No 312 of 2020) with costs, for failure to amend the record of appeal as ordered. According to the respondent, all this portrays negligence and inaction on the part of the applicant which should not be condoned. To this end he cited the case of Tito Patrick Sanga vs Esmail Yaru Mart & Others, Civil Application No 170/17 of 2020 and Tanzania Redcross Society vs Super Magala Investment and General Supply, Civil Appeal No 473 of 2020. Further, the respondent submitted that the illegality alleged of is not apparent on the face of record as the judgment was not annexed, hence should be ignored by this court. I have carefully examined the averments by both parties hereto. In doing that, I have taken into account parties’ arguments in the affidavits 4 and the written submissions. The question that follows is whether there is a good cause for the application for extension of time to file notice of appeal to be granted. It has been long established that for an application for extension of time to be granted by the court, the applicant must demonstrate good and sufficient reasons for the grant. Our legislation does not provide for what amounts to a good and or sufficient cause. That being the case, every case is to be decided according to its own peculiar circumstances. What constituted as a good cause in one case must not necessarily be a good cause in another.In this case the most echoing reason brought forward by the applicant is the illegality in the decision sought to be impugned. What is without doubt is that in times without number, the Court of Appeal has held illegality to constitute good cause for extension of time. (See the case of Principal Secretary, Ministry of Defence and National Services v. Devram P. Valambhia, (supra); and Arunaben Chaggan Mistry v. Naushat Mohamed Hussein & 3 Others, Civil Application No. 6 of 2016 (unreported). 5 In one Ugandan case of Boney N. Katatumba v. Waheed Karim, Civil Application No. 27 of 2007 (unreported), it was stated as follows: "... Buteven where the application is unduly delayed, the Court may grant extension of time if shutting out the appeal may appear to cause injustice." What is clear from record and admitted by both parties in this case is that when filing this case, the applicant had just finished prosecuting another case between these same parties in the court of appeal which was struck out. That is Civil appeal N0 312 of 2020 which was struck out on 15th July 2024. This application was lodged in court on 29th July 2029. The respondent through his written submission requests this court to go an extra mile and inquire as to the reasons that made that case, in the highest court of the land to be struck out and find out that the applicant displayed negligence and apathy. In my view I think going there will entail sticking the nose where it doesn’t belong. As submitted by the applicants in their submission, the punishment for delaying in amending the case has already been punished for by the appeal before the CAT being struck out. It will be adequate at this stage to only determine the 6 merit or demerit of this application from the materials brought before this court in this particular matter. In perusal of the court record, I have also noted, like the respondent, that the applicant has not accompanied his affidavit with any annexures which he mentions. Among them are decisions of Commercial Case No. 281 of 2002 and Civil Appeal No. 312 of 2020.I subscribe to the respondent’s view that this practice is grossly wrong, however in the interest of justice, this should not bar determination of the matter as the documents are court records which should be taken judicial notice of. In any event, the unusual practice has not prejudiced the respondent’s case as in his submission in response, he has referred to these claimed annexures extensively anyway. The judgment which the applicants seek to impugn was indeed delivered on 13th December 2016. The applicants were quick to file a notice of appeal in court on 16th December, 2016, only three days later. The subsequent appeal initiated by this notice has been in court since then to 15th July 2024 when it was struck out. The applicant ran to institute this application two weeks later, that is 29th July 2024. It is settled law that in an application for extension of time to do a certain act, the applicant should account for each day of delay and failure 7 to do so would result in the dismissal of the application. This position has been pronounced in various decisions of the Court of Appeal, few of which are Hassan Bushiri v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, Mpoki Lutengano Mwakabuta & Another v. Jane Jonathan (As legal representative of the late Simon Mperasoka, deceased), Civil Application No. 566/01 of 2018 and Ludger Bernard Nyoni v. National Housing Corporation, Civil Application No. 372/01 of 2018 (All unreported). Testing this requirement against the facts of the present application, it can be gathered that there are 14 days which are left unexplained by the applicant from when the appeal was struck out to when the applicants filed the application at hand. It is trite law that a delay of even a single day has to be accounted for. It has held so in various decisions including in Bushiri Hassan v. Latifa Lukio Mashayo, (supra) and Bharya Engineering and Contracting Co. Ltd v. James Alan Hamoud Ahmed Nassor, Civil Application No. 342/01 of 2017 (both unreported). From the above settled legal position, since the applicant in this case has not laboured in explaining the delay, then the court cannot grant the extension of time basing on the accounting of everyday of delay. 8 Failure to account for every day of delay notwithstanding, the Applicants did advance the reason of illegality of the decision sought to be impugned to be a ground for extension of time. It is an accepted principle that a plea of illegality is a sufficient ground for extension of time. I have examined the illegality complained of by the applicants in this case and noted that the respondent has not countered its existence. In the face of it, the complaint that the advocate who prepared and attested the loan agreement (Exh P2) and deed of transfer (Exh P3) also drew and filed the plaint, reply to WSD and submissions on the preliminary objections which were upheld by the court and further, the same advocate testified as PW1, suffices to have the attention of the highest court of the land. For the above reasons the court grants the application for extension of time to file a notice of appeal as requested in the Application. The applicants are granted fourteen days to file a notice of appeal against Commercial Case No 281 of 2002. Given the nature of the application, no order as to costs is given. Order accordingly. 9 DATED at DAR ES SALAAM this 4th Day of October 2024. U. J. AGATHO JUDGE 04/10/2024 Court: Ruling delivered today, 4th October 2024 by Hon. Minde, Deputy Registrar in the presence of the parties. U. J. AGATHO JUDGE 04/10/2024 10