CIVIL APPLICATION NO 428 01 OF 2023 MURTAZA MOHAMED RAZA VIRANI ANOTHER VS MEHBOOB HASSANALI VERSI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f COR AM: NDIKA. 3.A.. KEREFU, 3.A.. And NGWEMBE, 3.A.) CIVIL APPLICATION NO. 428/01 OF 2023 MURTAZA MOHAMED RAZA VIRANI............. ....................FIRST APPLICANT MRS. RUBAB MOHAMED RAZA VIRANI.......................... SECOND APPLICANT VERSUS MEHBOOB HASSANALI VERSI................................................. RESPONDENT (Application for extension of time to amend the record of appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) fMruma. J.1 dated the 13th day of December, 2016 in Commercial Case No. 281 of 2002 RULING OF THE COURT 10th & 17th July, 2024 NDIKA. J.A.; On 19th August, 2022, this Court (Mkuye, Korosso and Maige, JJ.A) disposed of Civil Application No. 449/01 of 2020, granting leave to Murtaza Mohamed Raza Virani and Rubabu Mohamed Raza Virani, the first and second applicants respectively, to amend the record of appeal in respect of Civil Appeal No. 312 of 2020 pursuant to rule 111 of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). Although the Court prescribed fourteen days for the applicants to lodge the envisioned amended record of appeal, citing the second applicant in several parts of the record as the second appellant, none was forthcoming by the time the said period expired on or about 2nd September, 2022. By this application lodged on 1st June, 2023, the applicants have moved the Court to extend the aforesaid period for the same purpose. The primary argument of this motion is that the applicants were oblivious of the Court's order in their favour until 26th May, 2023, at which point the prescribed period had elapsed, and as a result, they were unable to submit the intended record within the designated timeframe. Paragraphs 3 through 5 of the supporting affidavit affirmed by the first applicant initially elucidate on this ground: "3. That, unfortunately on the day o f hearing the above C ivil Application No. 449/01 o f 2020 to am end the record o f appeal, I was late in arriving in court and I m et the respondent's advocate Mr. Eustace Rwebangira a t the doors o f the courtroom com ing out and he casually inform ed that the m atter was already called, heard and that he had conceded to it 4. That, I went into the courtroom thereafter to enter appearance and apologize and found that the proceedings o f another m atter had started. I w aited in the courtroom fo r some tim e and when I g ot an opportunity, I apologized to the judges fo r being iate. Thereafter, I le ft the courtroom expecting that we sh aii be notified o f the date o f the ruling as usual, not knowing that it was already decided. 5. That, after about 2 m onths I had inquired in person a t the Court o f Appeal Registry about the ruling date o f m y C ivil Application No. 449/01 o f 2020 and I was inform ed that we sh all be notified by the Court and that there was no need to follow about i t " Furthermore, the deponent asserts in paragraph 6 that on 18th May, 2023, he was served with notice through his advocate, Mr. Sylvester E. Shayo that, Civil Appeal No. 312 of 2020 would be heard on 30th May, 2023. Paragraph 7 also affirms that the first applicant wrote to the Registrar of the Court on 22nd May, 2023, to request the adjournment of the appeal hearing until the ruling in Civil Application No. 449/01 of 2020 is received, which he believed had not yet been delivered. Upon contacting the Court's Registry, he was advised by an unnamed Deputy Registrar of the Court to request that his advocate draft a letter regarding the matter. Then, in paragraph 8, it is stated that on 24th May, 2023, Mr. Shayo submitted a letter requesting the adjournment of the scheduled hearing. It is asserted in paragraph 9 that an unspecified Deputy Registrar responded on 26th May, 2023, stating that Civil Application No, 449/01 of 2020 was disposed of on 19th August, 2022, the day it was heard. The order for lodging an amended record of appeal was issued in the applicants' favour. The respondent, Mehboob Hassanali Versi, submitted an affidavit in reply, expressing his vehement opposition. In essence, he asserts that the applicants and their advocate were negligent for failing to attend the hearing on the scheduled date and for failing to inquire about the outcome of their application. Apart from faulting paragraph 5 of the supporting affidavit for being hearsay as it does not give the name of the Registry Officer who responded to the first applicant's inquiry into the status of Civil Application No. 449/01 of 2020, the respondent avers that the applicants and their advocates took no action for over nine months since 19th August, 2022. In his submission in support of the application, Mr. Sylvester E. Shayo, learned counsel, who was aided by Ms. Bernadetha Shayo, also learned counsel, reaffirmed the affidavit's assertion that the applicants were unaware of the order issued by the Court in their favour on 19th August, 2022, as they did not attend the hearing. He emphasised the first applicant's assertion that the applicants anticipated being informed of the ruling's date, as they were under the impression that the Court had reserved it. When the first applicant inquired with the Court's Registry after two months, they were advised to await the notice of ruling. H ie learned counsel urged us to consider the fact that the applicants submitted the instant application rather promptly after confirming on 26th May, 2023, that Civil Application No. 449/01 of 2020 was determined on the day it was scheduled for hearing. Mr. Thomas E. Rwebangira, learned counsel for the respondent, initiated his rebuttal by referencing Tanzania Red Cross Society v. Super Magala Investment and General Supply, Civil Appeal No. 473 of 2020 [2022] TZCA 320 [8th June, 2022; TanzLII], which posits that the offending party's lack of seriousness is demonstrated by their failure to comply with a court's order without a plausible explanation. Mr. Rwebangira made five observations after reviewing the supporting affidavit: one, that even though Mr. Shayo was served with the notice of hearing in respect of Civil Application No. 449/01 of 2020, neither he nor the applicants attended the hearing. Two, that the matter should have been dismissed in the ordinary course due to the applicants' non- appearance in accordance with rule 63 (1) of the Rules, but it was saved and granted upon his concession to it, a fact that he shared with the first applicant after the hearing. Three, that the applicants and their advocate did not take any action to determine the outcome of the matter. Four, that the applicants' expectation that the Court's Registry would inform them of the ruling’s date was unfounded. Finally, that the supporting affidavit fails to disclose the names of the Deputy Registrar and the Registry Officer that the first applicant contacted regarding the status of Civil Application No. 449/01 of 2020 prior to the applicants' purported discovery that the matter had been determined. He essentially argued that the averment in question was hearsay due to the absence of the names of the officials and their respective affidavits. In support of his submission, Mr. Rwebangira relied on several authorities including Tanzania Coffee Board v. Rom bo Millers Ltd., Civil Application No. 13 of 2015 [2015] TZCA 327 [6th October, 2015; TanzLII]; and Sabena Technics Dar Limited v. Michael J. Luwunzu, Civil Application No. 451 of 2020 [2021] TZCA 108 [14th April, 2021; TanzLII]. It is undeniable that Civil Application No. 449/01 of 2020 was heard in the absence of the applicants on 19th August, 2022, the day it was scheduled for hearing. It was disposed of on that day following Mr. Rwebangira’s concession, and the Court subsequently issued an order requiring the applicants to file an amended record of appeal within fourteen days of the date of the order. We should note that our immediate concern is not whether the applicants and their advocate were absent from the hearing for a valid reason. Our attention is directed towards the applicants' argument that they were unable to lodge the amended record within the designated timeframe due to their unawareness of the Court's order in their favour until 26th May, 2023, after the prescribed period had elapsed. We would readily align ourselves with Mr. Rwebangira's submission in addressing the matter at hand. We concur with him that the depositions in the supporting affidavit suggest that, if it is indeed the case that the applicants and their advocate were oblivious of the outcome of the hearing in their absence, they did not take any action to ascertain the outcome. We are compelled to question whether it was reasonable for the first applicant to remain complacent, anticipating that the "ruling of the Court" would be delivered on upon notice, even though Mr. Rwebangira had informed him that the matter had already been "called, heard\ and that he had conceded to i t " We believe that it was judicious for them to enquire about and verify the outcome of the hearing, given that the proceedings were conducted in their absence. The applicants’ assertion in paragraph 4 of the supporting affidavit that they awaited notification regarding the reserved ruling's delivery date is patently implausible. Interestingly, and somewhat dishonestly, the supporting affidavit does not specify the actions that the applicants' advocate took in the aftermath of the hearing at which he was a no-show. It would have been reasonable to anticipate that Mr. Shayo would depose to an affidavit to provide further information on the matter. The absence of his perspective on the narrative is extremely concerning. It will not endear him or the applicants to any court of equity and justice. We would also not disregard the fact that the supporting affidavit is replete with hearsay, as Mr. Rwebangira has correctly argued. The deponent stated in paragraph 5 of the affidavit that an officer of the Court's Registry informed him that he would be notified of the date on which the ruling in Civil Application No. 449/01 of 2020 would be delivered. The identity of the officer in question is not disclosed, nor is an affidavit submitted. Similarly, the first applicant, as previously mentioned, referenced information received from a "Deputy Registrar' of this Court in paragraphs 7 and 9, although he did not disclose his identity. These 8 assertions are hearsay and cannot be trusted, as the Court stated in Sabena Technics Dar Limited {supra) following Kighoma AM Malima v. Abas Yusufu Mwingamno, Civil Application No. 5 of 1987; Benedict Kimwaga v. Principal Secretary Ministry of Health, Civil Application No. 31 of 2000; and NBC Ltd v. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002 (all unreported). The conclusion that can be drawn from these authorities is that it would be a substantial omission if one or more of the individuals in question fail to depose to affidavits to establish an unbroken chain of evidence as proof of a fact. It is pertinent to recall the holding of the Court in NBC Ltd {supra) that: "... an affidavit which m entions another person is hearsay unless that other person sw ears as w eii, " In the present case, we conclude that the supporting affidavit is insufficient to substantiate the assertion that the applicants waited to be informed of the ruling date in Civil Application No. 449/01 of 2020 and only became aware of the status of the matter on 26th May, 2023. We entertain no doubt that the applicants dawdled in taking steps to perfect the record of appeal after the Court made the order in their favour. In the final analysis, we decline to exercise our discretion in favour of the applicants, as we maintain that the matter at hand does not reveal any justifiable grounds for the delay in filing the amended record of appeal. Consequently, we dismiss the application with costs. DATED at DAR ES SALAAM this 15th day of July, 2024. G. A. M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 17th day of July, 2024 in the absence of the Applicants and Mr. Thomas Eustace Rwebangira, learned counsel for the Respondent is hereby certified as a true copy of the original. 10