RULING ON EXTENSION OF TIME Mwananchi Insurance

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISC CIVIL APPLICATION NO. 20257 OF 2024 REF. NO. 202408201000020257 (Being an Application for Leave to Appeal out of Time against the Judgment and Decree of the Resident Magistrates’ Court of Dar es Salaam at Kisutu in Civil Case No. 90 of 2016 MWANANCHI INSURANCE COMPANY LIMITED..............................APPLICANT VERSUS GEOFREY MOSI.............................................................................RESPONDENT RULING: 13th Nov 2024 & 20th Feb 2025. KIREKIANO J: Under Section 14 (1) of the Law of Limitation Act Cap 89 [RE 2019], the applicant herein filed this application, praying for leave to lodge an appeal out of time. The intended appeal involves the Judgment and Decree of the Court of Resident Magistrate of Dar es Salaam at Kisutu in Civil Case No. 90 of 2016 dated 19 September 2022. 1 The application is supported by affidavits from Mr Ephraem Christopher Manase Mrema, the applicant’s director, and affidavits from Mr Deusdedit Daniel Madeleke Luteja, counsel for the applicant. For what is worthy, the factual background of this application is that the respondent sued the applicant, claiming the sum of TZS 32,000,000/= being payment due under the discharge voucher dated 19/05/2015 in respect of damage to the Plaintiff's Motor Vehicle, which was involved in an accident while insured by the applicant. On 19th September 2022, the Resident Magistrates’ Court of Dar es Salaam at Kisutu, upon hearing the suit, pronounced its judgment; the Applicant was ordered to pay TZS 30,000.000/= as compensation based on the premium paid before the accident and TZS 30 000,000/= as general damage. The decree-holder, respondent herein, instituted an application to execute the decree of the Resident Magistrates Court of Dar es Salaam. The judgment debtor thought otherwise, thus preferring this application in an attempt to pursue an appeal. 2 According to the applicant's affidavits, the applicant seeks this application to be granted on the ground of illegality. The trial court's decision is tainted with illegalities due to the lack of jurisdiction to try and entertain the case. According to the applicant, the respondent's claim in paragraph 3 of the plaint was based on a contract of insurance. Thus, the claim ought to be referred to the Insurance Ombudsman The respondent contested the application and filed a counter affidavit. The respondent disputes jurisdictional error in the records of the Judgment of the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Civil case No.90 of 2016; thus, no good ground is justifiable in the circumstances. During the hearing, the applicant was represented by Mr. Deusedit Luteja while Mr Julius Mwanjeka represented the respondent. The applicant's counsel argued that this court should consider the principles regarding the extension of time. Citing Lyamuya Construction Company Limited versus Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010. Also, The Attorney General versus Emmanuel Marangakisi (As Attorney of Anastasiou’s Anagnostou) and others citing Principal 3 Secretary, Ministry of Defence & National Service versus Devram P. Valambia [1992] TLR 185, he argued that illegality may suffice to grant the application for extension of time. Now in this application at hand, the applicant's counsel was of the submission that the plaintiff was duty bound to first exhaust the stipulated procedures set by the law that is filing the complaint to the insurance Ombudsman as per section 123 of the Insurance Act No. 10 of 2009 and regulation 6 of the Insurance Ombudsman Regulations GN No. 411 of 2013. To bolster his stance, he cited the decision in Nasikiwa Abbas Berya versus NCBA Bank Tanzania Limited, ABSA Bank Tanzania Limited and CREDITINFO Tanzania Limited (Civil Case No. 26451 of 2023, High Court of Tanzania at Dar es Salaam) where this court, held that the plaintiff ought to have exhausted all the remedies prescribed by law before filing his suit. He said Plaintiff claims against Defendant for the sum of TZS. 32,000,000/s required to claim for indemnification only to the extent of the insured sum which is TZS 30,000,000/= as per the Insurance cover note. 4 Mr Mwanjeka, for the respondent, argued that the applicant's application is prompted by the application for execution filed. While appreciating the principle in the Lyamuya Construction case, the applicant has not exhibited diligence. He said the Insurance Ombudsman was established under the Insurance Act of 2009 to offer an alternative dispute resolution mechanism for insurance-related complaints according to Regulation 13 (3) (a) and (b) of the Insurance Ombudsman Regulations,2013. He said the respondent's claim involved compensation for loss of earnings and general damages, which were not for the ombudsman to decide. He said the sum of Tshs 43,800,000/=; the court considered loss of earnings as general damages. The actual value of the loss of earnings, like general damages, is subject to proof and assessment by the court. He lamented that the applicant had filed several applications to frustrate satisfaction of the decree. In his rejoinder, Mr Luteja argued that this court has to consider whether such an error is apparent on the face of the record, and that will suffice to grant the application. He cited The Attorney General versus Emmanuel Marangakisi (supra) that if the error is apparent whether or 5 not the trial court was correct in its decision is not the prerogative of this Court at this stage to decide. I note that the applicant relied on illegality as the sole ground for an extension of time. It is the law that where an issue of illegality is raised as a reason for applying for an extension of time, such reason amounts to a good cause. This is the position in a number of cases, including the cited case of the Principal Secretary, Ministry of Defence, and VIP Engineering and Marketing Limited. As such illegality, to be a reason for the extension of time, has to be apparent on the face of the record. This was laid down in the cases of Ngao Godwin Losero (supra) citing Principal Secretary, Ministry of Defence and National Service vs Devra, Valambhia [1992] TLR 387 thus; Applying the foregoing statement of principle to the case at hand, I am not persuaded that the alleged illegality is clearly apparent on the face of the impugned decision. Certainly, it will take a long-drawn process to decipher from the impugned decision the alleged mis directions or non-directions on points of law. In this application, the applicant has raised the question of jurisdiction. Reading from the record the affidavit and the supporting annexure the 6 applicant argues on what insurance complaint the Ombudsman could have determined. The contention by the parties is whether the trial court could have tried their respondent’s substantive claim or should have referred it to the Ombudsman. I note here that the argument is not only on the amount of claim but also on the type of relief sought. I do not intend to resolve this argument here. However, as far as I am aware, the issue of jurisdiction may suffice as illegality as a good ground for extension; I do not consider that a mere indication of the same in the affidavit will automatically suffice. In other words, the very point of jurisdictional error has to be apparent on face of the record. My emphasis here is that even if an allegation of such an error is made, it must be self-evident; if it has to be detected by a process of reasoning, it can hardly be said to be an error apparent on the face of the record. Having directed my mind on the issue of illegality raised, I am of the settled position that the same is not apparent on the face of the record; it will take a long-drawn argument which could go either way. In the upshot, I find that the applicant has failed to advance reasons for the extension of 7 time, let alone good cause for this court to exercise its discretion to grant the application. This application is dismissed with costs. DATED at DAR ES SALAAM this 20th day of February 2025. A J KIREKANO JUDGE . 8