CIVIL APPLICATION NO 364 05 OF 2023 NHYAMA ANDREA KANYALA VS MAJALIWA INVESTMENT CO LTD

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CIVIL APPLICATION NO. 364/05 OF 2023 NHYAMA ANDREA KANYALA................................................. APPLICANT VERSUS MAJALIWA INVESTMENT CO. LTD.................................... RESPONDENT (Application for extension of time to lodge notice pf appeal against the judgment and decree of the High Court of Tanzania, at Mwanza) (Mnvukwa, 3.^ dated the 13th day of May, 2022 in PC Civil Appeal No. 10 of 2021 RULING 10th & 19th July, 2024 ISSA. 3.A.: This is an application made by way of notice of motion under rule 10 and 45A (l)(a) of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking extension of time to lodge notice of appeal against the judgment and decree of the High Court at Mwanza (Mnyukwa, J.) dated 13th May, 2022 in PC Civil Appeal No. 10 of 2021. The application is supported by an affidavit sworn by Nhyama Andrea Kanyala, the applicant. The application faced no resistance as the respondent did not file an affidavit in reply. Before getting down to the determination of the matter, I find it appropriate to narrate the factual background to the present application. The factual background goes thus: the dispute between the parties originated from the Primary Court of Nyankumbu at Geita (the trial court) where the respondent filed a Civil Case No. 127 of 2020 against the applicant for a claim of breach of contract. The respondent, a company engaged in selling plots of land, entered into a contract with the applicant on 10th June, 2015. The terms of the contract were that, the respondent will find a plot of land for the applicant for TZS. 7,500,000 which will be paid by the applicant within two months from the date of signing the agreement. The applicant intended to use the title deed of the plot of land to get a loan from the Government. Unfortunately, by the time the plot was ready the Government loan scheme was no longer in place. Hence, the applicant neither took the plot nor paid the agreed amount compelling the respondent to file the suit .at the trial court to recover the agreed amount The trial court delivered its judgment on 1st October, 2020 and ordered the applicant to pay TZS. 7,500,000 within thirty days and the respondent to hand over the title deed of the plot to the applicant. Aggrieved, the applicant appealed to the District Court of Geita at Geita (first appellate court) in Civil Appeal No. 31 of 2020. The appeal was dismissed on 23rd April, 2021 for lack of merit. Undaunted, the applicant appealed to the High Court of Tanzania at Mwanza (Mnyukwa, l)(the second appellate court) in PC Civil Appeal No. 10 of 2021. The second appellate court upheld the decisions of the two lower courts and dismissed the appeal on 13th May, 2022. Still aggrieved, the applicant intended to appeal to the Court but he found himself but of time to lodge a notice of appeal. Hence, he filed at the High Court at Mwanza (Otaru, J.) an application for extension of time within which to lodge notice of appeal to the Court. The application was filed on 14th July 2022 and was dismissed on 7th October, 2022 for applicant's failure to show good cause for the delay. Undeterred, the applicant has now approached this Court with a second bite application for extension of time to lodge the notice of appeal which was filed • t tV * on 20th October, 2022. At the hearing of the application the applicant appeared in person and had no legal representation. The respondent, on the other hand, did not enter appearance despite being duly served. Therefore, the Court proceeded exparte in accordance With rule 63(1) of the Rules. Having adopted the notice of motion and the supporting affidavit the applicant urged me to grant the application on the ground that: One, there was good cause for extension of time as from 13th May to late June, 2022 he was indisposed and admitted at T. Phiiipo Health Centre, Tabora. He annexed a summary discharge sheet to support his averment. Two, that the decision of the second appellate court was tainted with illegalities and.irregularities, namely: (i) The High Court wrongly dismissed the appeal by affirming the decision o f the first District Court which held that the Trial Court hadjurisdiction over suits founded on breach o f contract in land matters. (ii) The decision o f the High Court overlooked an apparent illegality in the proceedings o f the Trial Court as the sale transaction of the disputed suit land was tainted with fraud an allegation that had been raised at the Trial Court. (Hi) The first and second appellate courts failed to properly re­ evaluate the evidence recorded by the trial court which indicates that the appellate courts totally misapprehended the Evidence'before it I shall now proceed to determine the matter on the basis of the arguments and legal principles raised. The application was brought under Rule 10 and 45A (i) of the Rules which empowers the Court to grant extension of time. It has been stated in various decisions of this 4 Court that the power of the Court to extend time under rule 10 of the Rules, is both broad and discretionary. The discretion is judicial and it must be exercised according to the rule of reason and justice and not according to private opinion or arbitrarily. See - Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christians Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 4 (3 October 2011, TANZLII). Further, the power under Rule 10 is only exercisable if good cause is shown. Whereas there is no universal definition of what constitutes good cause, in exercising its discretion under the said rule, the Court is bound to consider the prevailing circumstances of the particular case and should also be guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. This position of ' ’it ' >■! law has been restated by the Court in a number of cases including; The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R. 387 and Lyamuya Construction Co. Ltd (supra). Further, the Court in Sebastian Ndaula v. Grace Rwamafa (Legal Personal Representative of Joshwa Rwamafa), Civil Application No. 4 of 2014, and Bushin Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 ( both unreported) stressed the point that, the party applying for extension of time must account for each day of the delay. In the latter case it stated: "... Delay o f even a single day, has to be accounted for, otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken." On the other hand, rule 45A (1) provides: "45A (l)Where an application for extension o f time to:- (a) lodge a notice o fappeal; (b) apply for leave to appeal; or (c) apply o f a certificate on a point o f law, is refused by the High Court, the applicant may within fourteen days o f such decision apply to the Court for extension of time: Provided that, such an application shall be made on same grounds relied upon before the High Court." This rule entails that the applicant applying for a second bite application for extension of time must comply with two conditions: One, he has to file his application for extension of time within 14 days, and two, the application should be made on the same grounds relied upon before the High Court. Glancing at the application at hand, the applicant has complied with the first condition regarding time. The High Court dismissed the application for extension of time on 7th October, 2022 and the applicant filed a second bite application on 20th October, 2022 within 14 days as required by rule 45A(1). Unfortunately, the applicant did not comply with the second condition. At the High Court, the applicant relied on one ground that he was indisposed and hospitalised, hence, could not file the application for extension of time timeously. In the instant application, the applicant has added a second ground on illegality which offended rule 45A(1) of the Rules. Therefore, I will not spend time on the second ground. Reverting to the first ground raised by the applicant, the issues I have been called to determine are: the length of the delay in .filing the V.. : application for extension of time, whether the applicant has accounted for each day of the delay and whether the delay is ordinate. The applicant being aggrieved by the decision of the second appellate court delivered oh 13th May, 2022 intended to appeal to the Court. Unfortunately for him, he failed to lodge the notice of appeal within 30 days as required by rule 83(1) of the Rules. He, therefore, on 18th July, 2022 filed at the High Court an application for extension of time within which to lodge the notice of appeal. The application was filed after more than 65 days from the delivery of the decision against which the applicant desired to appeal. There was a-delay of 35 days. The reasons advanced in the paragraph 6 of the applicant's affidavit was that, the applicant was hospitalised for anguish sickness from 13th May to late June 2022. He annexed a discharge summary from T.Philipo Health- Centre, Tabora. The discharge summary' reveals that, the applicant was hospitalised from 10thJune to 16th June, 2022 and that he was suffering from enteric fever, malaria and PUD . contrary to his averment in the affidavit.. . Since, the decision of the second appellate court was delivered on 13th May 2022, the applicant had up to 12th June, 2022 to lodge the notice of appeal. Failure of which he was required to account for the period from 13th June, 2022 to 18th July, 2022 when his filed his application for extension of time at the High Court. According to the discharge summary, the applicant was able to account for the period between 10th June to 16th June, 2022 when he was hospitalised, but he 8 failed to account for the remaining period between 17th June to 18th July, 2022 . Eventually, the failure to account for this period of 32 days is sufficient to show that there was no good cause for the delay. Further, the delay is also in ordinate. Therefore, I found no sufficient cause to extend the time to the applicant to lodge the notice of appeal. I accordingly dismiss the application with costs. DATED at MWANZA this 19th day of July, 2024. A. A. ISSA JUSTICE OF APPEAL. The Ruling delivered this 19th day of July, 2024 in the presence of the applicant through video link from Tabora Region and in the absence of the ^^pondent^is hereby certified as a true copy of the original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL