MISC

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS CIVIL APPLICATION NO. 000005951 OF 2024 PASKALI TSERE(AS ADMINISTRATOR OF ESTATE OF THE LATE TSERESELI) .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS SERIKALI YA KIJIJI CHA CHEMCHEM..................................RESPONDENT I DEFENDANT RULING A. Z. BADE, J, RULING 23/07/2024 & 20/09/2024 BADE, J. 1 his is an Application for the grant of an order for an extension of time within which the Applicant can file a notice of appeal out of time to the Court of Appeal to challenge the judgment of this court (before F.H. Massengi, J.) vide Civil Appeal No. 44 of 2006 which was delivered on 20/12/2012. This Application is made through a chamber summons supported by the Applicants’ counsel affidavit. The Applicant’s counsel affidavit had canvassed various facts in support of the Application explaining the reason for seeking an extension of time. The Respondent on the other hand filed a counter affidavit to oppose this Application. As it happened, the Application was disposed of by way of written submissions. The Applicant was represented by Mr. Jofrey Alex Mollel, learned advocate while the Respondent enjoyed the services of Mr. Hans Mmbando, State Attorney. Mr. Mollel adopted the contents of the Applicant’s affidavit to form part of his submission. He argues that the main reason for the delay is that the Applicant challenged the decision of this Court on time by appealing to (he Court of Appeal but unfortunately, the said appeal was struck out on technical grounds. He referred to this court in paragraph 7.1 of his affidavit. He added that the Applicant was never sitting idle wasting time as he was honestly and truly prosecuting before the Court of Appeal vide the Civil Appeal No. 521 of 2020 but the Appeal was struck out on 23/02/2024 for want of a certificate on point of law. To support his position, he cited the case of Rutagatina C. L. vs The Advocates Committee and Anor, Civil Application No. 21 of 2011 (unreported). Moieover, Mr. Mollel argues that apart from the technical delay, there is illegality apparent on the face of the rccoid on the judgment of this court in Civil Appeal No. 44 of 2006. He contends that the court issued its decision on the said matter in violation of the principles of the law, based on misapprehension of evidence which occasioned a miscarriage of justice, as well as decided on a new issue without affording the Applicant an opportunity to be heard before arriving at its decision. He referred this court at para 7.2 of his affidavit. To cement his argument, he cited the case of Kadili Ally vs Republic, Criminal Appeal No. 99 of 2020, as well as the case of Etiennes Hotel vs National Housing Corporation, Civil Reference No. 32 of 2005, and the case of Principal Secretary Ministry of Defence and National Service vs Dervam Valambhia (1992) TLR 185. Mr. Mollel insists that illegality is of sufficient importance to constitute sufficient reason for an extension of time. In further argument, Mr. Mollel contends that in case this Application is granted, the Respondent will not suffer any prejudice and therefore it would be inappropriate to deny the Applicant the sought for extension of time as he would lose his chance to have the alleged illegality determined by Court of Appeal by way of an appeal. To support his argument, he cited the case of Mobrama Gold Corporation Ltd vs Minister for Energy and Minerals and 2 Others, [1998] TLR 425. Opposing the Application, Counsel for the Respondent Mr. Mmbando also prayed to adopt the counter affidavit to form part of his submission. He then argues that to speed up the administration of justice, the limitation of time is important. Expounding, he argues that the purpose of time limitation is to limit the parties not to bring litigation at their own whims. To support his argument, he cited the case of Dr. Ally Shabhay vs Tanga Bohora Jamaat [1997] TLR 305. Mr. Mmbando further argues that it is a settled principle of law that an Application for extension of time is exclusively within the discretionary power of the court which has the discretion to grant or dismiss the Application for an extension of time. However, the discretionary powers of the court must be exercised judicially. He contends further that the court in the process of exercising its discretionary power to grant an application for an extension of time, must satisfy itself that there is sufficient cause adduced by the Applicant before granting the Application for extension of time. To support his position, he cited the case of Yusuph Same & Hawa Dada vs Hadija Yusufu, Civil Appeal No. 1 of 2002. His further contention is that there are factors to be taken into consideration in determining the existence of sufficient cause for purposes of extension of time, including the reason for the delay, length of the delay, reasonable diligence and promptness, and allegation of illegality which must be on the face of the record. To buttress his position, he cited the case of Zitto Zuberi Kabwe and 2 Others vs AG, Civil Application No. 365/01/2019. On the argument that the Applicant's delay was caused by his Appeal being struck out of the court, Mr. Mmbando argues that it was negligence on the part of the Applicant as he was supposed to obtain a certificate on point of law having in mind that it was a third appeal. Also, the Applicant has tailed to explain the 20-day delay from the date when the decision of the Court of Appeal struck out his appeal on 23/02/2024 up to the date of filing this Application which is 14/03/2024. To support his argument, he cited the case of Charles Richard Kombe vs Kinondoni Municipal Council, Civil Reference No. 13 of 2019. Mi. Mmbando contended that it is a settled principle that each and every day of delay should be accounted for and the reason tor such delay be explained. To support his argument, he cited the case of Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007. On the issue of illegality, Mr. Mmbando argues that the Applicant has invited this court into long-drawn arguments so that it can ascertain the existence of illegality on the decision to be challenged. In his view, the issues pointed out by the Applicant are not on themselves to be seen on the apparent face of the record. Instead, they demand long arguments to be established. In any case, he expounded that while deciding the case previously, the court had acted within its jurisdiction and the parties were afforded the right to be heard. Rejoining. Mr. Mollcl submitted that the Respondent’s argument is baseless, unfounded, and liable to be rejected and disregarded for being based on a defective counter affidavit, arguing the counter affidavit was affirmed by Musa Rajabu Makindija. Whilst under paragraph 1 of the said affidavit he averred to be a State Attorney of the Respondent, he verified the said affidavit as a Village Chairman of the Respondent which is a lie. He further argues that false evidence cannot be acted upon and relied on to resolve any issue. To support his argument, he cited the case of Bashir Ally vs Anyegile Andendekisye Mwamwaluka and 2 Others, Civil Appeal No. 49 of 2021. On the argument that the Applicant failed to account for each day of the delay from when the Appeal was struck out to the time of filing this Application, Mr. Mollel submitted that from the date of decision to the time of filing this Application, it is less than 20 days, so, it is well within the time permissible under the law, as according to the Court of Appeal Rules of 2019, every action by the party aggrieved by the decision of the Court of Appeal is supposed to be taken within 30 days of the impugned decision. On the allegation that the illegality alleged was not apparent on the face of the record, Mr. Mollcl submitted that illegality once alleged is in itself a ground for extension of time, and the important thing is that there is such an allegation of illegality in the impugned decision in the Applicant’s affidavit, and the Application for extension of time must be granted even if days of delay are not accounted for. Having considered the rival submission by parties, the issue calling for determination before me is whether the Applicant managed to show a good or sufficient cause to move this court to exercise its discretion to grant the Application. In the case of Lyamuya Construction Co. Ltd vs Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010, there have been established guidelines to be followed before granting an extension of time which arc: 1. The applicant must account for all the period of delay. 2. Delay should not be inordinate. 3. The application must show diligence, and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take. 4. If the court feels that there are other sufficient important reasons such as the illegality of the decision sought to be challenged. Before answering the issue framed above, I want first to make clarification on the concern raised by the Applicant in his rejoinder to the effect that the counter affidavit is defective for containing untruthful information. The allegation about the defectiveness of the affidavit is a point of law that is not supposed to be raised in a rejoinder. By raising that point on a rejoinder, it denies the other side the chance to reply to it. Hence, I am not in a position to entertain such an allegation which the other side was not given a chance to reply on. Now turning to the framed issue, the main reasons given by the counsel for the Applicant to move this court to grant the Application are twofold, firstly, the technical delay, and secondly, the illegalities of the decision being challenged. Starting the technical delay, the decision sought to be challenged was delivered on 20/12/2012 and the appeal against the said decision was struck out on 23/02/2024. This application was filed on 14/03/2024. The technical delay covers the period from when the decision sought to be challenged was delivered to the time when the Appeal was struck out. As correctly argued by the counsel for the Respondent, the technical delay does not cover the period from when the Appeal was struck out to the time when this Application was filed which is about 20 days. The Applicant did not account for the 20 days of delay. The Applicant should have stated what happened or what hindered him from filing the Notice of Appeal from the time when the Appeal was struck out on 23/02/2024 to 14/03/2024 when he actually filed this Application. Coming to the issue of illegality in the decision sought to be challenged, Mr. Mollel argues that the impugned decision was issued in violation of some principle, that there was a misapprehension of evidence, and that the trial judge raised a new issue and determined it without affording the parties' the right to be heard. The allegation raised by Mr. Mollel in my view, does require long-drawn arguments to ascertain if they are true or not. The Applicant did not point out the said new issue which was raised by the trial Judge and decided upon without affording them the right to be heard. In the case cited case of Lyamuya (supra) when explaining the issue of illegality, the Court held: “Since every party intending to appeal seeks to challenge a decision either on points of law or facts, it cannot in my view, he said that in Valambhia's case the court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points of law should, as of right, he granted extension of time if he applies for one. The Court there emphasized that such a point of law must be that of sufficient importance and, I would add that it must also be apparent on the face of the record, such as the question ofjurisdiction; not one that would be discovered by a long-drawn argument or process ”. 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. The case of Valambhia (supra) cited by the Applicant’s advocate is distinguishable from this case as in the cited case the illegality of the impugned decision was clearly visible on the face of the record in that the High Court had issued a garnishee order against the Government without affording it a hearing right which is contrary to the rules of natural justice while in the instant case those allegations raised by the Applicant’s counsel needs a long-drawn argument to determine. In any case, the Applicant has not pointed out such illegalities in the decisions intended to be impugned. To that end, I must conclude that the Applicant has not demonstrated any sufficient cause that would entitle him to an extension of time. As a result, this Application fails and is accordingly dismissed with costs. It is so ordered. Dated in Arusha on 20th September 2024 Dated at ARUSHA ZONE this 20th of September 2024. A. Z. BADE, J JUDGE OF THE HIGH COURT