PHOENIX OF TANZANIA LTD VS MICHELLE L

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA MISC. CIVIL APPLICATION NO. 15285 OF 2024 (Originating from Civil Case No. 14 of 2016) PHOENIX OF TANZANIA ASSURANCE CO. LTD........................... APPLICANT VERSUS MICHELLE L. GIGER........................................................... 1st RESPONDENT KARL E. JOHNSON............................................................. 2nd RESPONDENT OJUKWU JOSEPH SIRIKWA............................................... 3rd RESPONDENT CONRAD ELINGI................................................................ 4™ RESPONDENT THOMPSON SAFARIS LIMITED.......................................... 5™ RESPONDENT MISSIONARY SPIRIT TRAVEL AND TOURS........................ THE RESPONDENT AON TANZANIA LIMITED...................................................7™ RESPONDENT RULING 19/03/2025 & 19/03/2025 NDUMBARO, J Before this court is an application for extension of time filed by the applicant seeking an order of this court enlarging the time to lodge a fresh notice of appeal to the Court of Appeal of Tanzania against the decision of Hon. M. R. Gwae, J in Civil Case No. 14 of 2016. The application has been brought under the provision of section 11(1) of the Appellate Jurisdiction Act Cap 141 R.E. 2019 and section 95 of the Civil Procedure Code Cap 33 R.E. 2022. It is further supported by a duly sworn affidavit of the applicant's principal officer, Mr. Godfrey Badeleya. In his affidavit, Mr Godfrey stated that the applicant herein was the losing party in Civil Case No. 14 of 2016. Dissatisfied with that decision, the applicant lodged his notice of appeal to the Court of Appeal of Tanzania on time, however, her appeal was struck out on 25th September 2023 following a preliminary objection raised by the respondents that the appeal was incompetent for the failure of the applicant to serve the respondents with the record of appeal and memorandum of appeal within the prescribed time. Mr. Godfrey went further to state that after the former appeal being struck out, the applicant filed an application for an extension of time before this court; nevertheless, the application was struck out on 9th May 2024 for failure to effect service to the 3rd, 4th, 5th, 6th and 7th respondents. Still persistent in pursuing her right to appeal, the applicant has again filed this application, praying for this court to grant the prayer sought in the chamber summons. Opposing the application, the 1st and 2nd respondents filed their counter-affidavit, which was sworn by their advocate, Mr. John Faustin Materu. When the matter was called on for hearing, the applicant enjoyed legal services from advocate Nicholous Leon; the 1st and 2nd respondents, on the other hand, were represented by MATERU & Co. Advocates. With leave of the court, the application was disposed of by way of written submissions, which I shall consider while disposing of the application. After reading the parties' written submissions together with the parties' pleadings (the applicant's affidavit and the respondents' counter affidavit), this court is called upon to determine whether the applicant has advanced sufficient reasons for this court to grant the relief sought. From the outset, I wish to point out that this is the second time the applicant wishes to file her appeal to the Court of Appeal of Tanzania. Initially, the applicant had successfully initiated the process of filing the appeal to the Court of Appeal of Tanzania before the same was struck out. In her submission, the applicant reiterated what was stated in the affidavit and insisted that she has been persistent in pursuing this matter and has never been sloppy or apathetic. The applicant also added that if this application is not granted, the degree of prejudice the applicant stands to suffer is higher than that of the respondents. This is because the decision in Civil Case No. 14 of 2016 was in favour of the 1st and 2nd respondents, and the burden to compensate them was placed on the applicant, which did not contribute to the accident nor the loss occasioned. The respondents, on the other hand, maintained that the applicant has not accounted for the days of delay from when the first application for extension of time was struck out to the time of filing this application. It was their stand that this application should not be granted. From the above parties' written submissions, it is imperative that the applicant's delay is categorically termed as a technical delay, taking into account that the applicant had initially filed the notice of appeal to the Court of Appeal of Tanzania on time before it was struck out. The issue of technical delay has been dealt with in a number of decisions both of this Court and those of the Apex Court of our country. In the famous case of Fortunatus Masha vs. William Shija and Another [9997] T.L.R. 154, the Court of Appeal of Tanzania had the following to say with regard to technical delay; "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement o f the ruling o f the court striking out the first appeal. In these circumstances, an extension o f time ought to be granted. " I accordingly find no reason why this application should not be granted. The above said this application is hereby granted. The applicant is to file the notice of appeal to the Court of Appeal of Tanzania within fourteen (14) days from the date of pronouncement of this ruling. Costs shall abide by the outcome of the intended appeal. D. D. NDUMBARO JUDGE 19/ 03/2025 5