CIV APP 14

IN THE HIGH COURT OF THE UNI[TED REPUBLIC OF TANZANIA I I SHINYANGA - SUB REGISTRY I

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AT SHINYANGA I , CIVIL APPEAL NO. 14 OF 2023 I (Appeal from the ruling of Kahama District Court, Misc. Civil I Application No.26 of 2022 before Honourable Donisian SRM, I from decision of Kahama Distriqt Court in Matrimonial Appeal No. 7/2022 before Hon. DL. Msalilwa, the same originating I from the Kahama Primary :Court Matrimonial Cause I No.94/2021, Husseln -RM) I RAMADHANI PASCHAL SHAMBA ~..........•.......•.•....•.•.•. APPELLANT

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VERSUS I LETICIA MABULA BOMANI ••.••••••I ••••••••••••••••••••••••••••••• RESPODENT

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JUDGMENT 18th & 25th April 2024 F.H. MAHIMBALI, J The appellant herein originall~ filed an application for extension of I time for him to file application for restoration of Matrimonial Appeal NO.7 of 2022 which was dismissed for want of prosecution, the application of which was denied by the first appellate court. Aggrieved by such decision, the appellant approached this Court armed with three grounds of appeal to wit; 1. That, the honorable magistrate grossly erred in law and facts to determine this matter in favour of the respondent without considering the evidence on record of which the evidence of the evidence of the appellant was stronger than that of the respondent.

2. That the Honourable Magistrate erred both in law and facts to determine the matter in favour of the respondent basing on biasness as adduced by the respondent 3. That the honourable Magistrate erred in law and in facts by failure to scrutinize the facts and evidence on record. The appellant however filed supplementary grounds of appeal; 1. That the District Court Magistrate erred both in law and in facts dismissing the applicant's application by which applicant gave out reasonable grounds on delay by which led to the injurious ruling.

2. That the District Court Magistrate erred both in law and in facts when he failed to exercise the discretional power on extension of time judiciously regardless of permissible ground adduced by the appellant warranting extension of time. 2 During the hearing of this appeal the appellant enjoyed legal service of Mis Elizabeth Luhigo learned advocate while the respondent was presented by Denis Machui learned advocate. Before hearing of the appeal, Ms Luhigo abandoned the 1,2,3 grounds of appeal and remained with grounds of appeal coached in in supplementary grounds of appeal. Arguing for the appeal Ms Luhigo submitted that this appeal is against the ruling of the trial lower court (Kahama District Court) vide application No. 26 of 2022 arising from matrimonial appeal no. 7 of 2022 which originally was matrimonial cause no. 94 of 2021. Aggrieved by that decision, the appellant appealed to the High Court. With the first ground of appeal, that the trial magistrate erred in dismissing the application for extension of time while there were reasonablegrounds explained warranting the grant of the said application by the appellant; Ms Luhigo stated that the reasons stated by the appellant at the district court were very sound. The appellant stated how he was attending his sick uncle who eventually died in the course of traditional medication at Tabora. In essence, the deceased started

sickness on 4th January 2023 up to April 2023. When the appellant went back to the case, he noted it was 3 already disposed. Following this situation, the appellant resorted to the extension of time whose decision is the subject of this current application. The sickness and death of his uncle was communicated to various places, argued Ms Luhigo. Despite all these good explanations, the magistrate argued that the affidavit of the said traditional doctor was to establish the said fact of sickness. This being a court of law, is expected to administer justice as to the highest standard, added Ms Luhigo. Such right is only sought from the court of law. Astonishingly, the appellant was denied with that right despite there being reasonable grounds. That said, the trial magistrate seems to have escaped his legal duty. On the second ground of appeal, the district court failed to exercise the discretionary powers in granting the said application bestowed by the law in a total disregard of the law. Ms. Luhigo submitted that the District Court is legally mandated to extend time for the appellant to file the said appeal out of time. It was only on the reason of sickness of the departed uncle that made the appellant not being aware of the next due dates. For the interests of justice, it was important that both parties are heard on the matter. The District Court mainly relied on

technicalities in disposing the said application instead of propping on good sound reasons. Thus, the appellant was not accorded the proper right of being heard as per law. 4 She therefore prayed for the decision of Kahama District Court be revised for being improper as per law. And that the appellant be awarded costs of the case. On the side of the Respondent, Mr. Machui resisted the appeal. He argued that reading the affidavit of the applicant at the trial court and the submission of the learned advocate, it is clear that the main reason advanced for the said delay is attending his sick uncle (from 2/4/2023 to June 2023). It is astonishing that the applicant who was unable to attend court session on allegation of attending his sick uncle, had been able to attend the court and filed Land Appeal no. 7 of 2023. Thus, this ground of appeal is devoid of any merit. The respondent being also a member of the said appellant's family, could be well aware of the said death if at all happened, thus this ground of appeal lacked evidence. Furthermore, reading the affidavit information in respect of the said application, it is evident that after the said uncle had died on 2/4/2023 to when the said application was filed in Court (June), there has not been explained what was the appellant doing for him not to file this application earlier. Accounting each day of delay is a mandatory

requirement (see the case Lyamuya Construction Co. Ltd, from page 6 to 7 added Mr. Machui. In this application, the appellant did not account for each day of 5 delay. Therefore, the appellant faulted for failure to account each day of delay. Furthermore, the fact that the appellant was attending his sick uncle before the traditional doctor at Tabora was supposed to be established by affidavit from the said traditional doctor to substantiate the fact of sickness. That said, the appeal by the appellant is baseless, the same be dismissed with costs for want merit, concluded Mr. Machui. In rejoinder Ms Luhigo maintained the submission in chief and added that, as regards to the appellant filing the appeal before the district court, he only did that once but later could not do more as the uncle's health deteriorated to the worse. As to the fact that the respondent being a resident of the same village but didn't hear the said sickness of the alleged uncle and his demise, she maintained that the issue of sickness and the occurrence of the said death is not a fabricated story to score court's order but reality, adding that even if the respondent had heard the said sickness and his demise, as to antagonistic relationship between them, she could not offer that statement for fear of losing her rights. About accounting each day of delay, Ms. Luhigo agreed that there was much delay and it is

not timely filed. However, following the 6 bereavement mood, that was not possible to be done spontaneously. There had to be a cooling of time to Jnable her reorganize for the filing of the case, However, a two days' ti~e is a short period, Nevertheless, sickness being the central point of d['ay, she prayed for this Court to consider that fact and thus the appeal be allowed for interests of justice. I Having heard the rival submission of both parties dispassionately and upon digest of the lower court r~cords, the issue for deliberation is whether this appeal has been brought with sufficient cause. The appellant alleges that he missed court's attendance during the hearing the of Matrimonial Appeal NO!7 of 2022 before Kahama District Court as he went to attend sicknessl of his uncle who was healing at traditional healer and later on, he died. After he had come back he found his appeal was dismissed for want of brosecution, On the side of the respondent, ~r, Machui resisted on ground that there is no proof of sickness of the allred appellant uncle, no traditional healer's affidavit to support the same'lThus, he never attended the Court unreasonably which attracted the dismissal of the appeal. Evaluating the arguments madJ by both parties, the main point for consideration and determination is w1ether sufficient reasons were given by the appellant to warrant the prayer sought. To

commence with, it is clear as stated in the case of Tanga Cement Company Limited Vs Masanga and Amos A. Mwalwanda, Civil application NO.6 of 2001, for a person to apply for extension of time, has to disclose sufficient reasons, which was defined as follows; " What amounts to sufficient cause had not been defined. From decided cases a number of factors have to be taken into account, inoluding whether or not the application has been brought promptly, the absence of any valid explanation for delay, lack of diligence on the part of the applicant. " However, there are also other factors that are used to determine whether the applicant has shown good and reasonable cause such as the length of the delay, whether or not the delay has been explained away, diligence on the part of the applicant as correctly argued by Mr. Machui when cited the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010 (unreported). With regard to the issue of sickness as raised by the appellant, it is clear that since sickness is a condition which is experienced by the person who is sick and that it is not a shared experience except for a sick person 8 who is in a position to express her or his feelings (see John David Kashekya Vs The Attorney General civil application No 1 of 2012 (unreported)). However,

for the sickness to be a sufficient cause the same must be sufficiently proved. This was fittingly explained in the case of Emanuel R. Maira vs The District Executive Director of Bunda, Civil Application No. 66 of 2010 (unreported) that; "Health matters in most cases are not the choice of a human being; cannot be shelved and nor can anyone be held to blame when they strike. " Again, in the case of Beatus Laurian Ndihaye versus Mariam Kitoela, MiscellaneousCivil Application No.6 of 2021, the court held that; " The applicant's only reason advanced is illness. I am well aware that as of late there are decisions which are to the effect that illness constitutes sufficient cause for extension of time. However, such illness must be sufficiently proved. Looking at the affidavit filed in support of the application, the applicant has attached to the affidavit a letter from the traditional healer indicating that he was admitted at his place where he was receiving treatment and was later 9 discharged after he was well. That traditional healer further proved his professio1alism by attaching a copy of his Certificate of incorpo1ation No. A.91041 issued on 29/01/2019. The reason advanced by the applicant suffices to be sufficient cause upon which this court can exercise its discretion" In the present case, the alleged sickness was for appellant's uncle and thus the appellant attended his

medication of healing to the traditional healer. There is no further rroof as to which traditional healer was his uncle medicated. There is no ample evidence from that mentioned traditional healer to prove as to whether he really admitted the appellant's uncle as alleged and whether the appellant was the one who was taking care over him. Therefore, the absence of such proof makes the reasons advanced by the appellant and squarely argued by Ms Luhigo to be unmerited and is contrary to the law demands. I asso~iate myself with the position of Mr. Machui that the sickness of the appellant's uncle was not proved before the trial court to warrant grant of extension of time. Settled also is the principle that a superior court or tribu al cannot interfere with the exercise of discretion by an inferior court or t ibunal unless it is satisfied that the 10 decision concerned was made on a wrong principle or that certain factors were not taken into account. That principle was stated in Mbogo and Another v. Shah [1968] 1 EA 93 by the erstwhile Court of Appeal for East Africa, which has been cited and applied in numerous decisions of this court and the Court of Appeal. re relevant passage is as per Sir Clement de Lestang VP, at page 94, tlus: "I think it is well settled tht this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that the

decision is r/earlY wrong, because it has misdirected itself or because it has acted on matters on which it should 10t have acted or because it has failed to take into consideration matters which it should have taken into cO~ideration and in doing so arrived at a wrong conclusion". [Emphasis added] However, there is another issue of accounting of each day of delay. Mr. Machui has provided that, leave apart from sickness of the appellant uncle who allegedly to have died on 2/4/2023. If this assertion is true, the issue for consideration is, why the appellant awaited to file his application for extension of time until on 14/6/2023. Despite the fact that the same was conceded by the appellant's crunsel that, there was no much 11 explanation to that other than the COffUSionby the appellant after has lost his uncle. That is merely an apathy, which is not one of the legal grounds warranting extension of time. In my firm view, I subscribe the position argued by Mr. Machui that the appellant had failed to account fOr.each day of delay from 2/4/2023 to 14/6/2023. There are many days re1mainedunexplained. Being the case, the appellant was required to account for each day of delay and give sufficient reason for Jhat delay. There is a litany of cases to that effect that delay even of a I ingle day, if unaccounted cannot warrant extension of time. In the case of Attorney General v.

Mkongo Building and Civil Works and another, Civil application No, 266/16 of 2019, the Court of Appea formulated guidelines that may be considered in application for extensior of time like the one at my hand. Criteria to be considered in apPlication for extension of time as formulated r by the Court of Appeal in Mkongo Bui}ding case, supra, are that: "(a) the applicant must account for all the period of delay; b) the delay should not be inordinate, (c) the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the ariOn that he intends to take; 12 And =: (d) if the court feels that there are 0 'iher sufficient reasons, such as the existence of a point of law sufficient such as the illegality of the decision sought to be challenged. ' In the affidavit at the trial Court the appellant deposed none as to why he failed to lodge instantly his a plication soon after he had buried his uncle and waited until 14/6/2023. ounting from the date of the order I . of dismissal of the Matrimonial Appeal o. 7 of 2022, that is on 23/3/2023 to the date of filing the application on 14/6/2023 is four (4) months. All these days have not been accounted for by the appellant at the trial court. For the foregoing, I find that appellant had failed to provide sufficient cause of delay and further h d failed to account for each day of delay. I do not see the reasons to ault the trial court's findings and consequently I hereby uphold it by dls issing this appeal with costs. It so ordered. 13