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IN THE HIGH COURT OF TANZANIA (TEMEKE HIGH COURT SUB-REGISTRY) ONE-STOP JUDICIAL CENTRE AT TEMEKE CIVIL APPEAL NO. 7197 OF 2024 (Originating from Misc. Civil Application No. 150 of2023 at Resident Magistrate's Court of Dar es Salaam at Kisutu) SAID BAKARI MABRUKI.............................................. APPELLANT VERSUS GAUDENSIA CALIST NDIBALEMA............................... RESPONDENT JUDGMENT Date of last order: 25/11/2024 Date of Judgment: 20/12/2024 OMARI, J. Said Bakari Mabruki, the Appellant herein is dissatisfied and aggrieved ty the decision in Misc. Civil Application No. 150 of 2023. He came to this court armed with 7 grounds of appeal as follows: 1. The magistrate erred in law and in fact when he neglected de/ibe -ate/y the very important reason raised for the Appellant failure to file on time the Application to set aside ex parte order in Matrimonial Cause No. 33 of2020. 2. That the magistrate erred in law and in fact when he failed to evaluate the strong evidence adduced supporting the Appellant's delay to file Application to set aside the ex parte order. 3. That the magistrate erred in law and in fact when he held that, the Affidavit sworn by Rosemary A/phonce Kirigiti (Advocate) is fatally defective invalid and ineffective. 4. That the honourable magistrate erred in law and in fact when he s tated that, improper mode of service ofsummons to the Applicant/Appellant being also the reason for the Applicant's delay to file Application to vacate ex parte was not a matter to be discussed and ground to warrant extension of time rather it is a matter to be discussed during the application to vacate the ex parte order. 5. That the honourable magistrate erred in law and in fact when he stated that, the Applicant failed to establish when he was informed aboi it the ex parte decree in question. 6. The honourable magistrate erred in law and fact when he stated that the alleged fact on when the Applicant got informed ought to :ome from a person who this information was communicated or a person who communicated this information to the Applicant. 7. That the magistrate erred in law and fact by assuming than the Registered Trustees of Manyema Mosque had good communication with the Applicant who donated to them the property in question through Wakf hence they ought to communicate to the Applicant at the very moment they were aware of the ex parte decree hence delayed for 75 days from the date they received such information of the ex parte order. It is on the basis of the seven grounds that he prays for orders that the appeal be allowed, the Ruling be quashed and dismissed and all prayers prayed at the lower court be allowed. The appeal was argued by written submissions. Ms. Rosemary Alphonce Kirigito learned advocate drew and filed the Appellants submission She prayed to argue the first and fourth as well as the fifth and sixth grourds of appeal together. The rest of the grounds were argued as they were in the memorandum of appeal. On the first ground of appeal, the Appellant's advocate submitted that the Appellant was living abroad and that is what led to the ex parte order and the resultant delay in vacating the said order. Ms. Kirigiti argued that the decision in Matrimonial Cause No. 33 of 2020 was delivered on 12 Al gust, 2022 while the Appellant was informed on 07 August, 2023. Submitting on the second ground of appeal, Ms. Kirigiti explained that the evidence presented included a passport that the Appellant was living outside the country thus the mode of service was improper and should have suficed to be evidence for the delay. As regards the third ground of appeal which is the Affidavit Ms. Kirigiti at gued that the said Affidavit was not defective and even if it were then the court should have struck it out ordered an amendment or expunged the offending paragraphs as was held in the cases of Zito Zuberi Kabwe v. The Board of Trustees Chama cha Demokrasia na Maendeleo and others Civil Case No. 270 of 2023 and Reli Assets Holding Co. Ltd. v. Japhet Casmil and 1500 Others, Revision No. 10 of 2014 where in the first casa the defective parts of the Affidavit were expunged and in the later the matter was struck out and the Applicant given 28 days to file a fresh application. For the fifth and sixth grounds of appeal counsel explained that the information on ex parte judgment was relayed to the Appellant via the Registered Trustees of Manyema Mosque who were also informed of the same on 22 May,2023 and in turn informed him on 07 August, 2023. Further to that counsel submitted that the Appellant had indicated in paragraph 7 of the Affidavit he was informed of the ex parte judgment by one Hassan Yahya Hussein. Submitting on the last ground of appeal counsel submitted that the magistrate wrongly assumed that the Appellant was in communication with the Registered Trustees of Manyema Mosque but ignored the proper procedure of service for a person living abroad. On this, Ms. Kirigiti submitted that no one should be judged unheard as per Article 13(6) (a) of the Constitution of the United Republic of Tanzania and the case of Sadiki Athumani v. R [1986] TLR 235. Counsel concluded her submission by stating that the Appellant advanced good cause to warrant an extension of time and if the same is not granted he and the Registered Trustees of Manyema Mosque stand to suffer irreparable loss. Mr. Moses Sterwat Kaluwa learned advocate drew and filed the subm ssion on behalf of the Respondent. He commenced his submission by referring to the first, second and fourth grounds of appeal which he noted as supposed to be capturing the reasons for the delay in applying to set aside the ex parte judgment. Counsel went on to submit that in the trial court's decision there are findings that extension of time is within a court's discretionary powers that have to be exercised judiciously depending on the circumstances of each case. He went on to state that the magistrate observed that the applicant has to account for the delay and the delay and the delay not be inordinate. From that he went on to explain that the accompanying Affidavit in such an application has to disclose good or sufficient cause to enable the court to exercise its powers as was held in Eliya Anderson v. R (Criminal Applk ation No. 2 of 2013)[2013]TZCA 296. Mr. Kalua then went on to argue that the Affidavit in support of the Application did not give reasons for the delay and there was no evidence to support the assertions in the Affidavit. Counsel cited the cases of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's and Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA and Elias Mwakalinga v. Domina Kagaruki and Five Others (Civil Application No. 120/17 of 2018) [2019] TZCA 650, FINCA Tanzania Limited and Another v. Boniface Mwalukisa (Civil Application No. 589 of 2018) [2019] TZCA 562 and TANESCO v. Mufungo Leonard Majura and Others (Civil Application No. 94 of 2016) [2017] TZCA 239 all of which emphasize on accounting for the delay. On this ground Mr. Kalua reiterated that the Affidavit filed did not disclose the reasons for the delay and when they became aware of the order. Submitting on the third ground of appeal Mr. Kalua submitted that the magistrate was right to make findings as regards the Affidavit because it was deposed by the Advocate on behalf of the Appellant and had information that was beyond the personal knowledge of the deponent and, the person named to provide the said information did not swear an affidavit to support the facts stated. Counsel cited the case of Elihaki Giliad Mbwamho v. Mary Mchome Mbwambo and another (Misc. Civil Application Nc. 449 of 2019) [2020] TZHC 1289 wherein this court emphasized that an advocate can swear and file an Affidavit for his client on matters within his knowledge and that an Affidavit which mentions another person is heresy unless that other person swears as well. Mr. Kalua reiterated his submission on the third ground of appeal for the fifth and sixth grounds of appeal and cited the case of Sabena Technics Dar Limited v. Michael J. Luwunzu(Civil Application No. 451 of 2020) [2021] TZCA 108. Counsel then went on to submit on the last ground of aopeal stating that the magistrate's decision was correct as it covered the basic components of legal reasoning which are logic, justice, experience and policy thus, has no legal flaws. Citing the case of Jafari Mohamed v. Republic, (Criminal Appeal No. 112 of 2006) [2013] TZCA 344 he called on this court not to interfere with the decision of the trial court. Mr. Kalua concluded his submission praying that the appeal be dismissed with costs. In her rejoinder, Ms.Kirigiti reiterated her submission that the Appellant raised sufficient ground to warrant an extension of time and adduced strong evidence to support the reason for the delay by including inter alia the passport. Having considered the submission of both counsel for and against the grounds of appeal the only issue for the determination of this court is whether the appeal is meritorious and if so what would be the the way forward. Before going into the grounds of appeal I find it necessary to revisit what happened in the trial court. The Appellant herein through filed Misc. Civil Application No. 150 of 2023 seeking orders inter alia that the Resident Magistrate's Court of Dar es Salaam at Kisutu be pleased to grant an order for an extension of time for the Applicant to file an application to vacate the ex parte order dated 12 August, 2022. The application was filed under section 14(1) of the Law of Limitation Act, Cap 89 RE 2019 and section 95 of the Civil Procedure Code, Cap 33 RE 2029. The said application was supported by an Affidavit of Rosemary Alphonce Kirigiti in which she essentially deposed what she stated in the submission of this appeal. The trial magistrate in considering the application pointed out that the application that was before him is for extension of time and not for setting aside the ex parte judgment and decree. He explained that the grounds to be advanced are required to be confined to why the applicant delayed in filing the application to set aside the ex parte judgment and decree and not why the said judgment and decree should be set aside. The learnec trial magistrate went on to state that he is giving that observation because the parties raised issues as to the legality of the hearing of Matrimonial Cause No. 33 of 2020 and subsequent decision which would have been preserved for the application to set aside the ex parte judgment. After this observation the magistrate went on to observe that there are three tests for a court to exercise its discretion to extend time which are one;the powers need to be exercised judiciously depending on the circumstances of each case. The second is whether the applicant has advanced sufficient grounds to enable the court to exercise its discretional powers to extend time and f nally the last test is whether the applicant managed to account for each single day of delay and that the is not inordinate. The honourable magistrate referred to the Court of Appeal case of Regional Manager TANROADS Kagera v. Ruaha Concrete Co. Ltd. Civil Application No. 96 of 2007' and this court's decision in Meis Industries Ltd. and two others v. Twiga BankCorp Misc. Commercial Cause No. 243 of 2015 both of which emphasize on the need for the applicant establishing material facts amounting to sufficient cause for the delay and what is sufficient cause. It is after the discussion of how good and sufficient cause is manifested that the magistrate found that the Appellant failed to establish how the information was communicated to the Appellant and as a result no evicence is attached to establish the means and time of the communication. Moreover, the said Affidavit being sworn by the Appellant's counsel was also problematic since she has no connection to the information. He also found that the Appellant had failed to account for the period of delay thus offending the principle that a delay of even a single day needs to be accounted for. Counsel for the Appellant submitted that as regards the Affidavit the trial magistrate should have either expunged the relevant paragraphs or ordered a fresh application to be filed. I went through the Affidavit in the file and the only paragraph that the trial magistrate had issues with relates to the information being communicated to the Appellant by Hussan Yahya Hussein. In my view, even if he had not treaded on would have landed the same results as he had already observed even before going into the legality Affidavit that the Appellant had failed to establish the reasons or good cause for the delay nor had he accounted for the delay. The Appellant in both the Affidavit and counsel's submission based the application on the reasons as to why the judgment needed to be set .aside instead of why the court should use its discretionary powers to extend time. This is what the trial magistrate observed and it can be seen in the record. The same has been replicated in the current appeal as can be seen in the memorandum of appeal and submission of counsel. To put it clearly, the first ground of appeal is general as the magistrate's refusal to grant the extension of time which as already stated there was no material for him to act upon. The second ground of appeal is on the failure to recognize the strong evidence, which is the Appellant's passport which only explains he resided abroad and does not necessarily explain the delay nor account for it. The third ground of appeal faults the magistrate's decision to hold the Affidavit of Rosemary Alphonce Kirigiti as fatally defective, as already explained by the trial court magistrate an Affidavit made by an advocate can only contain information that is in personal knowledge cf the deponent and this was not the case for this particular Affidavit, see Elihaki Giliad Mbwambo v. Mary Mchome Mbwambo and another (supra). However, as already explained even if the Affidavit of Rosemary Alphonce Kirigiti was not found defective by the learned magistrate it would sti I not be able to support the application for she failed to establish reasons and good cause for the delay. The fourth ground of appeal I find would be appropriate at the hearing for the application for setting aside the ex parte judgement so not appropriate for either the application for an extension of time or this appeal. Reading the Affidavit of Rosemary Alphonce Kirigiti I am inclined to agree with the trial magistrate that she has failed to prove when and how the Appellant was informed of the ex parte judgment, making the fifth and sixth grounds of appeal not meritorious in that regard. As for the last ground of appeal it is in my view related to what would have * been submitted in the application to set aside the ex parte judgment and not for the application to extend time. The above said, I find the appeal without merit as the Appellant failed to establish good cause for extension of time at the trial court. As a result, the appeal is dismissed. Since the appeal originates from an application involving a matrimonial matter the parties are ordered to bear their own costs. Judgment dated and delivered 20th December 2024 in the presence of Rosemary Kirigiti advocate for the Appellant and Moses Kalua advocate for » the Respondent with the Respondent in attendance.