RULING Saidi Mohamed Hango vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 14214 OF 2024 (Originating from the decision of the Minister for Labour, Youth, Employment and People with Disabilities in Complaint No. ODS/601252904/420) SAID MOHAMED HANGO …….....…….…….………….………………….. APPLICANT

VERSUS THE MINISTER FOR LABOUR, YOUTH, EMPLOYMENT AND PEOPLE WITH DISABILITIES …….……… 1ST RESPONDENT

THE BOARD OF TRUSTEES OF THE WORKERS COMPENSATION FUND ………...…………………….. 2ND RESPONDENT THE ATTORNEY GENERAL ………………………………………….. 3RD RESPONDENT

RULING Date of Last Order: 12th September, 2024. Date of Ruling: 30th September, 2024. KAWISHE, J.: The applicant, Said Mohamed Hango has moved this Court by way of chamber summons made under section 14 (1) of the Law of Limitation Act 1 (Cap. 89, R.E 2019), seeking for extension of time within which he can file an appeal out of time to challenge the decision made by the Minister for Labour, Youth, Employment and People with Disabilities (the Minister) in Complaint No. ODS/601252904/420. The application is supported by an affidavit affirmed by the applicant setting out the reasons for the delay and for the enlargement of time. In the affidavit, the applicant states that, he is late in filing his appeal for about 246 days. He deponed that there are two major reasons for his delay in filing his appeal to impugn the decision of the Minister. The reasons are: (1) That, he encountered legal technicalities in dealing with the suit. (2) That, he was looking for an advocate to assist him to prepare this application. On the first reason, the applicant deponed that, 186 days of the delay were used in dealing with Miscellaneous Civil Application No. 17 of 2023 (annexture SMH1). That he filed the application before this court seeking for orders of certiorari and mandamus against the decision of the first respondent. He stated that the application was struck out for the reason that, the

proper avenue was the applicant to file an appeal. He deponed further that, there is a conflict of law on account that the decision 2 of the first respondent, an administrative body’s decision while the Workers Compensation Act (Cap. 263, R.E 2002), requires the party aggrieved by the decision of the first respondent to file an appeal which is not a normal approach taken by other administrative bodies. In the joint counter affidavit sworn by Mr. Deo Victor Ngowi, the respondents never contested the first reason for the applicant’s delay in filing his appeal. Even at the hearing of this application, the respondents conceded that, the delay for 186 days was due to the legal technicalities which is a good reason for the extension of time. But for the second reason that the applicant was looking for an advocate was hotly disputed. At the hearing of the application, the applicant appeared in person unrepresented, he fended for himself while, the respondents were represented by Mr. Eugene Kanje, learned State Attorney. As stated herein above, the first reason for the delay was not contested. Bearing that in mind, this court shall not dwell on it. Dealing with uncontested reason shall save no purpose in this ruling. In his submission in support of the application, the applicant elaborating the second reason for the delay, he argued that, from 12th April, 2024 to the time of filing

this application 60 days had elapsed. He averred that, those 3 days were used in looking for legal assistance. The applicant insisted that, in every day for all those days he was searching for an advocate to assist him as he is not a lawyer thus, he required assistance from a lawyer. He argued that article 107A(2)(a) of the Constitution of the United Republic of Tanzania of 1977 provides for justice to be dispensed without any kind of segregation and the applicant’s lack of legal knowledge must not be used as a hinderance for the applicant’s procedure to pursue his rights. The applicant added that, if this application will not be granted, the applicant’s health will be in danger. That he will suffer economic hardships on the reason that the first respondent’s decision was against the law. He contended that, the medical report issued in 2019 restrained him from continuing working in his professional duties. To bolster his arguments he cited the case of Longututi Metishooki vs. Godfrey Melami (Misc. Land Application No 167 of 2022) [2023] TZHC 19332 (17 July 2023), Philemon Mang'ehe t/a Bukine Raders vs. Gesso Herbon Bajuta (Misc. Civil Application No. 374/02 of 2022) [2023] TZCA 17672 (29 September 2023) and Mariam Khalifan Mtoro vs. Shirika La Umeme Tanzania (TANESCO) (Civil Application No. 31 of 2020) [2022] TZCA 180 (31 March 2022) and prayed for this application to be

allowed given the 4 fact that, he never slept over his right from the date the decision of the first respondent was issued. The respondents’ learned State Attorney at the outset prayed for the joint counter affidavit filed by the respondents to be adopted to form part of his submission. He contended that, the applicant’s delay for 60 days was not justified to enable this court to extend time so that the applicant could file an appeal out of time. He further contended that, the applicant has contradicted himself on whether he was looking for an advocate or for legal assistance as in his affidavit he stated that he was looking for an advocate while, in his submission he has stated that he was looking for legal assistance which are two different things. The learned State Attorney averred that, if the applicant was looking for an advocate, the documents filed in this application do not support the assertion as they show that they were prepared by the applicant himself and at the hearing he also fended for himself. He added that, the contention that the applicant was looking for legal aid is unfounded as there is no certificate to prove that he was served under legal aid. Mr. Kanje alluded that, in our jurisdiction, searching for advocate or legal service has never been a reason for extension of time to file an 5 appeal out of time. For that reason, he argued that, it is clear that

the applicant has failed to give sufficient and good cause for the delay for the period of 60 days. He added that, for the application of this nature the applicant is required to account for each day of delay. Reinforcing his stance, he referred this Court to the case of Shabani Mrisho Dilunga vs. Rajabu Saidi Mgonanze, Miscellaneous Land Application No. 50 of 2023 and Hassan Bushiri vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (both unreported) and prayed for this application to be dismissed with costs. In his short rejoinder submission, the applicant stated that he used the sixty days looking for an advocate. That, the affidavit filed in support of this application, though it was prepared and filed by the applicant himself, it bears the stamp of an advocate which confirms that the applicant was not asleep. He added that, he was even helped in preparing the affidavit by an advocate and insisted for the application to be allowed. Having gone through the affidavit, the counter affidavit and followed keenly the submissions made by the parties in this application, I find the main issue which needs to be determined by this Court is whether the applicant has advanced good and sufficient cause to enable this Court to 6 exercise its discretionary powers to extend time within which he can lodge an appeal out of time. It is worth to note that, in our jurisdiction, courts

have discretionary powers to grant an application for extension of time within which to file an appeal out of time. However, the discretionary powers given to the courts must be used judiciously and not frivolously. See the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 and Ngao Godwin Losera vs. Julious Mwarabu, Civil Application No. 10 of 2015 Court of Appeal sitting at Arusha. The established practice of this Court and the Court of Appeal which is the Apex Court in our jurisdiction is that, for applications of this nature to succeed the applicant has to give good and sufficient cause for the delay to enable the Court to use its discretionary powers. There is a plethora of case law on this matter which include but not limited to the case of Robert Madololyo vs. Republic, Criminal Appeal No. 486 of 2015 [2018] TZCA 346 [14 February 2018; TanzLII], where the Court of Appeal, quoted with approval the decision of the Supreme Court of Appeal of South Africa in Uitenhage Transitional Local Council vs. South African Revenue 7 Service, 2004 (1) SA 292 (SCA), cautioned that, condonation for delay the applicant must furnish a detailed and accurate explanation of the causes of the delay to enable the Court to understand the situation and assess the responsibility. Also, in

the case of Republic vs. Yona Kaponda & 9 Others (1985) T. L. R 84, it was held that: “In deciding whether or not to allow an application to appeal out of time, the Court has to consider whether there are sufficient reasons not only for the delay but also sufficient reasons for extending time during which to entertain the appeal.” The principle in limitation of period and extension of time is that even a delay of a single day must be accounted for. See Hassan Bushiri vs. Latifa Lukio Mashayo (supra), the Court of Appeal insisted that the applicant should account for each day of delay. The Court held that: "Delay of even a single day has to be accounted for. Otherwise, there would be no point of having rules prescribing periods within which certain steps have to be taken." In the present application, the reason advanced by the applicant is to the effect that he was looking for an advocate to assist him in preparing this application. This has been contested by the respondent’s learned State Attorney that there is no justification given by the applicant that he spent sixty days looking for an advocate. From the competing arguments made 8 by both parties, it is clear that, the reason given by the applicant for his delay in filing the intended appeal on time is ignorance of the law that is why he used the sixty days looking for an advocate to assist him in preparing this application

as he is not a lawyer. On the ears of law this is not a sufficient ground. It is a cardinal legal principle that, ignorance of law, is not an excuse. In Emmanuel Lohay & Another vs. Republic (Criminal Application No. 3 of 2013) [2014] TZCA 220 (11 September 2014) the Court stated that: "...Ignorance of law is no excuse and cannot amount to sufficient cause for extending time to take a certain step". Given the excerpt above, I wish to add up by restating the holding of this Court (Kalegeya J.) in John Cornel vs. Grevo (T) Limited, Civil Case No. 70 of 1998 (unreported), that: “However unfortunate it may be for the petitioner, the law of limitation on action knows no sympathy no equity. It is a merciless sword that cuts across and deep into those who get caught in its web.” I adopt the reasoning of this court in the above excerpt, at the same time referring to the submission made by the applicant. He stated that, from 12th April, 2024 when the ruling was delivered to the time of filing this application 60 days had elapsed. That, those days were used in looking for 9 legal assistance. In his rejoinder stated that, although the application was prepared and filed by the applicant himself, it bears the stamp of an advocate which confirms that the applicant was not asleep. He added that, he was even helped in preparing the affidavit by an advocate. From his submission, the learned

State Attorney for the respondents disputed the ground for lacking a certificate of legal aid. The applicant claimed that he prepared his application and was stamped by an advocate. On the other hand, he stated the advocate helped him to prepare the application. The question which remains unanswered is which among the two statements is true. On the issue of being assisted, the learned State Attorney averred that he has not proved the same. I inclined to the Attorney’s submission. It remains, as he said that he prepared the application (affidavit) and was stamped by an advocate. In fact, that is what can be seen from his submission and affidavit. Yet, he alleged that, the 60 days delayed were used in searching for an advocate to stamp his affidavit. I fail to grasp the gist of looking for an advocate for 60 days consecutively. The applicant’s reason has sent me to pay homage to the case of Lyamuya Construction Company Limited (supra) which established principles to be fulfilled in granting extension of time within which to file an appeal out of time. The principles are- one, the applicant must account for all the 10 period of delay. Two, the delay should not be inordinate. Three, the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. Four, if the court feels that there are other sufficient reasons,

such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. In the application at hand, the applicant failed to meet even a single principle established in the case of Lyamuya Construction Company Limited (supra). Testing the application against the first principle of the case cited, accounting for each of the days delayed, the applicant submitted that all the 60 days he delayed he was not asleep rather he was hammering the road in search for an advocate to stamp his affidavit. To cover is situation, cited the case of Longututi Metishooki vs. Godfrey Melami (supra) and Philemon Mang'ehe t/a Bukine Raders vs. Gesso Herbon Bajuta (supra) whose facts are distinguishable from the case at hand. He further averred that, article 107A of the Constitution prohibits technicalities in the dispensation of justice. In my understanding the Constitution does not mean to overlook non-adherence to established laws and procedures. Throwing a glance on article 26(1) of the 11 Constitution, it requires every citizen to abide to the Constitution and laws of the United Republic. Thus, instead of searching for a hiding bush under the provisions of the Constitution, it was prudent for the applicant to prosecute his case at the earliest time possible. It is a trite law that, apathy has no room before the court. This court is a court

of law and not court of sympathy, it dispenses justice in accordance with the law and the established procedures. As a result, I find the applicant has failed to give sufficient and good cause for delay of 60 days to move this court to exercise its discretionary powers to grant extension of time within which to file his appeal out of time. Subsequently, the issue raised is answered in the negative. From the discussion and analysis made, the application lacks merit, therefore it is dismissed. Having regard to the nature of the application, I give no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 30th day of September, 2024. E. L. KAWISHE

JUDGE 12 Court: This ruling is delivered in the presence of the applicant, Mr. Said Hango and in the absence of the respondents. E. L. KAWISHE

JUDGE 30/09/2024 13