Shani Mnubi Farahani 12271 of 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TEMEKE SUB-REGISTRY (ONE-STOP JUDICIAL CENTRE) AT TEMEKE CIVIL APPEAL NO. 12271 OF 2024 (Arising from Misc. Civil Application No. 93 of2023 of District Court of Temeke at Temeke One Stop-Judicial Centre) SHANI MNUBI FARAHANI (As the Administratrix of the estates of late Mnubi Mrisho Farahani)......................................................... APPELLANT VERSUS ZAITUNI JABIRI MARUA........................................................ 1st RESPONDENT JUMA MNUBI FARAHANI...................................................... 2nd RESPONDENT JUDGMENT 23rd July & 09th September, 2024 BARTHY, J.: This is an appeal arising from the decision of the District Court of Temeke at Temeke One Stop Judicial Centre (the district court) in Misc. Civil Application No. 93 of 2023. The appellant, dissatisfied with the decision of the Mbagala Primary Court in Probate Cause No. 212 of 2019, which was delivered on 24th February 2022, sought to challenge the decision but was out of time. Consequently, the appellant applied for an extension of time at the District Court to file her appeal out of time. i The district court, however, dismissed the application, finding that the appellant had failed to disclose sufficient reasons to justify the extension of time. Unhappy with this outcome, the appellant now appeals against the entire decision of the district court on the following grounds; 1. That, the Honorable Senior Resident Magistrate erred in law and in fact(s) by dismissing the Appellant's Application for extension of time to file appeal out of time, whilst the Appellant advanced sufficient grounds as it clearly stated in the Appellant's affidavit. 2. That, the Honorable Senior Resident Magistrate erred in law and in fact(s) by dismissing the Appellant's Application for extension of time to file appeal out of time, whilst the Appellant advanced sufficient reasons and that the Appellant's delay for ten (10) days was neither intentional nor rather than being beyond Appellant's control. Wherefore, the appellant prays for this honorable court to allow the appeal, with costs. At the hearing of this matter, both parties were duly represented. The appellant was represented by Mr. Sostenes Mselingwa, learned counsel, while the respondents were represented by Mr. Jonathan Mndeme, learned counsel. By consensus, the hearing proceeded by way of written submissions, and I thank both parties for their timely submissions. In his submissions, Mr. Mselingwa argued that the appellant approached the district court through Misc. Civil Application No. 93 of 2023, seeking an extension of time to file her appeal out of time against the judgment of the Mbagala Primary Court, dated 24th February 2022. Further, Mr. Mselingwa submitted that the delay was neither intentional nor negligence, but rather due to a technical issue with the Case Management System (CMS) in the court registry. He emphasized that the appellant had submitted her appeal on time, but the registry officer only recorded it ten days later due to the said technical problem with the CMS. Mr. Mselingwa insisted that the appellant had successfully accounted for each day of the ten-day delay, explaining that the delay was solely due to the technical problem in the CMS. He stressed that the appellant had established sufficient cause, as set out in the case of Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women's Christian Association, Civil Application No. 02 of 2010, Court of Appeal of Tanzania. 3 Additionally, he submitted that the denial of the appellant's application amounted to a breach of her right to be heard, which is contrary to the principles of natural justice. In support of this argument, he referenced the case of Mbeya-Rukwa Auto Parts and Transport Ltd vs. Jestina Mwakyoma [2001] TLR 251. Therefore, he prayed that the appeal be allowed with costs. In opposition, Mr. Mndeme contended that the appellant was duly represented throughout the trial and negligently continued to file her appeal after the time had lapsed. He pointed out that the time for filing the appeal expired on 25th March 2023, but the appeal was lodged on 4th April 2024. Furthermore, the appeal was dismissed on 5th June 2023 for being filed out of time, and another application was lodged on 4th July 2024 after the dismissal of Application No. 16 of 2022. Mr. Mndeme argued that the appellant had delayed filing the appeal for more than a year, not merely ten days as the appellant claimed. He asserted that the appellant had failed to provide valid reasons or account for each day of the delay, which would have justified the trial court in granting the extension of time. Addressing the case cited by the appellant's counsel, Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (supra), Mr. Mndeme submitted 4 that while the court has discretion to grant an extension of time, such discretion must be exercised based on the principles of justice and reason, rather than arbitrarily. He further emphasized that, as established in the case, a party seeking an extension of time must account for each day of delay, ensure that the delay is not excessive, and demonstrate diligence rather than apathy, negligence, or sloppiness in pursuing the application. In this case, Mr. Mndeme argued, the appellant and her advocate were not diligent, as they negligently filed the appeal out of time and continued to prosecute it until it was dismissed for want of prosecution. Later, they restored the appeal, only for it to be struck out again. Moreover, Mr. Mndeme argued that the appellant had failed to mention in her affidavit the name of the court clerk who attended to her matter when she experienced difficulties filing the appeal in the CMS. Additionally, she had taken no administrative steps to report the issue and had not filed any affidavit from the court officer involved. Thus, he concluded that this appeal was devoid of merit and should be dismissed. The appellant's counsel did not file a rejoinder submission, so the court proceeds to determine whether the appeal has merit. Having carefully reviewed the grounds of this appeal, the submissions from both parties, and the records leading to this matter, the 5 * <7 court will address the core issue for determination. The appellant raised two grounds of appeal, which can be consolidated into the single issue of whether the trial magistrate erred in law and in fact by dismissing the appellant's application for an extension of time to file her appeal out of time, despite the appellant advancing what she considers sufficient grounds. In his submission, Mr. Mselingwa, learned counsel for the appellant, argued that the ten-day delay was not caused by the negligence of the appellant but by technical faults in the CMS. On the other hand, he contested this assertion, arguing that the delay was not merely ten days but extended over a year, and that no sufficient reasons were advanced. Furthermore, he noted that the appellant failed to attach an affidavit from any court personnel to support her claim of technical issues. Before the district court, the application for an extension of time was made under section 20(3) and (4)(a) of the Magistrates' Courts Act [CAP. 11 R.E. 2019], which provides as follows: Section 20(3): "Every appeal to a district court shall be by way of petition and shall be filed in the district court within thirty days after the date of the decision or order against which the appeal is brought." 6 Section 20(4)(a): "The district court may extend the time for filing an appeal either before or after such period has expired." From the records of the district court, as seen on page 12 of the proceedings, the appellant claimed that she had attempted to file her appeal on 23/03/2023 but encountered a technical problem in the CMS. She paid the required court fees on 04/04/2023, by which time nine days had already passed. This court must examine this argument in light of section 24(1) of the Judicature and Application of Laws (Electronic Filing) Rules, Cap. 358, which deals with the computation of time in electronic filing. Subsection (5) of this provision states: "Where a party misses a filing deadline due to technical problems referred to in sub-ru/e (1), the party shall move informally and ex parte the Registrar or the magistrate in charge no later than 15:00 hrs of the following working day for appropriate relief." Additionally, subsection (6) provides: " Where the Registrar or magistrate in charge is satisfied that there was good cause for missing the deadline, he shall grant the request under sub-ru/e (5) in writing." QT 7 The law clearly outlines the procedure to be followed in cases of technical difficulties. The Registrar or the magistrate in charge, upon being satisfied that the delay was caused by such difficulties, must provide written approval of the extension of time. However, after reviewing the records from the district court, this court finds no affidavit or written approval from the magistrate in charge granting the extension due to technical issues. Consequently, the appellant's argument that the delay was caused by technical problems is unsupported by any substantive proof. It is important to emphasize that procedural rules must be followed strictly to maintain order in judicial proceedings. As highlighted in Godwin Ndewesi Karoli Ishengoma vs Tanzania Audit Corporation [1995] TLR 200, the court held that: "Rules are made to be followed, and rules of court must prima fade be obeyed." In addition to this procedural issue, this court must also assess whether the appellant presented sufficient cause for the delay before the district court, as required under established legal principles. In the case of Lyamuya Construction Company Ltd vs Board of Registered Trustees of 8 Young Women's Christian Association of Tanzania (supra), the court set out four factors to be considered in applications for an extension of time: (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 intended action. (d) There must be other sufficient reasons, such as the existence of a point of law of sufficient importance or the illegality of the decision sought to be challenged. These factors have been emphasized in various cases, and they are well-established legal principles. In order for a party to be granted an extension of time, all of these conditions must be met. The district court correctly held that the appellant was required to account for each day of delay. The appellant was therefore obligated to provide a detailed explanation of the ten-day delay and demonstrate what efforts were made to address the issue during that time. In Al Imran Investment Ltd vs Printpack Tanzania, Misc. Civ. Cause No. 128 of 1997, Nsekela, J. held: 9 "The applicant ought to explain the delay of every day that passes beyond the prescribed period of limitation." In the present case, the district court properly determined that the appellant had not provided sufficient proof that the delay was caused by technical difficulties. As a result, the court correctly ruled on the matter. In conclusion, this court finds that the appellant has not demonstrated good cause to justify the extension of time. I find no reason to fault the decision of the district court. Accordingly, the appeal is dismissed for lack of merit. Considering the nature of the parties involved, there is no order as to costs. It is so ordered. 10