SHUWAKA MBOLILO VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA CIVIL APPEAL No.40 OF 2023 (Originating from civil application No. 1 of2023 at Monduii District Court) SHUWAKA MBOLILO....................................................... APPELANT VERSUS SADIRA MBOLILO {Administrator of the estate of the late Mbolilo Miiiya MoUet) ............................................. RESPONDENT JUDGMENT 4* June & 4* July, 2024 KAINDA, J.: The appellant, Shuwaka Mbolilo and the respondent, Sadira Mbolilo are brothers. The appellant was an applicant in Civil Application No. 1 of 2023 at District Court of Monduii at Monduii where he applied for extension 1 | Page of time to file an application to set aside dismissed order in Civil Revision No. 4 of 2022 before the same District Court. This matter traces its origin back on 27th April, 2017 where the parties father, one Mbolilo Millya Mollel passed away. The appellant petitioned for letters of Administration in the Primary Court of Monduli at Kisongo vide Probate Cause No. 5 of 2018, the application was not granted, from the evidence on record, the appellant re petitioned for letters of administration in the same Primary Court vide Probate Cause No. 10 of 2020, where he was granted with letters of administration. Upon the grant of letters of administration to the appellant, the respondent filed a caveat against the appointment of the appellant and the same was granted. It appears that the appellant was dissatisfied with the revocation, he lodged an appeal before the district court of Monduli at Monduli, Civil Appeal No. 7 of 2020 in which, the district court heard and determined the application where the finding of the trial primary court was quashed and a retrial was ordered. However, the matter was not remitted back to the trial court for retrial but rather, the respondent filed a new suit in respect of the 2 | Page same deceased person in the same court vide Probate Cause No. 1 of 2021 where, the respondent was granted letters of administration. The appellant was dissatisfied with the appointment of the respondent as an administrator in Probate Cause No. 1 of 2021, he filed Civil Appeal No. 4 of 2021 before the district court of Monduli at Monduli. This matter was dismissed. Thereafter, the appellant lodged in the district court of Monduli at Monduli Civil Revision No. 4 of 2022 requesting the court to call for and inspect the records of the primary court of Kisongo in Probate Cause No. 1 of 2021 and satisfy itself as to the correctness, legality, or propriety of its decision. From the record, the appellants' complaint was that the Kisongo primary court entertained three different suits in respect of the same deceased person, that is Probate Cause No. 5 of 2018, Probate Cause No. 1 of 2020 and Probate Cause No. 1 of 2021 and that the district court of Monduli had power to call and revise the decisions passed. However, the matter, Civil Revision No. 4 of 2022 was dismissed. Thereafter, the appellant sought to set aside the dismissal order but he was out of time. He lodged an application for extension of time to file an application to set 3 | Page aside the dismissal order in Civil Application No. 1 of 2023. On 30/05/2023, the district court of Monduli at Monduli found the application without merit and dismissed it. It is from that dismissal the appellant is in this court complaining against the dismissal on four grounds of appeal namely: - First, that the trial court erred in law and fact for dismissing civil application No.l of 2023 between parties herein thus resulting into erroneous decision which occasioned injustice on the part of the appellant; second, that the trial court grossly erred in law and fact by failure to take into consideration the medical reports tendered during trial by the appellant to support his reasons for seeking extension of time to set aside dismissal order hence arriving into a bad decision which infringed his right to be heard; third, that the trial court erred in law and fact when failed to take into account the illegality raised by the appellant in civil revision No. 4 of 2022 before the district court of Monduli which was dismissed for want of prosecution, and in which the appellant herein was seeking to bring into the attention of this court; fourth, that the trial court erred in law and fact for failure to properly analyze and evaluate evidence and therefore reaching an erroneous decision. 4 | Page Parties agreed to argue this appeal by way of written submissions. Regarding the 1st and 2nd grounds of appeal, the appellant submitted that, the application for extension of time was heard ex parte because the opponent did not appear in court and the appellant herein advanced reasons for his failure to appear before the court on the ground of sickness and he attached copies of hospital receipts to prove his case but the trial court neglected the same and dismissed the case. He cited section 14(1) of the Law of Limitation Act, cap 89 [R:E 2019], in substantiating his position, he also made reference of some cases including the case of Hamisi Macha Sancho v. Joyce Buchubila, Civil Application No. 487/17 of 2016, John David Kashekya vs The Attorney General, Civil Application No. 1 of 2012 and Emmanuel R. Maira v. The District Executive Director Bunda District Council, Civil Application No. 66 of 2010 (all are unreported) in which key observations emphasized by the court in those cases is that, it is settled that illness constitutes valid explanation and sufficient causes for the delay to do any act authorized or required under the rules. Regarding the 3rd and 4th grounds of appeal, the appellant submits that, from the background of the case highlighted herein above, it is clear that 5 | Page there is illegality in respect of the client's case, the said irregularity is that the trial court through application for revision had to rectify the said anomaly, he further submitted that the irregularities were made by the district court of Monduli and when it was faced with the option to rectify the same, the presiding magistrate chose to look away and decide the case on technicalities. Hospital receipts which were shown to the trial Magistrate were not considered at all. He further stated that, leaving the present matter unattended will cause a great miscarriage of justice to 7 wives and 43 children on their rights to property because the respondent herein has curtailed them the right to inheritance and has collected all deceased estate on his own benefit. In reply to the 1st and the 2nd grounds of appeal with regards to the sickness of the appellant, it was submitted that when the matter was dismissed for want of prosecution, he was sick. The respondent submits that, the records of court proceedings is very clear and it reveals that all the dates that he alleges to have attended to hospital are afterthoughts because those dates are the dates after the dismissal of the matter before the trial district court. He prayed for this court to dismiss this appeal with costs. 6 | Page The respondent also submitted that, in regard to cited Section 14 of the Law of limitation Act, Cap 89 [R:E 2019], the appellant did not adduce sufficient cause for the extension he required, since granting the same is not automatic but rather basing on sufficient grounds for doing so. The respondent cited the case of Ratman vs Cumarasamy and Another (1964) All ER, where Lord Guest insisted that; ''it is important that there must be some materials on which the court can exercise its discretion ofgranting the extension of time, it is the rule of the court which must be obeyed." It was further submitted that, the appellant delayed for 68 solid days and he failed to convince the court as to why it should grant his prayer and that the appellant was aware of the date for his matter but he didn't bother to make a follow up. The respondent cited other cases, for instance the case of Bushiri Hassan vs Latifa Lukia Mashayo, civil application No. 3 of 2007 in which an emphasize was made that; ”... delay of even a single day has to be accounted otherwise there would be no point of having the rules within which certain steps have to be taken." 7 | Page In further justification of his position, he cited the case of John Mosses and 3 Others vs The Republic, Criminal Appeal No. 145 of 2006. With regard to 3rd and 4th grounds of appeal. He submitted that, there is no sufficient ground of illegality that warrant this court to grant extension of time for the appellant to file application for dismissal order. He further submitted that, it is, however, significant to note that, the issue of consideration of illegality is well settled and should be borne in mind that, in cases where extension of time was granted, is upon being satisfied that there was illegality that need the court to pay attention and determine it. He further submitted that, illegality must be on the face of record such as the question of jurisdiction, not one that have to be discovered by a long drawn arguments or process. He cited the case of Principal Secretary Ministry of National Service v. Devram Valambia [1991] TLR 387. He further submitted that, sickness is not illegality as alleged by the appellant, hence there is no good cause for extension of time. Further, he stated that the appellant's intention to file revision before district court of Monduli is to challenge the respondent after being appointed as administrator of the estate of their father one Mbolilo Milya 8 | Page Mollel. The respondent also submitted that, the appellant is afraid that the respondent could not make a fair division of the deceased's estate, the fact which he can't substantiate. He finally implored this court to find out that the appellant's appeal is destitute of merit. There was no rejoinder filed, hence the reply submissions marked the end of both parties' submissions. Before I embark to discuss the merit of this appeal, I wish to comment that, this court being the first appellate court, its first role is to re- evaluate the entire proceedings on record, as it was held in the case of Idd Shaban @ Amas v. Republic, Criminal Appeal No. of 2006 in which the court held that; 'It is a salutary principle of law that a first appeal is in the form of re­ hearing and as such, this being the first appellate court, it is duty bound to re-evaluate the entire evidence on record by reading together and subjecting it to a critical scrutiny and if warranted arrive at its own conclusion of fact.' In determining the matter at hand, it is instructive to note that the application before the district court was preferred under the provision of 9 | Page Section 14 of the Law of Limitation Act. The issue that has to be resolved will be, whether, the appellant/ applicant did show reasonable or sufficient cause for extension of time to file an application to set aside dismissal order in terms of Section 14 of the Law of Limitation cited above. What constitutes sufficient cause is a question of facts, depending on the facts of each case. For that reason, different circumstances could constitute good cause in any particular case. The appellant in this case alleged sickness and illegality. In regard to sickness, I think this should not detain us much. I subscribe with respondents' version that all the dates that the appellant alleged to attend to the hospital are the dates after the dismissal of the matter before the district court. It is on record that Civil Revision No. 4 of 2022 was dismissed on 6/1/2023 but the medical receipts are dated 24/1/2023, 6/2/2023, 20/2/2023 and 27/2/2023. From the record, the appellant was informed that his case was dismissed on 6/1/2023. However, he filed the application for extension of time to file an application to set aside dismissal order on 16/03/2023 which is more than two months. No reason was given by the appellant on this delay. 10 | P a g e With regard to illegality, I am alive with the decision in the famous case of Lyamuya Construction Company Ltd, where, it was stated that among the guidelines to be followed by courts in exercising its discretion in deciding to grant or refuse an application for extension of time includes the circumstances where the court feels that there are 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 case at hand, the appellant who was an applicant in Civil Revision No. 4 of 2022 at the district court of Monduli, alleged in his affidavit accompanying chamber summons that the trial Kisongo Primary Court entertained three different suits in respect of same deceased person, Mbolilo Millya Mollel; Probate Cause No. 5 of 2018, Probate Cause No. 10 of 2020 and Probate Cause No. 1 of 2021. The district court was being called upon to satisfy itself as to the correctness, legality or propriety of the decisions. From above, I am of the view that, there is arguable case of sufficient importance to be determined by the district court. On this note, this appeal is hereby allowed. Decision of the trial court is quashed and set aside. 11 | P a g e Time to file an application to set aside the dismissal order is extended for thirty (30) days from the date of this judgment. Costs to be in the cause. It is so ordered. Dated at Arusha this 4th day of July, 2024. S. J. KAINDA JUDGE Judgment Delivered in Chambers this 4th day of July, 2024 in the presence of the appellant and the respondent in person. S. J. KAINDA JUDGE. Court: Right of appeal fully explained. 12 | P a g e