RULING The AG vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS CIVIL APPLICATION NO. 000012614 OF 2024 (Originating from the Resident Magistrates Court of Songea at Songea in Civil Case No. 06 of 2016) THE ATTORNEY GENERAL ………..………………………….…………. APPLICANT

VERSUS ABEL MATABWA …..….……….………………….…..…………... 1ST RESPONDENT ERASTO FARAX SWAI .………………………...…...…………... 2ND RESPONDENT PATTY INTERPLAN LIMITED ….…………...….……..………... 3RD RESPONDENT MBINGA DISTRICT COUNCIL …………….………….………... 4TH RESPONDENT

RULING 18th November & 16th December, 2024. KAWISHE, J.: In this application the applicant is requesting for an order for extension of time to file an application for revision of the decision of the Resident Magistrates Court of Songea at Songea in Civil Case No. 06 of 2016. The application is made under the provisions of section 79 & 95, Order XLIII, Rule 2 of the Civil Procedure Code (Cap. 33, R.E 2019) and 1 any other enabling provision of the law. Also, it is supported by an affidavit stating the reasons for the extension of time. The application has not been resisted by the first respondent who not even bothered to file counter affidavit. Despite filing the counter affidavit, he fourth respondent supported the prayers made by the applicant for the extension of time. The matter proceeded ex parte against the second and third respondents who failed to enter appearance although they were duly served. When the matter was called for hearing, the applicant was represented by Ms. Mariam Matovolwa, learned Senior State Attorney. Ms. Happiness Venance Mwolo, learned State Attorney appeared for the fourth respondent and the first respondent had the legal service of Mr. Eliseus Ndunguru, learned advocate. The hearing of the application was by way of oral submission. At the outset, Mr. Eliseus Ndunguru informed this court that, the first respondent does not resist the prayers sought

in this application except for the prayer for costs. Staging the flow, Ms. Matovolwa requested this court to allow the application. She argued that, the grounds for extension of time are found in the affidavit sworn in support of the application. On the issue of costs, she prayed for this court to use its discretionary powers. 2 As stated earlier herein above, the fourth respondent in her counter affidavit did not oppose the application. Also, at the hearing of the application, the learned State Attorney for the fourth respondent requested this court to use its discretionary powers to grant the prayers made by the applicant. On the issue of costs, she prayed for this court to use its discretionary powers as it deems fit to grant. Having gone through the affidavit, the counter affidavit filed by fourth respondent and keenly followed 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 exercise its discretionary powers to extend time within which she can lodge an appeal out of time. Before I submerge myself in discussing on the merit or otherwise of the above raised issue, I will start by stating the brief historical background which led to this application. It goes back to 2016 when the first respondent filed Civil Case No.

06 of 2016 before the Resident’s Magistrate Court of Songea against the second, third and fourth respondents claiming to be paid TZS. 81,100,000.00. The suit was heard and determined ex parte and the court found the first respondent has proved his claims. It was ordered that, the first respondent be paid TZS. 3 81,100,000.00. It is deponed by the applicant that, it was on 08th May, 2024, when it came into her knowledge that there is a certificate of payment issued in the Application for Execution No. 04 of 2019 requiring the fourth respondent to pay TZS. 765,845,000.00 accruing from Civil Case No. 06 of 2016. Thereafter, the applicant started to prepare this application for filing in court. The affidavit reveals further that, the judgment which bred into the decree which is at execution is tainted with irregularities and illegalities such as the first respondent’s lack of cause of action with the fourth respondent. That the illegalities and procedural improprieties in the impugned decision calls for an immediate intervention by this court before further injustices are inflicted to the government. It is further averred that, the matter involves public institution and it comprises payment of a very huge amount of money which will lead into a big loss to the government of the United Republic of Tanzania if paid. That, the applicant was not a party in Civil Case No. 06 of 2016 and

the only way through which he can be heard is through revision. That, the time for filing an application for revision has lapsed, the applicant had to file this application for an order of extension of time to file an application for revision out of time. 4 It is a settled law that, in our jurisdiction, courts have discretionary powers to grant an application for extension of time within which to file application for revision out of time. However, the discretionary powers bestowed unto the courts must be exercised judiciously and not frivolously. This was well established in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania (supra) and Ngao Godwin Losera vs. Julious Mwarabu, Civil Application No. 10 of 2015. The established principle 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 invoke its discretionary powers. There is a plethora of case law on this matter which include the decision celebrated in 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 Service, 2004 (1) SA 292 (SCA) which cautioned that, in an application condonation for delay, the 5 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.” While guided by the above principle, in the present application is an application for extension of time to file application for revision. Although, it is for extension of time to file revision the requirements are the same, that good and sufficient cause must be established by the applicant. In this application, the applicant has stated that, it was on 08th May, 2024, when it came into her knowledge that, there was a certificate of payment requiring the fourth respondent to pay the first respondent a total sum of TZS. 765,845,000.00. It was after receiving a letter from the fourth respondent which is an annexture OSG 2 to the affidavit sworn in support of this application. The records of this court show that, this

application was filed on 15th May, 2024 which was after only seven days from the date she was notified of the existence of the certificate of payment from the fourth respondent. That, the applicant 6 has averred that, the seven days were used in preparing the application. I find the applicant has accounted for the days of delay. Also, the applicant has deponed that, there are illegalities, irregularities and procedural impropriety in the impugned decision. This Court and the Court of Appeal in several decisions have stated that, illegality is among the reasons which can be used by the Court in exercising its discretionary power in granting extension of time. It was so held in a number of cases to mention a few, see the case of The Principal Secretary, Ministry of Defence and National Service vs. Devram Valambhia (1992) T.L.R 182, VIP Engineering and Marketing Limited and Three Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006, Court of Appeal at Dar es Salaam (unreported) and Hassan Sariko vs. Shakira Hashim, Misc. Civil Application No. 11 of 2023, High Court of Tanzania at Temeke (unreported). However, it is a settled legal principle that, where a point on illegality is pleaded it must be apparently shown on the face of the record to suffice for an extension of time. This principle was accentuated in the case of Hamisi Mohamed (as the

Administrator of the Estates of the late Risasi Ngawe) vs. Mtumwa Moshi (as the 7 Administratrix of the Estates of the late Moshi Abdallah), Civil Application No. 407/17 of 2019, Court of Appeal at Dar es Salaam (unreported). In the application at hand, it is the applicant’s assertion that, the fourth respondent was not a party to the contract which was the cause of action in Civil Case No. 06 of 2016. That the first respondent has no cause of action against the fourth respondent. It is further asserted by the applicant that, despite the first respondent allegations that there was a guarantor/guarantee contract between the first respondent and the fourth respondent but there was no contract which was neither attached in the plaint nor tendered at the hearing before the trial court. These facts were not denied by the learned counsel for the first and fourth respondents at the hearing of this application. They expressly stated that they do not oppose the application. Upon my quick glance to the attachments made in this application, I fully subscribe to the averments made by the applicant in this application that, there are some illegalities, irregularities and procedural improprieties which need an immediate intervention of this court. While warning myself not to venture into the merits of the alleged illegality, irregularities and procedural improprieties, I am satisfied that

the 8 applicant has adduced sufficient reason for the grant of an extension of time. Consequently, from the foregoing, I find the application has merit. I accordingly grant the prayer for extension of time to file an application for revision. The applicant is granted fourteen days from the date of this ruling to lodge the application for revision before this court. I give no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 16th day of December, 2024. E. L. KAWISHE

JUDGE 16/12/2024 COURT: Ruling delivered in the presence of Mr. Stepen Kimaro, learned State Attorney for the Applicant virtually, Ms. Happiness Mwolo, the learned State Attorney for the fourth respondent, Mr. Haji Shabani, learned advocate holding brief for Mr. Eliseus Ndunguru, the learned 9 advocate for the first respondent physically and in the absence of the second and third respondents. E. L. KAWISHE

JUDGE 16/12/2024 10