PSSF

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 15158 OF 2024 (Arising from Misc. CMi Case No. 000025942 of2023.) BETWEEN THE BOARD OF TRUSTEES OF THE PUBLIC SERVICE SOCIAL SECURITY FUND .....APPLICANT AND BLANKETS & TEXTILE MANUFACTURING (1998) LTD RESPONDENT RULING S.M. MAGHIMBI. J: With respect to the application broached herein, this court is moved by the applicant to grant extension of time within which the applicant may lodge an application to set aside a dismissal order of this court dated 8^^ May, 2024 and restore Misc. Civil Application No. 000025942 of 2023 to be heard on merit. The application at hand is preferred under Section 14(1) of the Law of Limitation Act, Cap. 89 R.E 2019 read together with Order IX, Rule 3 and Order XLIII, Rule 2 of the Civil Procedure Code, Cap. 33 R.E 2019. The applicant is preferred by a Chamber Summons supported by an affidavit deponed by one Nyambilila S. Ndoboka, Senior Legal Officer of the applicant. As it can be gleaned from the affidavit, sometimes in 22/11/2023 the applicant filed a Misc. Civil Application No. 000025942 of 2023 being an application to substitute parties in Civil Case No. 193 of 2005. The intended change was of the name of the applicant from it being the Board of Trustees of the Parastatal Pensions Fund to the Board of Trustees of the Public Service Social Security Fund. The same was dismissed for want of prosecution on 8^^ May, 2024 for non-appearance of the applicant since its inception. The deponent avers that the applicant was unaware of the said dismissal order until when he was informed by the Flonourable Deputy Registrar. It is their deposition that, such unawareness, was occasioned by confusion from the court's clerk that the matter was not assigned to a Judge. Thus, the applicant found that the application was dismissed beyond thirty (30) days whereby it cannot apply for setting aside the dismissal order and restore it to hearing on merits. The other reason for such failure as alleged, is due to the advocate who had the conduct of this case and was attending Court of Appeal session at Mtwara. The applicant added that, the dismissed application was in respect to substitution of applicant's names in order to initiate execution proceedings as the purpose of it is to pay its beneficiary members who prosecuted Civil Case No. 193 of 2005 against the respondent. The applicant maintained that, if the present application is not granted, it will render loss of retirement benefits of the innocent and retired employees of the respondent. As per the record, the respondent did not fiie her counter affidavit to contest the application despite being served with summons, upon the applicant's praying, this court issued a notice of publication dated 14/08/2024, hence, the matter preceded ex parte. On 21/11/2024, the court directed the matter to be disposed of by way of written submissions but the applicant faiied to comply. Further, on 02/12/2024, when the matter was set for Ruling, the appiicant sought for extension of time to file her written submissions out of time and the same was granted and acted upon as ordered. In sustenance of this application, the applicant's counsel submitted that, they were unaware of the fact that their application was dismissed on 08/05/2024 for non-appearance until when they were informed by the Hon. Deputy Registrar. They argued that such unawareness as to the progress of Misc. Civil Application No. 000025942 of 2023 was due to the confusions of statements given from time to time by the court clerk that the case was not assigned before me different to the e-Case Management System (eCMS). It is their submission that, the issue of sufficient cause should not be interpreted narrowiy but shouid be given a wide interpretation to encompass ali reason(s) or cause(s) which are outside the applicant's power to control or influence resulting in delay in taking necessary steps. In strengthen their assertion, they cited to this court the case of Miski Ramadhani Chaurembo vs Branch Manager Pride Tanzania & 3 Others^ Misc. Land Application No. 54 of 2014,(Unreported). Having gone through the applicant's affidavit in support of the application in line with its written submissions, my duty is to determine whether the applicant has established sufficient cause(s) for this court to extend time within which to set aside a dismissal order dated 08^^ May, 2024 and restore Misc. Civil Application No. 000025942 of 2023 with reference number 20231122000025942 to be heard on merit. As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. Guidelines have been formulated by the Court of Appeal of Tanzania as stated in the eminent case of Lyamuya Construction Company Ltd vs. Board of Registered Trustee of Young Women's Christian Association of Tanzania, (Civil Application No.2 of 2010)[2011] TZCA 4 October, 2011) at page 6 & 7 of the Ruling that: - a) The applicant must accountfor all the period ofdelay; b) The delay should not be inordinate; c) The applicant mustshow diligence, and not apathy, negligence or slopplness in the prosecution ofthe action that he intends to take; and d) Ifthe Court feeis that there are other sufficient reasons, such as the existence ofa point oflaw ofsufficient importance; such as the illegality ofthe decision sought to be challenged. In relation to paragraph 10 of the applicant's affidavit, he alleges that, their failure to bring this application on or dates nearby to 11/06/2024 was due to their advocate who is acquainted with the matter, being in Court of Appeal's sessions at Mtwara as evidenced through the ruling tendered. Assuming that's the case, and time started to accrue from 12/06/2024. Still, the applicant has failed to account for the delay of fifteen (15) days to the date when this application was filed i.e 26/06/2024. In the case of MPS Oil Tanzania Limited & 2 Others vs. Citi Bank Tanzania Limited, Civil Application No. 4 of 2016, (Unreported) it was observed and principled that: an application for extension of time, the position of this Court has consistently been to the effect that the applicant has to account for every day ofthe delay" Equally, I deem it apposite to borrow a leaf from the decision of Magnet Construction Limited vs. Bruce Wallace Jones, (Civil Appeal No. 459 of 2020) [2021] TZCA 654 (5 November, 2021) TanzLII whereby it amplified that: "Indeed^ for the Court to exercise that discretion, the appiicant must satisfy it thatsince being aware offacts ofdeiay that he is outoftime, his conduct must portray that he acted expeditiousiy and diiigentiy in iodging the appiication for extension of time...In the instant appeal, we are satisfied that the appellant failed to account for the period of 51 days after Misc. Labour Application No. 7of2020 was struck out tiii when the application for extension of time was formerly lodged before the High Court as correctly conceded by Mr. Njowoka in his submission at the hearing of the appeal. Consequently, we dismiss the first and second ground ofappear,[Emphasis added]. Additionally, under paragraph 8 of the applicant's affidavit, the deponent has deposed that the applicant was unaware of the progression of Misc. Civil Application No. 000025942 of 2023 before the court due to the confusions of statements given from time to time by the court cierk that the case was not assigned to me compare to what is seen in eCMS. In tackling it, first, the applicant ought to have gone further and state the name of that court clerk, and not alleging from the air; secondly, the applicant was supposed to procure his/ her affidavit to support the same. See; Jamal S. Mkumba & Others vs The Attorney General, (Civil Application No. 24 of 2019)[2023]TZCA 21(15 February, 2023) TanzLII. In the premise, there is no any tangible evidence produced by the applicant to prove on the genuineness of her aversions, hence, baseless and unfounded. From the foregoing, truly there is a delay of fifteen (15) days unaccounted for, but in my considered view, such delay is not inordinate in the circumstances of this case. As the applicant wants to initiate execution proceedings against the respondent but she could not have done so due to its prior defunct name, logic and reason, moves me to extend the time as prayed to that effect, otherwise the appiicant wili be stuck with a decree she could not execute, a stale cheque. That being the case and in the interest of the beneficiaries as stipulated in the applicant's affidavit, this application is hereby granted. Time is hereby extended for the applicant to file an application for restoration of Misc. Civil Application No. 000025942 of 2023. The intended application shall be filed in court within thirty (30) days from the date of this ruling. Costs to follow course. It is so ordered. Dated at Dar es salaarp-thj^ 10^^ day of December, 2024. •^1•« LU ^.M. MAGHIMBI "3: ir- ■■ JUDGE