20190522 TZHC Dar es Salaam

. IN THE HIGH COURT e;>,, _OF _, TANZANIA fJ DAR ES SALAAM DISTRICT REGISTRY MISC.CIVIL APPLICATION NO. 697 OF 2016 THE JUBILEE INSURANCE COMPANY OF TANZANIA LIMITED .........................................•....•..........•...... APPLICANT VERSUS ANUEL STANLEY MDUMA ............................................... 1 st RESPONDENT LESLEY EDWARD ABRAHAMU GURUM0 ........................ 2ND RESPONDENT RULING Date of Last Order: 29/04/2019 Date of Judgment: 22/5/2019 NGWALA, J. By way of a chamber summons taken out under Section 14(1) of the Law of Limitation Act Cap 89(R.E.2002), the applicant Jubilee Insurance Company of Tanzania Limited filed this application for an extension of time within which to file an appeal to this Court. It is supported by an affidavit deposed by the applicant. The 1st respondent has resisted it. It was agreed and the Court granted leave that the Application be argued by way of written submissions. Both the parties filed their written submissions timely. In support of the application, the learned counsel for the applicant submitted that the present applicant was the 3 rd defendant in Civil Case No. 138 of 2011 filed at the Resident Magistrate Court of Kinondoni while the 1st respondent was the plaintiff. The judgment 1 of the trial Court was delivered ..jp~avor of the plaintiff on 30th October, 2014. On 19 th November 2014 the applicant applied to be supplied with the certified copies of the judgment and decree. Despite of several efforts made to obtaih it, the applicant was availed with the said copies on 26 th March, 2015. Those copies reflected that they were issued on 10th December, 2014. The learned counsel, stated that when the applicant demanded explanation from the registry officer as to when the file was returned from the trial magistrate. He was shown a dispatch of the Court record movement showing that the file was received from the trial Magistrate on the same day of 26 th March 2015, when the applicant received the certified copy of the judgment. On 27 th March 2015, the applicant received a copy of decree. It was argued that, the fore mentioned contradicting scenario was caused by the Resident Magistrate Court which unreasonably prevented. the applicant from exercising his constitutional right to appeal to this Court in time. In that regard it was maintained that the applicant's failure to file an appeal within the time was not caused by his negligence but rather due to circumstances beyond his control and the Court itself. In support of his argument the case of Tanzania Revenue Authority v. TANGO Transport, Civil Application No.5 of 2006 CAT (unreported) which holds that parties should not be penalized for the mistakes done by the Court was cited. 2 The learned counsel also contended that in view of the principle enunciated in the case of CRDB (1996) Limited v. George Kilindu, Civil Application No.162 of 2006 CAT (unreported) for an application of extension of time to be granted, the applicant must demonstrate sufficient cause, as there is no hard and first rule but its determination should depend on the circumstance of each case. In his view the fact that the applicant is out of time does not in any way prompt the act of negligence on his part, but rather his diligence in pursuing his right should be noted from the Court record where it reflected the applicant had made several attempts to pursue the matter, but he was let down by the Court. In his effort to convince this Court to grant the sought extension of time the learned counsel prayed the Court to consider the position of the Court of Appeal of Tanzania in the Case of Tanzania Sewing Machines Company v. Njake Enterprises Limited Civil Application No. 56 of 2007 CAT (unreported) which according to him is similar to the circumstances of this application. In that case it was held that an error caused by the officer of the Court constitutes sufficient reasons for grant of extension of time. In that regard it was finally insisted that since the delay in this application was as well caused by the Court, it was prayed for the same to be granted. In reply the learned counsel for the 1st Respondent agreed that in order for an application for extension of time to succeed one must show that sufficient cause for the delay. 3 Further that, the applicant must prbve that the application was brought promptly and should also provide valid explanation for the delay that there was no negligence. In support of his submission the case of Vodacom Foundation v. Commissioner General (TRA) Civil Application No. 107 of 2017 CAT (Unreported) which holds that each day of delay has to be accounted for was cited. It was argued that the applicant failed to account for his inordinate delay and the reasons stated to justify the delay are not sufficient. It was further submitted that the judgment the subject for appeal in this application was delivered on 19/11/2014. The applicant applied for-a copy of judgment and decree on 19/ 11/2104.It was also revealed that the same were ready for collection on 10/12/2014 but the applicant did not collect the copies until 26/3/2015. The respondent contends that the applicant was negligent because he slept on his right while time was running against him. It was insisted that there is no sufficient evidence to show that the applicant made follow up in Court to be supplied with copies of judgment and decree except for a letter from Associate Attorneys with reference No AA/RM/KN/01/ 14 of 19/11/2014. The learned counsel wondered why the applicant is blaming the trial Court for his delay to appeal within time when the delay was occasioned by himself and his Advocate. Further no clear explanation was provided in order to justify why the applicant had to wait for 18 months in order to file the present Application. Lastly it was stated that all the cited authorities, that is the Cases cited by the applicant are inapplicable in the circumstances of this 4 application. It was insisted that the application lacks sufficient grounds to warrant dismissal with costs. In rejoinder the learned counsel for the applicant reiterated his submission in chief. He insisted that since his delay to appeal within the time was caused by the Court that amounts to sufficient reason for the grant of this application. The 1st respondent has no valid reason to object the present application since the applicant has accounted for all the days involved during the delay in terms of the principle enunciated in the case of Bushiri Hassan v. Latifa Lukio Mashayo Civil Application No. 3 of 2007. Having gone through the submissions by both parties and perused the Court record, the pending issue for determination here is whether the applicant has ·adduced sufficient reasons for the Court to grant an extension of time to file an appeal. It is pertinent to point out from the outset that, the question as to whether to grant the application or not, falls within the discretion of the Court as held in Mumello v. Bank of Tanzania (2006) TLR 227 as well as Kalunga and Company Advocates Vs National Bank of Commerce (2006) TLR 235. Nonetheless, it is a settled principle of law that for an application for extension of time to be granted the applicant must demonstrate sufficient reasons or good cause. What is meant by good cause has loudly been amplified in a number of decision of the Court that include the case of the Regional Manager Tanroads Kagera Vs Ruaha Concrete Company Limited, Civil Application No 96 of 2007 (Unreported). s In Lyamuya Construction company Limited Vs Board of · Registered Trustees of Young women Christian Association of Tanzania, Civil Application No.2 of 2010(unreported) the Court moved further by laying down some guidelines lines which can assist the judge in considering good cause namely: 1. The applicant must account for all the period of delay; 2. The delay should not be inordinate; 3. The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; 4. If the Court feels that there are other reasons, such as the existence of a point of law of sufficient importance such as illegality of the decision sought to be challenged. In the instant application, the decision sought to be challenged was delivered on the 30 th October, 2014, while the application was lodged on the 17th October, 2016. One would note that, a long spell has passed between the two dates. The explanation which was given by the applicant for delay, was to the effect that, it was because the trial Court had delayed to supply him with the copy of the judgment and decree which was certified on 19 th November, 2014. Although the record reflects the same was ready for collection onl0 th December, 2014 the same was supplied to the applicant ort 27 th March 2015. In my considered view, such explanation is conv1nc1ng. 6 • I 1?-esitate to agree with the submission by the learned counsel for the 1st respondent that the applicant's delay was due to his negligence. In the case of Tanzania China Friendship Textile Co.Ltd Versus Charles Kabweza and Others Civil Application No.62 of 2015 CAT (Unreported) it was held that the. Court has the duty of notifying the applicant that the copy is ready for collection. In this application the record is silent whether the Court complied with its duty to inform the applicant on the availability of the copy of judgment after he had applied for the same on 19 th November, 2014. Since that was not done, it would be unjust to condemn the applicant for delay in collecting the document given the arguments by the Applicant that the delay was caused by the court. Since there is no evidence that the applicant was notified by the Court that the copies were ready for collection. I thus find that the delay was due to goods cause. The application is therefore granted. The Applicant is hereby granted twenty 14 days to file the appeal from the date of this Ruling. It is so ordered. A.F. NGWALA JUDGE 22/5/2019 7 22/5/2019 Coram: A.F. Ngwala, J. Applicant: For Applicant: Mr. Makakalungwa, (Advocate). For 1st Respondent: Mr. Geofrey Saidi (Advocate). For 2 nd Respondent: Absent Court: Ruling delivered in Court in the presence of the mentioned advocates for the parties. Court: Right of Appeal to Court of Appeal of Tanzania explained. ~' A.F. NGWALA JUDGE 22/05/2019 8