GLADNESS NYANGE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (PAR ES SALAAM SUB REGISTRY) AT PAR ES SALAAM MISC. CIVIL APPLICATION NO,8961 OF 2024 (Originating from the decision ofthe District Court ofKigamixini at Kigamtxtni,[Hon. Josiah, K.I-RM]in Civii Case No.2 of2021 dated 13/05/2022.) VEGRAB ORGANIC LIMITED 1^ APPLICANT GLADNESS NYANGE 2^0 APPLICANT AND ZAMZAM YUSUF MUSHI RESPONDENT RULING S.M. MAGHIMBI.3: This application was lodged under the provisions of Section 14(1) of the Law of Limitation Act,[Cap.89 R.E 2019],("the LLA") and section 95 of the Civil Procedure Code,[Cap.33 R.E 2019],("the CPC") by way of a Chamber Summons. The applicants Vegrab Organic Limited and Gladness Nyange, have filed the instant application for extension of time within which to file an appeal against the e>rpa^e judgment and decree in Civil Case No. 2 of 2021 handed down on 13/05/2022 by Hon. Josiah, K.I-RM. The application is buoyed by an affidavit sworn by the 2"^^ applicant dated 17/11/2023 and it is opposed by the counter affidavit affirmed by the respondent on 14/08/2024. Briefly, the contextual facts giving rise to the present application as gathered from the affidavit and counter affidavit filed by the parties are as follows: Before the District Court of Kigamboni at Kigamboni ("the trial court"), the respondent sued the applicants for breach of contract which led for her injury and loss of capital to the tune of TZS. 20,000,000/= (Tanzanian Shillings Twenty Million Only). As noted, the 2"^^ applicant is the shareholder and director of the applicant. The applicants filed their written statement of defence ("WSD") to dispute the claims levelled against them. During the preliminaries, the applicants defaulted to appear before the trial magistrate, hence, the matter progressed eA-parte against them. As a result, on 13/05/2022 the trial court delivered the eA'partejudgment in favour of the respondent. Dissatisfied by the said decision, on 15/07/2022 the applicants filed Misc. Civil Application No. 7 of 2022 before the trial court for extension of time within which to set aside the exparte judgment, decree and the entire proceedings thereto and restoration of their WSD. The application was dismissed for being omnibus. Still discontented, on 18/03/2023 they filed a similar application vide Misc. Civil Application No. 119 of 2023 before this court which was struck out for being incompetent. Subsequently, the applicants have filed the instantaneous application on the ground that the trial court did not comply with the dictates of Order VIII of the CPC regarding mediation and amongst other reasons. Further to that, the applicants claim that they were never notified on the date of delivery of the ex parts judgment before the trial court. When the application was called on for hearing, Mr. Gabriel Aloyce Munishi, learned counsel for the applicants moved the court for a prayer that the same be disposed of through written submissions, the prayer which was also endorsed by Mr. Africa Mazoea, learned advocate for the respondent. Therefore,the court gave out its directives as to the schedule thereof which was complied with. Submitting in support of the application, Mr. Munishi commenced by a prayer to adopt the affidavit of the 2"^ applicant to form part of his submissions. He then submitted that the applicants were not served with a notice of the date of delivery of the ex pa/fe judgment on 13/05/2022. He maintained that, the notice that was issued by the trial court as per annexure ZM02 to the counter affidavit, was for 22/04/2022 and not of 13/05/2022. He further qualified that, according to para 7 to the counter affidavit, the respondent alleged to have published the said notice in the newspaper but she failed to prove the same. It is his argument that the procedure for the delivery of the ex parts judgment was marred with irregularities hence the applicants were curtailed their fundamental right to be heard. Backing up his argument, he cited the case of Twaha W. Makupete vs Fatuma Bakari Hassan, Civil Appeal No. 105 of 2023. Mr. Munishi submitted further that, as the said procedures were not adhered thereto, the claim of illegality of the challenged decision constitutes sufficient cause for extension of time within which the applicants can file an appeal against the said ex parts judgment. In furtherance of fortifying his submission, he referred this court to the decision of The Attorney General Vs Emmanuel Marangakis(as an attorney of Anastansious Anagnostou), Civil Application No. 138 of 2019. On the non-compliance of mediation procedures, Mr. Munishi submitted that that the trial court did not comply with Order VIII, Rule 27 of the CPC as the applicants were not informed of the date set for mediation. He added that, it is also apparent on the face of record that there is no an order as to the outcome of the said mediation in line with the wordings of Order VIII, Rule 29 of the CPC. He expounded that, as the matter ensued ex parts the applicants, however, there is no order for their WSD to be expunged from the record. He enlightened that, although the trial magistrate reasoned as to why she has expunged the said WSD, it is his assertion that, she erred both in law and fact as the said matter was not yet filed before the trial court on the particular date i.e 25/05/2020 when the case was scheduled for mediation, thus, the proceedings thereto are nullity. To support on the aforesaid, he relied on the case of Aristides David Litaka & Others vs Avic Coast Land Development(T) Limited, Civil Appeal No. 229 of 2021. He went on submitting that as the applicants were denied their right to be heard, hence, the proceedings of the trial court were tainted with Illegalities, irregularities and confusion that caused miscarriage of justice towards the applicants. He further stated that, the right to be heard is among the principle of natural justice as emphasized in the case of Dishon John Mtaita vs The Director of Public Prosecution, Criminal Appeal No. 132 of 2004. He thus beseeches the court to enlarge time within which the applicants can file the intended appeal and later on to move the court to nullify the proceedings and judgment of the trial court as they were flawed with errors, illegalities and irregularities. In reply, Mr. Africa also began by adopting the contents of the counter affidavit of the respondent to form part of his submission. He then pointed out that, as the concern of the right to be heard did not feature in the grounds of the chamber summons, the same shall be disregarded as parties are bound by their pleadings and not otherwise. He contended that annexure ZM02 to the counter affidavit, reveals that notice of the ex judgment was conveyed to the applicants, as to what transpired the same not to be delivered on 22/04/2022 until 13/05/2022, for him that's was not fatal as the applicants were prior duly notified. As regards to non-compliance with the provision of Order VIII, Rule 27, 29 and 31 of the CPC, he argued that it is unsafe for this court to rely on the proceedings attached by the applicants because they have a lot to be desired. To ponder on the afore stated, he started with the unchronological order of the pages in the said proceedings. He continued uttering that the first pre trial conference (1^ PTC) was conducted and all parties were ready for mediation and the matter was adjourned and scheduled for the same. He submitted further that mediation did not go to its finality to have its order to that effect. Mr. Africa submitted further that it is a settled precedent that a party praying for extension of time must provide sufficient reasons for delay and account for each day of the delay. He supported his argument by citing the case of Praygod Mbaga Vs The Government of Kenya Criminal Investigation Department & Another, Civil Reference No. 4 of 2019. He further amplified that, the ex parte judgment was delivered on 13/05/2022, the 2"^ applicant deposed to know about the said pronouncement on 30/06/2022 and instructed their attorney to act upon by 14/07/2022, as a result, on 15/07/2022 the application for extension of time to set aside the said ejrpa/te judgment and restoration of the WSD was filed before the trial court. He, therefore, enhanced that, the applicants have failed to account for the period between 30/06/2022 when the 2"^ applicant was aware of the said decision to 15/07/2022 when the said application was filed before the thai court, that is to say, the period of fourteen (14) days unaccounted for. He stressed that, in accordance to Order XL, Rule 1(d) of the CPC which its legai effect was underlined in the decision of Abdulkadir M. Bujet & Others vs Salim Mbaruku, Civil Appeal No. 179 of 2019, that upon rejection by the trial court to set aside the said ex parts judgment, the only remedy was to appeal to this court but the applicants failed to do so as they were pursuing frivolous applications, so to him, it was abuse of court process which hinders litigation to come to an end. At last, he prayed for the court to dismiss the application with costs for want of merit. Mr. Gabriel retorted that the respondent in her counter affidavit missed to explain to this court as to when the said notice was served to the applicants. Moreover, he succumbed that, the respondent flopped to avail the proof of the said publication as averred at para 7 to the counter affidavit. At that juncture, he reiterated his submission in chief that,failure by the trial court to issue and the respondent to serve the applicants with notice of the date of delivery of the eA-pa/tejudgment constituted illegality and rendered the proceedings thereof nullity for curtailing the applicants right to timely take appropriate actions. He supported his submissions by citing the case of Shabani Khalfani Kondo Vs. Tajiri Abdi Barua, Civil Appeal No. 232 of 2021. As to the expungement of the WSD from the record without an order thereto in the proceedings, he responded that, despite the same was incorporated in the said ex parts judgment, yet, it contravened the principle of sanctity of the proceedings. He alleged that, guided by the proceedings, there is nowhere the trial court issued the said order to purge the applicants' WSD from the record. He commented that, the said error tantamount to serious irregularity and impropriety on the sanctity of record as stated in the case of Stanley Murtthi Mwaura vs Republic, Criminal Appeal No. 144 of 2019. On account of each day of delay from when the said ex parts judgment was delivered, he replied that, if the applicants were served with the said notice, they would have acted promptly to enforce their constitutional right of being heard. He conceded that, even though the applicants have failed to account for each day of the delay, there are other sufficient reasons such as illegality to have this court enlarge the time to 8 challenge the said Illegalities as celebrated in the Court's pronouncement of The Attorney General vs Emmanuel Marangakis (supra). He again reiterated the prayer that this application be granted with costs. Having gone through the chamber summons, parties' affidavits and counter affidavit together with their written submissions, the epicentre for the determination of the matter at hand is whether the applicants have demonstrated sufficient cause(s) for this court to grant them what they have prayed for herein. In order to understand the position of the law on extension of time under the provision in which this application is premised, I deem it apposite to reproduce the provision of section 14(1) of the LLA as hereunder: "Notwithstanding the provisions of this Act, the court may, for any reasonabie or sufficient cause, extend the period of iimitation for the institution ofan appeal or an application, other than an application for the execution ofa decree, and an application forsuch extension maybe made either before or after the expiry ofthe period ofiimitation prescribed for such appeal or an application''. It goes without saying that, the said provision is hinged on the discretion of the court to grant extension of time and for the court to do so, the applicant must establish reasonable or sufficient cause for the 9 delay. It has been pronounced in numerous decisions that what amounts to "reasonable or sufficient cause" cannot be laid down by any hard and fast rules. The same depends on the circumstances of each case, hence, the party seeking extension of time ought to provide reasonable or sufficient cause to move the court exercise its discretion. In Loshilu Karaine & 3 Others vs Abraham Melkizedeck Kaaya (suing as a legal personal representative of Gladness Kaaya),(Civil Appeal No. 534 of 2020)[2024] TZCA 93(22 February, 2024) TanzLII the Court further elaborated that: "It should be observed that the term "sufficient cause'' should not be interpreted narrowiy but should be given a wide interpretation to encompass all reasons or causes which are outside the appiicant's power to control or influence, resuiting in the deiay in taking any necessary step". See; Oswald Masatua Mwizarubi vs Tanzania Fish Processors Ltd, Civil Application No. 130 of 2010,(Unreported). Furthermore, the courts have developed some factors which can be considered to constitute reasonable or sufficient cause Including promptness In taking actions, the length of the delay, Illegality and delay In being supplied with the necessary documents. See; Lyamuya 10 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 (3'" October, 2011) TanzLll. In this matter, I will determine the application on two folds, first is the applicant's reasons for the delay as adduced in the trial court and second is the reason for the delay in this court. I have keenly perused the parties' affidavits and their written submissions thereto, and established that, indeed, the applicant blames her non awareness of the ex parte judgment on the advocate. However, the question whether the reason relates and can convince the court to use its discretionary powers has to be determined. In general, save for the Criminal Session Cases, an advocate is hired by the party herself in this case the applicants. It is the applicants who will put trust in the advocate and their duty is also to make follow ups on the advocates to know the progress of their case. That burden cannot be shifted to the court whether directly or being a ground for justifying delay. Therefore, as to why the matter proceeded ex-parte and the delay In knowledge of delivery, that remains the matter that was in the applicants' own peril, the court for proceeding ex-parte. It was her duty to keep on checking with the advocate on the progress of the case and failure to do so would not constitute a sufficient ground for the delay. 11 On the chronolotgy of events, in the second fold, I will determine the reason for the delay In this court In line with what steps the applicant has alleged to have taken. It Is on record that on 13/05/2022 the trial court delivered the ex parte judgment In favour of the respondent. Dissatisfied by the said decision, on 15/07/2022 the applicants filed Misc. Civil Application No. 7 of 2022 before the trial court for extension of time within which to set aside the judgment, decree and the entire proceedings thereto and restoration of their WSD. The application was dismissed for being omnibus. Right at this point, It would appear that the applicant had taken her cause against the said ex-parte judgment, to make an application for It to be set aside, a move which proved futile at the trial court. This move was done under the provisions of Order IX Rule 9 of the Civil Procedure Code [CAP 33 R.E 2019] which provides: "In any case in which a decree is passed exparte against a defendant, he may appiy to the court by which the decree was passed for an order to setitaside; and ifhe satisfies the court that he was prevented by any sufficient cause from appearing when the suit was caiied on for hearing, the court shaii make an order setting aside the decree as against him upon such terms as to costs, payment into court or otherwise as it think fit, and shaii appoint a day proceeding with the suit. " 12 The move was futile and it would appear that now the applicant moves the court under the provisions of Section 70(2) of the CPC which allows for an appeal from an original decree passed ex-parte. The question Is whether the first move having failed the applicants can now come to this court and seek for the second alternative with a justification of delay from the previous move or is it an outright act offorum shopping. To answer this I must reflect what the precedents say on the move starting with the case of Danaote Industries Limited Tanzania vs Warnercom T. Limited (Civil Appeal No. 13 of 2021^ [20221 TZCA 34 fl7 February 20221 where it was held: It was submitted for the respondent that, the requirement that an appeai against an ex parte judgment must be preceded by an appiication to set the same aside has been iaid down in the case ofJaffariSanya & Another i/. Saieh Sadiq Osman (supra) which was foiiowed in Pangea Minerals Ltd v. Petrofuei(T) Limited and 2 Others. We have very carefully read the authorities and with respect, we do not think that, they are in support ofthatproposition. We shali expiain. It wouid appear to us to be the principie in the said authorities that, where the defendantintends to chalienge both the order 13 to proceed ex~parte and the merit of the findings in the ex partejudgment, he cannot chaiienge the merit ofthe findings before deaiing with an appiication to set aside the ex parte judgment first This principie is based on the iong standing ruie of procedure that, one cannot go for appeai or other actions to a higher court if there are remedies at the lower. He has to exhaust aii avaiiabie remedies to the lower court first/' From the above cited case I have gathered that the requirement that an appeal against an ex parte judgment must be preceded by an application to set the same aside is only applicable when the party seeks to chaiienge the order to proceed ex-parte. It is crystal clear that, first; an ex-parte Judgment is set aside upon showing good cause to the court which 7 passed it, second; upon the Court refusal in setting aside, the aggrieved part may then appeal to the High Court, third; Section 70(2) of the CPC (supra) further allows parties to appeal against an ex-parte judgment. This is a direct appeal against the reasoning of the court in the ex-parte judgment and not against the court's order to proceed ex-parte. The above notwithstanding. I have also perused the records and it would appear that after the applicants' application to set aside ex-perte judgment was dismissed, the applicant knocked the door of this court 14 through Misc Application No, 119 Of 2023 seeking for extension of time within which to file an appeal against the whole decision of the exparte judgment, Decree, and the entire proceedings of Civil Case No. 2 of 2021 that was delivered by Hon, Josiah KI R.M on 13th May 2022. The application was Struck Out for reasons of incompetence and again the applicant has lodged the same application. What has caught my attention from the above findings is the lapse of time between the 25^^ day of October, 2023 when the said application was dismissed to the 24*^ April,2024 when this application was filed which is a period of six months. That whole period was never explained in the affidavit nor in the submissions of the parties herein. That means the applicant has failed to explain a period of 180 days while the dictates of the law through precedent are that each day of delay must be explained. That being the case, this application is hereby dismissed with costs. Dated at Dar es salaam this 3'^^ March, 2025. o o o > •N > X S.M. MAGHIMBI JUDGE 15