CIVIL APPLICATION NO 589 16 OF 2022 VOLTALIA S A FRANCE VS NEXTGEN SOLAWAZI LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM rCORAM: MKUYE J.A.. MWAMPASHI. J.A. And MURUKE, J.A.) CIVIL APPLICATION NO. 589/16 OF 2022 VOLTALIA S. A. FRANCE.................................................... ................. APPLICANT VERSUS NEXTGEN SOLAWAZI LIM ITED...... .................................................RESPONDENT (Application for extension of time within which to file a supplementary record of appeal arising from the order of the Court of Appeal of Tanzania, at Dar es Salaam) (Mwambeaele. Fikirini, Makunou, JJ.A) dated the 18th day of August, 2022 in Civil Appeal No. 272 of 2019 RULING OF THE COURT 23rd May & 31st July, 2024 MURUKE. J.A: The applicant, Voltalia A. S. France, filed Civil Appeal No. 272 of 2019 in the Court challenging the orders of the High Court, Commercial Division, dated 13th September, 2018. When the appeal came for hearing, the respondent raised a preliminary objection to the effect that a certificate of delay was defective. The Court, upon hearing both parties, sustained the preliminary objection, however, it allowed the applicant to file a correct certificate of delay by filing supplementary record of appeal within 30 days of the ruling, that was on 18th August 2022. Despite being given 30 days, the applicant failed to do so within the given period because the correct certificate of delay was supplied to him on 27th September 2022, after the lapse of 30 days. Finding herself out of time given by the Court, the applicant filed the instant application under Rules 10, 48 (1) (2) and 49 of the Tanzania Court of Appeal Rules 2009 (the Rules), for an extension of time within which to file supplementary record of Appeal, Before the single Justice of the Court, upon brief discussion, Mr. Brian Mombosho who was, and still the applicant's counsel, admitted that the application before the single Justice should be placed before the full Court. Mr. Mvano who, by then, was representing the respondent joined hands with Mr. Mombosho on his proposition, ultimately the single Justice, in terms of Rule 60 (1) of the Rules, adjoined the application and forwarded it to the full Court for determination the gist of this application before us. The application is supported by an affidavit of Mr. Mombosho, counsel for the applicant, who also represented applicant, while Mr. Simon Barlow Lyimo, represented the respondent. The Court raised issue of mandate of the Court under Rule 10 of the Rules. After a brief discussion we were satisfied that the order to file supplementary record of appeal within 30 days was issued by the Court under rule 96 (7) of the Rules which provides that: "Where the case is called for hearing, the Court is o f opinion that the documents referred to in rule 96 (1) and (2) is omitted from the record o f appeal, it may on its motion or upon an informal application, grant leave to the appellant to lodge a supplementary record o f appeal". The applicant before us is seeking for enlargement of the period of 30 days granted to lodge supplementary record of appeal to a further period. The prayer has the effect of varying the term of the order of the Court from 30 days to much longer period. In our view, as the order was made by the Court, such power cannot, in terms of rule 64(2) read together with rule 28 of the Rules, be exercised by the single Justice of the Court, For clarity, rule 64(2) provides that: "An order made on an application to the Court may similarly be varied or rescinded by the Court" From the provision above, the single Justice properly forwarded the application in terms of rule 60 (1) of the Rules to this Court. Thus, the application is properly before the Court. 3 On the merits of the application, both parties filed affidavit for and against the application for extension of time to lodge supplementary records of appeal. They also filed written submissions in terms of Rule 106 (1) and (7) of the rules. Mr. Mombosho, apart from adopting the submissions he had earlier filed, submitted that, from the date of the order, that is, 18th August 2022, thirty days elapsed on 17th September 2022 on which the Court was closed, as it was Saturday and Sunday 18 September 2022, which ought to be excluded in terms of Rule 8(d) of the Rules. Thus, the last date of filing supplementary record of appeal was 19th September, 2022. Counting from 19th September to 29th September 2022, the applicant was late for 10 days to file the supplementary record of appeal. According to the affidavit in support of the application, the applicant was supplied with the correct certificate of delay on 27th September, 2022 after serious follow up for 9 days. One day was used to prepare the necessary documents that was filed in Court for extension of time. The applicant's counsel insisted that the days of delay have been explained as it was in the domain of the Court to supply the requested documents and that the applicant was prompt and diligent in filling the current application as proved by annexture CLYDE-5 attached to the affidavit in support of the application. In totality, Mr. Mombosho then prayed for the Court to see that sufficient reasons exist for the Court to exercise inherent jurisdiction and grant the application sought. In reply Mr. Lyimo, counsel for the respondent resisted the application and submitted that despite the said order dated 18th August, 2022, the applicant failed to honor the same which led to not only her failure to file the supplementary record of appeal, but also led the applicant to file a hopeless application for extension of time within which to file the supplementary record of appeal. It was further submitted that the Court can only grant extension of time if sufficient cause has been shown, citing this Court decision of TCCIA Investment Company Limited v. Dr. Gidion H. Kaunda, Civil Appeal No. 310 of 2019 (unreported). On further account as to what amount to sufficient cause, Mr. Lyimo urged us to be guided by the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No 2 of 2010 (unreported). The respondent counsel insisted that the applicant has not accounted for two days of delay on 21st and 22nd day of September respectively, as there is no activities shown to have been done in respect of the two days, insisting that even a single day is inexcusable referring this Court to the decision in AMI (Tanzania)Limited v. Ottu on Behalf of P. L. Assenga & 106 Others, Civil Appeal No 54 of 2008 (unreported). In totality, the respondent's counsel urged the Court to dismiss the application for lack of merits. Having heard both counsel submissions, in essence, the applicant is seeking an extension of time to file supplementary record of appeal. Therefore, what the applicant is seeking in this application is the right to be heard on his appeal. As said earlier, the applicant was granted 30 days to lodge supplementary record of appeal on 18th August 2022. She was not supplied with the correct certificate of delay until on 27th September, 2022 after the lapse of 30 days granted by the Court. Thereafter, she took necessary steps and filed the present application on 29th September, 2022, that is, within 2 days. For almost 40 days from 18th August, 2022 when the applicant requested for necessary documents to 27th September, 2022 when the same were supplied, the applicant had no control of the situation. The supply of the requested correct certificate of delay is administrative affairs of the Court, neither the applicant nor the respondent had control of the situation. The applicant cannot be blamed for the delay. That period of delay is what case law describes as an excusable technical delay- see: Dr. Fortunatus Lwanyantika Maisha vs Dr. William Shija and Another (Civil Appeal 43 of 1996) [1997] TZCA 51 (10 January 1997,TANZLII), Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006, Zahara Kitindi & Another vs Juma Swalehe & Others (Civil Application 4 of 2017) [2017] TZCA 196 (3 March 2017,TANZLII), Yara Tanzania Limited v. DB Shapriya and Co. Limited, Civil Application No. 498/16 of 2016, Vodacom Foundation v. Commissioner General (TRA), Civil Application No. 107/20 of 2017 (both unreported), Samwel Kobelo Muhulo vs National Housing Corporation (Civil Appeal No. 302 of 2017) [2018] TZCA 33 (26 July 2018,TANZLII), to mention but a few. In Salvand K. A. Rwegasira (supra), for instance, the Court observed that: "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which dearly only involved technical delays in the sense that the originalappeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling o f the Court striking out the first appeal. In these circumstances an extension of time ought to be granted." i The applicant, on receipt of the correct certificate of delay and after finding herself out time, filed the present application on 29th September, 2022, just two days after receipt of the necessary documentation. There is no doubt that the applicant acted so promptly to file the present application. The test employed in determining promptness in our view, is that of reasonableness. That is, whether the time taken by the appellants to file the application for extension of time was reasonable. In our view, this is a question of fact which has to be decided on case -by case basis. This Court in the case of Saulo Malima v. Petro Kingoni, (Civil Appeal 154 of 2022) [2024] TZCA 436 (11 June 2024, TANZLII) took the view that, 21 days delay was reasonable time for the applicant to file review. In the matter at hand, the applicant has always acted promptly in ensuring his rights are preserved, only that the applicant did not get the correct certificate of delay from the Court promptly despite applying timely. We understand parties come to Court to seek redress, they cannot be punished for reasons which were outside their control and solely within the control of the Registries. The Court as a custodian of justice need to balance scale of justice as we hereby do. 8 In the circumstances of this case, we are satisfied that the applicant has adduced sufficient cause to be granted the extension sought. Therefore, interest of justice demands that provision of rule 64 (2) of the Rules be invoked to allow the applicant to file supplementary record of appeal. Thus, we vacate our previous order dated 18 August, 2022 and in terms of Rule 4 (2) (a) of the Rules, further extend the time to lodge supplementary record of appeal. The same to be filed within 30 days from the date of this ruling. DATED at DAR ES SALAAM this 30th day of July, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 31st day of July, 2024 in the presence of Mr. Jeremia Tarimo, learned counsel for the applicant and Mr. Simon Barlow Lyimo, learned counsel for the respondent by video conference, is hereby certified as a tru ‘ ' J. J. KAMALA DEPUTY REGISTRAR COURT OF APPEAQ.L