Yohana Fredrick Dinda v Josephat Mathias

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 000001835 OF 2025 YOHANA FREDRICK DINDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF

VERSUS JOSEPHAT MATHIAS .............................. RESPONDENT / DEFENDANT

RULING KAHYOZA, J, The applicant Yohana Fredrick Dinda appears to have been aggrieved by the decision of the district court of Kasulu in Civil application N0.000005140. It would also appear that he was not able to appeal within the time prescribed by law due to reasons that have been stated in the in the affidavit. He is thus moving the court so that he can be granted extension of time within which to appeal against the said decision. The application is made under section 14(1) of the Law of Limitation Act, [Cap.89 R.E 2019]. It is supported by the affidavit duly sworn by one Abdul Kalunga, advocate, whom it is averred that he has been engaged by the applicant. On the other hand, the application is resisted by the respondent and he has sworn an affidavit to that effect. When the matter came up for hearing both parties were represented. While Mr. Anthony Kigonga learned advocate appeared for the applicant, Ms. Veronica John, learned counsel appeared for the respondent. Mr. Kigonga commenced his submissions by stating that the applicant was not able to appeal in time because he was sick. According to Mr. Kigonga the decision sought to be challenged was handed down on 8th November, 2024 but the applicant was sick and was admitted at hospital from 6th November, 2024 to 15th January, 2025. In that case he was not able to process his appeal. To support this contention, a medical

report has been annexed to the affidavit supporting the application (annexture. Page. 1 It was Mr. Kigonga’s further submission that immediately after his discharge from hospital, the applicant started looking for a lawyer to assist him process the appeal and that the same was filed on 24th January, 2025. According to Mr. Kigonga, counting from 15th January, 2025v to 24th January, 2025 when this application was filed is a reasonable period showing that the applicant was prompt in pursuing this matter. To support this contention, Mr. Kigonga cited the case of Ally Salum Said vs Iddi Athuman Ndaki, Civil Application No.450/2021 in which the Court of Appeal laid down guidelines that must be taken into account when considering the application for extension of time. Apart from the issue of sickness, Mr. Kigonga also argued the issue of illegality in the decision sought to be challenged. According to Mr. Kigonga, illegality is another ground upon which extension of time can be granted. He submitted that illegality is pleaded under paragraph five of the affidavit supporting the application. Expounding on this, he submitted that the decision sought to be assailed contained serious illegalities to the effect that before the trial court, the respondent did not prove his claim according to laid down standards in civil litigation. Another illegality as pointed out by Mr.Kigonga is the fact

that the Applicant was not notified on the date the trial court’s decision was delivered. According to Mr. Kigonga this was contrary to Order XX Rule 1 of the CPC. He supported this contention by citing the case of James Ruta Mugyabuso vs Peter Kero Kajinatus (As administrator of the Estate of the late Kajinatus Karisto Kero) (Misc Civil Application 8811 of 2024) [2024] TZHC 5528 (6 June 2024). In this case this court held that a party is supposed to be notified of the date when a judgement is to be delivered, if hearing proceeded in his absence. Mr. Kigonga pointed out that in the matter at hand hearing was exparte and the applicant was not notified on judgement was to be delivered. ON these grounds Mr. Kigonga urged the court that the application be granted. On her part, Ms. Veronica John, counsel for the respondent expressed her stance that she was opposing the application from the outset in that no good cause had been shown. She submitted that she was at one with Mr. Kigonga in that sickness is good ground for extension of time. She said this while citing the case of Immanuel R. Maira vs DED of Bunda, Civil application No. 96/2010. The learned counsel however, quickly and emphatically pointed out that there was no proof to show that the applicant was sick and admitted at hospital as alleged. Ms.Veronica further pointed out that the medical report annexed to the applicant’s

affidavit was not genuine and as such it violated section 64(1) of the Evidence Act. On the issue of illegality, the learned counsel submitted that the decision sought to be challenged contained no illegality at all. Page. 2 In another move, Ms. Veronica submitted that the applicant had not accounted for all the period of delay as the law requires him to. To that end Ms. Veronica cited the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) in which the Court of Appeal laid down factors or guidelines to be considered in an application for extension of time. According to Ms Veronica, all factors must be met if time was to be extended. Ms. Veronica is of the view that the applicant has not met all the conditions laid down in Lyamuya (supra), thus even the case of Ally Salum Said (supra) cited by Mr. Kigonga cannot operate in the applicant’s favour. On this note Ms. Veronica was of the view that the application was not merited. She urged that it be dismissed with costs. Now, having carefully paid earnest consideration to the submissions made by both counsel, and also having carefully considered the affidavits sworn by the parties, I shall now proceed to see whether the application is merited or not. May be, I should start by pointing out that extension of time is

solely in the discretion of the court. However, such discretion must be exercised judiciously. See Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another (Civil Application 392 of 2020) [2021] TZCA 62 (4 March 2021). See also Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011). It is also equally important to note that in an application for extension of time, the applicant must establish to the satisfaction of the court existence of good sufficient cause warranting condonation. It is however common knowledge that what amounts to sufficient good cause has not been defined by any statute. It all depends on the material facts put before the court for consideration. See Tanga Cement Co. Ltd vs Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 (8 April 2004). In the matter at hand, reasons for delay have been described as sickness and illegality. Sickness is specifically averred under paragraph four (4) of the affidavit supporting the application. At this juncture, I shall let paragraph 4 of the said affidavit paint the picture by itself: 1. That, when the decision in Miscellaneous Civil Application N0.000005140 delivered the applicant was suffering illness and leading him to be admitted to the hospital from 6thday of November,2024 to 15th day of

January, 2025 when he was discharged, despite of this fact but until now the applicant is still suffering illness (A copy of Receipt of medical report is annexed hereto as annexure KLC/B to form part of this affidavit)[Reproduced verbatim]. Page. 3 As it can be gleaned from the above excerpt, it is averred that the applicant fell sick and was admitted from 6th November, 2024 to 15th January, 2025. A medical report (exhibit KLC/B is alleged to be annexed to the affidavit to support that averment. My perusal of the said medical report reveals that the applicant was admitted at hospital from 6th October, 2024 to 15th January, 2025. By this document it means the applicant was admitted at hospital a month earlier than is averred in the affidavit. The question then is which version should be taken as a true and correct version. In his submission, Mr. Kigonga submitted that the applicant was admitted at hospital from 6th November, 2024 to 15th January, 2025. He however did not say anything on the discrepancies between dates on the medical report and those averred in the affidavit supporting the application. This leaves me with an option to conclude that either there is falsehood in the affidavit or the medical report was doctored. If I conclude that there is falsehood in the affidavit, then the entire application crumbles because such an affidavit cannot be acted upon. See Jaliya

Felix Rutaihwa vs Kalokora Bwesha & Another (Civil Application 392 of 2020) [2021] TZCA 62 (4 March 2021) where it was held that: “It is elementary that an affidavit that contains material falsehood cannot be acted upon”. See also Ignazio Messina v. Willow Investments SPRL, Civil Application No. 21 of 2001; and Kidodi Sugar Estates & 5Others v. Tanga Petroleum Company Ltd., Civil Application No. 110 of 2009. In Ignazio Messina (supra), it was expounded that: "An affidavit which is tainted with untruths is no affidavit at all and cannot be relied upon to support an application. False evidence cannot be acted upon to resolve any issue." But equally if I hold that the medical report annexed to the affidavit is doctored, it means what is averred will be without the supporting evidence. Inversely, such an averment will not constitute good cause. In any case, I am prepared to hold that sickens does not constitute good and sufficient cause for delay in the circumstances of this matter. This is because the supporting affidavit is tainted with falsehood. Over and above, the Applicant does not say he was suffering from what. He also does not say at which hospital he was admitted. All these makes it difficult to consider the issue of sickness as good and sufficient cause for delay to file the intended appeal. In other words, I find no justification in this ground. Page. 4 As for the issue

of illegality, I shall confine myself to what was raised in the affidavit, that is, that the respondent did not prove his case as per the required standards. The rest were raised from the bar, I shall therefore not accord them wight. Now, the point raised as illegality is to the effect that before the trial court, the respondent did not prove his case to the required standard. On her part, Ms. Veronica submitted that there was no illegality at all. Probably I should say right away that I feel a kind of misapprehension on the part of Mr. Kigonga in relation to what amounts to illegality. First of all, illegality must be something that is on the face of the record, and not far fetched. See Star Media Tanzania Limited vs Tanzania Revenue Authority(Civil Appeal 211 of 2019) [2021] TZCA 191 (7 May 2021). In that case, the Court put it in the following words: “In principle, for a party to successfully argue illegality in an application for extension of time, it must be one that is obvious. ...illegality should not involve long drawn arguments for it to qualify as a ground for extension of time”. See also Principal Secretary Ministry of Defence and National Service v. Devran Valambia [1991] T.L.R 387; Lyamuya Construction Company Limited v. The Board of the Registered Trustees of Young Women Christian Assosciation of Tanzania, Civil Application No. 2 of 2010 and Ngao Godwin Losero v.

Julius Mwarabu, Civil Application No. 10 of 2015, just to mention a few. In Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another (supra) the court stated the following in relation to the issue of illegality. The Court observed: "Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in m y view, be said that in V A LA M B H IA 's case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points o f law should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point o f law must be that 'of sufficient importance ' and, I would add that it must be apparent on the face of the record, such as the question of jurisdiction; and not one that would be discovered by long drawn argument or process." [Emphasis added] Page. 5 In the matter at hand the point of illegality raised is that before the trial court the respondent did not prove his case to the required standards. With due respect, and in my humble view, this cannot be said to be an illegality in the context of the decisions cited above. In other words, not every ground of appeal is an illegality. I would in the circumstances conclude that the alleged illegality is to say the least not an illegality at all. Thus, this point also fails. It is from the foregoing discussion I find and hold that the applicant has not established good and sufficient cause for delay. The application is therefore demerited, and it is accordingly dismissed. The respondent shall have his costs. Dated at KIGOMA this 10th of April 2025 . P. R KAHYOZA

JUDGE OF THE HIGH COURT Page. 6