ZACHARIA FAUSTINE MASALU VS NGOSSO TRADERS C

I IN THE HIGH COURT OF THE ~NITED REPUBLIC OF TANZANIA (SHINYANGArUB-REGISTRY) AT SHIINYANGA MISC. CIVIL APPLICA~ION NO. 27696 OF 2023 (Arising from the decision of the High Co rt of Tanzania/ Shinyanga Sub-Registry at Shinyanga in Civil A 'Peal No. 15 of 2022) ZACHARIA FAUSTINE MASALU ••••••••••••••••••••••••••••••••••••••••••••••••••• APPELLANT NGOSSO TRADERS CO. LTD •.•.•.•.•.•. ~~.l.~.~ RESPONDENT RULING Date of Last Order: 24.03.2024 Date of Ruling: 28.03.2024 MWAKAHESYA, J.: The applicant herein is applying for leave to file notice of appeal to the Court of Appeal out of time. Th intended appeal being against the judgment of the High Court of Tanz nia, Shinyanga District Registry, at Shinyanga in Civil AppealNo. 15 of 2022. A brief background of the matter \s that, at the Kahama District Court the applicant had filed Civil Case NO'j8 of 2021 against the respondent. When the same was heard and became due for judgment the applicant withdrew it with leave to refile citing t at he desired to join a necessary party. The trial court granted the withdrawal thus prompting the 1 . ~ /, respondent to appeal against the order through Civil Appeal No. 15 of 2022. On the 16 th August, 2023 the High Court, Hon. Mahimbali, J. allowed the appeal, quashed the proceedings and the resulting orders in Civil Case No. 38 of 2021, directed the trial magistrate to compose/pronounce the prepared judgment, condemned the applicant to pay costs incurred by the respondent in litigating Civil Case No. 138of 2021 and costs of the appeal. Subsequently, at the conclusion of Civil Case No. 38 of 2021 the trial court found in favour of the applicant and amongst other reliefs granted him costs of the suit. The present application is brought by way of chamber summons and 1 is supported by an affidavit sworn by the applicant himself. The gist of the applicant's application can be garnered from paragraphs 6-10 of his 1 affidavit in support of the application. The same are reproduced hereunder: 6. That, the Applicant aggrieved with the order of the Appellant (sic) Court in Civil Appeal No. 15 of 12022 in respect of paying costs of litigating Civil Case No. 38 of 2021 but failed to lodge a notice of appeal within the prescribed time as the Appeal would be premature 1 1 2 1 1 as there was an order to th~ lower court to pronounce judgment of the Civil Case No.38of 2021. 7. That, immediatelyafter th delivery ofthe judgment of CivilCase No. 38 of 2021,the Applica t could have lodged a notice ofappeal but he was unable to procee1pwith his appealbecause ofeconomic hardship he wentthrough thJt made him unable to pay fora lawyer who may go through the app lal process. 8. That, in line with the fac in paragraph 7 above, the applicant failed to lodge a notice of . ppeal within time as there are two pending cases the responden filed against the applicant regarding Civil Case No. 38/2021 of Whr the applicant is spending money to defend the same. One, is Taxation Cause No. 04 of 2023filed on 10/10/2023 in the District cou~ of Kahama, before Hon. E.P. Kente- SRM,and two, Civil AppealNo. 17of 2023filed on 23/10/2023 in this court before Hon.Kulita,J. 9. That, the applicant's delay 0 file a notice of within time is not deliberatelybut is due to the remature order of cost given by the appellate court in Civil Appea No. 15/2022,and thereafter the respondent instituted cases thai has to dealt (sic) by the applicant and economic hardship the appli I ant has been going through. 3 II 10. That, both the Appellant (sic) Court and the trial court awarded I I litigating cost in respect to pvil Case No. 38 of 2021 which makes two conflicting orders that needs guidance of the higher court. The respondent, contesting the application, filed a counter affidavit sworn by its advocate one Eric Katemi and, briefly, he counters the I applicant's assertions by indicating ithat the applicant could have lodged a I notice of appeal after the decision ih Civil Appeal No. 15 of 2022 regardless of the order of the appellate court ~irecting the trial court to compose and I deliver judgment. He also contests the assertion that it was economic I hardship that made the applicant unable to appeal against the order for costs made by the High Court in Civil Appeal No. 15 of 2022. At the hearing of the appllcatlon the applicant was represented by I I Ms. Zena Kazimoto, learned advocate, while the respondent enjoyed the services of Mr. Eric Katemi, learned a1dvocate. Having adopted the applicant'sl affidavit in support of the application I I Ms. Kazimoto was brief and precise in her submission. She was of the view that the order of the High Court in Civil Appeal No. 15 of 2022 that the applicant was to pay costs in Civil Case No. 38 of 2021 was premature and that was manifested when the trial ¢ourt awarded the applicant costs at I I the conclusion of Civil Case No. 38 of \2021. She went further to state that, 4 I as a result there are two conflicting orders: one awarding costs to the I I applicant, this was granted in Civl,1Case No. 38 of 2021; and the second one awarding costs to the respondent, which was granted in Civil Appeal No. 15 of 2022. She elaborated that, it is difficult to enforce the orders for costs thus I resulting in miscarriage of justice and due to that apparent error, the I applicant is seeking extension of ti~e to lodge notice of appeal against Civil Appeal No. 15 of 2022. She praye~ that the application be allowed with I costs. \ I In reply the learned counsel for the respondent submitted that, the applicant has not shown sufficient reasons warranting this court to grant leave to lodge Notice of Appeal tOI the court of Appeal out of time. He I I relied on the Court of Appeal decisior of Lyamuya Construction Ltd. Vs Board of Registered Trustee IOfYoung Women's Association Christian Association of Tanzani~, Civil Application No. 2 of 2010 I I I (unreported) where at page 6 the .Court listed six (6) principles to be followed in order for a court to extend time. The same are: 1. The applicant must account for ~II the period of delay. 2. The delay must not be inordinate. I I 3. The applicant must show diligence, and not apathy, negligence or I sloppiness in the prosecutiorrof the action that he intends to take. I 4. If the court feels that there are sufficient reasons such as the existence of a point of lawl of sufficient importance; such as the illegality of the decision to belchallenged. Mr. Katemi went on the submit that, in the affidavit in support of the II - .. _ application, it is not clear as to what caused the delay for the applicant to I file the intended appeal as from 1~ August, 2023 when judgement in Civil I Appeal No. 15 of 2022 was delivered to 15 December, 2023 when this I application was filed which is about four months. Such lapse of time he I termed as inordinate delay. I I I He submitted that, the reasbns given by the applicant such as economic hardship and prematurii lack merit. The applicant has not proved that there was economic hardship which made him unable to engage a lawyer to file a notice of appeal, On the issue of prematurity, the learned counsel submitted that, the \ same lacks merit as when Civil Appea~No. 15 of 2022 was delivered on 16 th August, 2023 it had no bearing with Civil Case No. 38 of 2021. Therefore, if the applicant was aggrieved with th~ decision, he should have lodged a notice of appeal without having to wait for the decision in Civil Case No. 38 II of 2021. He went on to state that, the learned counsel for the respondent 61 \ I has not availed any provision of the law or II case law which barred the \ I applicant to lodge the said notice. \ \ He concluded that, the applicant has breached the 3rd principle in Lyamuya's Case (supra) becauJe he was negligent and did not take action. Regarding the issue of iIIegalil, the learned counsel was of the view that the same also lacks merit. He ubmitted that, if in Civil Appeal No. 15 of 2022 there was double costs, the that was in the discretion of the High Court hence it was not illegal. He prred for dismissal of the application. In rejoinder, Ms. Kazimoto co curred that Lyamuya's Case (supra) issued principles to be followed whe a court is seized with an application like the present one. However, she focused on the 4th principle which provides that the court can extend tme if it feels that there are sufficient reasons, such as the existence of a Pi int of law of sufficient importance, or to put it in other words "the illegality I f the decision to be challenged". And since the guidelines are not cumula ive, she submitted that the fourth guideline warrants consideration of thi, court. She went on to elaborate that, at page 9 of the said decision the Court also stated that such point of law must be of sufficient importance 7 and must also be apparent on the face of the record and she was of the view that, the awarding of double costs was an error. She concluded that, the judgment in Civil Appeal No. 15 of 2022 and Civil Case No. 38 of 2021 were intertwined because the High Court's Order was that the judgement in Civil Case No. 38 of 2021 was to be pronounced. She reiterated her prayer for this court to grant the application. Having considered the rival submission by both parties, this court is now in the position to make a finding if the application is meritorious or else. Rule 83(2) of the Court of Appeal Rules puts the timeframe for lodging a notice of appeal to the court of appeal in civil matters to within thirty days of the decision against which it is desired to appeal against. In the matter at hand whether the applicant is out of time or else is not in contention between the parties. The application itself is brought under section 11(1) of the Appellate Jurisdiction Act, which reads: 11.-(I) Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extende~ powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of 8 the High Court or of the subordinate court concerned. for making an application for leave to appeal or for a certificate that the case is a fit case for appea~ notwithstanding that the time for giving the notice or making the application has already expired. The test applied in applications like the present one is that of "good cause" shown by the party applying for extension of time as provided under rule10of the Court of AppealRules. As to what amounts to good cease, the Court of Appeal in Laurent I I Simon Assenga vs Joseph Magoso and 2 others, Civil Application No. 50of 2016(unreported),at page 3, held that: UIn determining an application under Rule10, the issue that has to be resolved is always, whether, the applicant has shown good cause for extension of time. Whatis a good cause is a question of fact, depending on the facts of each case. For thatreason, manyand varied circumstances could constitute good cause in any particular case. U Again, the applicant's counselsubmitted that, in Civil Appeal No. 15 of 2022this court made two orders regarding costs:the first being that I I costs in the appeal itself were awarded to the respondent (erstwhile 38 of 2021was awarded to the appellant);and also costs in Civil Case No. respondent(erstwhile defendant). However, when Civil Case No. 38 of 2021was decided on meritsubsequentto Civil AppealNo. 15of 2022the applicant emerged victorious and was awarded costs. To quote the order of this court,in Civil AppealNo. 15of 2022,read: 9 I I ". Further the respondent is condemned to pay costs incurred by the appellant in litigating Civil Case No. 38 of 4021 before the trial court and costs of this appear: '\ However, in Civil Case No. 38 of 2021 the order of the trial court went as: \ I ''1now move to consider the itue last on relief (s) which the parties are entitled to/ as far as I have already establl. hed that the Plaintiffs prove his claim hence entitled for the relief (s). I proceed to grant the plaintiff the following reliefs: - 1. N/A 2. N/A 3. Costs of the suit // It is clear that, there applicantand the respondent, is to be reimbursed costs in CivilCase No. 38 of 2021. And, in my view this f~ct falls squarely within the ambit of good cause as stated in the case of.\aurent Simon Asenga (supra) and is enough to grantthe application. For the sake of argument, the ~pPlicant has not been able to prove that he suffered economic hardship cililminating in his failure to lodge the notice of appeal within time. It is my riew that, such an averment has to be specifically proved and proof of the. ame has been found wanting in the applicant's submission.I therefore, s bscribe to the submission by the respondent's counselthat, the applicant has not proved that there was 10 I economic hardship which made riim , unable to engage a lawyer to file a I notice of appeal. In the upshot, I grant the application and the applicant is to file the notice of appeal within thirty (30) days from the date of this ruling. Considering the circumstances which brought about this application I make no order as to costs. It is so ordered. DATEDat SHINYANGA this 18 th day of March, 2024 N.L. MWAKAHESYA JUDGE 28/03/2024 The ruling delivered this 28 th day of March, 2024, in the presence of , Elizabeth Luhigo, Advocate holding', brief Ms. Zena Antony Kazimoto, learned advocate for the Applicant and Mr. Erick Katemi, learned advocate for the Respondent is hereby certified as a true copy as original. W A.H. MWE'TINDWA DEPUTY REGISTRAR 28/03/2024 11