Said Msangi vs Afriscan Group (T) Limited (Civil Application No. 361/16 of 2019) [2026] TZCA 325 (19 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 361/16 OF 2019 SAID MSANGI......................................................................................APPLICANT VERSUS AFRISCAN GROUP (T) LIMITED ........ .............................................RESPONDENT (Application for extension of time to file the Record and Memorandum of Appeal from the decision of the High Court of Tanzania, Commercial Division at Dar es Salaam) fSehel. J.1 dated the 31s t day of August, 2018 in Commercial Case No. 87 of 2013 RULING 25th February & 19th March, 2026 KITUSI, J.A.: This is an application for extension of time within which the applicant may file the record and memorandum of appeal. The salient facts of the case are hardly contested. The applicant was a shareholder of the respondent and by virtue of that fact a member of that company. The genesis of the matter is that the respondent instituted a suit in the High Court Commercial Division - Commercial Case No. 87 of 2013 praying for a declaration that the applicant was no longer a shareholder of the respondent having lawfully sold and transferred his twenty shares on 1s t September, 2000. The applicant disputed the alleged sale and transfer of shares by him insisting that he is still a shareholder and member of the company. 1

The High Court entered judgment for the plaintiff, now respondent. That was on 31st August, 2018. Aggrieved, the applicant lodged a notice of appeal intending to challenge the decision of the High Court. The essence of this application is that the applicant failed to lodge the memorandum and records of appeal on time because the documents, copies of which he had earlier applied for were not complete. He received them on 15th March, 2019 together with the Registrar's certificate of delay as per the Court of Appeal Rules. On 19* March, 2019, the applicant wrote to the Registrar to raise the incompleteness of the documents and that the certificate that had been issued was, thereby, invalid. The Registrar did not immediately respond to the applicant's written request for rectification. The applicant had to write two reminders in May and August 2019. The Registrar purported to cure the invalidity of the certificate of delay by issuing a fresh certificate which turned out to be invalid also because it excluded days from 24th September, 2018 to 18th June, 2019 a span that did not correspond with the applicant's date of request and the Registrar's letter of notification. The applicant's complaint is that not only is the latter certificate invalid but it says nothing about the validity of the earlier certificate. During the hearing, Mr, Samson Mbamba, learned advocate for the applicant, submitted that there are two certificates of delay, which should not be the case referring to our decision in Maneno Mengi Limited & 3 Others 2

v. Farida Said Nyamachube & Another [2003] TZCA which held the Registrar's issuance of a second certificate of delay to be wrong when the earlier certificate has not been withdrawn. Mr. Joseph Rutabingwa, learned advocate for the respondent, while acknowledging that there are indeed two certificates submitted that the applicant's advocate should have been more proactive by physically visiting the court registry. He cited the case of Juma Sitta Bundara & 3 Others v. Kidee Mining (T) Limited [2022] TZCA 47, in which the court considered the co- existence of two certificates to be inconsequential bearing in mind the overriding objective principle. I note that in Juma Sitta Bundara (supra) the court was dealing with points of preliminary objection while in this case I am dealing with an application for extension of time. The question that I must address is whether the applicant has raised reasons for the delay in filing the memorandum and records of appeal. At this stage I better reproduce the contents of paragraph 11 of the affidavit that was taken by Mr. Samson Mbamba for the applicant as well as paragraph 11 of the affidavit in reply that was taken by Mr. Joseph Rutabingwa on behalf of the respondent. Paragraph 11 of Mr. Mbamba's affidavit reads: 'That as o f now there are two certificates o f delay issued to me both o f which are incorrect and cannot 3

be relied upon for the filing o f an appeal, hence an application for extension o f time to file the said appeal". In reply, Mr. Rutabingwa stated at paragraph 11 of the affidavit in reply: 'That the contents o f paragraph 11 o f the affidavit of the applicant is disputed and I state that the discrepancy if any is, is not a ground o f extension o f time and I repeat what is stated under paragraph 10 ". It should be noted that under paragraph 10 of the affidavit in reply the deponent had stated that the applicant should have resolved his complaint with the High Court Commercial Division. In my view there is no dispute that the applicant was under the mercy of the Registrar, having written to request for supply of copies of the proceedings. It is also not in dispute that had the Registrar acted properly in terms of rule 90 of the Rules, this application would not have been necessary. It is settled that parties should not be punished for mistakes committed by the court as we stated in Mount Meru Flowers Tanzania Limited v. Box Board Tanzania Limited [2019] TZCA 434. In the case cited above the dilemma which a party was confronted with was as distasteful as placing a party between a rock and a hard surface. So is the predicament facing the applicant in this case. With respect I wonder how would the applicant deal 4

with the Registrar of the High Court any how other than by writing letters? In the written submissions by Mr. Mbamba, he demonstrates his frustration by writing as follows: 'The certificate o f delay dated August 2019 did not cancel or amend or at least address itself to the one already issued dated 25th February 2019. Moreover, this second certificate while it was issued on Sth August 2019, exempted the time to appeal from 24th September 2018 to 18th June 2019 before even the receipt o f the documents issued to the applicant on 9th August 2019". If one appreciates the dilemma the applicant found himself in, at the High Court, the suggestion that he should have gone back to the same High Court is hard to accept. I am not losing cite of the fact that a notice of appeal had already been lodged with the Court. Not only are the powers of this Court under rule 10 of the Rules are unfettered, as it were, but sending the applicant back to the High Court on a purely technical reason is not consistent with the spirit of overriding objectives which requires determination of matters in court to be in such a way that achieves speed and at lower cost. Section 3B (1) (c) of the Appellate Jurisdiction Act Cap 141 provides: "For the purpose o f furthering the overriding objective specified in section 3A the Court shall handle all matters presented before it with a view to attaining the following: 5

(a) Just determination o f the proceedings. (c) Timely disposal o f the proceedings in the Court at a cost affordable by the respective parties". My settled view is that what the applicant has submitted on is sufficient to grant him extension of time. Consequently, I give the applicant sixty (60) days from the date of delivery of this ruling to file a memorandum and record of appeal. DATED at DODOMA this 18th day of March, 2026. The Ruling delivered this 19th day of March, 2026 in the presence of Mr. Evodius Rutabingwa, learned counsel for the Respondent also holding brief for Mr. Samson Mbamba, learned counsel for the applicant, via virtual Court and Mr. Issa Issa, Court Clerk is hereby certified as a true cop^ r " ' 1 I. P. KITUSI JUSTICE OF APPEAL 6