Marco Tluway Mallange vs Principal Secretary Ministry of Defence & National Service & Others (Civil Application No. 328/11 of 2024) [2025] TZCA 1205 (20 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 328/11 OF 2024 MARCO TLUWAY MALLANGE . ................................. . ..................... APPLICANT VERSUS PRINCIPAL SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE ....................................... 1 st RESPONDENT THE ATTORNEY GENERAL................................................... 2 nd RESPONDENT THE CHIEF DEFENCE FORCES OF THE TANZANIA PEOPLES DEFENCE FORCE............... . ..................3 rd RESPONDENT THE COMMANDING OFFICER 25KJ MILAMBO ...................... 4™ RESPONDENT (Application arising from the decision of the High Court Tanzania at Tabora) (Khamis, J.) dated 13th day of November, 2020 in Misc. Civil Application No. 52 of 2018 RULING 11th & 20th November, 2025 MURUKE, 3.A. It is unfortunate that, the applicant has been seeking for right to be heard for 30 years in other forums, before knocking the door of the High Court in 2017, seeking an extension of time for leave to file judicial review. From the nature of this application, brief back ground is of necessity. The applicant, MT. 1489 CPL, MARCO TLUWAY MALLANGE, was the employee of Tanzania Peoples Defence Force, stationed at 25KJ Mlambo, Tabora, at the time cause of action arose. He was orally terminated from employment on 15th November, 1988 when he was attending treatment at i Muhimbili Medical Hospital. Soon after termination, on 5th December, 1988, he challenged the said termination in the Court Martial, by writing a letter showing his dissatisfaction of the said termination, but he was denied right to be heard. He further made some initiatives to present his claim to his employer in order to rectify the unlawful termination but he was not successfully. After all the interna! initiatives failed, on 2017, he decided to lodge his complaint to the Ordinary Court for intervention including filing of Misc. Civil Application No. 16 of 2017 and Misc. Civil Application No. 32 of 2017 but all applications were unsuccessful. That, on 2018 in pursuing further of his rights, he filed Misc. Civil Application No. 52 of 2018 unsuccessful, as on 13th November, 2020 the said application was struck out for being incompetence. Being aggrieved with the said decision, on 8th December, 2020 the applicant lodged a Notice of Appeal intending to appeal to the Court of Appeal and on the same date, wrote a letter requested to be supplied with the certified copies of proceedings, ruling and Orders. That, on 15th December, 2020 the Deputy Registrar informed the applicant that proceedings, ruling and orders as requested were ready for collection. Unfortunately, due to his sickness and he had no other support he could not managed to obtain monies on time to file his appeal. It was until on 25th October, 2023 when the applicant filed, Misc. Civil Application No. 43 of 2023, that was marked withdrawn on 27th February, 2024 on the reason of incompetence. Intending to challenge the ruling in Civil Application No 52 of 2018, but was out of time, hence this application. In essence, the applicant intend to challenge his termination alleging being tainted with illegality, and Misc. Civil Application No..52 of 2018, before the High Court was also tainted with illegality as he was not afforded a right to be heard. The application is supported by an affidavit of the applicant himself. The respondent resisted the application by filling an affidavit sworn by Ms. Pauline Mdendemi, Senior State Attorney, from the office of the Solicitor General. On the date set for hearing of the application, the applicant was in person not represented appeared Virtually from Tabora High Court. Whereas Ms. Pauline Mdedemi, learned Senior State Attorney, assisted by Mr. Gureni Mapande, learned State Attorney appeared representing the respondents. When applicant was invited to argue his application, he first adopted Notice of Motion and the affidavit in support of the application to form part of his oral arguments and further submitted that one; when dismissed from his employment in 1988 he was not given rights to be heard because was dismissed while attending medical treatment at Muhimbili Medical Hospital. Two; after series of struggle to the Court Marshal, yet was not given right to be heard including administrative approach that did not bear any fruits. Three; struggling for treatment without any finance, while aged, he managed to file application to the High Court for extension of time to file leave to file judicial review. However, he was also not given rights to be heard when his application was dismissed on the respondents fault of not filing submission on the preliminary objection as ordered by High Court. Four; the High Court ought to have dismissed the respondent's notice of preliminary objection for failure to prosecute not to dismiss his application without being heard. Five; when terminated, was not paid any thing as his rights, thus need of challenging termination is important. The applicant in the end insisted that, he be granted extension of time on the ground started above. On the part of the respondents, the learned Senior State Attorney, resisted the applicant submission-on the following reasons: One; applicant has failed to account for delays of the delay for the Court to grant the extension sought. Applicant after filing Notice on 8th December, 2020 and a letter requesting for copy of proceeding, ruling and drawn order did not act promptly. The registrar replied on 15th December, 2020 that the requested documents were ready for collection, but applicant did nothing until 25 October, 2023, when he filed Misc. Application No. 43 of 2023. Two; the applicant has raised issue of old age and not having money as ground for extension to justify delay. That is not sufficient cause refering the Court to the case of Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No 8 of 2016, [2018]17CA 39. Three; applicant has raised issue of sickness, it is not in the affidavit in support of the application, cannot be raised at the stage of hearing as it is a factual issue. Four; Issue of illegality of decision complained by the applicant is not on the face of record. More so, at the High Court applicant's application was dismissed because none of the parties filed submission. The High Court discussed the issue raised as was on limitation. Five; in totality applicant demonstrated negligence in prosecuting his case by not observing time within which to take actions at different stage of his dispute, referring the Court to the case of Lyamuya Construction Company limited v. Board of the Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No 2 of 2010 [ 2011] TZCA 4. In totality, the respondents Counsel pressed for dismissal of the application for lack of merits with costs. In rejoinder, the applicant had nothing new to add, only said the respondents knew of his sickness long time ago, they cannot deny at this stage. . Having heard the rival arguments from both parties, the remaining tasks before me to resolve is, whether the applicant has fronted god cause for the delay to warrant the exercise of my discretion in his favour in terms of Rule 10 of the Rules. For clarity, I find it necessary to reproduce the said rule in fuli: - "The Court upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal, for the doing of any act authorized or required by these Rules, whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as reference to that time as so extended. The above cited provision, requires the applicant to show good cause for the delay in filing application for leave within prescribed time. The Court through a number of decisions provided guidelines on factors to consider when determining what is good cause in such cases as: Kalunga & Company Advocates Ltd vs National Bank of Commerce Ltd [2006] TLR, 235 and Attorney General v. Tanzania Ports Authority & Another, Civil Appeal No 87 of 2016 ( unreported) to mention a few. Matters to consider when exercising discretion to grant extension of time include; the length of the delay, the reason for the delay, and degree of prejudice if any to be suffered by the respondent if application is granted. Equally so, the Court may grant an extension of time if a party can show that the delay was due to circumstances beyond their control acceptable in the eyes of the law. However, circumstances differs from one case to another. The rationale behind granting an extension of time to take action, as provided by the law, is to ensure fairness justice, and flexibility in the legal process. My starting point will be when the applicant filed Misc. Application No 52 of 2018, at the High Court of Tanzania at Tabora, seeking extension of time within which to apply for leave to file judicial review, for the orders of Mandamus, against the third respondent. The respondents raised preliminary objections, which were ordered to be disposed by way of written submission on the schedule agreed. On the date of the ruling, it appeared that the respondents who raised the same did not file submission. The applicant did not get anything to respond. However, High Court proceeded to decide over the preliminary objection as same were based on competence of the application that goes to the jurisdiction of the Court. At the end, the High Court struck out the application on 13th November, 2020 for incompetence. This is the base of the complaint by the applicant. Specifically at paragraph at paragraph 11 of applicant affidavit he complained that: "That an act o f the Learned Judge to struck out the application No 53 o f 2018, without affording me right to be heard offends Constitution right and violate my right to seek justice for unlawful termination , as I was aggrieve with the decision as an employee I could not file appeal in time hence this application," Complaint by the applicant as shown above is that he was not given right to be heard. First; this cannot be accepted because, after failure by the respondent to file submission on the preliminary objections, the High Court Judge preceded to determine the same as was a point of law on the competence of the application, which goes to the jurisdiction of the court. After determination, the court struck out the application. Thus, the light to be heard as ground for extension of time lacks merits. Second; applicant has raised issue of being sick as cause of the delay. However, there is no evidence attached to the affidavit in support thereof to prove the same. Legally, an affidavit being sworn evidence reduced into writings, needs attachment to prove facts alleged like medical chit. Bare assertion, like what the applicant has deposed in his affidavit, that he was sick cannot be.accepted. In the case of Benjamini Amors v. The Republic, Criminal application No. 1.06/11 of 2018, (2020) TZCA, 335 the Court at page 7 held that: "To succeed on that point ; the applicant should have indicated the same in his supporting affidavit and furnish proof o f illness and medical chits in relation to the period o f delay. None has been placed before the court and the applicant's claim remains to be a bare assertion incapable o f having evidencial value to persuade the Court to exercise its discretion under Rule 10 o f the Rules." Third; the applicant has raised also issue of financial constraint as one of the reason for delay. To be honest, same cannot be regarded as sufficient cause. Same principal was insisted by the Court in the cases Wambele Mtumwa (supra) and the case of Constantine Victor John v. Muhimbili National Hospital, Civil Application No 214/ 18 of 2020 [2021] TZCA 77. Fourth; The applicant has also raised issue of age as reason for delay. It might be a reason, however the applicant has not stated and proved his age in the affidavit for the Court to determine. Bare assertion cannot be accepted. The remaining issue is whether applicant has accoutered for days of the delay. After applicant application Misc. Civil Application No. 52 of 2018, was struck out on 11th November, 2020 the applicant filed Notice of appeal on 8th December, 2020 and wrote a letter to be supplied with proceedings ruling and drawn order, in terms of paragraph 8 of his affidavit in support the application. On ,15th December, 2020. After 7 days, ie 15th December, 2020, the applicant received the letter from the registrar that necessary documents were ready for collection. It was until 25th October, 2023 when applicant filed Misc. Civil Application No. 43 of 2023. That period from when supplied with the documents for appeal purposes on 15th December, 2020 to 25th October, 2023 period of 2 years and 10 months is not countered for. Equally so, applicant did not count days of delay from when Misc. Application No 43 of 2023, was withdrawn at the applicant instance, on 27th February, 2.024 to the date of filing present application on 30tn April 2024, more than 60 days. In an application for extension of time to succeed, the applicant has to account for each day of the delay, however slight it may be. In the case of Bushiri Hassani v. Latifa Lukio Mashayo (Civil Application No. 3 of 2007) [2008] TZCA 220 the Court stated that: "...Delay of even a single day, has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken. "(Emphasis added) Accounting for each day of the delay in an application for extension of time was also cemented in the case of Masato Manyama v. Lushamba Village Council (Civil Application No. 274/08 of 2024) [2025] TZCA 34 that; "...as explained above, the law is settled. In an application for extension o f time each day passed beyondprescribed time has to be counted for. In the case o f Bushiri Hassan v. Latifa Lukio Mashayo, and application No. 3 o f 2007 (unreported) Court stressed that: "Delay, o f even a single day, has to be accounted for otherwise there would be no point o f having rules 10 prescribing periods within which certain steps have to be taken." From exposition of the case law above, applicant has failed to account for each day of the delay. Before winding up, I wish to say something by passing; from the pleadings the applicant seem to be seriously affected. However, he is not properly prosecuting his claim. Court cannot act on unproved issues, however serious they may be. In totality applicant has failed to adduce sufficient cause. Accordingly, application for extension of time is dismissed with no order as to costs as same originates from employment matter. DATED at DODOMA this 20th day of November, 2025. Z. G. MURUKE 1IJSTICE OF APPEAL Ruling delivered virtually this 20th day of November, 2025 in the presence of the applicant in person Mr. Gureni Nzinyangwa Mapande, learned State Attorney for the respondents and Ms. Harida Hamisi, the Court Clerk; is hereby certified as a true copy of the original. ii