Dismas K. B. Francis vs Tabora Municipal Director (Civil Application No. 1353 of 2024) [2025] TZCA 1197 (14 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 1353 OF 2024 DISMAS K. B. FRANCIS..........................................................................APPLICANT VERSUS TABORA MUNICIPAL DIRECTOR........................................................ RESPONDENT (Application for extension of time to file Notice of Appeal to the Court of Appeal of Tanzania out of time from the decision of the High Court of Tanzania at Tabora) (Masanche, J.) dated the 11th day of March, 1998 in Civil Appeal No. 31 of 1997 RULING 11th & 14h November, 2025 KITUSL J.A.: This is an application for extension of time. The fact that the applicant first went to Court 32 years ago and is still pursuing what he considers to be his right, is not something to cherish about. He first filed Civil Case No. 51 of 1993 before Tabora District Court demanding some payments from the respondent, his former employer. He lost in the trial of that case and unsuccessfully appealed to the High Court. There is no dispute that the judgment of the High Court was delivered on 11th March, 1998 in the absence of the parties. i One of the grounds cited in the present notice of motion is that notice of the delivery of the judgment by the High Court reached the applicant when the time for appeal had elapsed. The applicant took a number of steps according to his affidavit, all to no avail. To cut the long story short, he filed Misc. Civil Application No. 22295 of 2024 for extension of time to lodge a notice of appeal against that old decision of the High Court. However, that application was refused on 28th October, 2024. The applicant has come for a second bite. At the hearing of this application in the presence of the applicant appearing in person, and Mr. Samwel Mahuma, learned State Attorney for the respondent, I heard the parties argue a point of preliminary objection which had earlier been raised by the respondent. Both in the notice of preliminary objection and his brief address, Mr. Mahuma contends that in terms of rule 45(a) (1) (c) of the Court of Appeal Rules,2009, (the Rules) a second bite application has to be filed within 14 days of the refusal by the High Court. It is common ground that the application was refused by the High Court on 28th October, 2024 and that this second bite application was filed on 3rd December, 2024. Surely the application has been filed beyond the statutory 14 days and the applicant does not dispute that fact. However, the applicant has made submissions to justify the delay. The applicant's submission is that the respondent and its lawyers who are known for setting up traps calculated at defeating his applications, had intentionally twisted the respondent's name in the counter affidavit filed at the High Court, to wrongly read TABORA MUNICIPAL COUNCIL instead of TABORA MUNICIPAL DIRECTOR. The applicant submitted that he was smart to know that such wrong naming would invite problems to his subsequent litigations against the respondent. He decided to make a follow up with the Court Registry to have a properly titled copy of ruling issued to him. He went on to submit that the time spent in the follow up, which he said was necessary, caused delay in the filing of the present application. The applicant conceded however, that these facts are not reflected in his affidavit. In contesting the application and the explanation, Mr. Mahuma cited the case of Kahambi Iddi v. Hidaya Shaban, Civil Application No. 544 of 2018 [2019] TZCA 484. The case is for the principle that it is not open to the applicant to account for the delay in the course of arguing an application that has already been filed out of time, more so when that account is not reflected in the affidavit. Moreover, the application has no room for raising submissions that have the effect of pre empting a point of preliminary objection. I agree with the learned State Attorney. The settled position of the law as per our decisions is that the law of limitation has to be strictly followed. In the case of M/s P & O International National Parks (TANAPA) (Civil Appeal No. 265 of 2020) [2021] TZCA 248 in which our other previous decisions were cited, the Court insisted that the law of limitation is a merciless sword. It is this merciless aspect of the law of limitation that leaves me with no option but to sustain the point of preliminary objection. The applicant's effort to correct the copy of ruling, would not have caused him trouble had he done it within the confines of rule 45(A) (1) and (2) of the Rules. That rule provides: "45A.-(1) Where an application for extension o f time to:- (a) lodge a notice o f appeal; (b) Apply for leave to appeal; or (c) Apply for a certificate on a point o f law, is refused by the High Court, the applicant may within fourteen days o f such decision apply to the Court for extension o f time. (2) In computing the time within which to lodge an application under this rule, there shall be excluded such time as may be certified by the Registrar of the High Court as having been 4 required for preparation of a copy of the decision and the order". Since the applicant did not call that provision to his aid, the application is time barred as submitted by the respondent and the applicant could not pull the hat out of the cat by submitting as he did. So, the preliminary objection is sustained. The application is struck out with no order as to costs. DATED at DAR ES SALAAM this 13th day of November, 2025. I. P. KITUSI JUSTICE OF APPEAL The Ruling delivered virtually this 14th day of November, 2025 in the presence of the Applicant in person and Mr. Gureni Mapande, learned State Attorney for the Respondent, Mr. Fidelis Choka, Court Clerk, is hereby certified as a true copy of the original. 5