John Haule & Another vs Wazalendo Saccos Ltd (Civil Application No. 503/05 of 2024) [2025] TZCA 1186 (14 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 503/05 OF 2024 DR. JOHN HAULE............................................... . ....... APPLICANT MAGRETH MBANZA ............ . ................................... . 2 nd APPLICANT VERSUS WAZALENDO SACCOS LTD ......................................... RESPONDENT (Application from the Judgment and Decree of the High Court of Tanzania, Moshi District Registry at Moshi.) ( Twaib, J.^ dated the 14th day of November, 2019 in Civil Appeal No. 10& 11 of 2017 RULING 06th & 14th November, 2025 MURUKE, J.A.: The present application emanates from peculiar case, as cases of this nature are not common, thus, needs of narrating background briefly. The Registrar of Co-operative Societies issued Certificate of Surcharge under section 95(3) (b) of the Co-operative Societies Regulations 2015, requiring D r. John Haule and Magreth Mbanza, to pay the respondent, Wazalendo Saccos Ltd, TZS 720,112,535 and 303,707,829, respectively. On 23r d February, 2017, the respondent lodged the respective Certificates of Surcharge to the Resident Magistrate Court of Moshi i under section 95 (3) (b) of the same act, through Misc. Application Nos. 9 & 11 of 2017, praying for the Certificate of Surcharge to be indorsed as the decree of the Court, which was endorsed. The order then, read as follows: " The application is hereby granted, the Certificate o f surcharge is hereby indorsed as the decree o f the Court". After the Certificates of Surcharge were indorsed as decree of the court and ready for execution in terms of section 95 (4) of the Cooperative Societies Act, 2013, the applicants herein filed at the RM'S Court chamber Summons supported by affidavits in Misc. Applications Nos 25 & 29 of 2017 inviting the Court to consider the following prayers: (a) That the Court to inquire and ascertain the validity o f the amount o f TZS 720,122,535 and TZS 303,707,82 respectively payable under the Against the applicants. (b) That the Court to ascertain the procurement o f the decree on the Said sum which was indorsed by the Court on 24h February, 2017 Extracted from the Certificate o f Surcharge against the applicants Dated 2(fh February, 2017. (c) That the Court be pleased to determine the procedural propriety as whether they satisfy the decree by the Court against the applicant; 2 (d) That the Court be pleased to vacate the endorsement o f the decree; (e) Costs o f the application and any other relief Court deem fit The RM'S Court heard the above prayers by way of written submissions. In its finding, which are similar in both applications, it rejected payers a, b, and c on the ground that it had no jurisdiction to entertain them. However, it went on allowing prayer (d) by vacating the decree. The relevant part of its findings is reflected at page 5,8 and 9 same reads as follows: "The Court cannot ascertain the procurement o f the decree. ..... and Satisfy the decree against the applicant as in doing so will amount to ascertaining and hearing the evidence while this Court has no such power. Consequently, the prayers under paragraph a, b, and c o f the chamber summons are hereby struck out" The above notwithstanding, the RM'S went on holding that: "In the final analysis I find that, the applicant was not supplied with the result from the Minister responsible for the Cooperative Societies as no proof o f service shown. That, there were two notices o f Surcharge and no plausible explanation given by the respondent 3 the aim o f such two notices. That the Certificate o f Surcharge filed in Court show that there was no appeals contrary to para 3f 4 and 6 o f the counter affidavit which has confirmed that there was appeal to the Minister lodged by the applicant. This render the Certificate o f Surcharge dated 20/02/2017 filed in this Court as a decree be premature. These are matters arising between the parties to this case. The Court has power to make order for the end o fjustice under S. 38 (l)f 68 (e) and 95 o f the CiviI Procedure Code, 1966 (Cap 33 R.E. 2002). That being the issue, this court hereby vacate the indorsement o f the decree ... claimed against the applicant for being premature with costs as prayed for under para 'd' and 'e' o f the chamber summons." The respondent was dissatisfied with the order of vacating the decree, thus filed Civil Appeals No, 10 & 11 which same were consolidated in the cause of hearing. Upon hearing both parties, the High Court allowed the appeal, set aside the orders, that vacated the indorsement of the Certificate of Surcharge in two Misc Application No 9 & 11 of 2017 and the High Court on 14th November, 2019, accordingly, restored the indorsement done of 24th February, 2017. 4 Applicants were not satisfied they thus filed to this Court Civil appeal No 10 of 2021, after being granted extension of time in Misc Civil Application No 4 of 2020. However, appeal by the applicant was stuck out on 29th September 2023, for failure by the applicant to attach letter from the registrar notifying them that proceedings were ready for collection to justify the Certificate of delay issued. It was followed with the applicant filing extension of time to file Notice of Appeal which same was granted on 30th May 2024 in which applicants were granted 14 days to file Notice of appeal. Notice of appeal was filed on 31s t May and served to the respondent on 5th June 2024. Applicants then filed present application, on 14th June 2024 and served to the respondent on 21s t June,2024. On the date set for hearing of the application, Mr. Alfred Sindato represented the applicant appeared Virtually from Moshi, whereas M r. Hassan Herith and M r. Boniface Wambura learned counsels, represented the respondent, were both present in Dodoma. Upon been called to submit on the application Mr. Sindato first adopted the Notice of Motion, affidavit in support thereof and submission filed earlier to be part of his oral argument. M r. Sindato submitted in brief that reason for the delay are articulated from paragraph 2 to 13 of the affidavit in support of the Notice of Motion in 5 that one; the High Court Decision is tainted with illegalities. Two; applicants have countered for delays of 1624 days from when the High Court decision was made on 14th November, 2019 to the date of filing present application, on 14th June 2024. In totality, applicants have exhibited sufficient cause to justify delay, thus application should be granted. The respondent counsel resisted the application on the following grounds: one; applicant has not counted each day of the days delayed. Two, the applicant, had 1624 days to take action but did not do so within time. The requirement of the law of counting days of the delay must be followed. Three; applicant were supposed to appeal to the Minister responsible to challenge decree emanated from endorsement of Certificate of Surcharge. Four; the grant of the extension of time to file appeal to the Court will be of no value at all, as the applicant are prosecuting their application in a wrong forum. In totality there no diligence on the part of the applicant, the respondent counsel then prayed for dismissal of the application. In rejoinder, the applicants counsel insisted that, the delay is technical and that Court should grant orders sought in the Notice of Motion. 6 Having heard the counsel from both sides, the issue for my determination is whether the applicant has adduced sufficient cause to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the Rules, for an application of extension of time to be granted,the applicant is required to show good cause for thedelay. The said Rule provides that: "The Court upon good cause shown, extend the time limited by these Ruies or by any decision o f the High Court or tribunal, for the doing o f any act authorized or required by these Ruies, whether before or after the doing o f the act; and any reference in these Ruies to any such time shall be construed as reference to that time as so extended". It is also important to underscore here that, under the above cited provisions, what the applicant is required to do is to show good cause for delay to move the Court to grant the application. This stance has been taken in a number of decisions which includes the case of Kalunga & Company Advocate v. National Bank of Commerce Limited, (2006) T.L.R 235. In exercising its discretion, of whether or not to grant extension of time the Court is required to consider the following factors which may not be exhaustive, but at the moment they include, that: 7 (3) Accounting all period o f delay; (b) Delay should not be inordinate; (c) The applicant must show diligence and not a party, negligence or sloppiness o f the action that he intends to take; (d) I f the Court sees that, there are other sufficient reasons, such as existence o f point o f law o f sufficient importance such as the illegality o f the decision sought to be challenged. Legally, an application for extension of time to succeed, the applicant has to account for each days 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 o f 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) Same principal was stated in the case of Ndorosi Siatoi v. Veredian John (Civil Application No. 161/02 of 2024) [2024] TZCA 1080: "... it was established that, for a good cause to be shown, the applicant must account for each day o f the delayed days and express whether he was diligently in conducting the matter. See Bushiri Hassan v. Latifa Mashayo, Civii Application No. 2 o f 2007 and Vodacom Foundation v. Commissioner Genera / (TRA ), Civil Application No. 107/20 o f 2017 (both unreported)." In the case of Rashid Said Kautipe v. Zoeb F. Kadarbhai & Another (Application No. 19/17 of 2022) [2024] TZCA 254, it was observed that: "As regards such other legal requirement, it is trite law that, in order an application for extension o f time to succeed, the applicant has to account for each day o f the delay, however slight it may be. For instance, in Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 o f 2007 (unreported), the Court stated that: "... Delay o f 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) Counting of 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, "...as explained above, the law is settled. In an application for extension o f time each day passed beyond prescribed time has to be counted for. In the case o f Bushiri Hassan v. Latifa Lukio Mashayo, and application No. 3 o f2007 (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 prescribing periods within which certain steps have to be taken." The applicant has failed to account days of the delay. M r. Sindato's affidavit that applicant lodged the Notice of Appeal on 31s t May 2024 and filed present application on 14th June, 2024 as blanket statement cannot be accepted, bearing in mind the matter has been in Court since 2017, promptness was a matter of necessity. The applicant ought to have accoutered from 31 May, 2024 when filed Notice of Appeal to 14th June, 2024, what was being done on each day, as expounded by list of this Court decision cited above. In Law of Limitation, each day passed beyond prescribed time counts and it has to be accoutered for. Failure to do so, it is hard for the Court to act on 10 a blanket statement as the one averred by the applicant's counsel to support technical delay. The applicant has raised issue of illegality in the decision of the High Court as one of the ground to seek extension. With respect to the applicant counsel, illegality must be on the fact of the record, it is not an issue that needs log drawn arguments. It is not that need to be ascertained after long process of arguments. It is neither issue of jurisdiction nor issue of time limitation. The position that, illegality must be on the face of record, was insisted in the case of Lyamuya Construction Company Limited v. Board of Registered Trustee of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 513 3 October 2021 TanzLII Court observed that: "Since every party intending to appeal seeks to challenge a decision either on points o f law or facts, it cannot in my view, be said that in VALAMBIAS 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 emphasised that such point o f law must be that o f sufficient importance and, I would add that it must also be apparent on the l i face o f the record, such as the question o f jurisdiction; not one that would be discovered by a long drawn argument or process", Reading affidavit in support of the application, issue of illegality of decision sought to be challenged as raised by the applicant counsel not only is not on the face of record but also cannot justify failure by the applicant to account for each day of the delay. To accept the applicant assertion, will be to bless the delay by the applicant hiding under the shield of illegality in the circumstances of this case. The same issue of illegality not being used as shield for not counting days of delay was discussed in the case of Mtengeti Mohamed vs Blandina Macha (Civil Application No. 344 of 2022) [2023] TZCA 17328, "It is needless to say that, by any standard, the present application has been brought after a considerable delay which has not been accounted for. In view o f this, I would but reiterate here what this Court held in the case o f William Kasian Nchimbi and three others v. Abas Mfaume Sekapala and Two Others, Civil Reference No. 2 o f 2015 that, as a shield to illegality cannot be used hide against inaction on the part o f the applicants. And if I may add, the position set by our previous 12 decisions is that, irrespective o f the nature o f the grounds advanced by the applicant in support o f an application for extension o f time, he must as well show diligence, and not apathy, negligence or ineptness in the prosecution o f the action that he intends to take. (See Lyamuya). [Emphasis added]" In the end, the applicant has failed to adduce sufficient cause to justify granting of the extension of time sought to file appeal to the Court. Thus, the application is dismissed with costs. DATED at DODOMA this 14th day of November, 2025. Ruling delivered virtually this 14th day of November, 2025 in the presence of Mr. Alfred Sindato, learned Counsel for the Applicants from Moshi, Mr. Boniface Wambura, learned Counsel for the Respondent and Ms. Rehema Makakala, Court clerk, is hereby certified as a true copy of the original. Z. G. MURUKE JUSTICE OF APPEAL W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL 13