Nassir Hussein Siri vs Rashid Mussa Mchomba (Civil Reference No. 24 of 2023) [2025] TZCA 1319 (30 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: WAMBALL J.A., KAIRO, 3.A. And NANGELA, 3.A.) CIVIL REFERENCE NO. 24 OF 2023 SIRI NASSIR HUSSEIN SIRI ......... ........................................APPLICANT VERSUS RASHID MUSSA MCHOMBA (Administrator of the Estate of the Deceased MUSSA MCHOMBA MASSAWE ...................RESPONDENT (Application for Reference from the Ruling and Order of a Single Justice of the Court Appeal of Tanzania at Arusha) fMdemu, J.A.^ Dated the 2n d day of October, 2023 in Civil Application No. 692/02 of 2021 RULING OF THE COURT 9™ October & 30™ December, 2025 WAMBALI. J.A.: This is an application for Reference against the ruling and order of the Single Justice in Civil Application No. 692/02 of 2021. The applicant has approached the Court in terms of rule 62 (1) (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeking an order to reverse the impugned ruling and order of the Single Justice. In the impugned ruling, the respondent was granted extension of time to file a notice of appeal against the Judgment and Decree of the High Court of Tanzania at i Arusha in Civil Appeal No. 15 of 2009 dated 18th May, 2010. It is apparent in the record of the application that, the respondent was aggrieved by the judgment and decree of the High Court in the said appeal, and thus he lodged a notice of appeal on 21st May, 2010. It is further apparent in the record of the application that the respondent lodged several applications both in the High Court and the Court seeking to approach the Court on appeal. However, for the purpose of this ruling, it is noteworthy that the applicant approached the Court through Civil Application No. 24 of 2016, in terms of rule 89 (2) of the Rules and successfully convinced the Court to strike out the notice of appeal for failure by the respondent to take essential steps to lodge an appeal within the prescribed period. The ruling of the Court was delivered on 4th August, 2017. In the circumstances, the respondent lodged Miscellaneous Civil Application No. 98 of 2018 before the High Court seeking extension of time to lodge a fresh notice of appeal to challenge the decision in Civil Appeal No. 15 of 2009. The application was nevertheless dismissed by the High Court (Moshi, J as she then was) on 9th August, 2018. Still determined to appeal, in terms of rule 45A (1) (a) of the Rules, the respondent lodged in the Court Civil Application No. 119/02 of 2019 seeking extension of time to file a notice of appeal after the High Court refused a similar application. However, the respective application was not heard on merit because on 23rd November, 2021, the Court granted leave to the respondent to withdraw it because it was preferred after the lapse of 14 days prescribed by the rule 45A (1) (a) of the Rules. As it were, that was not the end of the road as on 30th November, 2021, the respondent lodged in the Court Civil Application No. 692/02 of 2021 seeking extension of time within which to lodge an application for extension of time to lodge a notice of appeal against the decision of the High Court in Civil Appeal No. 15 of 2009. The application was preferred under rules 10 and 45A (1) (a) of the Rules. The Single Justice heard the parties' contending submissions and ultimately, he granted the application on the basis of rule 45A (1) (a) of the Rules. In his ruling, the Single Justice particularly concluded as follows: 7/7 the fin a l analysis, and fo r the foregoing, I am o f the firm view that, the applicant herein has dem onstrated sufficient cause basing on two reasons; technical delay and ground o f ille g a lity in the impugned decision, I thus find m erit in the application and consequently allow the same. Costs to follow the outcome o f the intended appeal". The ruling and order of the Single Justice prompted the applicant to lodge the instant reference before the Court. The applicant has outlined four grounds of reference. However, at the hearing of the application, it was apparent that the reference can be considered and determined on the basis of the first ground, which states thus: "The Hon. Single Justice o f the Court m isdirected him seifin treating and determ ining C ivil Application No. 692/02 o f 2021 as a second bite application for extension o f tim e to lodge the notice o f appeal, whereas it was an application fo r extension o f tim e within which to bring a second bite application fo r extension o f tim e to lodge a notice ]o f appeal against the decision o f the High Court o f Tanzania a t Arusha in C iv il Appeal No. 15 o f2009 by Judge K.M.M Sambo delivered on the I8 h May, 2010, a lte r the Respondent having form erly withdrawn C iv il Application No. 119/02 o f 2019 before Hon. Fikirini, J.A. which was file d out o fprescribed 14 days in term s o f Rule 45A (1) (a) o f the Tanzania Court o fAppeal, 2009". i At the hearing of the application on 9th October, 2025, the applicant was represented by Mr. Ezra Joshua Mwaluko, learned advocate. On the other side, neither the respondent nor his advocate appeared despite being duly served through Vigilance & Aura Attorneys on 29th September, 2025. The evidence of service is backed by the signature of Sabato Ngogo, learned advocate, on the notice of hearing. In the circumstances, Mr. Mwaluko, prayed for the hearing of the application to proceed in the absence of the respondent, in terms of rule 63(2) of the Rules. We accordingly granted the prayer. In this ruling, we will therefore only consider the applicant's written and oral submissions as the respondent did not lodge written submissions. Submitting in support of the above stated ground of reference, Mr. Mwaluko adopted the written submissions. He added that the record of the application in Civil Application No. 692/02 of 2021 indicates clearly that before the Single Justice, the respondent had intended to apply for extension of time to lodge an application for extension of time to file the notice of appeal after his previous application for a second bite was marked withdrawn by the Court because it was time barred. The learned advocate argued further that the Single Justice therefore wrongly treated and determined the application as if it was an application for extension of time to file the notice of appeal (commonly referred as a second bite) after the High Court (Moshi, J) had refused a similar application, that is Miscellaneous Civil Application No. 98 of 2018. He emphasized that the respondent could not have approached the Court on a second bite application because, he had previously lodged Civil Application No. 119/02 of 2019 which was withdrawn on 23rd November, 2021. He submitted further that the withdrawal was necessitated by the fact that the application was preferred after expiry of 14 days. It was from this background that the respondent lodged the application which was placed before the Single Justice seeking extension of time to lodge a second bite application in the Court. Mr. Mwaluko therefore beseeched the Court to allow the application for reference with costs and reverse the decision of the Single Justice. We have carefully scrutinized the record of the application and the ruling made by the Single Justice. We are satisfied that though it is apparent that the respondent approached the Court seeking extension of time to lodge a second bite application to file the notice of appeal, the same was treated as if it was preferred under the provisions of rule 45A (1) (a) of the Rules. We further note that though the respondent indicated in the notice of motion that the application was preferred under rules 10 and 45A (1) (a) of the Rules, the order sought in the notice of motion and the affidavit shows clearly that it was an application for extension of time to file an application for extension of time to lodge the notice of appeal against the decision of the High Court. As correctly stated by Mr. Mwaluko, the said intention of the respondent is enhanced not only by the notice of motion and the supporting affidavit, but also by the fact that the initial application for a second bite before the Court was withdrawn after it was clear that it was time barred. It is therefore unfortunate that the Single Justice approached the application and determined it in terms of rule 45A (1) (a) of the Rules as an application for extension of time to lodge a notice of appeal after a similar application was refused by the High Court. On the contrary, he was enjoined to consider it as an application for extension of time to lodge a second bite application for extension of time to fodge a notice of appeal. At this juncture, the crucial issue is whether we should interfere with the decision of the Single Justice. It is appreciated that there are some principles upon which a decision of the Single Justice can be upset on an application under rule 62(1) (b) of the Rules. In G. A. B. Swale v. Tanzania Zambia Railway Authority, Civil Reference No. 5 of 2011 (unreported), the Court outlined the following, among other principles: (i) Only those issues which were raised and considered before the Single Justice m aybe raised in reference (See GEM AND R O CK VENTRUES CO, LTD VS YON A H A M IS MVUTAH, C iv il Reference No. 1 o f 2010 (unreported). And if the decision involves the exercise o fju d icia l discretion: (ii) I f a single Justice has taken into account irrelevant factors or; (Hi) if the single Justice has failed to take into account relevant m atters or; (iv) I f th ere is a m isapprehension o r im p rop er a p p re cia tio n o f th e ia w o r fa cts a p p iica b ie to th a t issu e o r; (v) If, looked a t in relation to the available evidence and iaw, the decision is plainly wrong. (See KM JA CM NERS LTS v. TITUS M U R IR ID O C TS (1996) LLR 5434 a decision o f the Court o f Appeal o f Kenya, which we fin d persuasive) (See also MBOGO AN D ANO THER v. SH AH (1996) IEA 93). [Em phasis added] In the instant reference, having carefully scrutinized the ruling and order, we have no hesitation to state that, there was a misapprehension or improper appreciation of the nature and context of the application which was placed before the Single Justice by the respondent. The misapprehension led the single Justice to reach to a different conclusion. Besides, the ruling of the Single Justice is clear from the beginning that 8 the application was being considered in terms of rules 10 and 45A (1) (a) of the Rules. On the contrary, through the application was premised both under rules 10 and 45A (1) (a) of the Rules it was essentially based on rule 10 of the Rules. Rule 45A (1) (a) of the Rules, could only be applicable if the application which was placed before the Single Justice succeeded. This would have paved the way for the respondent to approach the Court for a second bite application. On the other hand, note that the confusion which led to the misapprehension of the real issue which was before the Single Justice for determination might have been necessitated by the fact that, counsel for the parties also presented their arguments as if the application was preferred under rule 45A (1 (a) of the Rules. Be that as it may, consideringJ our deliberations above, we ultimately come to the conclusion that we have to interfere with the decision of the Single Justice. In the result, we allow the application for reference with costs. Consequently, we nullify and quash the ruling and set aside the order of the Single Justice. 9 Finally, we order that Civil Application No. 692/02 of 2021 be placed before another Single Justice for hearing and determination of the real issue in accordance with the law. DATED at DODOMA this 22n d day of December, 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Ruling delivered this 30th day of October, 2025 in the presence of the applicant in person, Mr. Philip Mushi, learned counsel for the respondent, via virtual Court and Ms. Tabitha Daniel, Court Clerk, is hereby certified as a true copy of the original. r . C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 10