Salum Ali Chambuso vs Paul Elias Maro & Another (Civil Application No. 861/01 of 2023) [2025] TZCA 1164 (21 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 861/01 OF 2023 DR. SALUM ALI CHAMBUSO ..................................................... APPLICANT VERSUS PAUL ELIAS M A R O .............................................................1 st RESPONDENT ALI SALUM HOT @ ALI KU KU ............................................2 nd RESPONDENT (Application for Extension of time in which to submit a letter requesting for certified copies of Proceedings, Judgment and Exhibits of the High Court of Tanzania at Dar es Salaam) (MihayOxJ.) dated the 28th day of February, 2007 in Civil Appeal No. 191 of 2004 RULING 13th & 21st October, 2025 MURUKE. J.A.: The applicant Dr. Salum Ali Chambuso, is imploring this Court to extend time within which he can file a letter requesting for certified copies of proceedings, judgments and exhibits in Civil Appeal No. 191 of 2004, delivered on 28th February, 2007, before the High Court (Mihayo, J.), on the following grounds; i

i. The application has obtained an application for extension o f time for filing notice o f appeal as well as for applying for leave so that he can pursue the appeal if leave is granted. //' That as letter requesting for records in Civil Appeal No. 191 o f2004 which was delivered on 2&h February, 2007 was also supposed to be lodged within thirty (30) days front the date o f decision. This application is for extension o f time so that the said letter can be prepared and lodged to the relevant Court requesting certified copies o f proceedings, judgment and exhibits in Civil Appeal No. 191 o f 2004 , which was delivered on 2&h February,2007, out o f statutory time H i. The applicant has prayed for leave to appeal in Miscellaneous Application No. 580 o f2023. Brief facts leading to this application as can be gleaned from the records reveals that, the 1s t respondent unsuccessfully sued the applicant and one, Ali Salum Hot @ Ali Kuku, the second respondent, before the Resident Magistrate's Court of Dar es Salaam at Kisutu (the trial court). The 1s t respondent claimed that he was a lawful owner of an unsurveyed piece of land, adjacent to the Field Force Unit (FFU), situated at Ukonga Mombasa, within the Dar es Salaam region, on account of sale agreement entered between him and the seller, on 28th March, 1993 at a price of TZS. 350,000.00. After the sale agreement, the 1s t respondent started initiatives to survey the disputed property.

However, sometime in 1995, he was surprised to find that the applicant was developing the disputed property. Upon inquiry, he was informed that the applicant bought it from the seller. The trial court having heard the parties, dismissed the suit and declared the applicant the lawful owner of the suit property. Aggrieved, the 1s t and 14th respondents appealed to the High Court, where the trial court decision was overturned and the 1s t respondent was declared a lawful owner of the property. Dissatisfied, the applicant decided to pursue his rights by appealing to the Court in which appeal was struck out on 5th November, 2021. After several attempts, the applicant was granted extension of time to lodge notice of appeal and apply for leave to appeal to the Court. He thus, lodged this application on 10th November, 2023 seeking an extension of time to file a letter requesting for copies of proceedings, judgment and exhibits in Civil Appeal No. 191 of 2004, the decision which was delivered on 28th February, 2007. When the matter was called on for hearing, it was only the applicant's counsel Mr. Issac Nassor Tasinga, appeared for the applicant, whereas the respondents did not enter appearance, despite of being dully served by substituted service in terms of the Notice of publication

in Mwananchi Newspaper dated 18th September, 2025 at page 20. Therefore, in terms of Rule 63 (2) of the Rules, the application was heard in their absence. Supporting the application, Mr. Tasinga, submitted that this application has been brought after the applicant has initially filed Civil Appeal No. 116 of 2021, which was struck out on technicality on 5th November, 2021. Following the event, the applicant filed an application for extension of time to lodge Notice of appeal and leave to appeal, same was granted on 25th September, 2023. It was further submitted for the applicant that, the issue was to file the letters requesting for extension of time to request for proceedings, judgment decree and orders in the High Court in Civil Appeal No. 191 of 2004, decided on 28th February, 2007. The applicant counsel insisted that, the applicant is struggling to be heard on the intended appeal which leave as then was already granted and extension of time to file Notice was granted on 25th September, 2023 by the Court. Mr. Tasinga, insisted that, what is being sought by the applicant is right to be heard, and same cannot be done without necessary step being taken, among others, filing of proper appeal before the Court. Therefore, the letter requesting for the proceedings, judgment and

exhibits is of necessity. With that brief submission then, Mr. Tasinga prayed for application to be allowed. Having heard the applicant counsel 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 the delay. The said Rule provides that: "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 o f 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". It is the discretion of the Court to extend the time in which to take necessary step as prescribed by the rule above, however such discretion, must be exercised judiciously. In the exercise of such discretionary powers, the requisite condition that must be fulfilled by the applicant is that good cause must be given. This was well stated among

others in the cases of William Shija v. Fortunatus Masha [1997] TLR 213. Mumello v. Bank of Tanzania [2006] I EA 227 and Kalunga and Company Advocates v. National Bank of Commerce [2006] T.L.R 235. The applicant has deposed in the affidavit that his earlier appeal was struck out on technicalities. The striking out of the said appeal meant that the earlier Notice of Appeal which had been filed within time was also struck out. Such delay falls within the meaning of technical delay as decided in the case of Mary Mchome Mbwambo and Another v. Mbeya Cement Company Ltd, (Civil Application No. 271/01 of 2016) [2016] TZCA 2545, the Court had this to say at page 12 : "The applicants are, actually, saying that they were late because they spent a lot o f time diligently pursuing their rights in the two Courts. The sequence o f events and prompt steps taken by the applicants till when they lodged the instant application positively accounts for the delay. To shut the door will, in the circumstances, cause injustice." 6

Further, on the same principal the court insisted in the case of Emmanuel R. Maira v. The District Executive Director, Bunda District Council, (Civil Application No. 66 of 2010) [2010] TZCA 87, that: "...where a party is shown to have diligently taken steps only to be caught up in web o f technically and even if the error is shown to have been caused by an advocate,, a sufficient cause is generally taken to have existed for the delay". Deducing from the affidavit in support of the application, after the impugned judgment was delivered on 2007, the applicant tirelessly challenged the same, until first appeal was struct out on 5th November, 2021. The applicant then took the necessary steps to be able to appeal, which included filing of the application for leave as then was the requirement and an extension of time to file Notice of appeal which was granted on 25th September, 2023. All the above efforts by the applicant is for him to be heard on his intended appeal. The right to be heard is not only a cardinal principal of natural justice but also a fundamental right constitutionally guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 as amended. For that reason, any decision arrived in

contravention of it will not be left to stand even if the same decision would be reached had the party been heard. The right to be heard was insisted on several decisions of the Court, just to mention a few. The Director of Public v. Sabini Inyasi Tesha & Another National Housing Corporation v. Tanzania shoe Company Limited& Others [1995] T.L.R 251, Mbeya - Rukwa Auto Parts & Transport, v. Jeyeshi Mwakyoma [2003] T.L.R.251, Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002 (unreported) just to mention the few. For instance, in the case of Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy (supra) the Court said: "the right o f a part to be heard before adverse action or decision. Is taken against such a party has been stated and emphasized. By the court in numerous decision. That right is so basic that a Decision which is arrived at in violation o f it wiii be nullified, even if the same decision would have been reached had the part been heard, because the violation is considered to be a bread o f naturaljustice . " According to the affidavits in support of the application, the sequence of events shows that the applicant was caught in a web of

technicalities which among other things led to his earlier appeal to be struck out. The delay falls well within the definition of what amount to a technical delay and the Court should not shut the door, because doing so will cause injustice. In the circumstances, the application is allowed. The applicant to file letter requesting for certified copies of proceedings, judgments and exhibits in Civil Appeal No. 191 of 2004, delivered on 28th February, 2007 within (14) fourteen days from the date of the Ruling. DATED at DAR ES SALAAM this 21st day of October, 2025. Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 21s t day of October, 2025 in the presence of Mr. Isaac Nassor Tasinga, learned counsel for the applicant and in the absence of the 1s t and 2n d respondents and Mr. Nelson Novati, Court Clerk; is hereby certified as a true copy of the original. D. FTLYIMO w j) DEPUTY REGISTRAR £// COURT OF APPEAL 9