Constantine Kalipeni vs Sudi M. Dibwe t/a Auction Mart & Another (Civil Application No. 532 of 2018) [2019] TZCA 214 (25 July 2019)

, IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM clvrL APPLTCATTON NO. 532/01 OF 2018 CONSTANTINE KALIPENI................ APPLICANT VERSUS 1. SUDI M. DIBWE T/A AUCTION MART 2. WHYTE LAOMBWE KISENGE..... 1S RESPoNDENT 2Nd RESPONDENT (Arising from a Decree and Proceedings of the High Court of Tanzania at Dar es Salaam) (Teemba, J.) Dated the zth da.V of August, 2015 tn Misc. CivilApplication No. 55 of 2014 18'^ June, & 25th July, 2019 KOROSSO, J.A.: Constantine Kalipeni has filed an application by way of notice of motion suppofted by an affidavit, sworn by the applicant. The application has been filed pursuant to Rules 10, 48(1) and 65(4) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is in pursuit of orders for extension of time to lodge the application for revision against the decree 1 RULING and proceedings of the High Couft of Tanzania Dar es Salaam District Registry (Teemba, J.) (as she then was) dated 7th August 2015, arising from a deed of settlement dated 31d July 2015 in Misc. Application No. 55 of 2014 on the following grounds: i. That the applicant was not aware of the fraudulent deed of settlement which was signed between advocates of parties instead of parties, which was filed in court on 31* July 2015 and recorded as judgment and decree of the court on f, August 2015. The unawareness continued until March 2018, when the applicant changd advocates. ii. That after having become awarel the Court file Misc. Civil Application No. 55 of 2014 was nowhere to be seen for perusal and proceedings until 1* November 2018 when the Hon. Registrar had managed to trace the file and invited the applicant to make perusal. iii. That the application has been made without unreasonable delay on the basis that after the Hon. Registrar had traced the file informed the applicant via a letter dated 14 November 2018 and received by the applicant on lfr November 2018 and on lfr November 2018 perusal was done and proceedings obtained. 2 iv. a, b. c. d. There are illegalities in the proceedings, decree and the Deed of settlement to be challenged through revision in the event the extension of time to seek revision is allowed, in that:- That the advocate for the applicant grossly and fraudulently misconducted himself by signing the deed of settlement without the knowledge and consent of the applicant. That the advocate for the applicant grossly and fraudulently misconducted himself by signing the deed of sefflement therein agreeing the applicant to part away with half of the proceeds of judgment, without the knowledge and consent of the applicant. That the High Court failed to act judiciously and aded illegally by recording a deed of settlement signed by the advocate of the applicant instead of the applicant. That the High Court failed to act judiciously and acted illegally by recording a deed of settlement which was seXling an issue which was not the subject of the application. Misc. Civil Application No. 55 of 2014 which was seeking extension of time to lodge Notice of Appeal, but the settlement concerns the appeal. e. That the High Court failed to ad judiciously and acted illegally by recording a deed of settlement which was varying the judgment of the same coutt. Reasons for this application are presented in the supporting affidavit to the notice of motion in paragraphs 3, 5, 6, 7, 8 and 9. The 1st respondent filed an affidavit in reply which was and adopted by the counsel for the 2nd respondent, challenging the asseftion by the applicant and praying for dismissal of the application. At the outset, I proceed to present the background of this matter for ease of reference. The respondent in this application filed an application Misc. Civil Application No. 55 of 2014, seeking extension of time to file a notice of appeal upon dismissal of the respondent's appeal, that is, Civil Appeal No. 94 of 2013 at the High Court of Tanzania Dar es Salaam District Registry and hearing of the said application was by way of written submissions. On the 31s July 2015, a deed of settlement was signed by the advocates. And on the 7h August 2015 was recorded as judgment and decree of the Court. When the application came for hearing Mr. Frank Mwalongo learned Advocate, represented the applicant and whereas the respondent was 4 represented by Dr. Alex Nguluma learned Advocate. Both counsel duly filed written submissions under Rule 106(1) and 106(8) of the Tanzania Court of Appeal Rules 2009 (the Rules) respectively, and each counsel prayed for their written submissions and affidavits to be duly adopted as paft and form part of their respective submissions. The applicantt counsel when amplifying on the reasons for the application, started by submitting on the competency of the application, contending that the application was competent because it is made pursuant to proper provisions to move the Couft, that is Rules 10, 48(1) and (2) and 49(1) of the Rules, and by way of notice of motion suppofted by an affidavit as required by the above cited Rules. Thereafter the counsel submitted on the issue they argued was for the Cour.t's consideration in this application in line with Rule 10 of the Rules, that is, whether there is good cause for this Court to extend time within which the applicant can lodge an application for revision to challenge the decree dated 7th August 2015 together with related proceedings for the said date meted at the High Court, Dar es Salaam Registry (Temba, J). The counsel for the applicant cited various cases to support his contention on what the Couft should be considering, that is whether there 5 is good cause advance to warrant the Court to exercise its discretion to grant the prayers sought. Cited cases included Tanzania Rent a Car Limited vs Peter Kimuhu, Civil Application No. 226101 of 2017, (unreported) which cemented the position that the applicants role in an application for extension of time is to explain for each day of delay within the prescribed period and also Attorney General vs Oysterbay Villas Limited and Kinondoni Municipal Council, Civil 297116 of 2016 (unreported), where the Court stated that though under Rule 10 the Court discretion may seem broad, that it can only be exercised if good cause shown. Counsel for the applicant advanced four grounds for the Court consideration to show good cause for the delay in filing the application. The counsel argued the first and second ground together. The first ground being that the applicant was unaware of the fraudulent deed of settlement signed between advocates of pafties instead of the pafties filed in court on the 31* of July 2015 and recorded as judgment and decree of the court on the 7th of August 2015 until March 2018 after the applicant changed Advocates. The second ground being that after becoming aware of the presence of a deed of settlement, he tried to peruse the couft file but could 6 not access the file until 19th November 2018 when he was informed by the Registrar that the relevant file was available having been traced and the applicant was allowed to peruse the relevant file. Further to the above, counsel for the applicant argued that the delay between 7th August 2015 the date of recording the deed of settlement to 20h March 2018, was occasioned by his unawareness of the deed of settlement, at the time believing that proceedings were ongoing in court. That from 20h March 2018 to 19th November 2018 was time spent trying to be provided an opportunity to peruse the court file, which he was informed was misplaced. That between 19fr November 2018 and 29n November 2018 was the time took to prepare the application which as records show was filed on 29h of November 2018. Thus the counsel prayed that the Court find this to be evidence of diligence in following up the matter and therefore a good cause for the delay in filing the application within time in line with the holding in cited cases. The third reason for the delay as presented by the counsel for the applicant, was for the Court to find that the application has been filed without unreasonable delay, arguing that immediately after being informed by the Registrar in a letter received on 16th November 2018 on the 7 availability of the case file they took effort to peruse the file, conducted on the 19th of November 2018, The counsel arguing further that the Court should find that the applicant has accounted for each day of delay. To cement their position, the case of Mary Mbwambo and Another vs Mbeya Cement Company Ltd (2017) TLS LR 277 was cited, where the Court held that: "the sequence of events and prompt steps taken by the applicanb till when they lodged the instant application positively accounts for the delay''. The counsel thus contended that from what has been presented the Court should find that from the time the applicant became aware of the fraudulent undertakings related to the case pending at the High Court as presented hereinabove, he took steps consistently until this application was filed. The fourth ground to support the application were allegations of illegalities in the proceedings, decree and Deed of Settlement expected to be challenged during revision if the prayer for extension of time is granted. On this ground the counsel for the applicant relied on the following five reasons to substantiate asseftions which for ease of reference are paraphrased as follows: First, that the Advocate for the applicant grossly 8 and fraudulently misconducted himself by signing the deed of settlement without the knowledge and consent of the applicant, and in effect agreeing for the applicant to part away with half the proceeds of judgment, devoid of the applicant's knowledge and consent. Second, Failure of the High Court to act judiciously and in effect acted illegally by recording a deed of settlement signed by the advocate for the applicant instead of the applicant himself and where the deed of settlement was settling an issue which was not the subject matter of the application before the court, that is, Misc. Application No. 5 of 2014 seeking extension of time to lodge notice of appeal whereas the settlement concerned the appeal and at the same time a deed of settlement that varied the judgment of the same couft. The applicant's counsel drew support from the decision of this Court in Mary Mbwambo and another vs Mbeya Cement company (supra) especially the holding that alluded that where there is a serious allegation should be condemned unheard and also that it is imperative that applicants are provided with an opportunity to appeal, and that reasons of illegality suffice and amount to good cause for an order of extension of 9 of illegality violating well established principles of natural justice, no pafi time to lodge a notice of intention to appeal. A similar position, also found in Transpoft Equipment vs Valambhia and A.G (1993) TLR 91. The applicantt counsel submitted further that the applicant has demonstrated reasons to validate the prayers for extension of time to file an application for revision and managed to argue as required by well- established principles when considering whether or not to grant extension of time under Rule 10 of the Rules. The case of Veronica Fubile vs. National Insurance Corporation and 2 others, Civil Application No. 168 of 2008 (unreported) was also cited. For the respondent, his counsel Dr. Nguluma responding to the first ground submitted by the counsel for the applicant stated that this Court is not in the position to verify whether or not, the Advocate for the applicant in Misc. Civil Application No. 53 of 2014 did not consult nor agree with the applicant, that is, his client regarding the Deed of Settlement filed 7th August 2015. That the fact that the previous Advocate for the applicant has not in any way been called to this Court to defend himself is also relevant when considering this issue, especially understanding that it is a well- established principle that a party should stand by the presentations made in court in his behalf unless he can demonstrate to the court beyond 10 reasonable doubt that the advocate acted without instructions. That in this application, what is before the Court are mere allegations, and that the applicant has failed to demonstrate in his notice of motion that his Advocate Mr. Mkoba had no instructions from him to execute and present the impugned deed of settlement. Arguing further that the assertion above is added weight by the fact that there has been no evidence that a complaint has been lodged by the applicant, for instance, with the Advocates Committee against his former advocate, and also that despite the serious allegations against his advocate in the notice of motion and supporting affidavit in support of the notice of motion, the said advocate has not been joined in the application to give his side of the story. That where one alleges a fraud he must prove it as propounded in section 112 and 113 of the Tanzania Evidence Act, Cap 6 RE 2002 (the Evidence Act). Regarding the second reason, the counsel for the respondent urged the Court to find this devoid of merit, the argument presented by the applicant that the deed of settlement cannot be filed where there is an application for extension of time to file an appeal, stating that by virtue of Order )CflII Rule 3 of the Civil Procedure Act, Cap 33 (CPC), the High Court 1,L has powers to record a settlement which has the effect of adjusting a decree of the couft prior to execution. On the ground that the applicant was unaware of the deed of settlement, the counsel for respondent moved the Court to discard this assertion stating that on the 6th of February, 2018 in the office of Advocate Mkoba, that there were negotiations with the respondent to adjust the judgment in issue so that the respondent will pay Tshs. 75,000,000/- (in US Dollars) representing 50o/o of the sale price of the disputed house. That before that the parties agreed to search for a joint buyer, sell and share equally the proceeds of the sale having realized they were both conned to buy the house. That further to this, on instructions of the applicant, the respondent paid into the applicant account with Azania Bank Limited, Account No. 00100101104037010 US Dollars Thifi thousand (30,000.00) and US Dollars Three thousand three hundred to Advocate Mkoba, the applicants' advocate then. The counsel stated that allegations of fraudulent misconduct of the and also needs the concerned advocate to be accorded an opportunity to defend himself. Also that the notice of motion is suggestive of an attempt 12 previous advocate of the applicant, that such allegations require strict proof by the applicant to extoft Respondent's monies and that it appears the applicant is untrustworthy. phone message around t2.23pm requesting for an early deposit of the agreed purchase price. Arguing that, the applicant submissions on this issue that delay was caused by lack of relevant documents is intended to mislead the Court and also an attempt to cheat so as to account for the eight months delay in filing the application and a clear abuse of the Court process. The respondent's counsel argued that at the same time that it is well established that where a party wants to peruse the file and satisfy himself on authenticity of documents therein rather than seek confirmation of the same the learned Advocate for the applicant ought to have paid file perusal fees and in this case it was not even necessary because the applicant was already in possession of the relevant documents. The learned counsel for the respondent further submitted that, in considering the issue whether there is good cause or not for this Court to time as prayed, the Couft should focus on whether the current application was made without undue delay to merit the prayed for time extension and 13 That on the same date the applicant sent the respondent a cell extend time so that the applicant can file his application for revision out of that the Couft should reject the application because it was made after undue long delay and is an abuse of the couft process in view of already stated reasons. First, that the contention by the applicant that he did not have the relevant documents in time, that is, the Deed of Settlement and the Drawn Order of the High Court sought to be challenged as they received them on 27th March 2018, is not true since it is on record that on the 27th March 2018 the applicant and his advocate had all the documents necessary to file the application, since when one reads the letter dated 27h March 2018 from the applicant's advocate to the Registrar, High Couft, copies of the Deed of Settlement and Drawn Order are attached. That the referred court order was contained in the proceedings of Misc. Civil Application No. 55 of 2014 issued before the Drawn Order and that this clearly shows that the applicant could have filed his application on or before 27th March 2018. The counsel for respondent submitted that the applicant's counsel stated that he sought for confirmation of authenticity of documents suspected to be fraudulent, document which he was already in possession of, and it is through perusal of a court file where one can confirm authenticity of couft documents and not through confirmation by the 14 Registrar. That what the applicant sought is an abuse of coutt process, especially where thereafter the applicant files an application for extension of time eight months after the day he purports to have become aware of an irregularity or illegality whilst he had in his possession the necessary documents to file an application for extension of time earlier. That it is well established that in an application for extension of time, the applicant has to account for every day of delay citing Sebastian Ndaula vs Grace Rwamaja C/A Civil Application No. 4 of 2014; Tanzania Rent a Car Limited vs. Peter Kimuhu, Civil Application No. 22610L of 2017 and that the applicant failed to account for the eight months delay. That the respondent vide his affidavit in Reply Exh. RES-I and RES-2 has shown that the applicant was paid into his bank account amounts already expounded hereinabove in his account and that of his advocate in satisfaction of the Drawn Order of the Court and that the bank slip showed he was paid in March 2018 and also that there was communication between the applicant and the respondent via SMS as also alluded to hereinabove. That all these facts show that the applicant lied on oath, in his affidavit suppofting the notice of motion paragraph 8 when he stated he was unaware of the order in March 2018. The respondent contended 15 that this shows that the said affidavit is tainted with lies and therefore should not be considered by the Court. The counsel for the respondent further submitted that, the Drawn Order in Misc. Civil Application No. 55 of 2015 is an adjustment of the decree of the trial court, the RM's court Kisutu, on the parties own volition and well founded by the law. A mere allegation of fraud is not a viable ground for extension of time, if the alleged fraud perpetrator is not a party to the application. The counsel thus prayed for the application for extension of time for revision to be dismissed for failure to meet the criteria set by this Court to warrant extension of time, that no good cause has been shown for the undue delay in filing the application and the applicant has already enjoyed the proceeds of the Drawn Order sought to be revised. The Rejoinder by the applicant's counsel was brief and mostly a reiteration of their earlier submissions, and responding on the issue of the letter written to the Registrar by the applicant, stated that it was after having sent three requests to peruse the file. That upon receiving the drawn Order, the applicant could not deal with them on failure to confirm their authenticity through perusal of the relevant court files. He also contended that the respondent counsel failed to submit any authority 76 authorizing or alluding to the fact that an advocate may sign a Deed of Settlement on behalf of a client without consent of the client. The counsel for the applicant also conceded that though the hearing of the present application is not a proper forum to investigate into the allegations of fraud against the first applicant counsel, but prayed to be given an opportunity to do that, and discuss the issue during revisional proceedings. On Exh. RES-1 and RES-2 part of the affidavit in Reply from the respondent, the counsel for the applicant stated that though it is shown there was payment to the applicant that the documents fail to reveal the purpose of that payment, that is whether it was the value of the applicant's share and in any case if this was the case it would have been expected that the parties would have documented the value of the propefi agreed and agreement to discharge the applicant, otherwise the said exhibits say nothing. That all these factors lead to the need for revision so that pending issues may be determined. Having heard and carefully considered the submissions from counsel from the applicant and the respondent and also gone through the documents and cited cases before this Court, in determination of this 17 application we are guided by the provisions of Rule 10 of the Rules, which states "the Coutt mayl upon good cause shown, ertend the time limited by these Rules or by any decision of the High Court or tribunal, for the doing of any act authorized or required by these Rules, whether before or afrer the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended." From this provision it is clear that the main issue for determination in an application like the present one, is for the Court to be satisfied that good cause has been shown to warrant it exercise its discretion and grant the prayers for extension of time to file an application where the authorized time has expired. There are numerous decisions of this Court which have also amplified on where an inference of show of good cause may be drawn. In Alliance Insurance Corporation Ltd vs Arusha Ltd, Civil Application No. 33 of 2015 (unreported), we stated; " Extension of time is a matter for discretion of the Court and that the applicant must put material 18 before the Court which will persuade it to exercise its discretion in favour of an ertension of timd'. Where good cause has been demonstrated, the Court is duty bound to grant extension of time under Rule 10 as expounded in Lyamuya of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), where guidelines formulated to set what amounts to good cause. It was held first, that the applicant must account for all days of the delay. Second, the delay should not be reasonable, third, the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take and fourth, if the court feels that there are other reasons, such as the existence of point of law of sufficient importance, such as the illegality of the decision sought to be challenged. Applying the above guidelines set, in the current application the applicant seeks the Court to find good cause has been established, from their explanations on the delay to file the application for revision that is, from the time the decision sought to undergo revision if granted this application up to the day of filing this application. The applicant has also 19 Construction Company Limited vs. Board of Registered Trustees presented allegations of illegalities and irregularities in the proceedings and irregularities emanating from alleged abuse of procedure leading to signing of the deed of settlement in view of the signing of the deed being made by learned advocates for the parties instead of the clients. The respondent counsel challenged all the asseftions by the applicant, arguing that there was no proof of fraud, and that the applicant has averred lies in his affidavit, when explaining the delay and the fact that despite the fact that the settlement was filed in Court on 31* July 2015 and recorded as Judgement and decree on 7th August 2015, he was unaware of the decision and order until March 2018 when he changed Advocate. When one considers this, it is very strange for one to understand how a client cannot follow-up his case for almost two years. We would have expected the affidavit to reveal what the applicant was doing this period not to be aware of this case was proceeding in court including the Deed of Even if one was to move forward and consider what transpired after the applicant states they became aware of the decision that is in March 2018, the applicants argument that as from March 2018 when he became 20 the decision to be challenged, that is allegations of fraud, illegalities and settlement and the related orders. aware, he started seeking to peruse the trial courts files so as to authenticate the deed of settlement, judgment and decree of the court. The Court has perused through various documents such as a letter by APEX Attorneys Reference seen at pg. 151 of records of this Court, received on 29h March 2018 requesting from the Registrar, High Court Dar es Salaam District Registry for confirmation of authenticity of Deed of Settlement and Drawn Order in Misc. Civil Application No. 55 of 2014. In the said letter similar to what the learned counsel for the respondent alleged, it is clear that the Attorneys representing the applicant did have the said documents. My take on the submissions by the applicant's counsel was that he was not denying having the documents, but averring that they doubted authenticity as found from paragraph 8 of the affidavit supporting the notice of motion, when the applicant avers that on 20th March 2018, Advocate Mkoba supplied the applicant with a copy of the deed of settlement and the drawn order. Thus at the time Apex Attorney took over and wrote to the Registrar High Court Dar es Salaam, it is clear they had in their possession relevant documents. It is clear that having the Drawn Order was enough for the applicant if he wanted, to lodge an application for revision or if already out of time 2L for extension of time, that is, immediately after becoming aware of the Orders in March 2018. The reasons advanced by the applicant for delay to file the application being due to undergoing a process of authenticating the disputed documents, exercising the discretion by this Couft on this issue. I find that the delay to file the application is unjustified and that the applicant has failed to account for each day of the delay and also failed to show that the delay was not inordinate and failed to show expected and required diligence in prosecution of the action he intends to take. Despite the above finding, there being allegations of illegality and irregularity in the proceedings as expounded by the applicant in the notice of motion, affidavit suppofting the notice of motion, supporting affidavit and written submissions, I am duty bound to consider the same. the impugned decision is raised, is clear. In the case of VIP Engineering and Marketing Limited and Two Others vs. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and B of 2006, it was held: "It is settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under Rule 8 (now Rule 10) of the 22 The position set in various decisions where the ground of illegality of Court of Appeal Rules regardless of whether or not a reasonable explanation has been given by the applicant under the Rules to account for the delay''. Allegations of illegality were also considered in the case of Tanesco vs Mufungo Leornard Majura and 15 Others, Civil Application No 94 of 2016, (Unreported), where it was stated: " Notwithstanding the fact that, the applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fad that, there is a complaint of illegality in the decision intended to be impugned... suffices to move the Court to grant extension of times so thal the alleged illegality can be addressed by the Court'. In this application, I am of the view that the allegations of illegality cannot be discerned on the face of it. The allegations of fraud on the part of the applicants first counsel is something which this Court cannot venture into nor determine this application, there should have been evidence to suppoft this serious allegations and not mere averments without proper grounding. The arguments by the respondent counsel that, at least if there could have shown that the applicant took action against the said counsel either in Court or through available disciplinary channels would have given 23 some more weight to the assertions. This Court cannot also go and review the agreement between a counsel and his client at this juncture, and this is not the forum to verify whether or not the learned counsel abused his position by undertaking tasks not authorized by the client. Thus, I subscribe to the views expressed by the Cout in the case of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania, (supra) and find them relevant in this application when the Court obserued.'- "Since every party intending to appeal seeks to challenge a decision either on points of law or facts, it cannot in my view, be said that in VAUMBIAS case, the court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises poinb of law shoulQ as of righl be granted ertension of time if he applies for one. The Court there emphasized that such point of law must be that of sufficient importance and, I would add that it must also be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by a long drawn argument or process." a I Applying the above mentioned statement of principle to the application under consideration, I have not been persuaded by what is before the Court, on the alleged illegality in the trial court decision, to lead me to state that it is apparent on the face of it and thus can be discerned as a good cause for the Court to grant the prayers sought in this application. In the event, considering the circumstances pertaining to this case, I find that the applicant has failed to illustrate good cause that would entitle this Court to grant him the extension of time to file an application for revision as sought. This application is consequently dismissed with costs. Order Accordingly. DATED at DAR ES SALAAM this 22nd day of July, 2019 W. B. Korosso JUSTICE OF APPEAL Ice that this is a true copy of original. PE4 E.F.F c f o \) I ISTRAR DEPUTY RE EAL 25 \e IN /_b /"1i \y