Lwitiko Mwamaso vs Ngavagila Teleka Ngogo @ Ngavanila Teleka Ngajiko (Civil Appeal No. 481 of 2021) [2024] TZCA 1260 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWANDAMBO, J.A., KAIRO, J.A., And ISSA. J.A.^ CIVIL APPEAL NO. 481 OF 2021 LWITIKO MW AMASO................................................................APPELLANT VERSUS NGAVAGILA TELEKA NGOGO @ NGAVANILA TELEKA NGAJILO...........................................RESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, at Mbeya) (Ndunquru, J.) dated the 1s t day of July, 2021 in Misc. Civil AppI. No 14 of 2020 JUDGMENT OF THE COURT 2n d & 11th December, 2024 KAIRO, J.A.: The appellant in this appeal seeks to question the discretion of the High Court of Tanzania, at Mbeya for its refusal to grant an application for extension of time in Misc Civil Application No. 14 of 2020 dated the 1s t July, 2021 . The background of this dispute as discerned from the record of appeal is that, the appellant had sought for an enlargement of time to lodge his appeal out of time to challenge the decision of the Resident i

Magistrate's Court of Mbeya delivered on 16th September, 2019 in Civil Case No. 1 of 2018 which ended in favour of the respondent. The appellant was aggrieved but failed to file an appeal within the prescribed time, hence an application for an extension of time. At the High Court, the Appellant's reasons for delay to institute the appeal within the prescribed time were one; delay to be supplied with the copies of the judgment, proceedings and the decree of the decision to be challenged, two; travel of the appellant's advocate, three; sickness of the appellant and four; financial constraint. The said reasons were contained in paragraphs 6, 7,8,10,11,12,13,14,15,18 19 and 22 of his affidavit. In those paragraphs, the appellant deponed that, following the delivery of judgment on 16th September, 2019, the appellant's advocate wrote a letter to the Honorable Resident Magistrate In charge on 16th September, 2019 requesting to be supplied with the copies of judgment, decree and proceedings. The appellant's affidavit was strongly opposed by the respondent who averred that, the appellant failed to advance sufficient reasons to move the learned Judge to exercise his discretion and grant the application. After considering the merit and demerit of the application, the 2

High Court was satisfied that the appellant did not advance sufficient cause to warrant the grant of the application. It accordingly dismissed the application. Aggrieved, the appellant decided to lodge this appeal armed with the following grounds of appeal: 1 . Thatthe High Court erred in iaw for not considering the reasons for delay advanced by the appellant in his affidavit to the effect that he was not served with a decree within time 2. That\ the High court erred in iaw for failing to extend time for the applicant to appeal while there was an overwhelming chance of success 3. That, the High Court erred in law for failing to consider the illegality on the impugned judgment of the trial court which would have warranted the extension of time 4. That, the High court erred in law for holding that\ no sufficient reason was advanced by the appellant for it to extend time. When the appeal was called on for hearing, Mr. Baraka Mbwilo who represented the respondent, informed the Court that, the respondent passed away on 10th January, 2022 and that, one Judith Ngogo Lusanjala was appointed to administer her estate on 17th December, 2022. In the circumstances, Mr. Mbwilo prayed under rule 105 (1) of the Tanzania Court 3

of Appeal Rules, 2009, (the Rules) to substitute the name of the appointed administratrix as the respondent in place the deceased. The prayer was not objected by the appellant who appeared in person, unrepresented. Accordingly, Judith Ngogo Lusanjala, being the legal representative of the deceased was made a party in place of the deceased pursuant to rule 105 (4) of the Rules. This takes us to the appeal on merit. In the 1s t ground of appeal, the appellant faulted the learned High Court Judge for failing to consider the reason for delay advanced by the appellant while he was not served with the decree within time. Responding, Mr. Mbwilo refuted the appellant's contention for lack of merit. He illustrated that, according to the appellant's affidavit filed at the High Court in support of the application, the judgment intended to be challenged was delivered on 16th September, 2019 and that the letter written by Mr. Daniel Muya, the appellant's advocate by then requesting for certified copies of proceedings, judgment and decree, was received by the Resident Magistrate in Charge of Mbeya on 18th September, 2019. He went on to submit that, the appellant's assertions that, on 11th October, 2019 was supplied with only the judgment and was told by the 4

court clerk that other documents were not ready for collection are not true as the appellant's affidavit is silent in that regard. He further discounted the alleged follow-ups made by the appellant with the court to get the unsupplied decree for being unsubstantiated. Besides, there is no affidavit of the court clerk to corroborate the appellant's assertions on that aspect. He recounted the settled law that an affidavit of a 3r d party mentioned in the deponent's affidavit must be included in an application, failure of which, the assertion remains unproven. For a similar reason, Mr. Mbwilo downplayed the appellant's averments in paragraph 10 of his affidavit that, he was issued with the decree on 16th March, 2020. In view of his arguments, he implored the Court to find the ground meritless and dismiss it. The issue for our determination in this ground is whether or not the learned High Court Judge strayed into an error for not considering the delay in getting the decree as a valid reason. Section 19 (2) of the Law of Limitation Act, provides for exclusion of the requisite time the appellant awaits to be supplied with the relevant decree intended to be challenged on appeal when computing the period of limitation. In the case at hand, the appellant was required to appeal within 45 days from the date of the judgment. 5

It is undisputed that the judgment intended to be challenged was delivered on 16th September, 2019 and the appellant applied to be supplied with the relevant documents for appeal purpose on the same date. The appellant deponed in his affidavit that, he was called by the court clerk through his mobile phone on 11th October, 2019 and availed with a copy of the judgment without the decree and thus, he had to make vigorous follow-ups which, according to him, yielded fruits on 16th March 2020 when he was eventually issued with a copy of the decree, and filed the application for extension of time on 8th May, 2020. Our perusal of the record of appeal however, reveals that, the affidavit did not mention the name of the said court clerk from whom the appellant got the said information, nor did the appellant attach his/her affidavit for verification, which were also the findings by the High Court. It is trite that, an affidavit which mentions another person is hearsay unless that other person swears as well to verify the disposition concerned. [See: Benedict Kimwaga vs Principal Secretary Ministry of Health, Civil Application No, 31 of 2000 (unreported) and Sabena Technics Dar Limited vs Michael J. Luwunzu, [2021] TZCA 108, TANZLII. In view of the settled legal position, the appellant's disposition in this regard was therefore a hearsay for lack of proof. As such, the 6

learned High Court Judge was correct to reject the reason. We subscribe to the reasoning of the learned High Court Judge and consequently, we dismiss this ground for want of merit. The appellant in the 2n d ground faults the learned High Court Judge for dismissing his application while the intended appeal stands an overwhelming chance of success. After engaging the appellant on the legal position regarding the argument, he decided to abandon it. In his 3rd ground of appeal, the appellant complains of illegality on the judgment to be challenged and argues that it was an error for the High Court to refuse to grant the extension of time sought. Responding, Mr. Mbwilo submitted that, the reason was neither raised nor discussed at the High Court and beseeched the Court to refrain from considering the same. This ground should not detain us. We respectfully agree with the learned advocate that the ground is new for not being addressed at the High Court. Nevertheless, after examining the decision to be impugned, we are convinced that, there is no any illegality apparent on the face of the record and the argument is a misconception consistent with Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania, 7

[2021] TZCA 4, TANZLII. Relying on the said decisions, we are firm that, the reason would not have rescued the application even if raised at the High Court. We find the ground wanting in merit and dismiss it. Finally, is the 4th ground in which the appellant contends that, the High Court strayed into error to hold that there was no reason advanced by the appellant to warrant the extension of time. Mr. Mbwilo submitted that, the ground is a repetition of other grounds already discussed above. However, he pointed out that, there were other reasons for delay discussed by the High Court, but were not included in the grounds of appeal before the Court. He mentioned such reasons to be the appellant's advocate travel, sickness of the appellant to which he argued that it was not proved by the appellant before the High Court. On the part of financial constraint, Mr. Mbwilo argued that there was no affidavit from the appellant's advocate to confirm his demand for the instruction fees and failure by the appellant to meet the demand. The counsel contended that, even if there was any proof, the reason could have been insufficient to grant the application for extension of time. In conclusion, he contended that the High Court was justified to dismiss the application as it did and implored the Court to sustain the decision with costs. 8

We respectfully subscribe to the learned advocate's submission and satisfied that, the 4th ground concerns the totality of the reasons already discussed above and basing on that, we do not see the need of repeating discussing them. Like other grounds, the same follows suit and we accordingly dismiss it. We are also in agreement with the learned advocate's observations that other reasons for delay which were considered and determined by the High Court have not been raised in this appeal to wit: sickness of the appellant, financial constraints of the appellant and travelling of the appellant's advocate. We have gone through the analysis of the learned High Court Judge as regards the said reasons and found nothing to fault him for the decision reached. It is settled principle that, superior courts would not ordinarily interfere with the discretionary powers of the lower court unless it is plain that the decision arrived at was a result of erroneous exercise of discretion through either; one, taking into consideration irrelevant extraneous matters; two, omitting to take into account relevant matters and three; misdirecting itself. See: Mbogo & Another v. Shah [1968] E.A. 93 and Metro Petroleum Tanzania Ltd & 3 Ors vs United Bank of Africa, Civil Appeal No. 147 of 2019 (unreported).

Guided by the above, we are of firm view that the learned High Court Judge exercised his discretion judiciously and we find no reason to interfere with it. In fine the appeal is without merit and we dismiss it in its entirety, with costs. DATED at MBEYA this 11th day of December, 2024. The Judgment delivered this 11th day of December, 2024 in the presence of Mr. Said Mtila, for the Appellant who is absent and M r. Bosco Mdoe, learned advocate holding brief for Mr. Baraka Mbwilo, learned advocate for the Respondent is hereby certified as a true copy of L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL