Elius A. Mwakalinga vs Domina Kagaruki & Others (Civil Application No. 456/01 of 2024) [2024] TZCA 1052 (5 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 456/01 OF 2024 ELIUS A. MWAKALINGA................................................................. APPLICANT VERSUS DOMINA KAGARUKI .............................................................. 1 st RESPONDENT FARIDA F. MBARAK ............................. . .................. . ............ 2 nd RESPONDENT FARIDA AHMED MABARAK ......... . ........................................ 3 rd RESPONDENT TANZANIA BUILDING AGENCY .............................................. 4 th RESPONDENT THE COMMISSIONER FOR LANDS......................................... 5™ RESPONDENT THE HONOURABLE ATTORNEY GENERAL................... . .........6™ RESPONDENT (Application for extension of time to re-hear the appeal proceeded exparte from the judgment of the Court of Appeal of Tanzania at Dar es Salaam) fMiasiri, Muaasha. And Mwanaesi, JJA.1 Dated the 13th day of June, 2017 in Civil Appeal No. 60 of 2016 RULING 25th October & 5th November, 2024 MG EYE KWA, J.A.: The applicant, ELIUS A. MWAKALINGA, has lodged this application seeking an extension of time to restore Civil Appeal No. 60 of 2016 against which proceeded in the absence of the applicant. The application is by way of notice of motion made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by an affidavit sworn

by Mr. Elius A. Mwakalinga, the applicant. The application has encountered formidable opposition from the first respondent and has demonstrated his resistance by filing an affidavit in reply. Briefly, the present dispute arose as follows: the first respondent lodged a suit at the High Court Land Division at Dar es Salaam against the applicant, second, third, fourth, fifth, and sixth respondents. The cause of action rested on: One, an alleged fourth respondent breach of the agreement for sale to the applicant of a semi-detached House No. 2 on plots 105 and 106 located at Burundi/ Kinondoni. Two, the second and third respondents claim to have purchased plot No. 105 from the liquidator of the defunct Agricultural and Industrial Supplies Company Ltd and that they uprooted hedges after trespassing into the first respondent's premises. Three, the applicant claims to have purchased from the Government a detached house on plot No. 106 at Kinondoni / Burundi road. The first respondent sought reliefs including a declaration that the second respondent's bid was to purchase a semi-detached House No. 1 on plot No. 105 at Kinondoni/ Burundi road; a declaration that the first respondent is the legal owner of House No. 2 constructed on plots No. 105 and No. 106 Burundi road at Kinondoni in Dar es Salaam, an order for plot division and re-survey

of plots No. 105 and No. 106. The first respondent sought to be paid damages to the tune of TZS. 120,000,000 and in the alternative, she sought to be paid TZS. 600,000,000 being compensation in case her ownership of House No. 2 is affected in any way. The High Court determined the matter and ordered the first respondent to vacate the suit house and the second, third, and fourth respondents to look for and hand over to the first respondent an alternative house within the city of Dar es Salaam if she so wishes. The first respondent also was ordered to pay damages to the tune of TZS. 100,000,000 to the second and third respondents. Dissatisfied, the first respondent lodged an appeal before the Court. When the appeal was called on for hearing before the Court, the applicant did not enter an appearance. The Court satisfied that the applicant was duly served through his advocate Mr. Zahran Sinare proceeded in his absence and finally delivered a judgment in favour of the first respondent and ordered the 6th respondent to make a resurvey of plots No. 105 and No. 106 and subdivide them into three equal plots for the first, second, third and fourth respondents. Aggrieved, in June, 2018, the applicant filed an application for review, however, the same was struck out for being incompetent. Again, in July,

2018, the applicant filed an application for extension of time to file review but it was dismissed for want of sufficient cause. Still aggrieved, he lodged the instant application for extension of time to re-hear the appeal. At the hearing of the application, M r. Alfred Tukiko Okechi, learned counsel represented the applicant, M r. Thomas Brush, learned counsel held brief for M r. Thomas Rwebangira, learned counsel appeared for the first respondent. Mr. Emmanuel Msengezi assisted by Mr. Nehemiah Nkoko, both learned counsels appeared for the second and third respondents. Ms. Joyce Senkondo Yonazi and Ms. Edna Mwangulumba both learned State Attorneys represented the fourth, fifth and sixth respondents. The learned State Attorney did not lodge an affidavit in reply but she obtained leave of the Court to argue the application on point of law. When the applicant's counsel was given the floor, he began by fully adopting the contents of the notice of motion and the supporting affidavit. He submitted that the applicant is seeking for extension of time to re-hear an appeal which was determined exparte against the applicant. He argued that the main reason for extension of time is because the applicant and his counsel were not aware that there was a pending appeal before the Court Expounding, Mr. Okech stated that the applicant was not summoned to

appear in Court. He shifted the blame to Mr. Zahran, learned advocate for failure to appear in court to defend his client. The learned counsel for the applicant also raised a ground of illegality. He contended that the applicant was condemned unheard since he was not summoned to appear before the Court. To bolster his submission, he referred me to the cases Geofrey Kabaka v. Farida Hamza & Isangi Court Broker, Civil Application No. 215/08 of 2019 whereas, the Court referred to the case of Mbeya Rukwa Auto Parts & Transport Ltd v. Jestina George Mwakyoma, Civil Appeal No. 33 of 2002. In conclusion, the learned counsel for the applicant urged the Court to grant the applicant's application. Mr. Nehemiah, the learned counsel for the second respondent supported the course taken by the applicant and stressed that the Court deprived the applicant his right to a fair hearing, Thus, he urged me to grant the applicant's application. On his part, Mr. Brush from the outset, resisted the application and, after adopting the first respondent affidavit in reply, he referred the Court to paragraphs 4 and 5 of the supporting affidavit and forcefully argued that the there was unexplained inordinate delay which exhibit negligence and inaction

on the part of the applicant and his previous advocate and further that the said inaction and negligence of the advocate is not an excuse. Submitting further, Mr. Brush referred the Court to paragraph 9 of the supporting affidavit and argued that, the applicant's frustration is not a good ground for extension. Another ground argued by M r. Brush is that the delay is inordinate. Elaborating he contended that the supported affidavit is silent when the applicant received the impugned Judgment in order to assist the Court in computing the days of delay. The learned counsel attacked the averments that the applicant accounted for each day of delay. He referred the Court to paragraph 10 of the supporting affidavit, and argued that the applicant did not state in his affidavit, what he was doing before 14th May, 2024 when he met Okech who took steps to lodge the instant application. Mr. Brush contended that the applicant lodged the present application after a lapse of six years. To reinforce his submission, he referred the Court to pages 10 and 11 of record. Regarding the ground of illegality, the learned counsel attacked the averments that the impugned decision of the Court is tainted with illegality. The learned advocates for the respondent appreciated the position of the

law on illegality as a ground for extension of time, as propounded in Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania, Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011 TanzLII). It was further argued by the advocates for the first respondent that, the ground of illegality raised in this application is unfounded. Elaborating, he argued that, in the circumstances of this application, the issue of right to be heard cannot amount to an illegality. In the circumstances, M r. Brush implored me to dismiss the application with costs. On her part, the learned State Attorney argued only on point of law. She submitted that in application of this nature, the applicant is required to show good cause and comply with the factors which were laid down by the Court in the case of Layamuya (supra). She went on to submit that apart from showing good cause of delay, it is trite law that for an application for extension of time to be granted, the applicant must account for each day of delay. To reinforce her submission, she drew my attention to the case of Jubilee Insurance Company (T) Ltd v. Mohamed Sameer Khan, Civil Application No. 439/01 of 2020 ZCA 623 (12 October 2022 TanzLII) and

Exim Bank Tanzania Ltd v. Jacquiline A. Kweka, Civil Application 348 of 2020 [2021] TZCA 67 (12 March 2021 TanzLII). The learned State Attorney continued to submit that the counsel's negligence is not a good cause for extension of time. To reinforce her submission, Ms. Senkondo referred the Court to the case of Omary R. Ibrahim v. Ndege Commercial Services Limited, Civil Application No.83/01 of 2020 (unreported). Regarding the ground of illegality, Ms. Senkondo referred the Court to the case of Jubilee (supra) and submitted that an illegality must be on point of law apparent on the face of the record. In his rejoinder, besides reiterating his earlier submissions, the learned counsel stressed that the application is proper before the Court. Mr. Okech argued that it is a mandatory requirement to serve the applicant in person, therefore, failure to do so amounts to good cause for extension of time. He stressed that the said error on the face of the record rendered the decision of the Court illegal. To this end, the learned counsel spiritedly urged me to grant the applicant extension of time as she has demonstrated good cause to deserve the decision of the Court in her favour.

It is trite law that application for extension of time can be granted upon good cause for delay has been established. This is so stipulated under rule 10 of the Rules. The said provision provides as hereunder: 'The Court may, 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 Ruies, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Ruies to any such time shall be construed as a reference to that time as so extended . " It is noteworthy that there is no universa! definition o f the term ’’ good cause." The above-cited rule empowers this Court on sufficient reason to extend the time prescribed by these Rules. The application of this guiding principle is also reiterated in the case of Kalunga & Co. Advocate v. NBC Ltd, Civil Application No. 124 of 2005 where it was stated: "The Court has discretion to extend time but such extension, in the words o f rule 8 (now rule 10) can only be done if sufficient reason" has been given." Equally important is that an application of this nature must be filed as soon as an applicant becomes aware of the need to do so and he is obliged to

account for the delay for every day within the prescribed period. There are a plethora of legal authorities in this respect. As it was decided in numerous decisions of the Court, in the case of Bushfire Hassan v. Latina Lucia Masanya, Civil Application No. 3 of 2007 (unreported), it held that:- " Dismissal o f an application is the consequence befalling an applicant seeking an extension o f time who fails to account for every day o f delay” See also Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, (supra) and FINCA (T) Ltd & Another v Boniface Mwalukisa, Civil Application No. 589 of 2018 [2019] TZCA 93; (15 May 2019 TanzLII). The crucial issue for determination by the Court is whether the applicant has accounted for each day of delay. Let me now turn to the affidavit and follow the sequence chronologically: According to paragraph 4 of the supporting affidavit, the impugned Judgment sought to be challenged was delivered on 13th June, 2017 and the applicant was required to apply for rehearing within thirty (30) days from the date of delivery of the impugned Judgment. It ought to have been filed latest on 12thJuly, 2017. A quick glance of the applicant's affidavit

in particularly paragraphs 6, 7, 8 and 9 of the supporting affidavit, the applicant claimed that he delayed applying for rehearing because he was in the Court corridor prosecuting other applications before the Court. It is my considered view that as for the period of delay when he lodged Civil Application No. 285 /17 of 2017 and the time and when he was prosecuting Civil Application No. 120/17 of 2018 for extension of time to file a Review, that period can conveniently be termed as a technical delay on which the applicant is not to blame for the delay. There is a plethora of authorities which have subscribed to this position. See for instance the cases of Fortunatus Masha v. William Shija and Another [1997] TLR 1541, and Zahara Kitindi & Another v. Juma Swalehe & 9 Others, Civil Application No. 4/05 of 2017 [2017] T7CA 196 (3 March 2017 TanzLII). Apart from technical delay, the applicant was required to account for days of delay from 20th May, 2019 when Civil Application No. 120/17 of 2018 was dismissed to 5th July, 2024 when he lodged the instant application. In my reckoning, the applicant delay is almost five years. In his oral submission, Mr. Okech spiritedly argued that the applicant was not summoned to appear in Court and his advocate did not appear in court when the case was called on for hearing. I have scrutinized the applicant's supporting affidavit,

unfortunately, this ground is not stated in the supporting affidavit. Therefore, the M r. Okech's submission is a mere statement from the bar. In the case of Farm Equipment Company Limited v. Festo Mkuta Mbuzu, Civil Application No. I l l of 2014 [2017] TZCA 209 [27 October 2017 TanzLII], this Court declined to consider statements made by the counsel from the Bar. Likewise, the applicant's claims in paragraph 9 of the supporting affidavit does not constitute good cause for extension of time in terms of rule 10 of the Rules. As rightly submitted by Mr. Brush, the applicant's counsel negligence does not constitute good cause for extension of time. This legal stance was pronounced in the case of Omari R. Ibrahim v. Ndege Commercial Services LTD, Civil Application No. 83/ 01 of 2020, the Court held that: "It should be stated once that, neither ignorance o f the law nor counsel's mistake constitutes good cause in terms o f Rule 10 o f the Rules." [Emphasis added] See also the case of Exim Bank (T) Ltd v. Jacquiline A. Kweka (supra) and Jubilee Insurance Company (T) Ltd v. Mohamed Sameer Khan

(supra), the Court held that lack of diligence on the part of the counsel is not sufficient ground for extension of time. It is trite law that where a lawyer is blamed for failure to abide by the rules, an affidavit by the lawyer taking responsibility has to be filed in support of the application. That was not done. See the case of NBC Ltd v. Superdoll Trailer Manufacturing Company Ltd, Civil Application No. 13 of 2002. In my view, this is a particularly gross case; the delay of approximately five years was extreme and the explanation unacceptable. Therefore, I agree with M r. Brush that there is no acceptable and plausible explanation for the delay to justify the inordinate delay of five years. The applicant has also relied on the ground of illegality in attempt to move the Court to grant the application. I am on the same page with the learned counsel for the applicant that this Court in numerous decisions has held illegality as among the grounds constituting good cause for extension of time. The question is whether such ground can be useful when applying for extension of time before the same court allegedly to have commit such illegalities. The doctrine of functus officio envisages that once the decision has been made, it becomes final, binding and cannot be revoked by the decision

of the maker. Under the said common law principle, the court blamed to have committed illegalities cannot have power to re-examine and correct its illegalities. This being the case, illegalities cannot be raised as a ground for extension of time if the application is before the same court made the impugned order or decision. I am holding so because under the doctrine of functus officio the same court cannot have legal optics to see its own committed illegalities. I have gone through the case in which the ground of illegality was developed, that, is Permanent Secretary Ministry of Defence & National Service v D.P. Valambhia [1992] TLR 185. In the said case, the application for extension of time were before this Court and illegalities raised were those alleged to be committed by the High Court. It is my firm view that the principle laid in the said case was not intended to apply wholesome. In other words, it was not put to be used as a ground for extension of time before the same court. Indeed, the ground of illegality is misconceived. In the circumstances of this application, the applicant was supposed to account for each day of delay not otherwise.

Following the above findings, I am not persuaded that the applicant has advanced good cause to justify the grant of extension of time. As a result, I hereby dismiss this application. I make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 5th day of October, 2024. The Ruling delivered this 5th day of November, 2024 in the presence of the Applicant in person and Mr. Nehemia Nkoko, learned counsel for the 2n d and 3rd , Respondents, Ms. Anael Mbise, learned State Attorney for the 4th , 5th and 6th Respondents and in the absence of the 1s t Respondent is hereby certified as a true copy of the original. A. Z. MGEYEKWA JUSTICE OF APPEAL