Philemon Mang'ehe t/a Bukine Traders vs Gesso Herbon Bajuta (Civil Application No. 141/02 of 2024) [2024] TZCA 855 (5 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 141/02 OF 2024 PHILEMON MANG'EHE t/a BUKINE TRADERS ............................ APPLICANT VERSUS GESSO HERBON BAJUTA ........................................................ RESPONDENT (Application for extension of time to file Notice of Appeal from the Judgment of the High Court of Arusha, at Arusha) fShavo, 3.^ dated the 18th day of October, 2013 in Civil Case No. 08 of 2006 RULING 16thAugust & 5th September, 2024 RUMANYIKA. 3.A.: By a notice of motion which has been taken out under rule 45A(l)(a) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"), the applicant, Philemon Mang'ehe t/a Bukine Traders is seeking enlargement of time within which to file a notice of appeal assailing the decision of the High Court (Shayo, J.). This is his second attempt, after the High Court had dismissed a similar application. The application is supported by an affidavit sworn by Philemon Mang'ehe. It has been opposed by the respondent by filling an affidavit in reply sworn by Elvaison Erasmo Maro, her advocate.

To appreciate the essence of the application, its factual background goes as follows; its checkered pattern began with Civil Case No. 08 of 2016 where the applicant sued the respondent. He claimed damages for malicious prosecution which is alleged to have led to loss of business and profit on his part. He lost the battle on 10th June, 2011. Aggrieved, he lodged a notice of appeal on 20th June, 2011 and later Civil Appeal No. 103 of 2011 which was struck out on 17th May, 2012 for being accompanied with a defective decree. On 28th June, 2012 the applicant filed Misc. Civil Application No. 55 of 2012 before the High Court seeking extension of time to file a notice of appeal against that decision. However, on 3rd June, 2013 he was ordered to amend the respective affidavit. Aggrieved by that order, on 29th June, 2013 he challenged it vide Misc. Civil Review No. 2 of 2013 which he withdrew with leave to re-file it. He re-filed it vide Civil Application No. 149 of 2013 but it was dismissed on 14th August, 2013. He was not supplied with the copy of the ruling on 29th October, 2013. On 31st October, 2013 he filed Civil Application No. 32 of 2013 seeking an extension of time to lodge a notice of appeal. A Single Justice of the Court dismissed that application on 2n d July, 2014 the applicant having taken wrong course since he ought to have appealed against it. Thereafter, the applicant sought and obtained an extension of time to file reference within twenty-one days 2

from 19th February, 2015. Pursuant to that order, Civil Reference No. 8 of 2015 was filed on 10th March, 2015. However, the applicant withdrew that application on 12th February, 2016 and re-filed it later. The Court (Mjasiri, J.A) granted it on 19th October, 2016 giving him an extension of another seven days to file another application. He filed Civil Reference No. 2017 which the Court (Lila, Kwariko and Mwandambo, UA.) dismissed on 27th November, 2019. However, copy of the ruling supplied turned out to be defective for referring to a wrong case number. It took him five days to get it properly renumbered as Civil No. 05 of 2017. On 17th December, 2019, the applicant filed Civil Application No. 399/2 of 2020 seeking extension of time to file a second attempted application which was granted on 30th November, 2021 by the Court (Fikirini, JA). Subsequently, he filed vide Misc. Civil Application No. 103 of 2021 before the High Court, instead of filing it before this Court. On that account, he withdrew it on 24th February, 2022. Then he filed another application seeking extension of time to lodge a notice of appeal which was granted on 29th September, 2023 being given fourteen more days. Then the applicant filed the present application on 10th October, 2023. The application was argued before me on 16th August, 2024. The applicant appeared in person, unrepresented while Mr. Elvaison Maro, 3

learned counsel represented the respondent. The parties had accordingly filed written submissions, for and against the application. The applicant, being a layman, he pressed much reliance on the supporting affidavit and written submission, without more. However, in his written submission, the applicant had reproduced his averments in the affidavit. Mr. Maro began by adopting the affidavit in repiy and his written submission filed on 17th January, 2024 strenuously opposing the application. Expounding on the written submission, he cited few examples of the applicant's negligence which had resulted to the inordinate delay. He contended that, the filing of Civil Application No. 103 of 2021 before the High Court which he withdrew later, demonstrated the latter's inaction and gross negligence of the highest order. That the applicant may have delayed while in the court corridors pursuing such a number of applications which is excusable. However, he argued, taking a wrong course, such as filing of an incompetent application, for instance the said Misc. Application No. 393/2 of 2020 before the High Court was not excusable. Mr. Maro cited our decision in Joyce Joram Lemanya v. Patricia Patrick Lemanya & Another

(Civil Application 430 of 2021) [2023] TZCA 235 (10 May 2023: TanzLII) to bolster his proposition. On the allegations that the said rulings were shocking putting the applicant on the cross road and that he fell sick, Mr. Maro asserted that, the allegations were not substantiated because they were not supported by any copy of a medical chit. He cited Hawa Mashaka (as administratrix of the estate of the late Mashaka Maftah Mwinyihami) v. Mtami Maftah & Another, Civil Application No. 393/13 of 2023 [2023] TZCA 17934 ( 12 of December 2023;TanzLII). The applicant had nothing useful for rejoinder. He associated the delay with lazyness of his advocate, who, for instance had allegedly filed an application wrongly before the High Court instead of filling it in the Court. He prayed for an order granting the application. I have heard the arguments from both sides sufficiently. The issue which arises for my determination therefore, is whether the applicant has demonstrated sufficient cause to warrant a grant of extension of time. It is a settled legal principle that, an application for extension of time for doing an act is grantable only where the applicant has

demonstrated sufficient or good cause for the delay. See, for instance, FINCA T. Ltd & Another v. Boniface Mwalukisa (Civil Application No. 589 of 2018) [2019] TZCA 93 (16 May 2019: TanzLII). I note that, for instance, for Civil Appeal No. 103 of 2011 which was filed before the High Court and withdrawn for being incompetent for being accompanied by a defective decree, the applicant was not to blame. It is so because court users do not have control of the registries. Only the Court was to blame. So would be the case where, in this case, instead of the matter reading Civil Application No. 5 of 2017 it was wrongly numbered Civil Application No. 2 of 2016, as averred at paragraph 19 of the affidavit and the applicant was not to blame. However, in this instance, essentially, the applicant has narrated all what had happened including a series of his unsuccessful applications that he had filed in court. Generally, it is not disputed that the applicant had been in court corridors for that while, which may constitute good cause as his delay was not real but technical. For instance, see - Omary Ally Nyamalege (Administrator of the Estate of the Late Seiemani Ally Nyamalege) & Others v. Mwanza Engineering Works (Civil Application No. 94 of 2017) [2018] TZCA 230 (3 October 2018: TanzLII) and D.N Bahram Logistics Ltd & Another v. National Bank of 6

Commerce Ltd & Another (Civil Reference No. 10 of 2017) [2021] TZCA 60 (4 March 2021: TanzLII) where the Court followed its previous proposition in Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006 (unreported). Nonetheless, as regards the applicant's complaint of having filed a number of matters improperly or wrongly in courts thereby causing the delay, there are some incidents which raise a lot of doubt on his diligence; one, in Misc. Civil Application No. 55 of 2012 for extension of time the applicant was aggrieved by an order dated 3rd June, 2013 to file a supplementary against which by filling an application for review. This was wastage of time to challenge the interlocutory order instead of just complying with it. He thus, himself lost the period between the 3rd June, 2013 and 14th August, 2013 when his application was dismissed, after he had withdrawn it due to incompetence; as averred at paragraph 23 of the affidavit; two, by filing Misc. Civil Application No. 103 of 2021 before the High Court, the applicant had acted wrongly since, he should have filed one in the Court; three, all the that those rounds he had the assistance of a lawyer whose name he did not even disclose. Nevertheless, whether the applications were erroneously drawn and filed

by the applicant himself as is purported to be, or by his lawyer is immaterial because, either way, that one did not constitute good cause. Moreover, the applicant did not explain part of the delay as follows; one, he filed Civil Reference No. 8 of 2015 on 10th March, 2015 and withdrew it about one year later on 12th February, 2016 for being incompetent; two, his Civil Reference No. 2 of 2016 which was dismissed on 27th November, 2019 for contravening rule 45A (1) of the Rules thus, misconceived as also averred at paragraph 17. I wish to stress that, the rule in D.N Bahram Logistics Ltd & Another (supra) did not intend that, delaying tactics shall be pleaded in the guise of technical delays which do not constitute good cause for extension of time. In other words, for any incompetent matter which is most likely erroneous, deliberate and or recklessly caused by a party or his advocate, any subsequent delay is as well classified as a delaying tactic in disguise which is not excusable. The applicant had repeated similar mistakes more than three times in his favour, as shown above. His first time might be accidental, the second round may be by coincidence but for the third time, chances of it being a deliberate move could not be ruled out, which possibly may result to endless litigation. 8

As for the applicant's averment, at paragraph 25 of the affidavit attributing the delay with his ill health and poverty, I would agree with Mr. Maro's contention that, the allegation has not been supported by any evidence on record. This complaint has failed. Moreover, I need not to reiterate the Court's stance than is necessary that, poverty has never constituted good cause for extension of time. Just as it is not always true that, every well to do party to case would always act timely. In the upshot, the applicant has failed to account for the delay of such a couple of months. Consequently, I hereby dismiss the application with costs. DATED at DAR ES SALAAM this 3rd day of September, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 5th day of September, 2024 via video conference in the presence of Applicant present in person and Mr. Thomas Kessy, learned Counsel for the Respondent, is hereby certified as a true copy of the original. 9