AZANIA Bank Limited vs Peter Muhalle Lolo & Others (CiviL Application No. 139/02 of 2024) [2024] TZCA 856 (4 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 139/02 OF 2024 AZANIA BANK LIMITED ................................ . ............ . .............. APPLICANT VERSUS PETER MUHALLE LOLO........................................ . ......... . 1 st RESPONDENT MANGWEMBE 2011 CO. L T D ............................................2 nd RESPONDENT WILFRED JOHN (The Administrator of the estate of the late Fredrick W ilfred) ................. . ....... . ............................ 3rd RESPONDENT (Application for extension of time to file Notice of Appeal and an application for leave to appeal from the decision of the RM'S Court of Arusha at Arusha) (Kamala, SRM. Ext. Jurist dated the 30th day of January, 2023 in Extended Jurisdiction Land Appeal No, 4 of 2022 RULING 16thAugust & 4lh September, 2024 RUMANYIKA, J.A.: This application is by way of a notice of motion which is predicated under rules 10 and 45A (1) of the Court of Appeal Rules, 2009 ("the Rules"). Azania Bank Limited, the applicant, seeks extension of time within which to file a notice and an application for leave to appeal to the Court. It is supported by an affidavit sworn by Martin James Wanyancha who is the applicant's Principal Legal Officer and an advocate. The respondents did not file an affidavit in reply thereto. i

In order to appreciate the essence of the matter, the following background information shall be helpful: Before the District Land and Housing Tribunal for Karatu, at Karatu ("the DLHT"), the 1st respondent herein successfully sued the applicant seeking, among other things, a declaration order that he is the lawful owner of the suit property and that, its sale to any one of the respondents was unlawful. The applicant was ordered to pay the 1st respondent compensation of TZS 80,000,000.00. Aggrieved, the applicant appealed unsuccessfully before the Resident Magistrate with Extended Jurisdiction, Arusha vide Land Appeal No. 4 of 2022. She lost the battle on 30th January, 2023. It is her assertion that the judgment was pronounced in his absence since, previously, it had been scheduled for 11th November, 2022, 2n d December, 2022, and then 21st January, 2023, 23rd January. And that all this time the dates were not communicated to her. Further, it is alleged that, in such confusing circumstances she lost truck of the case, and the bench clerk informed her that the matter had been scheduled for 10th April, 2023. However, the date turned out to be a public holiday. That, she appeared on 13th April, 2023 only to find that, the judgment was already pronounced on 30th January, 2023. Upon being so informed, she requested for copies of the necessary documents which were supplied to her on 14th April, 2023. Besides, the applicant alleged illegality of the impugned decision namely; one, that, 2

some grounds of appeal were left out undetermined in that only one ground was determined and two, that, the general damages awarded were not justifiable. Her first attempted application was dismissed on 8th November, 2023. It was also ruled that, the applicant had failed to account for each day of the delay. Undaunted, the applicant has preferred the instant application alleging three illegalities; one, the first appellate court did not determine all the grounds of appeal fronted, two, by granting the unclaimed relief the DLHT acted illegally and three, the general damages of TZS 80,000,000.00 awarded to the 1st respondent were not justifiable. The application was argued on 16th August, 2024 during which Messrs. Elibariki Happy Maeda, the Principal Officer of the applicant and Martin Wanyancha, learned counsel appeared for the applicants and respondent, respectively. The 1st and 3rd respondents appeared in person whereas the respondnet did not appear despite being duly served on 1st August, 2024. On that account her presence was dispenced with. The applicant adopted the supporting affidavit. Relying on the decision of the Court in Firmon Mlowe v. R, Criminal Application No. 507 of 2020 (unreported), Mr. Maeda contended that, the applicant's delay was not deliberate in the circumstances. That the applicant had lost track of the case therefore, the judgment was delivered in her absence, after it had 3

been adjourned several times. That the applicant timely filed the present application on 22n d November, 2023 which was within fourteen days after the refusal by the High Court on 8th November, 2023. Illustrating on the alleged illegality of the decision, Mr. Maeda contended that, it is not dear whether the awrded T7S 80,000,000.00 is general or specific damages, let alone it being on the high side. Further, he contended that, by skeeping some grounds of appeal, purportedly one of them is decisive, it constituted an illegality. He urged me to grant the application. He cited Firmon Mlowe (supra) to bolster his point. Moreover, he asserted that, the DLHT had no jurisdiction to grant such unprayed general damage relief of TZS. 80,000,000.00 since, parties are bound by their own pleadings. In reply, the 1st respondent contended that, he actually had prayed for the general damages and the courts below cannot be faulted on that one. The 3rd respondent conceded to the application urging me to grant it as presented. I have given such a careful thought of the arguments advanced by both sides. I note that, under rule 10 of the Rules, the Court has the discretion and power to extend time for the doing of an act only where sufficient cause is shown therefor.

However, it is worth noting that, in terms of section 10 of the Legal Sector Laws (Miscellaneous Amendments) Act, Act No. 11 of 2023 the second limb of the application is redundant since, leave is no longer a legal requirement. Now the arising question is whether the applicant has shown good cause to warrant the grant of extension of time. The gist of rule 10 of the Rules has been tested in a number of cases including Finca T. Limited & Another v. Boniface Mwalukisa (Civil Application 589 of 2018) [2019] TZCA 561 (15 May 2019: TanzLII). Moreover, in Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 the Court stated factors to be considered when granting or refusing extension of time as follows; one, the applicant must account for each day of the delay, two, the delay should not be inordinate, three, the diligence of the applicant and four, whether there are other reasons such as illegality of the decision which is sought to be challenged. Having considered the contents of the notice of motion, the supporting affidavit and the arguments from both sides, I am satisfied that, at least this application was filed within fourteen days as required by rule 45A of the rules. 5

With respect, however, in venturing to justify her originally refused application, it is clear to me that the applicant's learned counsel has only narrated the events. It covers the period from 11th November, 2022 when the judgment date was first adjourned for several times to 30th January, 2023 when he became aware that finally it is out. In fact he has failed to account for each day of the delay, from 30th January, 2023 to when she filed the original application for extension of time. Her advocate may have lost truck of the case in the circumstances. Moreover, it took her unnecessarily long from the said 30th January, 2023 to 22n d November, 2023 when she lodged the instant application. It means that, either she was negligent or had no further interest in the matter until such a long time. It is settled law that, for an application for extension of time to do a certain act to succeed, each day of the delay has to be accounted for. This position has been pronounced in a plethora of the Court's decisions including in Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, where it was held that; "Delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken". In the light of the principle cited above, therefore, the applicant's delay was not justifiable. It was not enough for the applicant to allege that 6

she lost truck of the case. As regards the alleged court clerk's information, through whom, the applicant allegedly had tracked the case file, there should have been a supplementary affidavit sworn by the clerk, which is missing. As regards the alleged illegality of the decision which, in our jurisprudence constitutes sufficient cause for extension of time, as stressed in Kalunga and Company Advocates v. National Bank of Commerce [2006] T.L.R. 235, the question is whether the points raised by the applicant amount to illegality. Going by the record of the application, I do not see any one of the alleged illegalities of the decision. The points raised may only make good grounds of appeal. As regards the DLHT in its considered opinion deciding that, the grounds of appeal presented revolved on one decisive ground, thus, deciding the appeal as such, I note that, it is not always the case that, all grounds have to be tackled separately. See- Rashid Yusuph @ Martin & Others v. R (Criminal Appeal No. 407 of 2022) [2024] TZCA 333 (8 May 2024: TanzLII). As regards the alleged failure of the two courts below to justify the award of TZS 80,000,000.00 as general damages which were not pleaded, I find it not to be an illegality. The complaint is respectfully out of place for two main reasons; one, general damages do not need to be pleaded 7

specifically and proved strictly and two, the applicant had pleaded it quietly under paragraph 7(ix) of the amended application filed on 27th January, 2020. When all the foregoing is said, I am satisfied that the applicant has not shown good cause to warrant my discretion and grant of extension of time sought. The application is hereby dismissed in its entirety. DATED at DAR ES SALAAM this 3rd day of September, 2024. S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 4th day of September, 2024 via video conference in the presence of Mr. Elibariki Maeda, learned counsel for the Applicant, 1st Respondent present in person and in the absence of the 2n d and 3rd Respondents, is hereby certified as a true copy of the original C. R MAGESA DEPUTY REGISTRAR COURT OF APPEAL