Simon Nchangwa vs Majaliwa Bande and Another (Civil Application No. 205/01 of 2017) [2017] TZCA 1275 (9 November 2017)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION.NO . 205/01 OF 2017 SIt1ONNCHGVvA ....... ..................................................... .... APPLICANT VERSUS MAJALIWA BANDE JOHN N'V"4l(IBJR.I .............. ........................................ RESPONDENTS (Application for Extension of Time for the Applicant to Serve Noticeofppealánd a letter applying copies of proceedings to the respondents and file Appeal out of time against the Judgment and Decree from the High Court of Tanzania • AtDaresSalaam) (Mzuna 5.) dated the'7th day of August, 2015 • In• • - - • •. Civil Case No. 274 of 1995

RULING 3rd & 101h Novémber, 2017 LILA, 3.A: In this notice of motion filed by Simon Nchagwa, the applicant, the Court is being moved to extend time within which to serve a notice of appeal and a letter applying for copies of proceedings to the respondents and also to file an appeal out of time against the judgment and decree in Civil Case No. 274 of 1995, of the High court Dar es Salaam District Registry (Mzuna, 3.) dated 7th August, 2015.

The major grounds for the delay are that the District Registrar was late in supplying the applicant with a correct certificate of delay and that there exists illegalities in the judgment and decree of the High Court which the applicant intends to challenge on appeal. At the hearing of the application Mr. Juma Nassoro and Mr. Mluge Kardli, learned counsel appeared for the applicant and 2 nd respondent, respectively. The 1 st respondent did not enter appearancel despite being served with the notice of hearing through Mgongo Fimbo & Co. advocates. For that reason, Mr. Nassoro prayed hearing to proceed in the absence of the 1 st Respondent. I granted the prayernd ordered hearing to proceed under Rule 63(2) of the Tanzania Ccurt of Appeal Rules, 2009 (the Rules). In arguing the application, Mr. Nassoro, had nothing to add to the written 1submissions he had already filed which he prayed the Court to adcpt as part of his submissions. All IN

On his part Mr. Karoli who had earlier on filed an affidavit in reply resisting the application prayed to withdraw the same as he was no longer opposing the application. I have passionately examined the written submissions filed on 30/6/2004 and the affidavit in support of the application. It is the applicant's submission that he could not file an appeal on or before 20/2/2017 because between 20/8/2015 when he lodged the notice of appeal and 22/12/20 16 when he was supplied with the copies of proceeding he had an erroneous certificate of delay which he annexed to affidavit as annexture "G". He, further, submitted that the Deputy Registrar of the High Court supplied him with a correct certificate of delay (Annexture "H" to the affidavit) on 11/04/2017. As by then he was already late he had to file the present application. All the above comprehensively considered, it is apparent that the delay in filing the appeal was caused by the Deputy Registrar's failing to supply the applicant with a correct certificate of delay timeously. This Court had in several occasions held that a delay 3

C. caused by the Registrar and or the courts amounts to good reason for delay (See Chang Qing International Investment Limited Vs Tol Gas Limited, Civil Application No. 292/16 of 2016, Francis Ngowi an1 Another Vs Geofrey Lamayani, Civil Application No. 122 of 2013 and Tanzania China Friendship Co. Ltd Vs Charles Kabweza jand Others, Civil Application No. 62 of 2015) (All unreported). Givent the above legal position and the fact that the application is not oppdsed, I find that the delay by the Registrar to supply the applicant with a proper and correct certificate of delay promptly amounted to sufficient reason for delay in filing the appeal within time. The above, notwithstanding, the applicant has also raised as a reason for japplying for extension of time, that there are inherent 4 illegalities in the High Court decision calling for the Court's intervention. He has raised five illegalities in the form of issues out of which the following alleged illegalities can be extracted:- 4

That the purported sale agreement of the Plot between the plaintiff and d defendant was void, ineffectual and unenforceable and fraudulently done and that the I st Defendant (Applicant) was lawful registered owner of the plot, but then made an order the plaintiff (15t Respondent) is entitled to compensation from the Applicant. .2.1 That the 1St Defendant (Applicant) failed to prove construct/on of the house over the disputed plot. 3 That the plaintiff (15t Respondent) proved construct/on of the suit house over the disp uted plot. 4. That the trial judge ordered the Appellant (ft Defendant in the suit) to compensate the ft Respondent 7596 of the current value of the suit house. 5

Ii U 5: That the trial judge admitted in evidence documentaiy evidence filed in Court after commencement of the trial of the Case. It is, indeed, a position of the law that where illegality is raised as a reasoh for applying for extension of time, then it amounts to good cause within Rule 10 of the Rules (See Principal Secretary, Ministry of Defence and National Service Vs Devram Valambia j[1992] T.L.R. 185 and Etlirines Hotel Vs National Housing Corporation, Civil Reference No. 32 of 2005 (CAT- unreported. In both cases, the Court categorically stated that illegality of la decision amunts to good cause for extending time and to hold othrwise would amount to pèrmiIing a decision which in law might not ebdst or stand. For the foregoing reasons, I am satisfied that the applicant has showed god cause warranting the Court's exercise of discretionary powers of extending time. The application is hereby granted. The applicant is given thirty (30) days from the date of delivery of this ) serve the respondents with the notice of S 6 S

a 0 • a . . a • 4 . appeal and aletter alying for copis of proceedings and also to Ie an appeal * •In the circumstances of this case; I hereb order each party to bear its bwiFl cOsts. • 4 a • . •.•' ,. 0•. •. . S • •. a • 5, - • . I • 5 *5

• • • a 5 0 • ' DATED at DARES SALAAM this 9 day of 4 November, 2017 I 0 • '. • 0 • . .5 5. S I • S 4 5 4 4 • *4 .' • I - • S. A. LI L/\ 4 • . • Al . .4 a JUSTICE OFAPPEAL • 0 0 — •4S - .4 5•• 45 • 0. . 0 .1 certiyhatthis is a true copy of the original. , • V r T ~ (A-I a DEPUTY REGISTRAR .: • • COURT OF APPEAL •#''•

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