MIC Tanzania Limited (Currently Known as Honora Tanzania Public Limited Company) vs Empty Soulz Production and Others (Misc. Civil Application No. 28648 of 2024) [2025] TZHC 8659 (19 December 2025)
Judgment
1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB - REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 2 8648 OF 202 4 ( O riginating from the District Court of Kinondoni in Civil Case No. 82 of 2018) MIC TANZANIA LIMITED ( Currently Known as Honora Tanzania Public Limited Company) ……......... ... ........... APPLICANT VERSUS EMPTY SOULZ PRODUCTION………………….………..…… … 1 ST RESPONDENT CRYSTAL MOBILES (T) COMPANY LTD….……………..… . … 2 ND RESPONDENT CELLULANT TANZANIA LIMITED ………………..………… . … 3 RD RESPONDENT PUSH MOBILE MEDIA LTD ……………….……..… . ……… .. … 4 TH RESPONDENT RULING 06 th November & 1 9 th December, 2025 The afore named applicant instituted an application herein p raying this court for gr ant of an extension of time within which the sam e may appeal out of time against the judgment and decree of the trial court in Civil Case No. 82 of 2018. The application is brought under the provision of section
2 14(1) of the Law of Limitation Act [ Cap 89 R.E. of 20 23 ] and supported by the affidavit of Mr Victor Kikwasi , the applicant ’s counsel . The applicant had a service of Mr Victor Kikwasi , a learned advocate . The 1 st respondent and 2 nd respondent had the services of Mess rs Adrian Mhina and Roma Gervas , respectively. The matter proceeded exparte against the 3 rd and 4 th respondent s , having th e effort s to procure their a ppearance in Cour t proved futi le. The application was heard by filing written submission s . In elaborating the matters deponed in the supporting affidavit , Mr Kikwasi submitted that the first respondent herein commenced a civil proceeding in the trial court in Civil Case No. 8 2 of 2018, against the applicant herein , claiming TZS 298,200,000/= for unlawful u se of her artistic work . The applicant sought and obtained leave to join the s econ d, third a nd fourth respondents as the third parties based on the agreement for v alue - a dded s ervices . At the conclusion of the trial, the trial court entered judgment and decree in favour of the first respondent . The applicant wa s adjudged to pay the first respondent general damages to the tune of TZS 120,000,000/= , among others. The third and fourt h respondents were found without liability for the c laim made by the first respondent . The applicant was aggrieved by th e decision entered by the trial court and
3 lo d g ed an appea l ( Civil Appeal No. 12 of 2023 ) in this court against the first and second respondent herein. Unfort unately, t he appeal was struc k out on technical aspect . He nce, this application . In substantiating the application herein, the counsel raised two grounds for grant of the extension sought , t he first gr ound being that the time lapsed amounts to a technical ground in law , and the illegality of the decision sought to be c hallenged in the second ground . With regard to the first gr oun d , the counsel submitted that the civil appeal was filed in time , but it was struck out on procedural irregularities based on the ground that the third and fourth respondents were found not liable with re s pect to the claims made by the first respondent . H ence, the applicant f ound it un neces sary to join them in the preferred appeal. And the cou nsel asserted tha t the applicant acted in good faith and with reasonable diligence throughout the process ; hence , the striking of the appeal was occasioned by the omission to join the third and fourth respondents , which the a pplicant now seeks to cure by filing a fresh appeal. The learned counsel buttressed his point by citing the case of B enedict Shayo vs Consolidated Holdings Corporation as Official Receivers of Tanzania Film Company Ltd (Civil Application No. 366 of 2017) [2018] TZCA 252 ( TANZLII ) .
4 And in s u bstantiatin g the point of illegality, the counsel argued that the impugned judgment is tainted with illegality in the following aspects. One , the firs t respondent failed to prove that he was the owner of the alleged ringback tones (RBTs). He nce, the burden of proof with respect ot own ership of the al leged copyright infringement was not disc h a rged . Two , the first r espondent failed to prove how and when the alleged artistic work was expl oi ted . Three , the trial court misdirected itself in ruling that the applicant admitted to the claim , whereas the said admission was not clear, specific, and unequivocal. Four , the trial court did not make any finding against the third party contrary to the law . Fi ve , the trial court awarded the first respondent TZS 120,000,000/= as general damage s , which was not prayed for , nor did the trial court provide the justification for awarding such damages contrar y to the law . The case of James Funke Gwagilo v. Attorney General [2004] TLR 161 was cited to bolster the point. He nce, the cou ns el opined that it i s law that illegalities which are apparent on the face of the record constitute sufficient cause for the grant extension of time . The cases ; Principal Secretary, Ministry of Defence and National Service v s . Devram P. Valambhia [1992] TLR 185 ; and Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's
5 Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 ( TANZLII ) were cited to buttress the point. Based on the above ground, the counsel prayed that this application be granted. Mr M hina , the first respondent ’ s co unsel , vehemently contested the application herein. He contended that the applicant’s counsel failed to establish sufficient cause for gra nt of the extension sou ght . Tha t the purported principle of t echnical delay invoked by the appli cant ’ s counsel for grant of the extension sought was misconceived in the circumstances of this c ase , as the applicant ’ s counsel acted negligently in omitting to include the third and fourth respondents in the preferred appeal. The case of Ester Baruti vs Seith Senyael Ayo & Another (Civil Application No. 514/17 of 2022) [2023] TZCA 17824 ( TANZLII ) was cited to cement the point . Respondi ng to the p lea of illegality raised for gr ant of extension sought herein , the counsel contended the alleged illegality ought to be on the face of the record ; h oweve r, the purported ille galit ies are not app arent on the f ace of the recor d , b u t one needing detailed analysis of facts.
6 Lastly, the coun sel contended that the applicant’s counsel failed to account for the period of delay. He expounded that the ruling of t his court was delivered on 28 th August , 2024 , but the application he rein was filed on 07/11 /2024 , a nd the applicant ’ s counsel claimed he was engaged on 29/10/2024 ; hen ce, t he applicant in this matter failed to account for the period of del ay from 29/10/2024 when her counsel was eng aged to re present her to 07/11/2024 when this application was filed. The case of Lyamuya Construction Company Ltd v s . Board of Registered Trustees of Young Women’s Christian Association o f Tanzania (supra) was cited to reinforce the point . Based on the premises above, the first respondent ’ s counsel prayed that the application herein be dismissed with costs. Mr Gervas, cou nsel for the sec ond respondent, likewise resisted this application. He reiterated that the applicant ’ s counsel acted negligently in dropping the thir d and fourt h respondent s in the preferred appeal , con sidering that he was the same counsel who represented the applicant in the tri al court and was a ware of the parties involved in the c ase . He opined that the applicant’s counsel is intentionally abusing the court process and causing the respondent s herein to incur unnecessary litigation costs . And the counsel likewise contended that the applicant ’ s
7 counsel failed to act with dilige nce. Moreso , the counsel conte nded that the alleged illegalit ies advanced as sufficient ground for grant o f the ex ten sion sought are likewise misconceived . Su ffice to say tha t the second respondent ’ s counsel prayed this court to find this application bereft of merit and dismiss the same with costs . In rejoinder, the applicant counsel reiterated his submission in chief and stressed that the time laps ed from the date of deli very of the impugned ruling of this cou rt on 28/08/2024 to 29/10/2024 , when he was instructe d to institute this application , he was awa iting t he issuance of the imp ugned r uling. And the period from 30/10/2024 to 7 th November , 2024 , when the application herein was lodged , he was pre paring t he docu ments of this case. He nce, the period of de lay has been accounted. The question to be res olved herein is whet her the applicant herein has substance . The provision of section 14(1) of the Law of Limitation Act enjoins this court with the power to grant an extension of time in which to file an appeal beyond the prescribed period for sufficient cause. See in this resp ect the cases : Allison Xerox Sila vs . Tanzania Harbours Authority , Civil Reference No. 14 of 1998, CA (unreported) ; Kalunga &
8 Company Advocates Ltd vs National Bank of Commerce Ltd [2006] TLR, 235 ; Attorney General v s . Tanzania Ports Authority & Another, Civil Appeal No 87 of 2016 (unreported) ; and Marco Tluway Mallange vs Principal Secretary Ministry of Defence & National Service & Others (Civil Application No. 328/11 of 2024) [2025] TZCA 1205 (TANZLII) , a mon g others . And, in particular , i n gauging whether the applicant has established sufficient cause for the grant of the extension sought, the Apex Court in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania ( supra) formulated the following guideline s for consideration:
- The applicant must account for each and every day of delay.
- The delay should not be inordinate.
- The applicant shows diligence and not apathy, negligence , or sloppiness in prosecution of the action he intends to take.
- If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance, such as illegality of the decision sought to be challenged. As aforementioned, the applicant’s counsel raised two grounds for the grant of the exte nsion sought . In the first ground , it was ar gued that the time lapsed amounts to technical delay in law; and in the second ground , a plea of illegality was rai sed as a su fficient ground for the gran t of the
9 extension sou ght . Now , I proc e ed to discuss the me rit or otherwise of both ground s h ereunder. Respect ing the first ground, a dmittedly, it is a rule of law that the time spent by a litigant in the prosecution of the matter , which is later found to be incompetent and struck out for various technical ground s , amounts to a technical delay which is excusable in law [ Fortunat u s Masha vs. William Shija and Another [1997] TLR 154 ] . Rever ting to the matter at hand, it is an uncontroverted fact that the impugned judgment of the tri al court in Civil Case No. 82 of 2018 was delivered on 28 th November, 2022. The applicant timely appealed against that decision by filing Civil Appeal No. 12 of 2023 , which was struck out on 28/8/2024 . He nce, I find the t ime taken from the date of d elivery of the impugned judgment on 28 th November, 2022 , to 28/8/2024 , w he n the appeal lodged in this court was struck out , amou nt s to technical de lay which is excusable in law. Notwithstanding the above finding, the applicant in this matter was obliged to account for the period lapsed between 28/8/2024 , w he n the appeal lodged in this court was struck out on technical ground to the dat e of filing o f this application . The electronic case record entails that the application herein was lodged on 12/11/ 202 4, not 0 7/11/2025 , the date the applicant’s counsel pur ports he lodged the application herein. Be that
10 as it may, the period from the date upon wh ich this court struck out the preferred appeal to 07 /11/2024 , th e date upon which the counsel insists he filed the application herein , is 71 day s. With due respect, this period is not ac counted for. It was arg ued by the appl icant ’ s counsel that before he was instructed to institut e this application on 29/10/ 2024, he was awaiting issuance of the ruling of this court . However, he didn’t disclose when exac tly he was supplied with the court do cu ment to enable this court to g auge his prom ptness . Besides, I am at a loss to app rehe nd why the cou nsel whose appeal was struc k out on account of his own advertence would await instruction f rom the client to re - in st it ute the same or ta ke any other necessary legal action . It is the law that the applicant seeking an extension of time is obliged to account for each day of delay. Specifically, in the case of Tanzania Local Government Workers Union (TALGWU) vs . Sospeter Gallus Omollo ( Civil Application No. 311 of 2022 ) [ 2013 ] TZCA 17486 ( TANZLII ) , t he Apex Court held: “Accounting for each day of the delay is the backbone of the application for extension of time” Likew ise , in th e case o f Masato Manyama v s . Lushamba Village Council (Civil Application No. 274 of 2024) [2025] TZCA 34 (TANZLII) , the Apex Court opined :
11 " In an application for extension of time , each day passed beyond the prescribed time has to be counted for. In the case of Bushiri Hassan vs. Latifa Lukio Mashayo , in application No. 3 of 2007 (unreported) Court stressed 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.” Suffice it to say that , based on the circumstances of this case, the appli cant ’ s cou nsel acted with apath y and tar diness in taking legal action contrary to the law , which requires him to a ct with pr omptness and dilig enc e. See in this respect the cases: Regional Manager, TANROADS Kagera vs. Ruaha Concrete Company L imited , Civil Application No. 96 of 2007 , CA; and Tanga Cement Company Limited vs. Jumanne D. Massanga and Anothe r, Civil Application N o . 0 6 of 2001 , CA (both un reported) . Pertaining to the plea of illegality advanced herein as sufficient ground for grant of the extension sought, I su bscri be to the argument made by the respondent’s counsel i n that the respective ground is patently misconceived . It is tri te law that the illegality of the decision sought to be c halle nged ou ght to be app arent on the face of the record , not one needing a detailed analysis of facts and/ or evidence adduced in court. In thi s respect , I am constrained to borrow a leaf in the case of Fatma
12 Hussein Shariff v s . Alikhan Abdallah (as the Administrator of the Estate of Sauda Abdallah) and Others, Civil Application No. 536/17 o f 2017 (2021) TZCA 47, where in the A pex C ourt op ined: “ It should be noted that, for illegality to be considered as a good cause for extending time, it has to be on point of law of sufficient importance and it must be apparent on the face of the record and not one that would be discovered by a long - drawn argument or process . ” In the case at hand , the applicant’s counsel advanced f our points of purported illegality pegged on the alleged first respondent's failure to prove the ownership of the infringed copyright . I am of the settled opinion that the purported point s of law need ana lysis of evidence and / or fact s of the case g e nerally to ascertain the ir ver acity. Otherwise, the alleged failure by the trial court to make appropriate specific orders against the third part ies , in my opinion , doesn’t amount to illegality . Based on the finding o f the tri al court , I apprehe nd that the appli cant , and the seco nd and fourt h respondent s he rein ( thir d parties in the proceedings of the tria l court) were found equally liable to satis fy the adjudged decre tal amount.
13 I n view of the foregoing , I am of the considered opi nion that the applicant failed to adv ance sufficient ground s for grant o f the extension of time sought herein . Thus, I find the ap plication herein bereft of merit. Acc ordingly, th e application is hereby dismiss ed with costs . I so order. DATED at DAR ES SALAAM , this 19 th Dec ember , 2025. O. F. BWEGOGE JUD GE