IN THE HIGH COURT OF TANZANIA
(IN THE SUB-REGISTRY OF MWANZA)
AT MWANZA
CIVIL APPLICATION NO. 153 OF 2022
(Arising from the Judgment of Magu District Court in Civil Appeal No. 4
of 2022 originating from Civil Case No. 18 of 2022 at Magu Urban
Primary Court)
KULOLA KATWIGA………………………..…………………APPLICANT
VERSUS
CHEREHANI MARKO……………………….………… …RESPONDENT
RULING
Date of Last Order:15/03/2023
Date of Ruling:24/03/2023.
Kamana, J:
This Court is called upon to grant an extension of time within
which to file an appeal. The impending appeal is against the decision of
the Magu District Court in PC Civil Appeal No. 04 of 2022. The Applicant
is aggrieved by the first appellate Magistrate’s decision which upheld the
trial Court’s findings. The application is supported by the affidavits sworn
by the Applicant and his advocate on which grounds of the application
are based.
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Delay in acquiring a copy of the judgment and failure to pay for
online registration have been cited as the basis for the application. The
Applicant avers that the decision of the District Court was delivered on
19th September 2022 and he was supplied with a copy of the judgment
on 19th October 2022.
Hearing of the application took the form of oral submissions. The
Applicant appeared in person and stated that his failure to file an appeal
was caused by the failure of the District Court to supply him with a copy
of the judgment on time. After acquiring the same he instructed his
advocate to prepare the appeal. Thereafter he traveled to Manonga
Village to attend to his brother who was sick, thereat, there was a
network problem. Given that, his advocate failed to communicate with
him regarding the payment of court fees. When he returned from
attending to his brother, the control number for payment of court fees
was overdue and the time limit also had lapsed. For these reasons, he
prays for his application to be allowed.
In his rebuttal submission, the Respondent didn’t have much to
say, he urged this court to strike out the application as it is beyond the
time limit.
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From these rival arguments, the Court is called upon to determine
whether the application has been made out to warrant the exercise of its
discretion and grant an extension of time.
Before going into the merits or otherwise of this application, I wish
to point out that, the contention by the Respondent that the application
has been brought beyond the time limit is a misconception. I say so
because it is trite law that applications for an extension of time do not
have a time limitation. This position was emphasized in Tanzania
Rent-a-Car Ltd v. Peter Kihumu, CAT-Civil Application No. 226/01 of
2017 (DSM-unreported) in which it was held:
‘For reasons I have demonstrated above, I am of the
view that the sixty days rule should apply in filing all
other applications for which no time limit is prescribed
except in applications for extension of time.’
(Emphasis provided)
Having settled this issue, I now turn to the critical substance of
the parties’ contention. This relates to the sufficiency or otherwise of the
reason for the Applicant’s delay in filing an appeal to challenge the
decision of the District Court of Magu.
In dealing with this matter, let it be clear that the impugned
judgment sought to be challenged was delivered on 19th September
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2022 and the current application was filed on 30th November 2022. This
is to say 71 days had lapsed since the delivery of the judgment.
It is trite that extension of time can only be granted upon the
party’s presentation of a credible case sufficient to persuade the Court to
grant it. Grant of extension of time is, therefore, at the discretion of the
Court, and the process leading up to such grant requires the party in
whose favor the order is sought to act equitably. Thus, the Supreme
Court of Kenya made the following remarks in Nicholas Kiptoo Arap
Korir Salat v. IEBC & 7 Others, Sup. Ct. Application 16 of 2014:
‘Extension of time being a creature of equity, one can
only enjoy it if [one] acts equitably: he who seeks equity
must do equity. Hence, one has to lay a basis that [one]
was not at fault to let time lapse. Extension of time is not
a right of a litigant against a Court, but a discretionary
power of courts which litigants have to lay a basis [for],
where they seek [grant of it].’
In the decision of Lyamuya Construction Company Limited v.
Board of Trustees of YWCA, Civil Application No. 2 of 2010. the Court
of Appeal of Tanzania illustrated key conditions upon which the grant of
extension of time should be based, and these conditions are as follows:
‘(a) The Applicant must account for all the period of
delay.
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(b)The delay should not be inordinate.
(c)The Applicant must show diligence and not apathy,
negligence or sloppiness in the prosecution of the action
he intends to take.
(d)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.’
The Applicant has cited two grounds on which the prayer for
extension of time is premised. One, he had delayed filing the appeal
because of the delay in obtaining copies of the judgment. Two, failure to
pay court fees, and there was a miscommunication between him and his
advocate in accomplishing online filing which led to the expiration of the
control number. While the Respondent contends that the application has
been brought out of time.
After going through the submissions made by both parties, I tend
to disagree with the Applicant’s averments because the law which
governs petition of appeal for matters originating from the primary Court
does not require a copy of the judgment to institute an appeal. This is
per, Civil Procedure (Appeals in Proceedings Originating in Primary
Courts) Rules, 1964 (G.N. No. 312 of 1964) which states thus:
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‘Every petition of appeal to a district court from a
decision or order of a primary court and every petition of
appeal to the high court from a decision or order of
a district court in the exercise of its appellate or
revisional jurisdiction shall set out precisely and
under district heads numbered consecutively the
grounds of objection to the decision or order appealed
against and shall be signed by the appellant or his
agent.’
This position of the law was well interpreted by the Court of
Appeal in the case of Sophia Mdee v. Andrew Mdee and 3 Others,
Civil Appeal No. 5 of 2015 where the Court stated that attachment of a
copy of the judgment of the Primary Court when appealing to the High
Court is not a prerequisite. The Court stated:
‘Attaching petition of appeal with a copy of judgment is
not a legal requirement in matters arising from Primary
Court. Rather it is a legal requirement on matters
originating from District Courts and Courts of Resident
Magistrate as it is provided for under the Civil Procedure
Code.’
Therefore, it is clear that the averments by the Applicant that the
delay was caused by a delay in acquiring a copy of the judgment are
baseless. The law is quite clear that ignorance of the law cannot be
considered a good reason for the extension of time. This position was
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stated in the case of Hamimu Hamisi Totoro @ Zungu Pablo and 2
Others vs The Republic, Criminal Application No. 121 of 128 in which
it was stated that:
‘The issue here is whether ignorance of the law
constitutes a good cause for an extension of time. There
is a plethora of authorities to the effect that ignorance of
the law has never been a good cause for granting an
extension of time. For instance, in the case of Hadija
Adam v.Godbless Tumba, Criminal Application No. 14 of
2013 (Unreported) the court stated as follows: ‘as
regards the Applicant’s ignorance of law and its
attendant rule of procedure, I wish to briefly observe
that such ignorance has never been accepted as a
sufficient reason (see for instance, Charles Machota
Salugi v. Republic, Criminal application No. 3 of 2011
(Unreported).’
In the foregoing, I find this reason for the delay is devoid of merits
and I dismiss it. Lastly, the contentions that he has failed to pay court
fees online and that there was a miscommunication between him and
his counsel are also baseless since the same was intended to move this
court to extend the time within which he could file his appeal out of
time.
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Consequently, and, in view of the foregoing, I find no merit in the
application. Accordingly, I dismiss it with costs.
It is so ordered.
DATED at MWANZA this 24th day of March 2022.
KS KAMANA
JUDGE
