The applicant sought an extension of time to appeal a High Court decision but was denied by the High Court. The applicant then applied to the Court of Appeal for the same extension. The Court of Appeal considered whether the applicant's reason of being unfamiliar with appeal procedures constituted good cause. While an uncontested application may be allowed, the applicant still must show good cause. The Court found that ignorance of procedures does not qualify as good cause based on previous rulings.
The applicant sought an extension of time to appeal a High Court decision but was denied by the High Court. The applicant then applied to the Court of Appeal for the same extension. The Court of Appeal considered whether the applicant's reason of being unfamiliar with appeal procedures constituted good cause. While an uncontested application may be allowed, the applicant still must show good cause. The Court found that ignorance of procedures does not qualify as good cause based on previous rulings.
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Original Title
MD, Mendez - Ignorance of the Legal Procedure is Not a Good Cause, Respondent Who Intends to Oppose Application Must File a Counter Affidavit, Uncontested Application, DOMINIC YOHANA (1)
The applicant sought an extension of time to appeal a High Court decision but was denied by the High Court. The applicant then applied to the Court of Appeal for the same extension. The Court of Appeal considered whether the applicant's reason of being unfamiliar with appeal procedures constituted good cause. While an uncontested application may be allowed, the applicant still must show good cause. The Court found that ignorance of procedures does not qualify as good cause based on previous rulings.
The applicant sought an extension of time to appeal a High Court decision but was denied by the High Court. The applicant then applied to the Court of Appeal for the same extension. The Court of Appeal considered whether the applicant's reason of being unfamiliar with appeal procedures constituted good cause. While an uncontested application may be allowed, the applicant still must show good cause. The Court found that ignorance of procedures does not qualify as good cause based on previous rulings.
DOMINIC YO H A N A ..............................................................................APPLICANT VERSUS SALMA S H ITE................................................................................... RESPONDENT (Application for Extension of Time to Apply for Leave to Appeal to the Court of Appeal from the judgment and decree of the High Court at Dodoma)
(Kalombola. J.)
Dated the 19th day of July, 2018
in
Misc. Land Appeal No. 33 of 2016
RULING 26th & 31st May, 2021
MWAMBEGELE, J.A.:
In the High Court of Tanzania sitting at Dodoma, the applicant,
Dominic Yohana was refused extension of time to file an application for
leave to appeal to this Court. He intended to assail the decision of the
High Court (Kalombola, J.) in Misc. Land Appeal No. 33 of 2016. In
refusing him the application, the High Court (Mansoor, J.) was of the view
that the applicant had not shown good cause for the delay to warrant it
grant the extension sought. Still wishing to challenge the decision of the High Court (Kalombola, J.), the applicant has come to the Court by way of
what is commonly known as a second bite seeking the same extension of
time which was refused by the High Court (Mansoor, J.) on 15.11.2019.
The application has been made under the provisions of rule 10 and
45A of the Tanzania Court of Appeal Rules (the Rules) having duly
obtained a certificate of delay in terms of rule 45A of the Rules. The
course of action is allowable by the provisions of rules 10 and 45A of the
Rules, under which the application has been made. The application is
supported by an affidavit deposed by Dominic Yohana, the applicant.
When the application was placed for hearing before me on
25.05.2021, the applicant appeared through Ms. Sophia Gabriel, learned
advocate. Though duly served, neither the respondent nor her advocate
entered appearance. The notice of hearing shows that the respondent was
duly served on 07.05.2021 through Advocate Sedrick Kallen Mbunda of a
law firm going by the name M. N. Associates of the City of Dodoma. Given
the circumstances, Ms. Gabriel prayed for, and was granted, leave to
proceed with the hearing of the application in the absence of the
respondent in terms of rule 63 (2) of the Rules.
When given the floor to argue her application, Ms. Gabriel first
sought to adopt the notice of motion and the supporting affidavit as
forming part of her oral arguments. She told the Court that the
respondent had not filed any affidavit to resist the application. That being
the case, she submitted, it should be taken that the respondent did not
intend to oppose the application. To buttress this proposition, she referred
me to the decision of the Court in Alhaji Abdallah Talib v. Eshakwe
Ndoto Kiweni Mushi [1990] T.L.R. 108 in which it was held that a
respondent who intends to oppose an application, must do so by filing a
counter affidavit.
Regarding the gist of the application, Ms. Gabriel was very brief but
to the point. She submitted that the reason why the applicant could not
timely file the application is deposed at para 8 of the supporting affidavit
that the applicant was not conversant with the process of appeal to the
Court. For this reason, and the fact that the application was not contested,
Ms. Gabriel prayed that the application be allowed with costs.
Before going into the nitty gritty of the determination of the
application, I start with the premise that this application in not contested.
I agree with Ms. Gabriel that a respondent who intends to challenge an
application must do so by filing a counter affidavit. In Alhaji Abdallah
Talib (supra); the case cited to me by the learned counsel, it was
succinctly held at p. 110:
"... if the respondent wished to challenge the
application, the proper thing to do here was to file a counter affidavit That would not only avoid confusion and m ultiplicity o f actions, but would also make the proceedings neat and orderly."
In the case at hand, if the respondent intended to resist the
application, she would have filed an affidavit in reply to challenge it. For
the avoidance of doubt, whether it is an affidavit in reply or a counter
affidavit is just a matter of nomenclature. The same document is referred
to as an affidavit in reply in the Court of Appeal but it is a counter affidavit
in courts below.
I also wish to state at this juncture that the fact that the application
was not contested, it does not ipso facto mean the application will be
allowed as of right. There are decisions of the Court that underline this
fact - see: M.B. Business Limited v. Amos David Kasanda and Two
Others, Civil Application No. 66 of 2014 and Tanzania Breweries Ltd v.
Leo Kobelo, Civil Application No. 64/18 of 2020 (both unreported).
It is now settled law that an application for extension of time will
only be granted upon the applicant showing good cause for the delay.
There is no dearth of authorities on this point - see: Tanzania Coffee
Board v. Rombo Millers Ltd, Civil Application No. 13 of 2015,
Sebastian Ndaula v. Grace Rwamafa (legal personal
representative of Joshua Rwamafa), Civil Application No. 4 of 2014,
Yazid Kassim Mbakileki v. CRDB (1996) Ltd Bukoba Branch &
Another, Civil Application No. 412/04 of 2018 and Tanzania Bureau of
Standards v. Anitha Kaveva Maro, Civil Application No. 60/18 of 2017
(all unreported), to mention but a few.
Adverting to the case at hand, I have considered the notice of
motion, the supporting affidavit and the submissions of the learned counsel
for the applicant at the hearing of the application. The reason why the
applicant could not timely file the application for leave to appeal to the
Court for which enlargement of time is sought is found at paras 4 and 8 of
the supporting affidavit. For easy reference, I take the liberty to reproduce
them as under:
At para 4, the applicant deposes:
"4. THA T, as I left that I was not conversant with procedures for appealing to the Court o f appeal o f Tanzania, I approached an Advocate one Mr. Mcharo who after going through my documents informed me that I need to apply for leave to appeal to the Court o f Appeal and that by the time I went to him; time for filing application for leave to a p p e a lh a d then lapsed"
Likewise, at para 8 it is deposed:
"6. THAT, on W h November, 20191, applied to be
supplied with the copies o f Ruling; Drawn Order and Proceedings to enable me to apply to the Court o f Appel o f Tanzania for extension o f time to apply for leave to appeal to the Court o f appeal o f Tanzania. A copy o f letter is attached as A n n exu re D Y5."
It is apparent from the reproduced two paragraphs that the applicant
did not timely apply for leave because he could not come to grips with the
procedure for appealing to the Court. The crisp issue in this application is
therefore whether the applicant, for not being conversant with the
procedure to appeal to the Court, has brought to the fore good cause in terms of rule 10 of the Rules to trigger the Court to enlargethetime
sought. This issue is not a virgin territory. It has been traversedby the
Court before in a string of decisions which hold that ignorance of the
procedure does not fall within the scope and purview of good cause
envisaged by rule 10 of the Rules - see: Metal Products Ltd v. Minister
for Lands & Director of Land Services [1989] T.L.R. 5 and Ali Vuai Ali
v. Suwedi Mzee Suwedi, Civil Application No. 1 of 2006, Ngao Godwin
Losero v. Julius Mwarabu, Civil Application No. 10 of 2015, Charles
Machota Sarungi v. Republic., Criminal appeal No. 3 of 2011 and
Wambura N. J. Waryuba v. The Principal Secretary Ministry of
In Ngao Godwin Losero (supra), for instance, it was observed:
"... I w ill right away reject the explanation o f
ignorance o f the legal procedure given by the applicant to account for the delay. As has been held times out o f number, ignorance o f law has never featured as a good cause for extension o f time (see, for instance, the unreported ARS. Criminal Application No. 4 o f 2011 - B a rik i Is ra e l Vs. The R e p u b lic; and MZA. Criminal Application No. 3 o f 2011 - C h a rle s S a lu g i Vs. The R ep u b lic). To say the least\ a diligent and prudent party who is not properly seized o f the applicable procedure w ill always ask to be apprised o f it for otherwise he/she w ill have nothing to offer as an excuse for sloppiness."
To clinch it all, in Metal Products Ltd (supra), confronted with a
similar situation, it was held:
"Categories o f explicable inadvertence causing delay
to make an application do not include ignorance o f procedure .../'
In the case at hand, as seen above, the only reason brought to the
fore by the applicant for not filing the application for leave to appeal to the
Court is his inability to come to grips with the procedure for appealing to
this Court. This does not fall within the scope and purview of good cause
envisaged by rule 10 of the Rules. If the applicant was diligent enough, he
should have timely sought to be apprised of the process of appeal to the
Court. He did not act timely. When he consulted an advocate for the way
forward to his appeal, as deposed at para 4 of the supporting affidavit, he
was already on borrowed time.
8 In the end, I find no iota of merit in this uncontested application and
dismiss it. As the respondent did not enter appearance at the hearing of
this application and never filed an affidavit in reply to resist the application,
I make no order as to costs.
DATED at DODOMA this 28th day of May, 2021.
J. C. M. MWAMBEGELE JUSTICE OF APPEAL
This Ruling delivered this 31th day of May, 2021 in the presence of
Ms. Caroline Lyimo, learned advocate for the Applicant and in absence of
the Respondent, is hereby certified as a true copy of the original.
