IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

(CORAM: LILA, J.A.. MKUYE. J.A.. And KOROSSO. J.A.^

CIVIL APPEAL NO. 151 OF 2018

ELLY PETER SANYA........................................................................ APPELLANT

VERSUS
ESTER NELSON............................................................................RESPONDENT

(Appeal from the decision of the High Court of Tanzania

at Mbeya)

(Levira, J.^

Dated the 15th day of June, 2017

in
Misc. Civil Application No. 12 of 2016

JUDGMENT OF THE COURT

20th & 27th March, 2020

LILA. J.A.:

The dispute between the parties to this appeal, Elly Peter Sanya

and Ester Nelson, (henceforth the appellant and respondent,

respectively), which culminated in the institution of this appeal has a

chequered history. For a better understanding of the background of this

appeal we are compelled to recapitulate its background with sufficient

details.

The parties were husband and wife and, during the subsistence of

their marriage, they were blessed with two issues namely Felix Elly and
Innocent Elly, who were born on 28/8/2006 and 28/2/2011, respectively.

Their marriage life became sour sometime in the year 2012 when the

respondent petitioned for divorce before Uyole Primary Court in Mbeya

District. The grounds for the petition were that the appellant stabbed her

with a knife, threatened her that death will be her divorce and locked her

outside their matrimonial house.

The trial court was satisfied that the marriage had irreparably

broken down and proceeded to grant divorce. It was also ordered that

the issues of the marriage should be in the respondent's custody and the

appellant should provide them with maintenance costs. As for the plot

and a house, it was found that they formed part of the matrimonial

properties and it was ordered that their value be shared by the parties at

the ratio of 2/3 to the appellant and 1/3 to the respondent. The division

of home utensils was left undisturbed on the ground that they had

already been divided to the parties.

The appellant was aggrieved by the decision of the Primary Court.

His appeal to the District Court in Matrimonial Civil Appeal No. 22 of 2012

was unsuccessful. Still aggrieved, he appealed to the High Court at

Mbeya in PC. Matrimonial Civil Appeal No. 2 of 2013. The High Court

(Ngwala, J.), again, dismissed the appellant's appeal.

 Undaunted, the appellant wished to appeal to the Court but was

late. Alive of the law [section 5(2) (c) of the Appellate Jurisdiction Act,

Cap. 141 R. E. 2002 (the AJA)] that the matter originated from the

Primary Court hence a certificate on points of law is a prerequisite

requirement before lodging an appeal to the Court, he lodged in the High

Court at Mbeya an application for extension of time within which to lodge

an application for certification of points of law. Due to its significance in

the determination of this appeal, we take pain to reproduce the

appellant's prayers in that application as they were reflected in the

chamber summons as hereunder:-

(a) This Honourable Court may be pleased to grant an extension

o f time within which to lodge an application for a certificate

on a point o f law as a fit case to appeal to the Court o f

Appeal o f Tanzania out o f time.

(b) Costs be in the course.

(c) Any other relief(s) this Honourable Court may deem fit to

grant.

The purpose of the application and reason for the delay were

averred by the appellant in paragraphs 4, 5 and 6 of the appellant's

3
affidavit in support of the application. We, again, find it apposite to

reproduce them. They stated:-

"4. That, am applying to file application for a

certificate that a case is the fit case to the Court
o f Appeal o f Tanzania out o f time because I have
been given a copy o f judgm ent late on
22/10/2014 and hence the delay to file an
application for a certificate to appeal to the Court
o f Appeal o f Tanzania.

5. That the delay o f been given a copy o f

Judgment caused the delay to file an application
for a certificate that a case is the fit case in time
(sic).

6. That the delay to lodge an application for a

certificate was not deliberate but due to the
reasons stated above in paragraphs 4 and 5 ."

The High Court (Chocha, J. as he then was) (Henceforth Chocha,

J.), on 28/4/2015, declined to grant the application and dismissed the

application for being misconceived. For ease of reference in the course of

this judgment, we, again, find it compelling to reproduce that ruling as

hereunder:-
"In th is a p p lica tio n E iiy P e te r Sanya is

se ekin g exten sion o f tim e w ith in w hich to

lod ge an a p p lica tio n fo r c e rtific a te on a

p o in t o f la w to the C o u rt o f A ppeal. As usual,

the application is supported by an affidavit and is

brought under section 11 (1) o f the Appellate

Jurisdiction A ct Cap. 141 Revised Edition 2002.

The respondent is Esther Nelson.

The applicant contended which was a repetition

o f the contents o f the affidavit\ that he was

im paired from lodging an application in time as

he had not acquired the copy o f the impugned

judgment. He subm itted that the judgm ent which

he desires to challenge was passed on the

9/September/2014. On the 11/9/2014 he lodged

a notice o f intention. He however failed to lodge

an application for leave within the prescribed time

because he had not obtained the copy o f

judgm ent which was served to him on the

22/10/2014, after the expiry o f 45 days.

 The respondent resisted the application.

She had two reasons. One that the m atter was

unnecessarily taking too long. Two that the

applicant had not supported the claim that he had

been chasing for a copy.

The applicant did not te ll the court why he

thinks he is late. Truly, by operation o f R .4 5 fa )

o f th e C o u rt o f A p p ea l o f Tanzania R u les

2009, no a p p lica tio n fo r leave w ould be

file d an d en te rtain e d a fte r fou rteen days

h ad la p se d from th e date o f the d e liv e ry o f

th e im pugned ju d g m en t o r o rd er. The rule is

le t to speak:-

"In C ivil m atter:-

Where an appeal lies with the leave o f

the High Court, the application for

leave may be made inform ally, when

the decision against which it is desired

to appeal is given or by chamber

 summons according to the practice o f

the High Court' within fourteen days

o f the decisions."

The applicant's application is misconceived.

A t this stage the applicant did not necessarily

require a copy o f either the judgm ent or order

which he desires to challenge. An application

would be in place without which, which is why it

is allowed to lodge the same inform ally. The

necessary requirem ent in this application is to

observe time frame, n a m e ly it should be within

fourteen days.

H avin g o b tain ed leave however; it is

very difficu lt for an applicant to figure out the

points o f law he desires to chase unless he is

armed with the copy o f the impugned judgm ent

or order. So, u n like under a situ a tio n w here

lea ve has been granted a lre a d y it is n o t

n ecessary fo r the a p p lica n t to a w a it th e

co p ies o f th e im pugned o rd ers fo r him to

 p ro ce ss an a p p lica tio n fo r leave . Therefore

th e d e la y in su p p ly o f th e im pugned co p ies

can n o t be a good an d s u ffic ie n t g rou n d fo r

th e d e la y of the procession of th e

a p p lica tio n . The application was therefore

misconceived. It is dism issed with costs."

(Emphasis added)

Aggrieved by the dismissal of the application, the appellant lodged

a similar application before the Court by way of a notice of motion for

extension of time famously known as "second bite". That was Civil

Application No.3 of 2015. Unluckily, that application was struck out

(Mugasha, JA) on 15/4/2016 for two main reasons, one; the appellant

cited wrong provisions of the Tanzania Court of Appeal Rules, 2009 (the

Rules) in moving it to extend time on second bite and, two; the

application was untenable by the Court because certification of points of

law for consideration by the Court is the exclusive domain of the High

Court.

Tireless to fulfil his quest to appeal to the Court, the appellant,

again, went to the High Court before which he lodged another

application for extension of time. That was Misc. Civil Application No. 12

of 2016 in which the appellant's prayers were:-

"That this Honourable Court may be pleased to

g ra n t exten sio n o f tim e to the a p p lica n t

w ith in w hich:-

(i) To lod ge a n o tice o f a p p eal an d to

se rve it out of tim e to the

respond ent a g a in st the ru lin g o f

Hon. Chochaf Judge d ated

2 8 /0 4 /2 0 1 5 .

( ii) To lod g e an a p p lica tio n fo r le a ve to

c e rtify th a t th ere is a p o in t o f la w to

a p p e a l to the C o u rt o f A p p e a l o u t o f

tim e.

(b) Costs and incidentals thereto be in the main

appeal.

(c) Any other relief(s) this Honourable Court may

deem fit to grant (Emphasis added)

That application was turned down (Levira, J. as she then was)

(henceforth Levira, J.). In her ruling, which is the subject of this appeal,

the learned Judge stated:-

"This application is brought under Section 11(1)

o f the Appellate Jurisdiction Act, Cap 141 Revised

Edition 2002. The applicant is praying among

other things for extension o f time within which:

i. To lodge a n o tice o f ap p eal

and to se rve it o u t o f tim e to

respondent a g a in st the

ru lin g o f Hon. Chocha, Judge

d a te d 2 8 /4 /2 0 1 5 .

ii. To lodge an a p p lica tio n fo r

leave to c e rtify th a t th ere is

a p o in t o f la w to a p p ea l to

the C o u rt o f A p p e a l o u t o f

tim e.

The application is supported by applicant's

affidavit. This application was entertained exparte

because the respondent did not appear on the

hearing date despite being served with summons

on 2 J d January, 2017. During hearing o f this

application the applicant was not represented by

an advocate, he appeared in person. The

applicant had nothing useful to submit. He stated

that the reasons for his application are stated in

his affidavit

Grounds to support this application are stated in

the affidavit. In paragraph two o f the affidavit,

the applicant states that he was dissatisfied by

the decisions o f Hon. Ngwaia, Judge in PC.

Matrim onial C ivil Appeal No. 2 o f 2013 and that o f

Hon. Chocha, Judge Misc. C ivil Application N0.27

o f 2014 which dism issed that application on

28/04/2015.

In paragraph three o f the affidavit the applicant

states that he was dissatisfied by the decision o f

Hon. Chocha, Judge and therefore he decided to

file a notice o f motion to the Court o f Appeal

seeking for a certificate on a point o f law. The

said application was dism issed on 15/04/2016 by

the Court o f Appeal that it had no powers to

grant certificate on point o f law involved. The

applicant stated in paragraph six that delay to file

this application was not deliberate but due to

time spend in the Court o f Appeal on a notice o f

motion.

I had time to go through the decisions o f this

court mentioned above, the decision o f the Court

o f Appeal and the court records generally. The

observation o f this court is that the application

before the Court o f Appeal was not granted

because it was incompetent and untenable.

However, the application before Hon. Chocha,

Judge was dism issed because the applicant was

seeking for extension o f time but he did not

supply sufficient ground for the delay to process

the application for certificate on point o f law to

the Court o f Appeal.

12
In the current application the applicant is seeking

for extension o f time to lodge a notice o f appeal

out o f time against the decision o f Hon. Chocha,

Judge and to lodge an application for leave to

certify time. The only reason advanced reasons is

that he was delayed by the application which was

pending in the Court o f Appeal.

I think it is im portant to state a t this point that,

although the applicant is claim ing that he was

delayed by the application he filed to the Court o f

Appeal, he has not been able to ju stify why the

sought orders should be granted. I am saying so

because the applicant in the first application in

this court made sim ilar application before Hon.

Chocha, Judge seeking for extension o f time

within which to lodge an application for certificate

on point o f law to the Court o f Appeal, Misc. C ivil

Application No.27 o f 2014; this application was

dism issed as the applicant failed to supply

sufficient reasons. Then the applicant decided to

13
go to the Court o f Appeal seeking for certificate

on point o f law. The said application was

incompetent and untenable, hence was struck

out.

It has to be understood that, for the court to

grant extension o f time there must be sufficient

grounds advanced by the applicant. This principle

is stated in a number o f decided cases from this

court and the Court o f Appeal; some o f these

cases are such that; Yusufu Sam e an d H aw a

D ada Vs. H ad ija Yusufu, C iv il A p p e a l No. 1

o f 2002; B e n e d ict M um elo Vs. B an k o f

Tanzania, C iv il A p p ea l No. 12 o f 2002, Court

o f Appeal o f Tanzania a t Dar es salaam

(Unreported), A le xa n d e r Chula Vs. U ongozi

wa W afu gaji M w aie, M isc. Lan d A p p lica tio n

No. 81 of 2015, High Court Mbeya

(Unreported), and many others.

In my considered opinion I do not see that

the applicant has been able to furnish sufficient

 ground for this court o f grant the application. The

reason th a t he decided to lod ge an

a p p lica tio n to the C o u rt o f A p p ea l is and

can n o t sta n d a s s u ffic ie n t grou nd fo r th is

co u rt to exten d tim e a s it w as h is choice. I f

th e a p p lica n t w as ag g rieved by th a t

d e cisio n he ough t to have appealed a g a in st

th e sam e an d n o t to m ake an a p p lica tio n in

th e C o u rt o f Appeal. H ow ever, I do n o t a lso

th in k th a t it w ill be p ro p e r fo r th is co u rt to

g ra n t th e o rd e r w hich h ad a lre a d y been

re fu se d b y th is court.

Consequently, the application is dismissed. I

make no orders as to costs." (Emphasis added).

The above decision forms the crux of the present appeal before us and

the appellant is faulting it on a sole ground:-

"1. That the learned Honourable High Court

Judge erred both in points o f law when she ruled

out that time spent in prosecuting an appeal in

 the Court o f Appeal was not good reasons to

grant leave to lodge a notice o f appeal and serve

the same out o f time and to lodge an application

for extension o f time leaved to obtain a certificate

to appeal to the Court o f Appeal o f Tanzania "

It is worth noting that the record bears out that the appellant

sought and was granted a certificate on points of law by the High Court

(Ngwala, J.) on 05/4/2018 before he accessed the Court to lodge the

present appeal. The above ground of appeal precisely reflects the point

of law that was certified by the High Court.

Both parties to this appeal appeared in person and were

unrepresented. It is noteworthy that the appellant filed written

submissions in support of the appeal which he adopted as being

sufficient submission in support of his appeal but reserved his right to re­

join after the respondent had replied to the submissions. On the rival

side, the respondent resisted the appeal orally before us.

In his written submission, the appellant is substantially faulting the

learned Judge for not appreciating that the time he spent in prosecuting

what he termed as "his case" before this Court constituted good cause

16
for delay to lodge and serve the notice of appeal to the respondent as

well as apply for a certificate on points of law for consideration by the

Court. For certainty and clarity, we propose to quote the relevant part of

the written submission as under:-

was dissatisfied with the decision o f Hon.

Madam Justice Ngwaia who dism issed my appeal.

A fter that I lodged a notice o f appeal and then

obtained a certificate to lodge an appeal to the

Court o f Appeal. But when I went to the Court o f

Appeal my case was struck out It is then when I

went back before Hon. Madam Dr. Levira and

made an application which was dism issed and

which is the subject m atter o f this appeal.

Your Lordships, the issue for determination

before you is ”w hether tim e sp e n t to

p ro secu te an ap p eal befo re th is H onourable

(s ic ) w as n o t good reason to Hon. M adam

Ju stice D r. Le vira to g ra n t exten sio n o f tim e

to th e a p p lica tio n for leave to lodge application

for extension o f time to lodge and serve a notice

 o f appeal out o f time to lodge an application for

extension o f time to apply for a certificate to

certify a point o f law.

It is my humble submission that, the Honourable

judge made a great error in dism issing my

application because there was no dispute that,

the delay to file an application which was before

her was caused by time spent to prosecute case

before the appellate court. The Honourable court

ought to have granted the leave sought and not

to dism iss it because the dism issal order denied

me an access to come to this Honourable Court to

pursue an appeal against PC Matrim onial C ivil

Appeal no. 2 o f 2014."

In our prompting on what kind of the case was before the Court

which was struck out, the appellant pleaded ignorance of what was

before the Court and threw blame to the lawyer who assisted him in

drafting the documents for not letting him know. Such was also his

response when we engaged him on why he did not rectify the anomaly

in his application before the Court and lodge it again (second bite) and
18
instead, he turned against the ruling by Hon. Chocha J. who denied him

extension of time within which to lodge an application for a certificate on

points of law worth being considered by the Court against the decision

by Ngwala, J.

In her brief response to the appellant's submissions, the

respondent contended that the appeal has no merit and is intended to

cause unrest to her. She fully supported the learned Judge's decision

which is being faulted and urged the Court to examine the record and

determine the appeal basing on the evidence on record. She pressed for

costs claiming that the appellant's endless litigations have caused her to

incur a lot of expenses.

In rejoinder, the appellant, apart from pleading to the Court to

consider his ground of appeal, showed no interest to be paid costs of the

case even if his appeal succeeds.

We, in the first place, wish to make a serious note on the way the

record of appeal was prepared. The documents in the record of appeal

were haphazardly arranged such that the above background of the case

could be tracked with great difficulty. Much as we appreciate that some

of the litigants, the appellant inclusive, may not be aware of the

19
requirements of the Rules on how documents on which the appeal is

founded should be arranged, we think the Registrar should adopt the

practice of perusing and examining the records presented for filing

before they are registered. And, in the event there are apparent

deficiencies, parties should be asked to rectify or amend them before the

cases are scheduled for hearing. To this, Rule 96(4) of the Rules, is clear

on how documents should be arranged and it should be observed in the

preparation of a record of appeal.

Secondly, we think we should seize this opportunity to unveil some

facts as are revealed by the record of appeal that are inconsistent with

the appellant's submission in support of the appeal. One; there was no

appeal lodged by the appellant before the Court that was dismissed.

Instead, after his application for extension of time to apply for

certification of points worth being considered by the Court was dismissed

by the High Court (Chocha, J.), the appellant lodged a similar application

before the Court on a second bite. That application was dismissed by the

Court (Mugasha, JA.) for reasons already stated above. Two, the

appellant seems to have changed course in that while he was formerly

pursuing the process of appeal against the decision of the High Court

(Ngwala, J.) in PC Matrimonial Civil Appeal No. 2 of 2013, now he is

20
pursuing a process of appealing against the High Court decision (Levira,

J.) in Misc. Civil Application No. 12 of 2016 which denied him extension

of time within which to appeal against the decision of the High Court

(Chocha, J.) in which he was denied extension of time to apply for

certificate on points of law so as to appeal against the decision of the

High Court (Ngwala, J.) in PC Matrimonial Civil Appeal No. 2 of 2013.

All the same, before us, the appellant is appealing against the

decision of the High Court (Levira, J.) in Misc. Civil Application No. 12 of

2016 in which he was denied extension of time within which to lodge a

notice of appeal against the ruling of Hon. Chocha, J. dated 28/04/2015

and to serve it out of time to the respondent and also to lodge an

application for leave to certify that there is a point of law to appeal to

the Court of Appeal out of time, whatever that meant.

The pain we have undertaken to reproduce the High Court (Levira,

J.) ruling is not without a purpose. Our serious examination of the record

and as we have endeavoured to show above, has revealed that the

appellant's applications before Chocha, J. and that which was before

Levira, J. were not the same. They were quite distinct applications. While

the application before Chocha ,J. was for extension of time within which

to apply for certification of points of law so as to appeal to the Court

21
against the decision of Ngwala, J. in PC. Matrimonial Civil Appeal No. 2 of

2013, the application before Levira, J. was for extension of time to lodge

a notice of appeal and serve it to the respondent and also to lodge an

application for certification of points of law for consideration by the Court

against the decision of Chocha, J. It is our firm view, therefore, that the

learned Levira, J. was wrong when, in her ruling, she held that:-

"/ think it is im portant to state at this point that,

although the applicant is claim ing that he was

delayed by the application he filed to the Court o f

Appeal, he has not been able to ju stify why the

sought orders should be granted. I am sa yin g

so because the a p p lica n t in the fir s t

a p p lica tio n in th is co u rt m ade s im ila r

a p p lica tio n before Hon. Chocha, Ju dge

se e kin g fo r exten sion o f tim e w ith in w hich

to lod g e an a p p lica tio n fo r c e rtific a te on

p o in t o f la w to th e C o u rt o f A ppeal, M isc.

C iv il A p p lica tio n N o.27 o f 2014; th is

a p p lica tio n w as d ism issed a s th e a p p lica n t

fa ile d to su p p ly s u ffic ie n t reasons. Then the

applicant decided to go to the Court o f Appeal

seeking for certificate on point o f law. The said

application was incompetent and untenable,

hence was struck o u t....

In my considered opinion I do not see that

the applicant has been able to furnish sufficient

ground for this court o f grant the application. The

reason that he decided to lodge an application to

the Court o f Appeal is and cannot stand as

sufficient ground for this court to extend time as

it was his choice. I f the a p p lica n t w as

ag g rieved b y th a t d ecisio n he o u g h t to have

appealed a g a in st th e sam e an d n o t to m ake

an a p p lica tio n in th e C o u rt o f A ppeal.

H ow ever, I do n o t a lso th in k th a t it w ill be

p ro p e r fo r th is co u rt to g ra n t th e o rd e r

w hich h ad a lre a d y been re fu se d b y th is

court.

Consequently, the application is dism issed."

(Emphasis added)
 The foregoing excerpt from the learned Judge's ruling, in a few

words, suggests that she refrained from granting the application on the

ground that the High Court was functus officio in the sense that a similar

application was heard and finally determined by the same court. Just as

a reminder, this Court had an occasion to expound the legal position as

to when a court is said to be functus officio in the case of John Mgaya

and Four Others vs Edmundi Mjengwa and Six Others, Criminal

Appeal No. 8 (A) of 1997 (unreported). In that case the Court quoted

with approval the principle laid down by the Court of Appeal for Eastern

Africa in KAMUNDI V R (1973) EA 540. The Court of Appeal for

Eastern Africa, stated

"A further question arises, when does a

m agistrate's court become functus officio and we
agree with the reasoning in the Manchester City
Recorder case that this case only be when the
court disposes o f a case by a verdict o f not guilty
or by passing sentence o r m aking som e o rd ers
fin a lly d isp o sin g o f th e ca se " (emphasis
added).

In the instant case, it is plain that the order of the High Court

(Chocha, J.) dated 28/04/2015 in Misc Civil Application No. 27 of 2014

24
dismissing the appellant's application did not dispose of an application

similar to the one that was before Levira, J. that is, Misc. Civil application

No. 12 of 2016. As demonstrated above, the two applications were

substantially different. That order by Chocha, J. did not, therefore,

render the High Court functus officio.

We now revert to consider whether the reason for the delay

advanced by the appellant constituted good reason for the grant of the

application.

The reason for the delay advanced by the appellant in Misc. Civil

Application No. 12 of 2016 that was before Levira, J. and which was put

under her consideration was that the delay was not deliberate but due to

time spent in the Court of Appeal on a notice of motion. Needless to

mention, the application under reference was Civil Application No.3 of

2015 which was struck out by the Court (Mugasha, JA) on 15/4/2016. In

dismissing the application the learned Levira, J. stated that:-

7/7 my considered opinion I do not see that the

applicant has been able to furnish sufficient

ground for this court o f grant the application. The

reason that he decided to lodge an application to

25
 the Court o f Appeal is and cannot stand as

sufficient ground for this court to extend time as

it was his choice. I f the applicant was aggrieved

by that decision he ought to have appealed

against the same and not to make an application

in the Court o f Appeal."

It is now settled principle that the delay in taking action within the

time specified by law caused by time spent in prosecuting a matter in

court constitutes good cause of delay. This is what is now known in legal

arena as technical delay. Its history can be traced as back as in the

decision of a single Justice in the case of Furtanatus Masha vs.

W illiam Shija and Another [1997] TLR 154, faced with anidentical

scenario, in allowing an extension time, a single Justice of the Court

observed that:-

"... A d istin ctio n sh o u ld be m ade betw een cases

in v o lv in g re a l o r a ctu a l d elays an d th ose lik e
th e p re se n t on w hich o n ly in v o lv e w h at can be
ca lle d te ch n ica l d ela ys in the sense that the
original appeal was lodged in time but the present
situation arose only because the original appeal for
one reason or another has been found to be

26
 incompetent and a fresh appeal has to be instituted.
In the circumstances, the negligence if any really
refers to the filing o f an incompetent appeal not the
delay in filing it. The filin g o f an in com peten t
ap p eal h avin g been d u ly p e n a lize d b y strik in g it
out, th e sam e can not be used y e t again to
determ ine the tim eousness o f a p p lyin g fo r filin g
the fre sh appeal. In fact in the present case, the
applicant acted immediately after the pronouncement
o f the ruling o f this Court striking out the first appeal."
[Em phasis supplied]

The above proposition was approved by the full Court in Salvand

K. A. Rwegasira v. China Henan International Group Co. Ltd.,

Civil Reference No. 18 of 2006 wherein we observed that:-

">4 distinction had to be drawn between cases

involving real or actual delays and those such as the

present one which clearly only involved technical

delays in the sense that the original appeal was

lodged in time but had been found to be incompetent

for one or another reason and a fresh appeal had to

be instituted. In the present case the applicant had

acted im m ediately after the pronouncement o f the

27
 ruling o f the Court striking out the first appeal. In

these circumstances an extension o f time ought to be

granted."

Having rightly directed herself on the principle governing grant of

extension of time that there must be sufficient grounds advanced by the

applicant and also having cited various Court's decisions to that effect

such as Yusufu Same and Hawa Dada Vs. Hadija Yusufu, Civil

Appeal No. 1 o f 2002 and Benedict Mumelo Vs. Bank of

Tanzania, Civil Appeal No. 12 of 2002 (both unreported), it appears

that it escaped the mind of the learned Judge that a delay that occurs

when one is diligently prosecuting a matter in court constituted a

technical delay which amounts to good and sufficient reason to grant

extension of time.

In the case at hand, it is apparent that the appellant was late to

lodge a notice of appeal against the decision of Chocha, J. and serve the

same to the respondent because he was prosecuting his application

before the Court. Fortunately, the learned judge appreciated that fact

but dismissed that application for the reason that lodging of another

application in the Court instead of appealing was a matter of his own

choice. With respect, that observation was unwarranted as the appellant

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advanced a reason which is within the precincts of the reasons

warranting grant of extension of time.

For reasons we have amply demonstrated, we find merit in the

appellant's appeal. The refusal by the High Court (Levira, J.) to extend

time was improper. The appellant's application deserved to be granted.

Ordinarily, we would have ended up here and granted extension of

time to the appellant to lodge a notice of appeal against the decision of

Chocha, J. and serve the same to the respondent. But, for a reason soon

following, we refrain from doing so.

In the due course of perusing the record of appeal, we noted

another anomaly which, for the interest of justice, calls for our

intervention. That is, the learned Judge who presided over Misc Civil

Application No. 27 of 2014 (Chocha, J.) strayed into error when he

treated that application as concerning leave to appeal to the court. That

shortfall is apparent in the learned judge's ruling quoted above.

Unfortunately, when we engaged the parties, they had nothing material

to assist the Court. Indeed, while the chamber summons was expressly

clear, and as was rightly observed by Levira, J. in her ruling, that the

application before the High Court (Chocha, J.) was for extension of time

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within which to apply for certification of points of law for consideration

by the Court, in his ruling the learned Judge dwelt much on discussing

about leave to appeal. Had he minded that the application before him

was predicated under section 11 of the Appellate Jurisdiction Act, Cap.

141 of the Revised Edition, 2002 (the ADA), and was an application for

extension of time within which to lodge an application for a certificate on

a point of law he would have not spent time in discussing the issue of

leave and the import of Rule 45 (a) of the Rules which was not before

him and ultimately declare that the application was a misconceived one.

In the end, it cannot safely be said that he properly directed himself to

the application for extension of time that was before him and determined

it.

For the foregoing reason, we are inclined to invoke our powers of

revision under section 4(2) of the ADA to quash the proceedings and

ruling of the High Court (Chocha, J.) in Misc Civil Application No. 27 of

2014 and hereby set aside the order dismissing that application.

Consequently, the matter reverts to the position that existed before that

application (Misc. Civil Application No. 27 of 2014) was heard. We

accordingly direct that the High Court record be remitted back for it to

hear and determine that application.

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 In the circumstances of this case that the parties were spouses and

some of the anomalies having been contributed by the High Court, we

find it prudent that we order, as we hereby do, that each party shall bear

its own costs.

DATED at MBEYA this 27th day of March, 2020.

S. A. LILA
JUSTICE OF APPEAL

R. K. MKUYE
JUSTICE OF APPEAL

W. B. KOROSSO
JUSTICE OF APPEAL

The Judgment delivered this 27th day of March, 2020 in the presence of

appellant and respondent in person is hereby certified as a true copy of

the original. \

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