Civil Reference No. 7 of 2004
The applicant (Director General, LAPF Pensions Fund) had sought to challenge a decision of the Magistrate's Court of Mwanza, but its appeal to the High Court was struck out for being time barred. The applicant applied for a review of that High Court order, but the review was dismissed as misconceived, the reviewing Judge holding that such an order could only be corrected by way of appeal to the Court of Appeal. Having by then fallen outside the statutory time limit, the applicant applied to the High Court for extension of time to lodge a Notice of Appeal and to seek leave to appeal (the 'first bite'), but this too was refused. The applicant then filed the present application before the Court of Appeal under rules 45A(1)(b), (3) and 48(1) and (2) of the Court of Appeal Rules, 2009, seeking a further ('second bite') extension of time, supported by an affidavit explaining the delay as resulting from her continuous pursuit of the same matter through review and the first-bite application. The respondent, an elderly retired employee, opposed the application, arguing the applicant had been dilatory and had filed frivolous applications to deny him the fruits of his decree.
(1) Whether the applicant's failure to cite rule 10 of the Court of Appeal Rules, 2009 in the application was fatal to its competence. (2) Whether the applicant had sufficiently accounted for the delay in seeking extension of time to lodge a Notice of Appeal and application for leave to appeal, such that the doctrine of 'technical delay' applied to justify the grant of extension of time.
For the applicant, counsel (Mr. Mndeme) conceded the omission to cite rule 10 but urged the Court to treat it as inconsequential under the proviso to rule 48(1) of the Rules in the interest of substantive justice, noting the omission had been raised proactively and rule 10 had been referenced in the written submissions. On the merits, counsel argued that the law required a party seeking extension of time to first apply to the High Court under section 11(1) of the Appellate Jurisdiction Act, relying on William Shija v. Fortunatus Masha to justify the time spent pursuing the 'first bite'. He further argued the applicant had acted promptly at each stage—applying for review immediately upon rejection of the appeal, and applying for extension of time immediately after the review was dismissed—citing Tanzania Revenue Authority v. Tango Transport Company Ltd. to support promptness as a relevant factor. The respondent, appearing in person, contended that the omission to cite rule 10 deprived him of the opportunity to prepare submissions on it and was fatal. On the merits, he argued the applicant's prior applications were mala fide and aimed at denying him, an elderly retired servant, the fruits of his decree, and that being legally represented, the applicant should have known better than to file frivolous and vexatious applications, citing Law JA's remarks in Dias v. Ahmed Salum Swed criticizing advocates who file unnecessary applications and points of objection.
The Court held that the omission to cite rule 10 of the Rules was inconsequential and could be cured under the proviso to rule 48(1) of the Rules, especially since the applicant's written submissions had referred to rule 10, the respondent had filed a reply addressing it, and the point had been raised by the applicant's counsel before any objection was taken. On the merits, the Court found that the delay was 'technical' rather than 'real or actual', applying the principle developed in Fortunatus Masha v. William Shija and adopted by the full Court in Salvant K. A. Rwegasira v. China Henan International Group Co. Ltd.—namely that delay caused by pursuit of the same matter in court through an incompetent or mistaken procedural avenue, followed by prompt action after that avenue failed, constitutes technical delay warranting extension of time. The Court found the applicant had acted immediately after each unsuccessful step (review, then first-bite application), and rejected the respondent's claim of bad faith as unsubstantiated, noting that any negligence had already been penalized by adverse rulings. The Court distinguished Dias v. Ahmed Salum Swed as inapplicable to a situation of technical delay. The application was granted; the applicant was ordered to file the intended notice and application for leave within fourteen days, with no order as to costs given the respondent's status as a retired employee.
The ruling reaffirms and applies the well-established 'technical delay' doctrine in Tanzanian appellate practice, derived from Fortunatus Masha v. William Shija and endorsed by the full Court in Salvant K. A. Rwegasira v. China Henan International Group Co. Ltd., under which delay caused by diligent but procedurally mistaken pursuit of the same matter in court (e.g., through review or a prior extension application) is treated differently from real or actual delay and can justify extension of time, provided the applicant acts promptly at each stage. It also illustrates the Court's willingness to invoke the proviso to rule 48(1) of the Court of Appeal Rules to cure omissions in citing specific procedural provisions, so long as the omission does not prejudice the opposing party's ability to respond, consistent with the approach taken in Amani Girls Home v. Isack Charles Kenela.
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