abel pea vs athumani yusuph kione 2018 tzhclandd 388 8 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPL. N0.1046 OF 2016 ABEL PEA...........................................................................APPLICANT Versus ATHUMANI YUSUF KIONE............................................. RESPONDENT Date of Last Order: 30.04.2018 Date of Ruling: 08.06.2018 RULI NG S.A.N. WAMBURA. J: The applicant Abel Pea m ade this application under Section 14 (1) of the Law of Limitation Act C ap . 89 R.E 2002 for orders that: a) That this Honourable Court be pleased to grant extension of time to file appeal out of time. b) Costs of this application b e provided for. c j Any other order (s) this Honourable Court may deem fit and just to grant. The application is supported by the affidavit affirmed by Abel Pea the applicant. Respondent Athumani Yusuf Kione filed a counter affidavit bitterly challenging the application. At the hearing the applicant was represented by Mr. T. Massawe learned Counsel whereas the respondent enjoyed the legal services of Ms. Robi Simon Advocate. In support of the application, the applicant contended that the reason for the delay to file an appeal within time was because he was not aware that there was another judgment which was delivered on 14/08/2015 in favour of the respondent. That there were two judgments delivered by the same tribunal, as the other judgment was delivered on 29/08/2016. He averred that he becam e aware of the judgment through a memorandum of review filed by the respondent on 25/08/2016. He therefore prayed for the application to be granted as prayed. In response, Ms. Simon prayed to this court to adopt the contents of the counter affidavit to form part of her submissions. She submitted that the applicant was negligent to make a follow up of his case. That the applicant could make a follow up of their case by writing a letter seeking to peruse the file or request a date for delivery of the judgment. Ms. Simon argued that according to the facts adduced in the affidavit, both the applicant and his Counsel were negligent and that is why they did not even know that the judgment had been delivered. She referred this court to the case of Regional Manager Kagera and Ruaha Concrete Com pany Ltd Civil Application No. 96/2007. She thus prayed for the application to be dismissed with costs. In reply, the applicant reiterated his earlier submissions in chief. Before dealing with the substance of this application in light of the rival submissions, I find it pertinent to restate that although the Court's power for enlarging time under Section 14 (1) of the Law of Limitation Act C ap . 89 R.E. 2002 is both broad and discretionary, it can only be exercised if good cause is shown. The term sufficient cause has not been defined, so the as to guide the exercise of the Court’s discretion in this regard, the Court must consider the merits or otherwise of the excuse disclosed by the applicant for failing to meet the limitation period prescribed for taking the required step or action. Apart from valid explanation for the delay, good cause would also depend on whether the application for extension of time has been brought promptly and whether there was diligence on the part of the applicant. The question now is whether the applicant has shown good cause for this court to exercise its discretionary powers to grant the application. According to the facts stated in the affidavit both the applicant and his Counsel were negligent to make a follow up of his case. I say so because after they were informed by the tribunal that the judgment will be delivered on notice, they could make a follow up and even take further steps by writing a letter requesting for the date of the delivery of the judgment. It seems that the applicant and his Counsel were relaxing instead of making a follow up of their case while it was their duty to do so. If the notice 4 for the date of the delivery of judgment was not issued at all, how could the respondents know of the date and appear on the date of the delivery of the judgment. The law requires this court to grant such applications were sufficient causes have been adduced. In the case of Benedict Mumello Vs Bank of Tanzania Civil Appeal No. 12/2002 the court held inter alia that:- “It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient ca u se .” The term sufficient cause has not been defined. However, in the case of Yusuph Same and Hawa Dada Vs Hadija Yusuf Civil Appeal No 1 of 2002, the Court of Appeal elaborated on the term of sufficient cause “that it should be given a wide interpretation to encom pass all reasons or causes which are outside the applicant’s pow er to control or influence resulting in delay in taking necessary steps”. It is trite law that where there is in action/ delay on the part of the applicant there ought to be some kind of explanation or material to enable the court to exercise its discretion. In the case of Bushiri Hassan VS Latifa Lukio Mashayo, Civil Application No. 3 of 2007(unreported) the Court of Appeal held and; I beg to quote; “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.” In my opinion I find no justifiable reason advanced by the applicant to constitute good cause to warrant this Court to exercise its discretion to extend the time within which to file an appeal out of time. The applicant did not show diligence in making a follow up of his case. Having said so, the application is accordingly dismissed for want of merit. Costs follow the event. r S.A.N. WAMBURA JUDGE 08/ 06/2018