ally azim dewji and others vs kimoni dimitri mathekias 2020 tzhclandd 147 6 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC LAND APPLICATION NO. 360 OF 2019 (Arising from High Court (Land Division) in Land Application No. 421 o f 2017 as per Hon. Kahyoza, J) ALLY AZIM DEWJI............................................. jst APPLICANT SUFTI KITWANA SADI...,............. ....................... 2nd APPLICANT OMARI KITWANA SADI....................................... 3rd APPLICANT MUSSA KITWANA SADI........................................4™ APPLICANT JUMA KITWANA SADI............................ .............5™ APPLICANT VERSUS KIMONI DIMITRI MATHEAKIS.......................... 1^ RESPONDENT THE ATTORNEY GENERAL........................ ...... 2nd RESPONDENT THE COMMISSIONER FOR LANDS................. .....3RD RESPONDENT TEMEKE MUNICIPAL COUNCIL........................ 4™ RESPONDENT RULING I. MAIGE, J In Land Case No. 421 of 2017, the applicants herein procured a judgment and decree against the defendants and each of them. Being displeased with i the decision, the respondents filed a notice of intention to appeal to the Court of Appeal. As leave to appeal was still an ingredient for an appeal against a decision of this Court in exercise of its original jurisdiction, the respondents also filed an application for the relevant leave. The application, it would appear, was heard and granted ex parte on account that, the applicants did not file an affidavit in opposition. Believing that they had filed a counter affidavit, the applicants thought that it was inadvertence for the Court to determine the application without them being heard. They therefore filed Miscellaneous Land Application No. 421 of 2017 to have the decision granting leave to appeal reviewed. They did not succeed. This Court as per Hon. Kahyoza, J strack out the application for want of jurisdiction. Once again aggrieved, the applicants lodged a notice of intention to appeal to the Court of Appeal. As the time within which to appeal has already expired, the applicants are, by this application, moving the Court to grant extension of time within which to appeal. An account for the delay is made in the affidavit of Gaudiosus Ishengoma, learned advocate, which supports the application. The ruling granting leave, the applicants claim, was delivered in the absence of the parties. The applicants could not appear on the date of the ruling because, the delivery of the same would be on notice. On inquiry, they were informed, on 19th June 2019 that, the ruling had been delivered on 27th May 2019. They, on the same day lodged a notice of appeal. They could not file the application for leave because the time limit had expired. In his counter affidavit deposed by Jailos Mpoki Josephat, learned advocate, the fact that the applicants and their counsel were unaware of the date of the ruling has been vehemently denied. In the understanding of the deponent of the affidavit, the date for the delivery of the ruling was pronounced in the presence of the parties. On the date of hearing, Mr. Baraka Msana, learned advocate appeared for the applicants. Mr. Deofinus, learned advocate, held the brief of advocate Edward Chuwa for the first respondent whereas the last three respondents enjoyed the service of Jenifer Msanga, learned state attorney. Parties were directed to address the Court on the application by way of written submissions. Mr. Baraka Msana for the applicant and Edward Chuwa for the first respondent complied with the order. For the last three respondents nothing was filed. I take it that, they do not resist the application. Parties are in agreement that, for the Court to grant an order for extension of time, the applicant has to establish by affidavit or otherwise that there is sufficient cause to justify the same. The Court, as I understand the law, enjoys wide discretion to grant the order. Nevertheless, the discretion has to be exercised judiciously and on sound judicial principles. Though the phrase "sufficient cause" is not statutorily defined, case law has provided some pertinent guidelines to be taken into account in determining whether the same has been established. For instance, in Lvamuva Construction Company Limitedys. the Board of the Registered Trustees of Young Women's Christian Association, Civil Application No. 2 of 2010, the Court of Appeal outlined the following four factors to be considered:- (a) The applicant must account for all the period o f delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take. (d) I f the court feels that there are other sufficient reasons, such as existence o f a point o f law o f sufficient importance, such as the illegality o f the decision sought to be challenged. I agree with Mr. Baraka, learned advocate that, the factors for the grant of extension of time may not be exhaustive. Neither does each and every one apply in every case. Therefore, in Insurance Tanzania Limited vs. Kiwenqwa Strand Hotel Limited Civil Application Nn. m OF 2009 (CAT) at page 14 thereof the Court of Appeal observed that;" there could be many other factors, that could arise from the facts o f each case" A similar observation was made in Osward Masatu Mwizarabu vs. Tanzania Fish Processing Limited, Civil Application No. 13 of 2010 (CAT-Unreported) It may also be worthy of note that while the first three guidelines should ordinarily be cumulatively considered, the fourth ground can by itself be the basis of the grant. This principle was enunciated in The Principal Secretary Ministry of Defence and National Service vs. Devram Valambia (1992) TLR 185 where the Court of Appeal remarked as follows When the point at issue is one alleging illegality o f the decision being challenged, the Court has a duty, even if it means extending time for the purpose, to ascertain the point and, if the alleged illegality be established to take appropriate measures to put the matter and record right I agree with Mr. Chuwa, learned advocate that, for illegality to constitute sufficient cause, it must be apparent on the face of the record and of significant importance to deserve the attention of the Court of Appeal. This position was stated in among others, Valambia Case supra and Kalunoa and Company Advocates vs- the National Bank of Commerce Limited (2006) TLR 235 In his second ground of the application, Mr. Baraka urged the Court to grant the application on account of illegality. In his humble view, the principle in Aero Helicopter Limited_vs. FN Jensen (1990) TLR 142 was incorrectly applied by the presiding Judge and thereby denying the applicants their rights to be heard. In my view, for the principle of illegality to apply, the Court entertaining the application must be capable of correcting the illegality. For, an extension of time cannot be granted on illegality without there being a comment on the alleged illegality. In my judgment therefore, the principle cannot apply in a situation where the decision, the subject of the alleged illegality, is of the same Court. Hence, in Arunaben Chaaaan Ministry vs. Naushad Mohamed Hussein, Miscellaneous Land Application No. 23 of 2018, HC, Arusha (unreported) where I was considering a similar issue, I made the following remarks which I is still subscribe to; '!As the intended illegalities have to be apparent on the face o f record and with significant importance meriting attention o f the Court o f Appeal, this Court being the author o f the impugned decision is estopped, by way o f fanctus officio, from remarking on legality or otherwise o f its own decision". On that account therefore, I will decline to consider the issue of illegality in this matter. With that remark, let me consider if the applicants were prevented from timely filing the application by sufficient cause. The reason for the delay assigned in the affidavit is ignorance of the date of the decision. It is averred in the affidavit that, while the date of the decision would be on notice, the applicants were not notified of the date of ruling and as a result, it was not until 19th June 2019, when he became aware that the decision had been delivered. It was after being informed by the Court upon inquiry. In the counter affidavit, the first respondent denies that the ruling was to be on notice. He submits that the date of the ruling was to be either on 24th May 2019 or 27th May 2019. In his rejoinder submissions, Mr. Baraka has insisted that it was on notice. He has advised the Court to have a look on the record. That is the most appropriate way forward, I agree. I have casted a glance over the record of Miscellaneous Land Application No. 421 of 2017. It is indicative in the un-typed proceedings therein that on 22/05/2019 when the parties were heard on preliminary objections, Mr. Ishengoma, learned advocate, appeared for the applicants and Mr. Jailos Josephat for the respondents. It is also express in the proceedings that, the matter was fixed for ruling 27th May 2019. In the circumstance, the applicants cannot be heard saying that they delayed to file the application because they were not aware of the date of the ruling. It follows therefore that, since the applicants were present on the date of hearing, they were expected to appear in Court on 27th May 2019 when the ruling was being pronounced. I agree with Mr. Chuwa, learned advocate, that they were not entitled any notification of the date of ruling. They would have been entitled as such if the ruling had been on notice or if they were not present on the date when the matter was fixed for ruling. In my view therefore, the applicants have not demonstrated sufficient cause to warrant extension of time to appeal. The application is accordingly dismissed with costs. It is so ordered. Dated this 06th day of Mav ?n?n I. Maige JUDGE 06/05/2020 Ruling delivered in absentia d >0. I. Maige JUDGE 06/05/2020 Parties be notified and supplied with a copy of the ruling I. Maige JUDGE 06/05/2020 8