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IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISC LAND APPLICATION NO. 71 OF 2023 (Originating from the decision of District Land and Housing Tribunal of Singida at Singida in Land case Application No.43/2020 delivered on 19th day of August 2022 by Hon. B. C NDAMBO and from Land Application No.37/2020 of Mungaa Ward Tribunal) BETWEEN ALLY KITIKU NKAMBI (as Administrator of Estate of the Late ROBERT NKAMBI).....................APPLICANT VERSUS BASIL MARCELY………………………………………..RESPONDENT RULING Date of last order. 09/07/2024 Date of the Ruling 25/07/2024 LONGOPA, J.: This is an application for extension of time to file an appeal out of time against a decision of the District Land and Housing Tribunal of Singida at Singida in Land Case Application No.43 of 2020 delivered on 19th day of August 2022 by Hon B. C Ndambo, Tribunal’s Chairperson. The applicant filed this application on 12th January 2024 under 1|Page Section 38 (1) of the Land Disputes Courts Act, Cap 216 R.E 2019 and Section 95 of the Civil Procedure Code, Cap 33 R.E 2019 for two orders namely, that: (a) This honorable court be pleased to grant the applicant an order for extension of time to file an Appeal against the decision of District Land and Housing Tribunal of Singida at Singida in Land Case Application No.43 of 2020 delivered on 19th day of August 2022 by Hon B. C Ndambo out of time. (b) Any other Order(s) that this Honorable Court may deem just fit to grant. This application is supported by the affidavit and supplementary affidavit of Ally Kitiku Nkambi (As Administrator of Estate of the Late Robert Nkambi), the applicant. The respondent resisted the application through a counter affidavit and supplementary counter affidavit. On 09/07/2024, both parties appeared before me for hearing of the application whereby applicant was represented by David Malugu, learned advocate and respondent appeared in person and fended for himself. It was the applicant Advocate who firstly set the ball rolling. The applicant adopted contents of both the affidavit and supplementary affidavit in wholesome to form part of the applicant’s submission in support of the application. 2|Page It was the applicant prayer that this court be pleased to extend time to challenge the decision of the District Land and Housing Tribunal for Singida that was delivered on 19/08/2022. Also, the applicant prayed for any other remedy /reliefs that this court may deem fit and appropriate to grant. According to the applicant, the decision to be challenged was that of the District Land and Housing Tribunal for Singida dated 19/08/2022. It was argued that it is common knowledge that there must be sufficient grounds before an application of this nature can be granted. The main reasons were reflected on Paragraph 4 of the both the affidavit and that of supplementary affidavit. The reasons were that the applicant faced acute impoverish thus could not meet the costs that were associated with appeal thus made him to fail to process the appeal timely. It was reiterated that the applicant was and still is the only bread winner of his family whereas had experience financial difficulties to an extent that he could not raise any monies to facilitate filing an appeal thus commenced to look for legal aid that was not secured timely. Furthermore, in the supplementary affidavit, the applicant stated about his sickness that made him failed to appeal timely. There is a Letter from the Regional Medical Officer in Shinyanga Regional Referral Hospital dated 06th June 2024 while this matter was pending in Court. In that letter, the Medical Doctor has stated that the applicant was faced up with a medical issue that prevented him from acting timely. 3|Page In paragraph 2 of the Supplementary affidavit, the applicant is stated to have been attending at Shinyanga Regional Referral Hospital since August 2022.According to the medical report contained in a letter dated June 2024, the applicant had an issue called Lumber Spondylosis with Muscle Spam. The letter reveals that applicant was treated and he is attending surgical clinic regularly. As such, the applicant failed to file his appeal timely as a result. The counsel for the applicant called upon this Court to apply the principle in the case of Granitech Tanzania Company Ltd vs Diamond Trust Bank (T) Ltd and 4 others, Civil Appeal No 447 of 2021 High Court of Tanzania at Dar es Salaam, at page 7 where the High Court stated that: Sickness can serve as a sufficient ground to enlarge time. However, there must be medical report to prove that sickness on how the alleged sickness contributed to the delay. For the reasons stated, it was reiterated that this court is invited to use its discretionary powers to extend time for filing an appeal out of time. It was so prayed. The respondent on the other hand was of the view that the reasons advanced were not correct. The respondent was not agreeing to any of the reasons advanced by the applicant. On the question of allegedly abject poverty, the respondent argued that everyone has no money thus the first ground was not tenable and irrelevant to the extension of time. There is not law or case law, according to the respondent that allows the 4|Page extension of time to be granted as a result of one being poor. It was argued that from the date of the judgment there was no evidence or exhibits whatsoever that he indicated that he was planning to appeal. If this person was poor, he could not had participated in the Land Application No. 37 of 2020 and Land Application No 43 of 2020 at Ward Tribunal and District Land and Housing Tribunal for Singida respectively. Regarding the second ground that the applicant was sick and went for treatment in Shinyanga Regional Referral Hospital, the respondent vehemently objected it. It was respondent’s submission that the applicant ought to have brought evidence showing that he was hospitalized as an inpatient at that hospital. There were no receipts nor any evidence of medical checkup in terms of laboratory tests apart from the alleged letter. According to the respondent, the letter brought to this court did not substantiate that it was true that the applicant was sick. There was nothing to substantiate such a thing. It was added that there is nothing for this Court to rely on and accept as a good ground for the failure to file the appeal timely thus need to file an appeal out of time. Accordingly, the respondent stated that all these reasons have no merits whatsoever thus the same should be dismissed for lack of merits. The respondent prayed for costs of the application to be borne by the applicant. 5|Page In his rejoinder Mr. David Malugu, learned advocate for the applicant reiterated the submission made in chief and he invited this Court to find that reasons advanced were valid hence allow the application for extension of time to file an appeal out of time. I have dispassionately considered the application and its supporting affidavit as well as record of this Court regarding this matter to determine merits of the application. I shall address the same as follows: For this Court to grant the applicant to appeal out of time, it is pertinent that the applicant must demonstrate that he was prevented by sufficient cause for his failure to appeal in time. It is trite law that sufficient cause must exists as it was stated. This position was demonstrated in the case of Juma Shomari versus Kabwere Mambo, (Civil Application 330 of 2020) [2021] TZCA 63 (4 March 2021) (TANZLII), where the Court of Appeal observed at page 3 that: Many time, in its pronouncements, this Court had occasions to interpret this provision of the law and insisted that the applicant should show a good cause before time can be extended for doing a certain act. Few of the decisions are; Abdallah Salanga and 63 Others v. Tanzania Harbours Authority, Civil Reference No. 6|Page 08 of 2003 and Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014 (both unreported). However, what constitutes good cause has not been codified although the Court has, in various instances, stated a number of factors to be considered. These are; whether or not the application has been brought promptly; a valid explanation for the delay and whether there was diligence on the part of the applicant Further, in the case of Yusufu Same & Another vs Hadija Yusufu (Civil Appeal No. 1 of 2002) [2006] TZCA 141 (20 October 2006) (TANZLII), at page 9 the Court noted that: It should be observed that the term "sufficient cause" should not be interpreted narrowly but should be given a wide interpretation to encompass all reasons or causes which are outside the applicant’s power to control or influence resulting in delay in taking any necessary step. The contents of affidavits for the applicant reveal the whole story on the grounds for extension of time. In that affidavit, the applicant avers that: 3. That, being aggrieved by the decision of the District Land and Housing Tribunal of Singida at Singida, he wished to lodge an Appeal against the decision on 19th day 7|Page of August 2022. 4. That, as he was required to appeal on time, the appeal was bared by the Act of God as the fundamental change of circumstances (rebus sic stantibus) and also he was a totally a poor person who live by the hand to mouth economy and earner bread to their family as such also he needed legal assistance to access justice which he did not access at the material time, and as such he prays that procedures should not defeat justice. 5. That, upon realizing that he was out of time, he now makes this application for the extension of time within which to file an appeal out of time, and it is just and equitable that the extension of time be granted in order to lodge an appeal and thereby meet the ends of justice. In that supplementary affidavit, the applicant among other things avers that: 4. That, he could not file his appeal in time as required by law as he was prevented by the Act of God as he became sick for quite a long-time suffering from lumbar disease as proved by medical report which is hereby attached as annexure AKN-1 forming part of this supplementary affidavit. 5. That, interest of justice demands that the application be 8|Page granted as the delay to file an appeal on time was not deliberately done but it was beyond his control due to the alleged sickness. It can be discerned from the affidavit, supplementary affidavit and submission made thereof in support of the application that the applicant's basis of the prayers is on two main aspects. First, the applicant was poor. Second, that he was sick thus prevented by justifiable cause of sickness. Sufficient cause which may be reasons for the extension of time vary. The criteria for enlargement of time to file notice to appeal or appeal have been well articulated by the Court of Appeal in the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) (TANZLII), at pages 6-7, where the Court set the following guidelines in respect of extension of time: (a) the Applicant must account for all the period of delay. (b) the delay should not be inordinate. (c) the Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the Court feels that there are sufficient reasons such as existence of a point of law of sufficient importance, such as illegality of the decision ought to be challenged. 9|Page The argument that there was fundamental change of circumstance of the acute poverty that befell the applicant is not recognized in law as one of good cause for delay to appeal within time thus need for extension of time. Both affidavits of the applicant are silent as to when did allegedly abject poverty come to an end thus applicant’s ability Paragraphs 4 and 5 of the affidavit of the applicant do not provide any detailed account of every day of delay. The applicant has miserably failed to show that the delay was not inordinate, there was no negligence or apathy on part of the applicant and that there is any point of law that may warrant an extension of time. The issue of being poor is not sufficient as he affords to hire an advocate to argue on his behalf. It is on record that applicant having realized that foregoing ground was serious challenged by the respondent, with the leave of the court did file a supplementary affidavit. In the supplementary affidavit, the applicant changed completely the line of argument. This time around, the applicant stated that sickness was the main reason for his failure. This was cemented by a letter regarding medical condition of the applicant. The letter originates from Shinyanga Regional Referral Hospital. It is a settled that that for sickness to act as sufficient ground for extension of time, then such sickness must be demonstrated to have been serious impairing the ability of the applicant to so act. In the case of 10 | P a g e Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021) (TANZLII), at pages 12-14, the Court of Appeal stated that: Firstly, it is long settled that the court's discretion must be exercised judiciously as opposed to capriciousness on the basis of material placed before it for consideration. While there is no dispute on the respondent's heart complications which would ordinarily constitute good cause, the respondent did not satisfy the CMA that the delay was solely due to sickness. Unfortunately, the learned Judge directed his attention to the respondent's illness in the absence of evidence how was it material to not only the delay but also failure to lodge his application for condonation immediately after the lapse of 30 days. Secondly, while we agree with the learned Judge on the expeditious resolution of disputes, we think that expeditiousness must be subject to the dictates of the law and justice. We appreciate that in terms of rule 3(1) of the Labour Court Rules, G.N. No. 106 of 2007, the High Court exercising jurisdiction as a Labour Court is a court of law and equity which ought to have regard to the fact that the duty to act promptly is not a mere technical aspect without any consequences in case of failure by a litigant to exercise 11 | P a g e his remedy as it were. We have no doubt that had the High Court have regard to the above, it should not have exercised its discretion in the respondent's favour and quashed the decision of the CMA as it did. The principle in this decision is lucid that sickness may be a valid ground for extension of time if there are material evidence on record to substantiate that such sickness did prevent the applicant from acting timely. In the instant case, I am prepared to reject this ground of sickness for extension of the time for being a clear afterthought. The purported medical report was issued by the Shinyanga Regional Referral Hospital on June 2024 while the matter was pending before this Court since January 2024. This resulted from the respondent’s challenging the first preferred ground on fundamental change of circumstances leading to acute poverty. If the same was the position that since August 2022 the applicant was serious sick, it was expected that the affidavit in support of the application would in the circumstances accommodate this aspect in supporting the case for grant of extension of time. Second, both affidavit and supplementary affidavit stated that the applicant is a resident of Singida and both are silence on the facts that applicant had been travelling regularly or at least having travelled to Shinyanga Region at any time since the delivery of the decision sought to 12 | P a g e be challenged. Third, the purported medical report has nothing to support its truthfulness. There exist no single receipts, admission card or number at the Shinyanga Regional Referral Hospital nor any other facts regarding how did the applicant managed to travel all the way from Singida where he ordinarily resides to Shinyanga for medication. He has failed to demonstrate that he could not get the medical attention in Singida where he was a resident. Both the affidavit and supplementary affidavit reveal that applicant is a resident of Singida. There is nothing more. Fourth, being allegedly in abject poverty by the applicant, it defeats common sense that he could have managed to incur expenses to travel to Shinyanga Regional Referral Hospital which is located far away from Singida to attend medical treatment while in Singida region there are medical facility of the same level. Such allegations of being sick on the part of the applicant cannot be countenanced. At this juncture, it will be abscondment of duty to rely on the letter purporting to be a medical report to support the application without interrogating the same. Indeed, I am in concurrence with the respondent’s submission that the applicant was supposed to bring in court medical examinations report or receipts to show that he was sick during the time of appeal and after that the situation persisted thus hindering the applicant to file an appeal 13 | P a g e out of time. In the case of Jamal S. Mkumba & Others vs The Attorney General (Civil Application No. 24 of 2019) [2023] TZCA 21 (15 February 2023) (TANZLII), at page 10 the Court of Appeal reiterated criteria. It stated that: Borrowing a leaf from applications for extension of time in which time may he extended even when an applicant has not shown good cause, if there is an illegality in the decision sought to be challenged, we are settled in our mind that the same may be the case with applications for restoration. That is, in applications for restoration like the present, a point of law of sufficient importance may constitute sufficient cause for the grant of the prayer for application. It should be noted that it is not any point of law but only one of sufficient importance which will qualify to be relied upon in the circumstances. The instant application does not fall on this aspect of illegality as the applicant has not averred any such illegality. There is nothing of importance in the instant application to warrant invoking this Court's discretionary powers to the appeal in circumstances where the applicant has not demonstrated existence of good cause. I concur with respondent's submission that there is no sufficient cause demonstrated by the applicant 14 | P a g e to warrant this Court to grant the application. In the premises, I am satisfied that the applicant has failed miserably to adduce any sufficient cause for this Court to grant this application and there is no material sufficient cause to move this Court to exercise its discretionary powers on the matter. As such, I am inclined to dismiss the application for being destitute of merits. The application stands dismissed with costs. It is so ordered. DATED at DODOMA this 25th day of July 2024. E.E. LONGOPA JUDGE 25/07/2024. 15 | P a g e