ally saidi tandiko vs serikali ya kijiji zimbiri 2020 tzhc 4717 21 october 2020

..,_ IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATTANGA MISC. LAND APPLICATION NO. 05 OF 2020 (From the Land Appeal No. 57 of 2017 of the Land District and Housing Tribunal for Lushoto) ALLY SAIDI TANDIKO APPLICANT VERSUS SERIKALI YA KIJIJI ZIMBIRI RESPONDENT RULING MKASIMONGWA, J This is an Application for an Order of the Court extending time in which to appeal against the decision of the District Land and Housing Tribunal for Lushoto in Land Appeal No. 57 of 2017 dated 25/10/2018. The Application is brought by Ally Saidi Tandiko (Applicant) against Serikali ya Kijiji Zimbiri (Respondent) and it is by way of Chamber Summons filed under Section 38 (1) of the Land Disputes Courts Act [Cap 216 R.E 2002] supported by Affidavit sworn by the Applicant. It is contested by the Respondent and to that regard, the later filed a Counter Affidavit sworn by Salim Bakari Haza, the Chairman of the Respondent Village. When the matter came for hearing, parties appeared in person and or represented by the Senior Officer. On being invited to take the floor, the Applicant submitted in line with his averments in the 1 Affidavit filed in support of the Application. He stated that he is aggrieved with the decision of Lushoto District Land and Housing Tribunal delivered on 25/10/2018 in Land Appeal No. 57 of 2018 hence intended to appeal against it. He could not, however, appeal within the prescribed period of limitation because he was sick. The Applicant contended that on 29/12/2018 he was involved in a motor cycle accident from which he suffered a serious wound on his leg. This is evidenced by the Mbaramo Dispensary Medical Officer In-charge's letter dated 29/12/2018. As a result, he remained on bed for about a year until 25/09/2019 when he recovered. He later sent his young brother to the District Land and Housing Tribunal to collect a copy of the contested judgment and for economic reasons he did not file this Application the soonest. The Applicant prays the Court that it grants the Application. On the other hand, the Respondent submitted to the effect that after when the contested judgment was delivered and before when he was wounded the Applicant did not show any interest in appealing to this court against the judgment. Always he was telling people that he won the Appeal before the District Land and Housing Tribunal. When the Appeal period had elapsed, the Respondent approached the District Land and Housing Tribunal so that he executes the decision. On the date the execution proceedings were called before the Chairman of the District Land and Housing Tribunal, it is when the appellant said that he was aggrieved by the decision of the Tribunal, hence will appeal to the High Court. The Chairman therefore suspended the proceedings pending hearing 2 and determination of the Appeal. This apart, the Applicant is maintaining that he won the case against the Respondent. The Respondent vehemently objected to the Application and based on the above submissions, he prayed the Court that it dismisses the application. In rejoinder the Applicant had nothing material to say. I have considered the submissions by the parties along with their respective pleadings. As it is shown above, this Application is made under Section 38 (1) of the Land Disputes Court Act [Cap 216 R.E 2002]. The Section reads as follows: "38 (1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or uisional jurisdiction, may within sixty days after the date of the decision or order appeal to the High Court (Land Division) provided that the High Court Land Division may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired" The section provides for appeal period for any party aggrieved by the decision or order the District Land and Housing Tribunal sitting as an Appellate or Revision Tribunal, where to appeal and powers of the High Court (Land Division) to extend the time limited where a good and sufficient cause is shown. The period of appeal is sixty days after the date of the decision or order and that the Appeal shall lie to the High Court (Land Division). It is common that the 3 decision the subject of this Application was delivered on 25/10/2018. Similarly it is undisputed that the Applicant did not lodge appeal against that decision within the prescribed period of sixty days. He now requests for an order extending the period. The question is whether the Applicant has shown a good or sufficient cause why he could not timely lodge the appeal. What constitutes a good cause and the requirement that the same must be established by the Applicant has been stated in many cases. One of them is that of Oswald Masatu Mwizarubi v. Tanzania Fish Processors Ltd: Civil Application No. 13 of 2010, CAT (Unreported where the court stated was follows: "The term good cause is a relative one and is dependent upon the circumstances of each individual case. It is upon the party seeking extension of time to provide the relevant material in order to move the court to exercise its discretion". In the case at hand, the Applicant shows that he court not timely appeal against the decision because he was impeded by sickness as he was sometime on 29/12/2018 involved in a road accident resulting into being seriously injured. Going by dates however, when the Applicant got wounded in the accident sometime, on 29/12/2018, he was already out of the sixty days of the decision in which he could appeal. The sickness suffered by a party after expiration of the limitation of period provided by the law does not constitute a sufficient or good cause to warrant the Court exercise its discretion to extend the period limited by rules. This 4 .. application was, in my view, an afterthought as the Respondent stated. It follows therefore that the Applicant has not managed establishing to the court, a sufficient and good cause to enable it grant this application. In event, I find no merit in this application and the same is hereby dismissed with costs. Dated at Tanga this 21st day of October, 2020. E. J. Mkasimongwa JUDGE 21/10/2020 5 . • Date: 21/10/2020 Coram: E. J. Mkasimongwa, J. Parties: Absent C/C: Alex Court: The matter is for Ruling. The same was first fixed for Ruling on 22/07/2020 when parties did not appear. The parties Appeared not even on the subsequent dates when the case was set for ruling. They are not even present today. Order: Ruling deemed to have been read this on 21/10/2020. E. J. Mkasimongwa JUDGE 21/10/2020 6