ally shaban 54 others vs meenaksh hasmukray desai 2022 tzhclandd 226 28 march 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC.LAND CASE APPLICATION NO. 56 OF 2022 (Arising Land Application No. 111/2021, the District Land and Housing Tribunal for Coast Region at Kibaha Hon. Lung’wecha, Chairman dated 27th September, 2021) ALLY SHABAN & 54 OTHERS........................................................... APPLICANT VERSUS MEENAKSHI HASMUKRAY DESAI.................................................. RESPONDENT RULING Date of last Order 28.03.2022 Date of Ruling 28.03.2022 A.Z.MGEYEKWA, J The application before this court is for an extension of time to appeal out of time against the decision of the District Land and Housing Tribunal for Kibaha in Application No. 111/2021 before Hon. Lung’wecha Chairman. The application was preferred under the provisions of section 41 (2) of the Land Disputes Courts Act, Cap. 216 [R.E. 2019], is supported by an affidavit deponed by Mr. Samuel Shadrack Ntabaliba, the applicant’s Advocate. The grounds advanced as the basis for this 1 application was that the applicant failed to obtain the copies of the judgment and decree within time. The respondent has stoutly opposed the application. Through his counter-affidavit deponed by Grace Ndera, the respondent’s Advocate they have opposed the application for the failure of the applicant to account for the days of delay. When the matter was called for hearing on 28.03. 2022 whereby the applicant was represented by Samwel Shadrack, learned counsel, while the respondent was represented by Grace Ndela, learned counsel. Mr. Ntabaliba in his submission adopted the affidavit and urged this court to adopt the affidavit to form part of his submission. He submitted that the application before the trial tribunal was delivered on 27th September, 2021, whereas the applicant wrote a letter on 29th September, 2021 and a reminder letter on 16th December, 2021 requesting copies of Judgment and Decree. He went on to submit that the trial Judgment and Decree were supplied to the applicant on 14th January, 2014. Mr. Shadrack submitted that the supplied decree and Judgment contained errors in the name of the applicant (ALLI SHABANI instead of ALLY SHABANI) that needed rectification, whereby the applicant wrote a letter requesting for rectification of the said errors on 17th January, 2022, in which that the rectified copies were supplied to the applicant on 5th 2 February, 2022. Mr. Shadrack further submitted that after obtaining the rectified copies on 5th February, 2022, he lodged this application to this court on 17th February, 2022. He insisted that the delay was caused by the trial tribunal and that it was not at the applicant’s default or negligence. On the strength pf the above submission, Mr. Shadrack beckoned upon this court to grant the application with costs and other reliefs that the court would deem fit to grant. On the other hand, Ms. Grace, having adopted the counter affidavit deponed by herself and lodged expressed much resistance. She urged this court not to grant the application because the applicant has not accounted for each day of delayed. She submitted that the applicant has not accounted for days of delay starting from 27th September, 2021 when the Judgment was delivered and certified on 12th November, 2021 to 5th February, 2022 when the applicant alleges to have been supplied with the copies. Ms. Grace further contended that it is difficult to believe the applicant who sincerely in paragraph 10 of his affidavit admits the copies of decree and Judgment to have been certified and were ready for collection on 12th November, 2021, yet the applicant on 17th January, 2022 wrote a letter requesting for the same. Ms. Grace went on to submit that the application 3 for an extension of time needs to be granted for justifiable reasons and that any further delay even for a single day has to be accounted for by the applicant. Ms. Grace contended that even though the applicant admitted to having obtained the corrected copies on 5th February, 2022 but it was until 17th February 2022 when the applicant decided to file this application and no reason for such delay is given, hence, the applicant has not managed to account for the said delay from 12th November, 2021 to 17th February, 2022. Fortifying her submission, Ms. Grace cited the case of Vedasto Raphael v Mwanza City Council & 2 Others, Civil Application No. 594 of 2021. The learned counsel for the respondent continued to argue that the delay was due to the applicant’s negligence and granting the instant application will cause more injustice as the Application No.111 of 2021 is pending in court for 10 years now which makes her client suffer injustice as justice delayed is justice denied. Stressing, she contended that the applicant has failed to give sufficient good cause as per section 41(2) of the Land Disputes Court Act, Cap 216 [R.E. 2019]. On the strength of the above submission, the learned counsel for the respondent beckoned upon this court to dismiss the applicant's application for failure to account for each and every day of delay. 4 In his rejoinder, the applicant’s counsel reiterated his submission in chief and added that from 27th September, 2021 to 12th November, 2021 when the judgment was certified, the time for appeal was already lapsed, hence, it was improper to attach the uncertified copies of Judgment. He valiantly argued that it is not the fault of the parties that Application No. 111 of 2021 is pending for more than 10 years before the court since the matter was ordered to start denovo. In conclusion, the learned counsel for the applicants urged this court to grant the applicant’s application since they have advanced sufficient good reasons for the delay. After a careful scrutiny of the submission of the learned counsels from both sides and the record of the court. It appears that Application No. 111 of 2021 was delivered on 27.09.2021 and it is undisputed fact that the said Application was certified and ready for collection on 12th November, 2021. I fully subscribe to the submission made by Mr. Shadrack that on that after receiving the certified copies, it was beyond the time limit for the applicant to appeal. However, the requirement of law to account for each day of delay is intact. The records clearly show that the Judgment and decree were certified on 12th November, 2021, and the applicant obtained the 5 certified copies on 5th February, 2022. Reading the applicant's affidavit specifically in paragraphs 12, 13, and 14, as rightly pointed out by Ms. Grace, the applicant has not accounted for each day of delay from 5th February, 2022 when he obtained the certified copies of Judgment to 17th February, 2022 when the applicant lodged the instant application before this court. It is a trite law that if a delay is involved then the applicant is required to show good cause which includes the reasons for the delay and to account for each day of delay. The same was held in the case of FINCA (T) Ltd and Another v Boniface Mwalukisa, Civil Application No. 589/12 of 2018 Court of Appeal of Tanzania at Iringa, (unreported) which was delivered in May, 2019 and the case of Bushiri Hassan v Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) which had held that:- “Dismissal of an application is the consequence befalling an applicant seeking an extension of time who fails to account for every day of delay" Equally, in the same case of Bushiri Hassan (supra), the court held:- “Delay of even a single day has to be accounted for otherwise there would be no point of having rules 6 prescribing periods within which certain steps have to be taken” Emphasis added]. Riding on the wisdom sprinkled from the cited decisions and the above findings, it is clear that the applicants have failed to account for every single day of delay. Consequently, I hereby dismiss this application. No order as to costs. Order accordingly. Ruling delivered on 28th March, 2022 in the presence of Mr. Samuel Shadrack Ntabaliba, learned counsel for the applicant, and Ms. Grace Ndera, counsel for the respondent. A.Z.MGEYEKWA JUDGE 28.03.2022 7