CIVIL APPL

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CIVIL APPLICATION NO. 204/06 OF 2022 ALOIS MAGANA @ KIPILIPILI..................................................... APPLICANT VERSUS GIDION MW ANGOSI................................................................ RESPONDENT (Arising from the ruling of the High Court of Tanzania, Mbeya District Registry at Mbeya) (Nqunyale, 3.) dated 22th day of February, 2022 in Land Appeal No. 75 of 2021 RULING 3rd & 10th July, 2024 KITUSL JA.: The notice of motion which has instituted this application has two prayers; one made under rule 10 of the Court of Appeal Rules, 2009 (the Rules), applying for an extension of time to lodge a notice of appeal out of time and another applying for leave to appeal to this Court against the decision of the High Court in Land Appeal No. 75 of 2021 dated 21/2/2022. The Application is supported by an affidavit of the Applicant and resisted by the Respondent who filed an affidavit in reply taken out by him. At the very outset it was agreed in the presence of the applicant appearing in person, and Mr. Mwakolo, learned advocate for the respondent, that the second limb of the application was uncalled for, following the amendment to the Rules vide Tanzania Court of Appeal (Amendment) Rules, 2024, GN. 188 of 2024 which commenced on 1/12/2023 doing away with the requirement of leave to appeal to the Court in appeals like the one intended by the Applicant. I will thus disregard the prayer and proceed to determine the first prayer. Aggrieved by the decision of the District Land and Housing Tribunal for Mbeya in Land Application No. 38 of 2020 where he lost his claim of ownership of land against the respondent, the applicant, Alois Magana, appealed to the High Court vide Land Appeal No. 75 of 2021. The appeal was decided in favour of the respondent and he wishes to appeal to the Court but did not timely lodge a notice of appeal. His first application for an extension of time to lodge notice out of time was refused by the High Court in Land Application No. 35 of 2021 dated 29/9/2022, hence this second bite. The applicant's reasons for the delay, contained in his affidavit, are that he left Mbeya for Dodoma on 25/2/2022 to attend to his sick mother who, however, died on 18/3/2022. In paragraph 7 of his affidavit, he annexed a letter from the VEO of Chilungulu in Dodoma dated 30/3/2022 showing that he was in that village from 25/2/2022, to 18/3/2022 when 2 his mother died and thus relying on it to show his whereabouts for that time which hindered him to timely lodge the notice of appeal. As earlier shown, he filed his first bite for an extension of time and that was on 21/4/2022 as shown in paragraph 9 of his affidavit. At the hearing, the applicant adopted his written submissions and insists that he has accounted for the delay which he considered to be not inordinate. He also avers that the cause for his delay was an act of God which he had no control over, but that he has been diligent in litigating his matter. He finally prayed for an extension of time to be granted. On the other hand, Mr. Mwakolo, objected to the application challenging the reasons stated in the affidavit and elaborated in the written submissions. He was of the view that the applicant has not accounted for each day of the delay, as the applicant does not have bus tickets to substantiate his travel to and from Dodoma, nor a letter of VEO from the area of abode in Mbeya introducing him to Chilungulu village. In the end, he stressed that the applicant has not accounted for the period between 21/2/2022 when the decision was pronounced to 21/4/2022 when his first bite application was filed, about 60 days. He referred to the case laws cited by the applicant and submitted that they support the respondent's case more than the applicant's and thus prayed the 3 application to be dismissed with cost. The cases are; Ludovick Michael Massawe vs. Samson Herman, Civil Application No. 259 of 2021 [2022], and James Anthony Ifada vs. Hamis Alawi, Civil Application No. 482 of 2019, [2020] In a rejoinder, the Applicant asserted that he could not get bus tickets because he used a lorry and not a bus. As for the absence of an introductory letter, he asserted that it was an emergency travel and he had to rush to be by his sick mother's bed, thus could not get a letter from the VEO of the area where he was living. In my consideration of the matter and in line with rule 83(2) of the rules, the applicant ought to have lodged his notice of appeal within 30 days from the date of the impugned decision, in which case, he ought to have filed it by or before 23/3/2022 but he did not. He did nothing until 21/4/2022 when he filed his first bite application for an extension of time to lodge the notice. To state the obvious, an applicant is required to account for each day delayed as per the settled law. See Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported) and Wambele Mtumwa Shahame vs Mohamed Hamis (Civil Reference No. 8 of 2016) [2018] TZCA 39 (9 August 2018) and the cases cited by the Applicant in his submission. That means the Applicant is required to account for 29 days, from 23/3/2022 when his time lapsed to 21/4/2022, when he filed his first bite, and not 60 days as Mr. Mwakolo submitted. The fact that the applicant travelled by lorry and not bus is not deponed in his affidavit, just as the said affidavit conveniently omits to disclose when he came back to Mbeya. Small wonder, the applicant had no travel documents substantiating his travel from Dodoma to Mbeya even though it cannot be said by him that the return journey was also sudden. His travel to Dodoma being the sole fact he is relying on as being a good cause for his delay, ought to have been fully disclosed vividly in his affidavit short of which the Court cannot rely on facts from the bar, not deponed. In Nicholaus Mgonja @ Makaa vs Republic (Criminal Application No. 8/12 of 2023) [2024] TZCA 279 (29 April 2024) the Court stated that; "The good cause on which the grant is to be premised must be gathered from the depositions made in the affidavit that supports the application, and it is in the form of reasons for the delay and why extension is sought." That leads me to the conclusion that the applicant has failed to account for the days delayed; from 23/3/2022 to 21/4/2022. I feel obliged to remind the applicant that there is time for the taking of any steps in judicial proceedings. See; George Humba v. James M. Kasuka, TBR Civil Application No. 1 of 2005 [2007] TZCA 174 16 March 2007) and Bank of Tanzania v. Said A. Marinda & 30 Others, Civil Reference No. 3 of 2014 [2016] TZCA 838 (30 October 2016). The applicant has not accounted for each day of the delay as required and has offended the requirement for a litigant to observe the time schedule for the taking of steps in judicial proceedings. I accordingly proceed to dismiss the application with cost for the reasons stated above. DATED at MBEYA this 9th day of July, 2024. I. P. KITUSI JUSTICE OF APPEAL Ruling delivered this 10th day of July, 2024 in the presence of the Appellant in person and Mr. Simon Mwakolo, learned counsel for the Respondent, is hereby certified as a true copy of the original.