amidu damian likiliwike as administrator of the estate of the late damian boimanda likiliwike vs steven temba 2022 tzhc 14630 15 november 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IRINGA DISTRICT REGISTRY AT IRINGA, MISC. LAND APPLICATION NO. 35 OF 2020. (Originating from Application No. 115 of 2018, In the District Land and Housing Tribunal for Iringa, at Iringa). AMIDU DAMIAN LIKILIWIKE (As the administrator of the estate of the late Damian Boimanda Likiliwike)......................,............APPLICANT Versus; STEVEN TEMBA............ ...................... .................. ......RESPONDENT RULING 16th August & 15th November, 2022. UTAMWA, J: The applicant herein, AMIDU DAMIAN LIKILIWIKE (As the administrator of the estate of the late Damian Boimanda Llkiliwike) preferred the present application under section 41(2) of the Land Disputes Courts Act, Cap. 216 RE. 2019 seeking for the following orders: 1. That, this honourable court be pleased to grant leave for extension of time to file an appeal out of time. Page l of 11 2. Costs be provided for. The application is supported by an affidavit sworn by the applicant himself stating the grounds in support of the application. He deposed that, he was the applicant in the District Land and Housing Tribunal for Iringa, at Iringa (DLHT) in Application No. 115 of 2018. The judgment was entered in favour of the respondent. He then appealed to this court, but the appeal Was struck out for being incompetent. He then filed an application for extension of time before this same court. However, the same was also struck out for being preferred under a wrong provision of law. The time to appeal thus, lapsed due to the striking out of the proceedings mentioned above. The respondent, STEVE TEMBA resisted the application by filing a counter affidavit sworn by Mr. Barnabas Pascal Nyalusi, the respondent's counsel. He disputed the fact that if this court Will not grant the application grievous harm of peace will be caused to the applicant's family. He contended also that, the applicant's advocate failed to initiate the appeal by filing proper documents and that there are no chances for the intended appeal to succeed. This is due to the failure by the applicant to file the appeal within time, which was caused by the negligence of the applicant's advocate. During the hearing of the application, the applicant was represented by Mr. Joshua Chussy, learned advocate. On the other side, the respondent was represented by Ms. Neema Chacha, learned advocate. The application was heard by way of written submissions. The learned advocate for the applicant submitted in support of the application that, the applicant was aggrieved by the decision of the DLHT. Page 2 of 11 He filed to this court Land Appeal No. 3 of 2020 which was struck out for being incompetent and defective. This was because, it had been filed by way of petition of appeal instead of memorandum of appeal as required by Order XXXIX Rule 1 of the Civil Procedure Code, Cap. 33 RE. 2019 (The CPC). He then filed Wise. Land Application No. 22 of 20201 However, the same was also struck out following a preliminary objection based on wrong citation of the enabling law. The applicant then filed the present application. The applicant's counsel further contended that, the present application was filed after the expiry of 219 days arid not 221 days as deponed to in the affidavit. In applications for extension of time like the present one, one of the important requirements is that, the applicant must account for the delay of every single day. To bolster his argument, he cited the cases of Daman Watson Bijinja v. Innocent Sangano^ Misc. Civil Appeal No. 30 of 2021, High Court of Tanzania (HCT) at Kigoma (unreported) and Eiius Mwakalinga v. Domina Kagaruki and 5 Others, Civil Application No. 120/12 of 2018. He further cited the decision by the Court of Appeal of Tanzania (The CAT) in the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 192/20 of 2016, CAT at Dar es Salaam (unreported) for the same purpose. The applicant's counsel also urged the court to grant the application on the ground of technical delay as it was the position in Damari Watson Bijinja case (supra) and Fortunatus Masha v. William Shija and Another (1997) TLR 154. He contended further that, in the Damari Watson case, the court emphasized on immediate action to be taken by the applicant after the pronouncement of the ruling. In that case the judge Page 3 of 11 cited the cases of Vodacom Tanzania PLC v. Commissioner for TRA, Civil Application No. 101/20 of 2021 which made reference to Patrick Magoiogozi Mongolia v. The Board of Trustees of the Public Service Pension Fund, Civil Application No. 1999/18 of 2018. It was also the contention by the applicant's advocate that, the time spent in pursuing justice before the court of law in good faith based on practice has been acknowledged by courts as one of the criteria for the court to grant application for extension of time. He based this contention on the cases of Charles N. Robert v. MMG Gold Limited, Misc. Labour Application No. 34 of 2019, HCT at Musoma and Bank M (Tanzania) Limited v. Enock Mwakyusa, Civil Application No. 520 /18 CAT at Dar es Salaam (unreported). He added that, the applicant's application was struck out on 16th June 2020. The applicant then promptly requested for copy of the ruling on 17th June 2020 and the said ruling was issued on 23rd June 2020. The applicant filed the application for extension of time which was later struck out on 27tf1 June 2020. He then file the present application for extension of time. The applicant's counsel thus, argued that, the applicant has been acting promptly without leaving a single day accounted for. He thus, urged this court to allow the application for the purpose of justice and peace among the family members. By way of replying written submissions, the respondent's counsel argued that, there was no technical delay in the circumstances of this case. The applicant was only negligent by filing incompetent applications which led to striking out orders. Negligence of an advocate has never been considered as a technical reason for a delay that may justify extension of Page 4 of 11 time. She added that, the High Court of Tanzania (HCT), i. e. this court, in the case of Frank Leonard Sanga v. Aneth Abdula Mhina, Misc. Application No. 310 of 2019, HCT, at Dares Salaam (unreported) did not accept the negligence of the applicant as a sufficient reason for extension of time. The same stance was taken in the cases of William Shija & Another v. Fortunatus Masha (1997) TLR 213 and Umoja Garage v. National Bank of Commerce (NBC), (1997) TLR 109. It was also the contention by the respondent's advocate that, the applicant has failed to account for the delay from 16th June 2020 when Land Appeal No. 3 of 2020 was struck out to 9th September 2020 when the present application was filed. He did not thus, meet the legal requirements for granting extension of time as set in the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No- 2 of 2010, CAT at Arusha (unreported). In her view therefore, the applicant has not shown diligence in prosecuting the matter, but rather a repetitive negligent character which is not in law, a sufficient reason for extending time. To cement this contention she cited the case of Samwel Mussa Ng'ohomango v. AIC (T), Civil Application No. 26 of 2015. She therefore, prayed for this court to dismiss the application with costs. In rejoinder submissions, the applicant's counsel reiterated the contents of his submissions in chief. He added that, the applicant's previous appeal was never determined on merits, but struck out The only remedy in search for justice was thus, to apply for extension of time to file a fresh appeal. The matter is said to be technically delayed when it does not proceed Pages 5 of 11 on merits due to legal technicalities. He supported this position of law by the Charles Norbert case (supra) which followed the case of Finca (T) Limited v. Kipondongoro Auction Mart & Another, Civil Application No. 589/12 of 2018, CAT at Dar es Salaam (unreported). The applicants counsel also contended that, the applicant acted promptly in pursuing the matter, hence entitled to the benefits of the doctrine of technical delay, He based the contention on the Bank M case. (Supra). He also distinguished the precedents cited by the respondent for being persuasive since they do not bind this court. They do not also reflect the current position of the CAT in determining disputes fairly by not punishing the innocent party. The application at hand is therefore, meritorious and the court is entitled to allow it for the sake of justice. I have considered the affidavit, counter affidavit, rival submissions by the parties, the record and the law. This matter, being an application for extension of time in nature, has to be governed by the branch of law on that area. The law on extension of time provides, inter alia that, such extension of time is granted at the discretion of the court exercised judiciously upon the applicant adducing sufficient reasons or good caused for the prayed extension. The major issue for determination in the present matter is therefore, whether the applicant has shown good cause for this court to extend the time to file his appeal out of time. Indeed, what is a good cause is a question of fact which depends on the circumstances of each case. Factors to be considered in an application of this nature were stated in the Lyamuya Construction case (supra) as Page 6 of 11 including the following: to account for all the period of delay, the delay should not be inordinate, the applicant must show diligence and not apathy, negligence or sloppiness in prosecution of the action that he intends to take, and the existence of a point of law of sufficient importance such as the illegality of the decision sought to be appealed against. The factors were also underlined by the CAT in the cases of Yusuph Same and Hawa Dada v. Hadija Yusuf, CAT at Dar es Salaam, Civil Appeal No. 1 of 2002 (unreported) and Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002, CAT at Dar es Salaam (unreported). In the matter under consideration, the applicant based his application mainly on the doctrine of technical delay. Unfortunately, though counsel for both sides conversed on this doctrine, they did not clearly highlight its requirements or meaning. In my concerted view, this doctrine is a creature of case law as opposed to written laws. I will not trace its history in details for time constraint. It suffices, for the purposes of this ruling, to observe that, in our jurisdiction, the doctrine is believed to have been sparked by a single Judge of the CAT (Mfalila, JA as he then was) in the case of Fortunatus Masha v. William Shija and another [1997] TLR 154, decided on 21st May, 1997 (cited above by the applicants counsel in his written submissions in chief). This precedent should be differentiated from another precedent; i.e. William Shija & Another v. Fortunatus Masha (1997) TLR 213, decided on 25 August, 1997 (cited supra by the learned counsel for the respondent). I will rebrand these twin precedents for avoidance of confusions in the discussion under this ruling. This rebranding of the precedents is thus, for purposes of differentiating them due to their Page 7 of 11 similarity of the parties involved and the fact that they were reported in the same volume of [1997] TLR though at different pages. The former precedent ([1977] TLR. 154) is thus, branded Fortunatus Masha No. 1 while the latter precedent ([1977] TLR. 213) is christened Fortunatus Masha No. 2. It is thus, worth noting that, the concept of technical delay was sparked in the Fortunatus Masha No. 1 and not in the Fortunatus Masha No. 2. This latter precedent mainly decided on the effect of negligence of parties in an application for reference before the CAT. Now, in the Fortunatus Masha No. 1, the single Justice of Appeal sparked the concept of technical delay through the following words, which I reproduced verbatim for a readymade reference: "...a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing of an incompetent appeal not the delay in filing it. The filing of an incompetent appeal having been duly penalised by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal. In fact in the present case, the applicant acted immediately after the pronouncement of the ruling of this Court striking out the first appeal." Now, it follows thus, that, the phrase "technical delay" itself is, in our law, a technical term. This is so because, it has its special legal meaning. The principle of "technical delay" therefore, essentially means and guides that; where a party timely files an appeal or any other matter in court, but the court terminates or strikes it out for incompetence, then there will be a sufficient reason for granting ah extension of time to file a competent matter Page 8 of 11 out of time for seeking the same orders or remedies that had been sought in the previous matter which was struck out, provided that, the affected party/applicant promptly moves the court for the extension of time upon the order for the termination or striking out the previous matter being made. It must further be noted that, the Fortunatus Masha No. 2 was in fact a reference to the panel of three Justices of Appeal against the ruling of the single Justice in the Fortunatus Masha No.l. Admittedly, the reference was allowed. Nonetheless, it was so allowed for different reasons and in doing so the panel of the CAT did not at all discard the concept of technical delay that had been sparked by the single Justice of Appeal in the Fortunatus Masha No. 1. In fact, even after the decision of Fortunatus Masha No. 2, the CAT went on underscoring the applicability of the above highlighted concept of technical delay in opportune circumstances. It did so through various precedents which include the following: Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd, Civil Reference No. 18 of 2006, CAT at Dar ss Salaam (Unreported), Yara Tanzania Limited v. DB Sharpriya and Co. Limited, Civil Application No. 498 of 2016, CAT at Dar es Salaam (unreported), Zahara Ki tindi and another v. Juma Swale he and 9 others, Civil Application No. 4 of 2005 (unreported) and Bharya Engineering and Contracting Co. Ltd v. Hamoud Ahmad @ Nassor, Civil Application No. 342/01 of 2017, CAT, atTabora (unreported). Now, the sub-issue at this juncture is whether or not doctrine of technical delay is applicable in favour of the applicant in the matter at hand. In my view, the circumstances of the matter attracts an affirmative answer Page 9 of11 to the sub-issue. This is because, in fact, it is not disputed by the parties that, the applicant's previous appeal was struck out. Again, his former application for extension of time was also struck out. Again, it is shown from the affidavit and arguments by the applicant's counsel that, the applicant was punctual enough in taking steps after each order of striking out his proceedings. It is for example, shown in the affidavit that the applicant promptly took steps to file the appeal timely, but the same was struck out. He also promptly filed the application for extension of time, it was also struck out. He further promptly filed the present application. The applicant thus, delayed to take proper steps in appealing against the impugned decision of the DLHT timeiy because he was prosecuting: the previous matters which were latter struck out. The circumstances thus, fall under the ambit of the concept of technical delay and have to be considered in favour of the applicant. Furthermore, I am of the settled opinion that, the applicant in the matter at hand is sheltered under section 21(2) of the Law of Limitation Act, Cap. 89 RE. 2022. These provisions guide on exclusion of time of proceedings bon fide in court without jurisdiction or for any other reason. Under these provisions, in computing time limitation the time spent for prosecuting other unsuccessful matters is excluded. Owing to the above reasons, I answer the sub-issue posed above affirmatively that, the doctrine of technical delay is applicable in favour of the applicant in the matter at hand, I consequently answer the major issue affirmatively that, the applicant has shown good cause for this court to extend the time to file his appeal out of time. I accordingly grant the Page 10 of 11 application and extend the prayed extension of time. The applicant is directed to file his intended appeal within only 15 days so as to avoid further delay of this matter. Each party shall bear its own costs since the respondent who has lost in this matter bears no blameworthiness for the filing of the application at hand which is a legal requirement under the circumstances of the case. It is so ordered. 15/11/2022 Court: Judgement delivered in the presence of Mr. Chusi, learned advocate forxfhe applicant and Mr. Stephano, also learned advocate for the respon t. Mr. Mpogole, Clerk, present. Right of appeal explained. . A. MALEWO REGISTRAR 5/11 2. Page IVof 11