angelista aloyce another vs hassan morrishassan asan moricy another 2022 tzhclandd 572 30 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 232 OF 2021 (Arising from Misc. Land Appiication No.477 of2020 ofthe District Land and Housing Tribunalfor Kinondoni) ANGEUSTA ALOYCE 1®^ APPELLANT BONIFACE M. MROSO (As a Legal Representative of the late JACKSON B. MROSO) APPEALLANT VERSUS HASSAN MORIS@HASSAN@ASAN MORICY 1^ RESPONDENT KENEDI AROBOGAST TARIMO 2'"' RESPONDENT JUDGMENT Date ofLast Order:24.06.2022 Date ofJudgment:30.06.2022 T. N. MWENEGOHA,J. The appellants herein above applied for a leave to extend time to enable them file an application for setting aside a dismissai order given in 2019. The leave to enlarge time was denied, hence the instant appeal reached this Court based on the following grounds; - 1. That,the learned trial chairman wrongly concluded that the appellants were negligent in pursuing the right to fiie an application to set aside the dismissal order of 20"^ February 2020 on time. 2. That, the application for extension of time was wrongly dismissed on account of ifailure to show sound and sufficient cause. \ N \ X\ The appeal was heard by way of written submissions and ex-parte against the 1®' respondent. Advocate Respicious R. Syiivester Mukandaia, appeared for the appellants while the 2"=" respondent enjoyed the legal services of Advocate Buberwa Abdul. Submitting in favour of the appeal, Mr. Mukandala insisted on the 1®' ground that, it was not true that they were negligent in pursuing their intended course as observed by the Trial Tribunal. The delay to pursue their intended matter was caused by the sickness of their Advocate and further that the Trial Tribunal failed to supply them with the copies of the impugned decision. The copies reached them on the 13"^ May, 2020 when the time to apply for setting aside the order has already lapsed. It was argued further that, these reasons were ignored by the Triai Tribunal hence arriving at a wrong decision. He went on to argue on the 2"'' ground that, they gave sufficient reasons before the Trial Tribunal for allowing their application. Their advocate was very diligent in taking steps towards setting aside the dismissal order, immediately after learning of the fact that the same exists. In reply, Mr. Abdul was of the view that the counsel for the appellants Is misleading the Court as far as the ground of appeal Is concerned. The Trial Tribunal stated three reasons when rejecting the application for extension of time as follows;-(l) the appellants failed to account for each day of delay(2)the appellants failed to provide sufficient reasons for their delay and (3) the appellants failed to provide evidence that on the date of 20/02/2020,they were informed by the Tribunal clerk on the facts they stated in their affidavit. He went on to argue that, the Triai Tribunai did use its discretion accordingly in rejecting the case before it. He cited among others the case of Lyamuya Construction Company Limited in vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). As for the 2"^ ground, the submissions of Mr. Abdui were that, the , ailegations that non- appearance on the date fixed for hearing on part of the appeliants counsei was due to sickness were not supported by any evidence and the same cannot be raised at this stage. In his rejoinder, the counsei for the appellants reiterated his submissions in chief. I have considered the submissions by the parties in line with the records at hand. The issue I have to resolve is whether the appeal has merits or not. In my discussion I will consolidate the two grounds and argue them together. Based on the records, especially the applicants'affidavit in support of their application at the Trial Tribunal as well as their written submissions it is obvious that, up to the 3"^ of April 2020, the applicants were yet to apply for the copies of the impugned decision. Their advocate was busy perusing the case file. If the dismissal order was issued on February 27"^ 2020, then it is clear that the request for the copies from the applicants; came more than 30 days from the date the said order was given./ Unfortunately, the appellants' counsei did not state as to when exactly he requested for the copies of the order in question, only to be give the same on the 13"^ May, 2020. I have noted further from the same records that, the appellants through their learned counsei have tried to account for the days of delay by giving reasons that their advocate was not aware of the existence of the order due to sickness. However, there is no medical chit given as evidence to support this contention. These are the issues which made the trial learned chairperson to conclude that, the appellants/applicants were negligent in pursuing their intended course. It is clear that, the reasons given by their learned counsel were not sufficient enough to allow their application, as per Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania. Therefore, findings of the Thai Tribunal are correct, and so is its decision and orders given in Misc. Appiication No. 477 of 2020.1 find no reason to go against it. That is to say, the two grounds of appeal are devoid of merits. The same are rejected accordingiy. Eventual, this appeal is dismissed with costs. Right of appeal explained. OF 44^ o c o 2 * T. ENEGOHA O JUDGE 30/06/2022