anna f emmanuel vs african medical reasearch foundation 2023 tzhc 19142 12 july 2023

1 IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 04 OF 2023 {Arising from Land Case No. 17 of2011) ANNA F. EMMANUEL......................... ...................................... 1st APPLICANT ANGELINA F. EMMANUEL...........................;......................... 2ND APPLICANT VERSUS AFRICA MEDICAL RESEARCH FOUNDATION......................... RESPONDENT RULING 21/04/2023 & 12/07/2023 BWEGOGE, J. The application before this court is for an extension of time within which the applicants may lodge a letter requesting all necessary documents for the appeal process, among others. The application herein is brought under section 14(1) of the Law of Limitation Act [Cap. 89 R.E. 2019], i among others, and supported by the affidavits of the applicants and their counsel. Before delving into the substance of the application herein, I find it pertinent to highlight its background, albeit briefly. Way back in 1996, the respondent herein purchased the suit land. Then the main house was converted into a women's centre (Manzese Women's Health Group) to cater for socio-economic emancipation programmes focussed on the women around Manzese area whereas the backhouse was converted to cater for a nursing school. The project was aimed to alleviate vulnerable women from deplorable living conditions and targeted the women engaged in prostitution and their children. Allegedly, in 2009 the 4th defendant (Manzese Women Health Group), sold the suit premise to the applicants herein without authorisation and, or consent of the respondent. After several years, the respondent got wind of the purported sale of her property. Hence, in 2017, the respondent commenced Land Case No. 17 of 2011 against the applicants herein and 2 others alleging that the seller had no legal right to sell the suit land to the defendants; therefore, the purported sale was null and void. The respondent prayed for declaratory orders that the purported sale of Plot No. 412 Block C Manzese in Dare es 2 Salaam was null and void; and that the respondent was the legal owner of the suit land, among others. The trial court decided in favour of the respondent and entered declaratory orders that: the respondent herein was the lawful owner of the suit premise; the sale of the suit premise by the 4th defendant to the applicants herein was null and void; and the applicants herein to give vacant possession of the suit premise, among others. The applicants were not amused with the decision of the trial court and intended to appeal However, they experienced technical problems which hampered their access to the Apex Court until they found themselves out of the statutory time to file their intended appeal. Hence, this application. The applicants were represented by Mr Saul Santo, the leaned advocate. An attempt to procure the attendance of the respondent proved futile; hence, the matter herein proceeded exparte. In his submission, Mr. Santo prayed this court to adopt the affidavit filed hereto, specifically matters deposed in paragraphs 9, 10, 11, 12 and 13 of the applicants' affidavits and paragraphs 5, 6, and 7 of the applicants' counsel herein. In a bid to elaborate the facts adduced in the affidavits filed hereto, the counsel submitted that the applicants were misled by the 3 previous advocates who were handling the applicant's case who failed to t guide them well until they found themselves out of time to take necessary legal actions. Therefore, the counsel prayed this court to invoke the provisions of sections 68 and 95 of the CPC and take necessary action to prevent the ends of justice from being defeated and make such orders as may be necessary for the ends of justice. That the provision of section 14 (1) of the LMA enjoins this court with power to enlarge the limitation period for instituting an appeal. The counsel asserted that there is illegality in the decision of the trial court which constrains this court to grant the extension sought, in compliance with a well-settled principle of law applied in the cases of Principal Secretary, Ministry of Defence and National Service vs Devram P. Valambia [1992] TLR 182; Bank of Tanzania vs Lucas Masazigwa & Others; Civil Application No. 323/02 of 2017, among others. The counsel admitted that the applicant's previous lawyers having filed notice of appeal and requested necessary documents for appeal purposes, could not continue with the matter for technical reasons. Later, when the applicants were supposed to exhibit their formal request for court documents to be certified to lodge the appeal out of time, they failed to, as attempts to recover the relevant document from the office of their 4 previous counsel proved futile. That the failure to take the necessary legal step within the statutory period was beyond the applicant's control. The counsel opined that this case has special circumstances warranting the grant of extension sought. Conclusively, the counsel prayed this court to grant the application herein for the interest of justice. For grasping the gist of the applicant's affidavits, I revisited paragraphs 7 to 12 of the applicant's affidavits. The substance of their depositions is as thus: Having lodged a letter requesting court documents for appeal and granted the same, they discovered anomalies thereon and requested the rectification of the anomalies on the court documents. That to date, the said anomalies remain unrectified despite frequent follow-ups. On 06/07/2021, the applicant's counsel lodged a reminder letter requesting necessary documents for appeal purposes believing that the letter requesting court documents was previously lodged along with notice of appeal. Later, upon following up, it was discovered the letter requesting for court document was nowhere to be found. On 02/06/2022 the applicants were enlightened that their previous advocates were supposed to exhibit a letter requesting court documents along with filing a notice of appeal within clear 30 days to be granted necessary documents for appeal. 5 Further, the applicants deposited that having failed to locate the necessary documents lodged in court for appeal purposes they received instruction from their counsel herein to seek an extension for lodging the letter requesting court documents out of time. Consequent to the reception of the advice from their counsel, the applicants lodged Civil Application No. 369/01 of 2022 in the Court of Appeal of Tanzania which was withdrawn on technical grounds. Later, the applicant's counsel advised the applicants that they were supposed to seek the extension in this court. In the same vein, the affidavit sworn by the applicant's counsel comprises facts that after going through the pleading in Land Case no. 17 of 2011, he noted illegalities namely, non-joinder of the necessary party to the case, failure to call a material witness from Kinondoni Municipal who had registered transfer of title of the disputed property from the respondent to the applicants and the trial court failed to address the rights of the bonafide purchaser/applicants herein The issue to be resolved is whether the application herein is merited. This court is enjoined with power to enlarge the time within which the applicant may lodge necessary documents for appeal purposes, for 6 sufficient and, or good cause. See in this respect the cases of Benedict Mumello vs Bundala (Civil Appeal 12 of 2002) [2006] TZCA 12; Tanga Cement Company vs Jumanne D. Masanga and Another, Civil Application No. 06 of 2001 CA (unreported); and John Mosses and 3 Others vs Republic, Criminal Appeal No. 145 of 2006 (unreported). To be specific, in considering what factors should the court consider in granting the extension sought, the Apex Court in the case of Tanga Cement Company vs Jumanne D. Masanga and Another (supra), had this to say: " A number of factors have to be taken into account, including whether or not the application has been brought promptly, the absence of any valid explanation for the delay, lack of diligence on the part of the applicant." Therefore, based on the above guidelines, the applicants herein were supposed to establish that they failed to lodge an appeal within the statutory time for sufficient and, or good cause. The question arising herein is whether the applicants have succeeded to meet the scales of justice to warrant grant of extension. This question, I will attempt to answer hereunder. 7 'Xs aforementioned/ the impugned judgment was delivered on 07th September, 2017. Thereafter the applicant's counsel lodged notice for appeal and request for court documents for appeal. When they were supplied with court documents, the applicants herein discovered errors :hereon, which they sought rectification, but their efforts ended in vain. I aave gone through the annextures to the affidavits filed herein. Annexture XA4 is the correspondence from MAGMA Law Chambers headed to the jeputy registrar of this court, dated 17th June, 2021. The contents of the 'elevant correspondence, contain facts that it was discovered upon scrutiny that the citation of the case exhibits the name "CIVIL CASE" nstead of "LAND CASE." Likewise, it was observed that the decree thereof ndicates the date different from the date of delivery of judgment. It was expressly stated that the anomaly hindered the applicants from lodging appeal as the Apex Court in numerous decisions repeatedly held that the variance of dates on court documents renders the appeal incompetent, fhe reminder dated 06th July, 2021 (annexture AA-5) likewise, speaks /olumes in this respect. This concern, it was alleged, remains unheeded :o date. In fact, upon scrutiny, I found that the alleged anomalies are still apparent on the face of the judgement and decree of this court in Land 2ase No. 17 of 2011 which are the mainstay of this application. 8 Further, it has been deposed that when the applicants opted to act on defective court documents, they could not obtain a certificate of delay as the letter requesting court documents filed in time could not be traced for proof. The applicants shouldered the blame for the missing document on their previous advocates. Hence, the only option was to file application for extension of time which was filed in the Apex Court to be withdrawn on technical ground on 30th December, 2022. Thereafter, the applicants' counsel advised the applicants to file the application for extension in this court; hence, this application. And, on 09 January, 2023 the applicants physically filed the pleadings herein in this court. Though there is no record when exactly electronic filing was effected, it is obvious that electronic filing precedes the physical presentation of the pleadings. The circumstances of this case constrain me to borrow a leaf from the case of Benedict Mumello vs Bundala (supra) whereas the Apex Court had this to say: "Applying for copies of proceedings and judgments within such a short time from the date ofjudgment, and later making a follow up by way of reminder, and finally lodging the application immediately after being supplied with the same, depicts diligence. 9 It suffices to point out that, considering the circumstances of this case, I am satisfied that the applicants herein had acted diligently in taking necessary steps and legal actions in pursuit of their intended appeal. In view of the foregoing discussion, I am of the considered opinion that the applicants herein have furnished sufficient grounds for grant of the extension. Therefore, I need not further delve into the point of law advanced by the applicant's counsel. Finally, I find the application herein with merit. The application is hereby granted. The applicants to lodge a formal request of court documents for appeal within 14 days. Order accordingly. DATED at DAR ES SAUXAM this 12th July, 2023. Q. F. BWEGOGE JUDGE