BOMBO BARIE 22222 EDITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB REGISTRY OF MANYARA AT BABATI MISCELLANEOUS LAND APPLICATION NO. 2947 OF 2024. {Arising from Land Application No. 56 of 2020 of Babad District Land and Housing tribunal.) BOM BO BARIE (The administrix of the estate of deceased of Barie Qaduw Shang 'we)........ ................ AP P LIC A NT VERSUS TANO ONA....................................................................RESPONDENT RULING 15th July & 23rd September, 2024 Kahyoza, J.: The applicant seeks an order for extension of time, to file an appeal out of time. The applicant sued the respondent in the district land and housing tribunal (the tribunal) as a legal representative and lost the battle. Aggrieved, she engaged an advocate who did not file an appeal on time on the pretext that the system was down. Determined to appeal, she instituted the current application. The issue is whether the applicant has adduced sufficient reason for delay. i It is undisputed fact that the applicant delayed for 115 days to file an appeal. The tribunal delivered its judgment on 23. October, 2023 and that applicant instituted the current application on 25th January 2024. On the date fixed for hearing, the applicant appeared in person whereas the respondent enjoyed the legal service of Mr Ndonjekwa, learned advocate. The applicant orally averred to the effect, that she had engaged Mr. Pascal advocate to lodge the appeal who unfortunately defaulted to lodge the appeal. She sought assistance from the Regional Commissioner who got her legal aid services of Mr. Tadey, learned advocate. The respondent's advocate opposed the application contending that the applicant demonstrated no sufficient reason for extension of time. He cited the cases of Lyamuya Contraction Company LTD vs Board of Registered trustee of Young women's Christian association of Tanzania, (Civil Application No 2/2010), [2011] TZCA 4(3October 2011), Tatu Said Ntandu v Andrea Alex and 6 Others, (Civil Application No.3/2023), and Bushir F Hassan v Latina Lusia Masaya,(Civil. Application No.3/20170. Has the applicant adduced sufficient reason for delay? The applicant averred that her delay to file an appeal was caused by her advocate. She made follow up to her advocate on 27th November 2 2023, who told her that he was unable to file the application because the system for filing was inoperative. Six days later, the applicant went to her advocate to check what was going on, unfortunately she did not find him in office. The applicant did not explain what happened from 27th November 2023 when she found Mr. Pascal not in office until 25th January 2024, when she met with Advocate Tadey. Again, there is no account of time from 25th January 2024 when she met Mr. Tadey advocate who drew the documents ex gratia to 15th,February 2024 when she filed the current application. The applicant accounts for delay Mr. Pascal's negligence. Mr. Paschal advocate defaulted to lodge the appeal on time for no good reason. It is settled that the advocate's negligence is not a sufficient reason for extending time to appeal. The Court of Appeal in Yusufu Same &Another vs Hadija Yusufu (Civil Appeal No.l of 2002)[2006]TZCA 141(20 October 2006) pg 9,10, the Court of Appeal held that- "Generally speaking, an error made by an advocate through negligence or lack diligence is not sufficient cause for extension of time. This has been held in numerous decisions of the Court other similar jurisdiction.......... but there are times, depending on the overall circumstances surrounding the case, where extension of time may be granted even where there is some element of 3 negligence by the applicants advocate as was held by single judge of this court (Mfalila JA as he then was) in Felix Turn bo Kisima vs TTC Limited and Another, Civil Application No.l of 1997(unreported) " In addition, the applicant's contention that she had no means to engaged an advocate was not sufficient reason for delay. The defunct Court of Appeal for East Africa held that lack of financial means is not a ground for extension of time. It pronounced itself that- ’We are aware that financial constraint is not sufficient ground for extension of time. See Zabitis Kawuka v. Abdul Karim (EACA) Civil Appeal No. 18 of 1937. We are aware that financial constraint is not sufficient ground for extension of time". It is settled that negligence of the applicant's advocate as well as financial problem of the applicant cannot be put forward as a good causes for extension of time to file an appeal. In addition, as demonstrated above the applicant did not account for period of delay. The applicant did not explain why the advocate who granted her free service had to take 21 days to draft the documents. She did not tell the court why she spent 80 days from the day she realized Mr. Pascal advocate has not filed the appeal until she obtained legal aid. In the case of Wambiira NJ Waryuba VS Principal Secretary Ministry 4 of Finance &Another (Civil Application 225 of 2019) [2020] TZCA 357(21July 2020) pg 12 the Court of Appeal held that- ”7b be sure, it is settled that in an application for enlargement of time, the applicant has to account for every day of the delay involved and that failure to do so would result in the dismissal of the application: see, for example, the unreported decisions of the Court in Bushin Hassan v. Latifa Mashayo, Civil Application No. 2 of 2007; Bariki Israel v. Republic, Criminal Application No. 4 of 2011; Crispian Juma Mkude v. Republic, Criminal Application No. 34 of 2012; and Sebastian Ndaula v. Grace Rwamafa (Legal Representative of Joshwa Rwamafa), Civil Application No. 4 of 2014. In the premises, I reject the applicant's" Much as it is settled that, generally negligence of an advocate is not a good ground for extension but after taking the overall circumstances of the case held by the Court of Appeal in Felix Tumbo Kisima vs TTC Limited and Another, Civil Application No.l of 1997(unreported), a court may grant extension of time based on that ground. It is not the first time this Court hears complaints of case mismanaging or mishandling against Mr. Pascal, learned advocate. The system has not been able to take stern measures to correct the advocate's misbehaviour. I do not thing we should let the parties be victims of circumstances. 5 It is very vital when determining whether the applicant has adduced sufficient or good cause to take into consideration the circumstances of each case. The term good cause is a relative one and is dependent upon circumstances of each individual case. It is therefore, upon the parties to provide the relevant material for the court to exercise its discretion. See the cases of Ratnam v. Cumarasamy and Another (1994) ALL ER 933 and Regional Manager Tan Roads Kagera v Ruha Concrete Company Limited Civil Application No. 96 of 2007 CAT (Unreported). Judge Bowen once remarked that courts do not exist for sake of punishing the parties but they exist to decide disputes. The observation was made in Cropper V Smith 1884) 26 CL. D 700 pg 710 by Lord Bowen as follows- "it is a well-established principle that the object of Courts is to decide the rights of the parties not to punish them for mistakes they made in the conduct of their cases by deciding other than in accordance with their rights. I know of no kind of error or mistake which if not fraudulent or intended to overreach, the court ought to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding mattes on controversy." 6 I will, instead of punishing the applicant who is a victim of circumstance, grant the applicant time to institute the appeal out of time. Courts do not exist for sake of punishing the parties but they exist to decide disputes. Further, the holding of the High Court of Kenya in Robert Walusekhe Wasikana v John Dianga Obaso (Suing as Guardian Ad Litem of Samuel AwourTongo) [2016] eKLR, persuaded me. The High Court of Kenya while attending an application akin to this one, held that- "Disputes concerning land are deep seated and emotive, and as such should be ventilated, heard and determined conclusively"(Emphasis supplied). There is no wrangle that the dispute the applicant seeks to pursue, once time is extended, concerns land. It is therefore, deep seated and emotive, as such should be ventilated, heard, and determined conclusively. The application is allowed, time is extended for 30 days within which the appeal may be lodged. Costs shall be in due course. It is so ordered. Dated at Babati this 23rd day of September, 2024. 7 John R. Kahyoza Judge Court: Judgment delivered in the presence of the parties. B/C. Ms. Fatina (RMA) present. John R. Kahyoza Judge 23. 9. 2024 8