break point outdoor caterers limited vs dar es salaam city council 2021 tzhclandd 142 27 april 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 620 OF 2020 (Originating from I/a/a District land and housing Application No. 436 o f 2016) BREAK POINT OUTDOOR CATERERS LIMITED..............................APPLICANT VERSUS DARE ES SALAAM CITY COUNCIL.............................................. RESPONDENT RULING I. MAIGE, J In pursuance of section 41(2) Land Disputes Courts Act, R.E., 2019, the applicant has initiated a motion for extention of time to appeal against the decision of District Land and Hosing Tribunal for Ilala as per Hon. Bigambo (Chairman) in Land Application No. 436 of 2016. The explanation for the delay is contained in the affidavit deposed by Mr. Mafuru Mafuru which has not been opposed by any counter affidavit. At the hearing, Mr. Shanyange, learned advocate, appeared for the applicant and Miss Judith Nasson, learned state attorney for the respondent. Having read the contents of the unopposed affidavit, I requested Miss Nasson to address me on why shouldn't the application in the circumstance be granted. Upon her submissions and on further examination by the Court, she admitted that, sufficient cause for extension of time has been demonstrated in the uncontroverted affidavit, On his part therefore, the applicant prayed that the application be granted. I have carefully read the affidavit and its annexures, I entirely agree with the concurrent submissions by the counsel. The position of law on the grant for an extension of time is as stated in SEBATIAN NPAULA v GRACE WAMATHA CIVIL APPLICATION NO. 4 CAT. The applicant has to establish that he or she was prevented by sufficient cause from pursuing the intended action within the time limit. In this matter, the judgment sought to be appealed against, was pronounced on 13th February, 2020. This application was lodged on 30th October, 2020. There is an interval of about eight months in between. The applicant justifies the delay on account that he was awaiting for copies of judgment and decree. The applicant claims in paragraph 4 of the affidavit to have requested, in writing, to be supplied with copies of judgment and decree on 14th February 2020 (annexure MM2). He deposes further in paragraph 5 of the affidavit that, until in July 2020 he was yet to be supplied with copies of the same and that, by that time the chairperson who heard the matter had been transferred to another working station. He therefore lodged a reminder letter on 2nd July 2020 (annexures MM3). It is further in the affidavit that, it was not until on 19th October 2020 when the copies of judgment and decree were supplied to him as per the exchequer receipts in MM4. There being no factual deposition in the affidavit and in the strength of the evidence in annexures 2 MM2, MM3 and MM4, I have no reason to doubt the explanation by the applicant in his affidavit. The limitation period for pursuing of an appeal of this nature is 45 days from the date of judgment. A copy of judgment being an essential element for the intended appeal, the time, for the purpose of limitation, starts running from the date when a copy of the same was availed to the prospective applicant. This is in terms of section 19(2) of the Law of Limitation Act as judicially considered by the Court of Appeal in the recent decision in ALEX SENKORO AND OTHERS VS. ELIAMBUYA LYIMO fas the administrator of the estate of the late Fredrick Lvimn). CIVIL APPEAL NO. 16 OF 2017 (HON. NDIKA, JA). As the copy of the judgment was ready for collection on 19th October 2020, this application being on 30th October 2020, it was within a period which is shorter than a month. Technically therefore, the applicant was still within appeal time limit. I am quite aware that, by the time of lodging of this application, the conflicting positions of this Court on whether the exclusion of time under section 19 (3) of the Law of Limitation Act is automatic or upon ascertainment by the Court, was yet to be resolved by the Court of Appeal. In one of the schools of thought, an aggrieved party would not be entitled to directly appeal after the expiry of the appeal period on a reason that he was awaiting to be availed with a copy of the judgment. The delay had to be justified in an application for extension of time as in the instant case. On that account therefore, the applicant's precaution of preferring an application instead of an appeal is justified. It is on that account that I will hold as I hereby do that, sufficient cause for extension of time exists. Extension of time to appeal against the judgment of the trial tribunal is therefore granted with costs. The intended appeal should be filed within 30 days from today. It is so ordered. JUDGE 27/04/2021 Ruling delivered this 27th day of April 2021 in the presence of Mr. Shanyangi, learned advocate for the applicant and Judith Nathon, learned state attorney for the respondent. I. Maige JUDGE 27/04/2021