Zuberi Charles Mshele vs AG Others

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IRINGA - SUB REGISTRY AT IRINGA MISC LAND APPLICATION NO. 16120 OF 2024. (Arising from the High Court of Tanzania at Iringa in Land Case No. 8 of2022) CHARLES ZUBER1 MSHELE (As Administrator of the Late Zuberi mshele)........... ........................... APPLICANT VERSUS NJOMBE TOWN COUNCIL................................. RESPONDENT THE HON. SOLICITOR GENERAL..................................................RESPONDENT THE HON. ATTORNEY GENERAL................................................... RESPONDENT RULING Date of last order: 12/09/2024 Date of Ruling: 01/11/2024 NDUNGURU, J.: This application is preferred in terms of section 11 (1) of the Appellate Jurisdiction Act. (Cap 141 R.E. 2019). The applicant, one Charles Mshele has lodged the present application seeking for an extension of time within which to file Notice of intention to appeal to the Court of Appeal of Tanzania against the ruling of the High Court of Tanzania Iringa- sub registry in Land Case No. 8 of 2022 delivered on 2nd day of March, 2023. The applicant further prays for orders of any other reliefs the court may deem fit and just to grant i and costs of the application. The application is supported by an affidavit duly sworn by the applicant himself. Respondents jointly objected the application by filing an affidavit in reply. When the application was called on for hearing, the applicant enjoyed the services of Ms. Tumaini Amenye learned counsel, whereas Ms. Makyao assisted by Ms. Sarakikya both State Attorneys appeared for respondents. The application was heard vivo voce. The reasons for application are contained in the applicant's affidavit particularly at paragraph 6 and 10. At paragraph 6 the applicant establishes sickness being the cause of his delay to file notice of intention to appeal to the Court of Appeal on time. Whereas at paragraph 10 the ground for application is illegality. Submitting for the first ground, the counsel for the applicant told the court that the applicant fell sick since March when he was told to collect the copy of ruling by the deputy registrar on 16/3/2023. That the applicant got stroke which was a result of high blood pressure. He got admitted from 26/05/2023 to 6/6/2023 by the time he was bed ridden could not undertake any necessary appeal processes due to the sickness. The counsel submitted further that upon discharge from the hospital, the applicant was prohibited 2 from undertaking any stress result activities; case being one of those activities. The counsel submitted that sickness/ illness constitutes sufficient cause for delay. She referred the case of Hamis Macha Sancho v. Joyce Bachubila, Civil Application No. 487/17 of 2016 CAT (unreported) and Alasai Josiah v. Lutus Valley Limited, Civil Application No. 498/12 of 2019 CAT (unreported). Regarding the second ground, the counsel submitted to the effect that, the case was dismissed for being time barred whereas for the applicant the case was filed on time. She said on the ruling subject of the present application, the trial judge referred to section 3 Civil Procedure Code on legal representation and section 24(2) to count for limitation of time. Ms. Amenye submitted that from the time the applicant and his family started to intermeddle the estate to the time the case was filed it is only seven (7) years passed, thus, the case was filed on time. It was her contention that section 35 of the Law of Limitation Act provides for who can claim the estate; saying the administrator of the estate. She said the applicant was appointed as the administrator in 2021. She, thus, said section 24(2) should be read together with section 35 of LLA and not in isolation. If the sections pointed above are read together, from the appointment of administrator to the filing 3 of the land suit only two years had passed. She said the position is clear that an illegality which is on the face of the record is a sufficient ground for extension of time. She referred the case of Lyamuya Construction Company Limited vs. The Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 10 of 2010 CAT. The counsel prayed the application be granted. Resisting the application, Ms. Makyao learned State Attorney submitted that the applicant has not produced any evidence that he was attending daily ant- hypertension medication and weekly physiotherapy. She further submitted that the applicant has failed to account for 83 days of delay from 2nd March, 2023 to 26/5/2023. She referred the case of Wambura NJ Waryuba vs. Principal Secretary Ministry of Finance and Another, Civil Application No. 320/01/2020 CAT(Unreported) On the question of illegality Ms. Sarakikya, the learned Attorney submitted to the effect that at para 5 of the applicant prayer in the Land case is compensation of land. She said the claim for compensation to land, the time limit is 12 months. She contended that, the applicant and his family intermeddled the land on 2016 thus counting from 2016 to the time the suit was filed it is more than 12 months which means the suit was filed out of 4 time. She said that being the case the ground of illegality cannot stand in the circumstances as there is no illegality on the face of the record as submitted by the applicant'counsel. She prayed the application be dismissed with costs. In her rejoinder, Ms. Amenye learned counsel reiterated her submissions in chief. She added that in the land case the 1st relief the applicant prayed is the declaration that the land in dispute belonged to the estate of the late Zuberi Mshele. Compensation was another relief which could only be awarded or payable if the 1st relief was in affirmative. The court based its decision on the 2nd relief which was conditional based on the finding of the first relief. She thus said, that is where the illegality of the ruling vents out. As regards to illness, the counsel added that the applicant had attached medical reports which shows that he was hospitalized and was attending medication before being admitted and the conditions given when discharged. Thus, he has accounted for each day of delay. She prayed the application at hand be granted with costs. Having scanned the submissions made by the parties, pleadings and the Court's record, the central issue for determination is whether the applicant has established a good cause for extension of time. 5 In the first, I wish to states that, it is a well-established rule of practice that, in order for the Court to exercise it discretionary power in extending time, the applicant must show good cause for delay. In order to determine good cause, circumstances of each case need to be considered as there is no single definition of that term. See Benedict Mumello v. Bank of Tanzania [2006]l EA 227 In the application of this nature, the applicant has a duty to convince the Court that good cause exists. That, this is well emphasized in the case of Caritas Kigoma vs. Kg Dewsi Ltd. (2003) T.L.R 420 at page 421 where the Court of Appeal of Tanzania held that: "In an application forextension of time, the question to be considered is whether sufficient cause has been shown by the applicant for the delay in applying to set aside the ex-parte judgment." In the light of the wording of the case cited above, it is clear that the Court may extend time upon the good cause advanced by the applicant. I am aware of the factors to be considered in assessing "good cause" as stated in a number of decisions of the Court of Appeal of Tanzania, including the case of Lyamuya Construction Company Limited(supra) which include, but not limited to, the length of delay, the degree of prejudice the 5 respondent stands to suffer if time is extended, whether the applicant was diligent, whether there is a point of law of sufficient importance such as the illegality of the decision sought to be challenged and the overall importance of complying with the prescribed time lines. Also, I am aware of the current law that, the applicant has a duty to account for each day of delay. That, this position is well stipulated by the Court of Appeal of Tanzania in the case of Bushiri Hassan Versus Latifa Lukio Mashayo, Civil Application No. 3 of 2007, Court of Appeal of Tanzania (unreported) where the Court held that: "Delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing period within which certain steps have to be taken." Turning to the merits of this application, the main reasons advanced by the applicant are illness and illegality. The applicant deponed that upon delivery of the ruling in late March 2023 he befallen sick and was admitted at Njombe hospital for treatment. The applicant had attached medical certificate to that effect. It is not disputed that sickness is a sufficient cause for the court to extend time provided that it is sufficiently established. In cases of John David Kashekya vs. The Attorney General, Civil Application No. 1 of 2012 and Emmanuel R Maira vs. District Executive 7 Director Bunda District Council, Civil Application No. 66 of 2010 (both CAT unreported). The Court said, the reason of sickness given by the applicant is sufficient reason for granting extension of time. In Hamis Macha Sancho v. Joyce Bachubiia, Civil Application No.487/17 of 2016 CAT(Unreported), it was said: "It Is settled law that illness constitutes valid explanation and sufficient for the delay to do any act authorized or required under the rules" Further, the applicant has pointed out what is said to be the illegality in the ruling subject of the application. I find it a point of law of sufficient importance to be dealt with the Supreme Court of the land. Having gone along with applicant's affidavit; I therefore find out that the entire period of delay has been duly accounted for. In addition, I have taken into account that, it does not appear that the respondents are likely to suffer any prejudice if time is extended. See the case of Benedict Shayo vs. Consolidated Holding Corporation as Official Receiver of Tanzania Firm Company Limited, Civil Application No. 366/01 of 2017, Court of Appeal of Tanzania (unreported). 8 From the observation and authorities cited above, I am satisfied that the applicant has advanced sufficient cause for delay. Therefore, I grant the application, I order the applicant to file the intended Notice of Appeal to appeal to the Court of Appeal within Thirty (30) days for the date of delivery of this ruling. No order as to costs. It is so ordered. D. B. NDUNGURU JUDGE 01/11/2024 9