victoria maricha osaki vs sarah idd 2021 tzhclandd 604 30 september 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 370 OF 2018 (Originating from Misc. Land Appeal No. 62 of2009 before Hon. Chinguwiie, J) EDELQUEEN MAPUNDA (being legal Administrator of the Estate of the late HERONIMA E. MTEKA) ............................ APPLICANT VERSUS SPEAR MWAIPOPO........................... RESPONDENT RULING Date oflast Order: 29.09.2021 Date of Ruling: 30.09.2021 A.Z.MGEYEKWA, J I am called upon in this matter to decide whether this court should exercise its discretion under section 14 (1) of the Law of Limitation Act, Cap.89 [.R.E 2019] to extend time for the applicant to file an Application for Review dated 20th August, 2010. The application is supported by an i affidavit deponed by Edelqueen Mapunda, the applicant. The application has encountered formidable opposition from the respondent and has demonstrated his resistance by filing a counter affidavit, deponed by Spear Mwipopo, the respondent. When the matter was called for hearing on 29th September, 2021, the appellant enjoyed the legal service of Mr. Dickson Sanga, learned counsel and the respondent enjoyed the legal service of Mr. Jethro Turyamwesiga, learned counsel. Mr. Dickson was the first one to kick the ball rolling. Reiterating what was deposed in the supporting affidavit, the learned counsel asserted that the applicant wants to challenge the impugned decision of this court in Misc. Land Appeal No. 62 of 2009. The learned counsel for the applicant submitted that the principle governing the extension of time are stipulated under section 14 of the Law of Limitation Act, Cap.89 [R.E 2019]. Mr. Dickson went on to submit that; first principle, whether the impugned decision is tainted with illegality, the applicant has to account for the days of delay. To bolster his position he referred this court to the case of TANESCO v Mufungo Leonard Majura & 15 others, Civil Application No.94 of 2016. He went on to state that another principle is overwhelming chances of success. He 2 submitted that the court will grant extension of time if there is an overwhelming chances of success of review. Fortifying his position referred this court to paragraph 9 of the affidavit, and cited the case of Omary Shabani Nyambiu v Dodoma Water Acid Sewerage Authority, Civil Application No. 146 of 2006. He valiantly argued that the applicant raised a point of objection in Land Case and thiSs court proceeded to dismiss the appeal for being time barred. Mr. Dickson claimed that as long as the appeal was time barred it ought to be struck out not dismissing it. He added that the same was an error on the face of the record since the applicant had no any other chance to come back for extension of time. He stressed that parties were not heard on merit. To buttress his position he cited the cases of Yahaya Athumani Kisesa v Hadija Omari, Misc. Land Case Application No.74 of 2018, Judith Lusohoka v Pastory Mlekule and 2 others, Civil Appeal No. 81 of 2014 and Wolfram Haule v Friginia Ole Mashale, Civil Appeal No.05 of 2014. It was Mr. Dickson further submission that was on the ground of overwhelming chances of success. He referred this court to paragraph 10 3 of the affidavit, the applicant stated that she was denied the right to be heard. On the strength of the above submission, Mr. Dickson urged this court to grant the applicants application since the review in question is one of the grounds for overwhelming chances of success. Mr. Turyamwesiga, the learned counsel for the respondent vehemently resisted the application. He began with disputing the length of the delay. The learned counsel for the respondent contended that this court is empowered to extent time based on the following principles; account for each day of delay, the delay should not be inordinate and the applicant should show diligence and illegality. Mr. Turyamwesiga went on to argue that the applicant has not accounted on account of delay and delay being inordinate and whether the applicant was diligent. The learned counsel for the respondent further submitted that the applicant hindered his submission on illegality and overwhelming chances of success of the intended application for review. Mr. Turyamwesiga contended that the cited case does not relate to the decision delivered by Hon. Chiguwile, J (as she then was) since the remedy of an appeal which is out time is dismissal. Fortifying his stand he referred this court to section 3 of the Law of Limitation Act, Cap. 89 [R.E 4 2019], Stressing, Mr. Turyamwesiga argued that section 3 of the Law of Limitation Act Cap.89 [R.E 2019] is couched on mandatory terms. He cemented that the Judge dismissed the appeal since that was the only cause of action the court would have done. Supporting his submission he referred this court to the case of Hashim Madongo & others v Ministry for Trade & Others, Civil Appeal No.27 of 2003. He distinguished the cited case of Yahaya Sulemani (supra) that the position of this case was overruled by CAT in the case of Registered Trustees of Roman v Kamani, Civil Appeal No. 158 of 2017. He argued that the ground of overwhelming chances of success cannot stand because scrutinizing the memorandum of appeal for review shows that there is no error on the face of the record thus there is nothing for this court to review. Stressing, Mr. Turyamwesiga continued to argue that the intended application for review is brought under section 78 and Order XLII of the Civil Procedure Code Cap. 33 [R.E 2019]. He added that the proceedings before Hon. Chingwile originated from the Ward Tribunal, thus, it was his view that the provisions of the Civil Procedure Code do not apply and the same rendered the application for review misconceived. He claimed that the application for review is untrainable. To support his position he cited the case of Tanzania Breweries Ltd v Boniface Kaziba and another, 5 Civil Application No.157 /01 of 2018. He argued that the only remedy is to prefer an extension of time to file an appeal since both statutory and case law does not conform to the remedy of review. On the strength of the above submission, Mr. Turyamwesiga beckoned upon this court to dismiss the application with costs. In his rejoinder, Mr. Dickson reiterated his submission in chief. He added that the ground for the account of days of delay does not arise where there is a ground of illegality. He stated that section 51 of the Civil Procedure Code Cap,33 [R.E 2019] allows the applicability of the Civil Procedure Code Cap.33 [R.E 2019] in a matter originating from the Ward Tribunal. Insisting, he argued that the memorandum of review is a well­ fitting case for review as per Order XLII Rule3 of the Civil Procedure Code. Cap.33 [R.E 2019] and overwhelming chances of success. In conclusion, Mr. Dickson urged this court to apply the principle that once a matter is not heard on merit the same should be struck out. He prays for this court to grant the application. Having carefully considered the submissions made by the learned counsels in their oral submission and examined the affidavit and counter affidavit, the issue for our determination is whether the application is meritorious. 6 The position of the law is settled and clear that an application for extension of time is entirely the discretion of the Court. But, that discretion is judicial and so it must be exercised according to the rules of reason and justice as it was observed in the case of Mbogo and Another v Shah [1968] EALR 93. Additionally, the Court will exercise its discretion in favour of an applicant only upon showing good cause for the delay. The term "good cause" having not been defined by the Rules, cannot be laid by any hard and fast rules but is dependent upon the facts obtained in each particular case. This stance has been taken by the Court of Appeal in a number of its decision, in the cases of Regional Manager, TANROADS Kagera v Ruaha Concrete Company Ltd, Civil Application No.96 of 2007, Tanga Cement Company Ltd v Jumanne D. Massanga and another, Civil Application No. 6 of 2001, Vodacom Foundation v Commissioner General (TRA), Civil Application No. 107/20 of 2017 (all unreported). To mention a few. I have keenly followed the application and the grounds deposed in the supporting applicant's affidavit and the respondent’s counter affidavit, Mr. Dickson has shown the path navigated by the applicant and the backing he has encountered in trying to reverse the decision of this court. The 7 applicant's Advocate has raised two main limbs for his delay, illegality. And overwhelming chances of success. On the first limb, illegality, the applicant alleges that the decision of this court in Misc. Land Application No. 62 of 2009 is tainted with illegality. The illegality is alleged to reside in the powers exercised by this court in excess of an appeal, it is alleged that Hon. Chingwile, J erred in law in dismissing the appeal instead of striking it out. Supporting his application, Mr. Dickson referred this court to paragraph 9 of the applicant's affidavit. Reading paragraph 9 the applicant alleges that there is an error on the face of the record since the appeal was required to be struck out instead of being dismissed. I fully subscribe to the submission of Mr. Turyamwesiga that the only statutory remedy for an appeal or application brought out of time is dismissal as per section 3 of the Law of Limitation Act Cap.89 No. 23 of [R.E 2019]. Therefore this is not a ground of illegality that can move this court to grant the application for extension of time. The cited case of Registered Trustees of Roman Catholic (supra) The Court of Appeal of Tanzania has stated clearly that doe dismissal of the suit which is time barred, section 3 (1) of the Law of Limitation Act, Cap.89 [R.E2019] applies and the only remedy is to dismiss the suit. I am not going to 8 discuss the cited authority by the learned counsel for the applicant. The cited case of Registered Trustees of Roman Catholic (supra) and the statutory requirement suffices to find that the application was filed out of time therefore Hon. Chingwile, J. Guided by the above findings, I am in accord with the respondent Advocate's submission that, the question of illegality in the conduct of the trial proceedings does not arise. The same cannot, as a matter of law, be termed as illegality thus cannot be a ground for applying for extension of time. It should be noted that extension of time is not a right of a litigant against a Court but a discretionary power of courts which litigants have to lay a basis [for] where they seek [grant of it] the same was held by the Supreme Court of Kenya in the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others, Sup. Ct. Application No. 16 of 2014. Overwhelming chances of success do not stand without establishing that there is a ground of illegality. I am unable to say positively whether the intended appeal has overwhelming chances of success at this stage with the intended information availed to me. Taking to account that the ground of illegality is disregarded. Therefore, the fact that there is no point of law to be considered by this court does not ipso facto, constitute good cause to grant extension of time, neither does the fact that the 9 review has overwhelming chances to success. I recapitulate that I accede to Mr. Turyamwesiga's views that the applicant's application is devoid of merit. The upshot of the above is that I am inclined to disallow the application for extension of time to file a review against this court's decision. No order as to the costs. Order accordingly. Dated at Dar es Salaam this date 30th September, 2021. A.Z.MGEYEKWA JUDGE 30.09.2021 Ruling delivered on 30th September, 2021 via audio teleconference, whereas Mr. Dickson Sanga, learned counsel for the applicant, and Mr. Jethro Turyamwesiga, learned counsel were remotely present. A.Z.MGEYEKWA JUDGE 30.09.2021 io