MISC

IN THE HIGH COURT OF TANZANIA (LAND DIVISION ) AT DAR ES SALAAM MISC. LAND APPLICATION No.1887 OF 2025 EFC TANZANIA MFC LIMITED KNOWN AS MWANGA HAKIKA BANK LTD............................... APPLICANT Versus ALANA OKULO PONSIANO............................................ 1st RESPONDENT INNOCENT FODE SHANGO..............................................2nd RESPONDENT NUTMEG AUCTIONEERS8i PROPERTY MANAGERS LTD....3RD RESPONDENT RULING 19 & 26/3/2025 A. MSAFIRI, J. The applicant, EFC Tanzania MFC Limited now known as Mwanga Hakika Bank Ltd has lodged this application seeking the extension of time within which the applicant may file an appeal to challenge the decision of Kinondoni District Land and Housing Tribunal in respect of the judgement and decree in Land Case No. 460 of 2018 dated 08/11/2024 before Hon. Mbilinyi, Chairperson. The application was supported by an affidavit of Stephen Mayombo, the Advocate for the applicant, while the 1st and 2nd respondents did not file a counter affidavit to oppose the application. The matter was heard exparte against the 3fd respondent. AIL 1 The application was heard orally whereby the applicant was represented by Mr Stephen Mayombo, learned Advocate while the 1st respondent was represented by Mr. Dickson Matata learned Advocate and the 2nd respondent appeared in person. Submitting in support of the application, Mr. Mayombo prayed to adopt the contents of the affidavit. He referred to paragraphs 7 and 8 of the affidavit which shows that he has travelled outside Dar er Salaam on 02/01/2025. He received copies of the judgment when he came back and the time to appeal lapsed on 13/01/2025 as per paragraph 11 of the affidavit. Mr Mayombo referred to Section 19 (2)(3) of the Law of Limitation Act[ Cap 89 RE 2019] whereby it is provided that the days on which the copies of the judgment and decree were collected are excluded from limitation. He argued that the judgement was ready for collection on 29/11/2024 and time to appeal expired on 13/01/2025 but by that time he was not in Dar es Salaam. He contended further that he was not been supplied with the necessary copies for appeal until 21/01/2025 and eight (8) days have already lapsed. Mr Mayombo submitted further that another reason for the extension of time is illegality on the face of the record as shown at paragraph 14 of 2 the affidavit. He prayed for the court to grant the application since the respondents had not contested the application. Having gone through the submissions made by the parties, my duty is to deliberate on whether the applicant has demonstrated good cause to warrant this court to grant extension of time for the applicant to appeal out of time as provided under Section 41 (2) of the Land Disputes Courts Act [ Cap 216 R.E 2019 ] which reads as hereunder:- 41(2) An appeal under subsection (1) may be lodged within forty five days after the date of the decision or order: Provided that, the High Court may, for the good cause, extend the time for filing an appeal either before or after the expiration of such period of forty five days...." [Emphasize is added ] The aforesaid provision does not specifically provide for the factors to be considered by the Court in determining whether or not to extend time. However, in the case law, courts have developed guidance in assessing whether or not good cause has been established by the Applicant. In the landmark case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2/2011, the Court of Appeal set out the following guiding factors; 3 a) The applicant must account for all the period for delay b) The delay should not be inordinate. c) The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take and d) If the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged. In this present case, I am satisfied that the applicant has managed to account for the days of delay from 08/11/2024 up to 21/01/2025 when he filed this application. In the paragraph 4 of the affidavit, Mr Mayombo, counsel for the applicant has stated that the impugned judgement was delivered on 08/11/2024 in favour of the 1st respondent. The applicant requested to be supplied with copies of the judgement and decree on 26/11/2024 as per Annexure MHB-4 attached to the affidavit. Then on 02/1/2025 he travelled from Dar es Salaam to Mbeya and returned on 18/01/2025 proving by attaching tickets annexure MHB -5 8i MHB-6 in the affidavit in support of application. On 20/1/2025 he wrote a reminder letter reminding the Tribunal to be supplied with copies of judgement and decree in respect of Land Case No. 460 of 2018. He was supplied with the copy of the judgement and decree on 21/01/2025, and he discovered that the copy of the judgement was ready for collection on 29/11/2024 and time to appeal lapsed on 4 13/01/2025 when he was still at Mbeya. He filed this application on 21/01/2025 after the lapse of 8 days. I am of the view that there was a technical delay which has been explained by the applicant and that is a good ground for extension of time. The applicant has managed to demonstrate good cause for the delay and managed to account for delay of eight (8) days to warrant the grant of extension of time as sought. As stated in the case of Bushiri Hassan vs Latifa Mashayo, Civil Application No. 3 of 2007, it was stated that: - "Delay even of a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. " From the foregoing, I find that the applicant was diligent enough and has accounted for the days of delays. The application has merits and it is granted. The applicant to file his intended appeal within 14 days to be counted from the date he received a copy of this Ruling. Each party to bear its own costs of this application. It is so ordered. A.MSAFIRI JUDGE 26/3/2025 5