erica herman another vs magdalena herman muna gidadi 2022 tzca 768 6 december 2022

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL A P P LIC A TIO N NO. 130/02 OF 2019 ERICA HERMAN 1st APPLLICANT YOHANE MATLE .2 nd APPLICANT VERSUS MAGDALENA HERMAN MUNA GIDADI (Legal Representative of the Late HERMAN MUNA G ID A D I)............................................... RESPONDENT (Application for extension of time within which to file appeal to the Court of Appeal to challenge the Decision of the High Court of Tanzania at Arusha) (M o sh LL) dated the 27th day of April, 2016 in Land Case No. 96 of 2014 RULING 29th November & (P December 2022 GALE BA, J.A.: This application has been brought under rule 10 of the Tanzania Court of Appeal Rules 2009, (the Rules). It is for extension of time to appeal to this Court in order to challenge the decision of the High Court exercising original jurisdiction in a land matter, that is, Land Case No. 96 of 2014. The notice of motion that initiated this application was supported by the affidavit of Harun I. Msangi, an advocate for the applicants in these proceedings. Although the respondent was served, she opted not to file any affidavit in reply, which means come the date of hearing, she would be heard only on points of law and not of fact. When this application was called on for hearing on 29th November 2022, the applicants were represented by Mr. Msangi learned advocate, whereas the respondent had the services of Mr. Bungaya Panga, learned advocate. In supporting the application, Mr. Msangi submitted that in 2016 when the judgment that his clients are challenging was passed, all appeals from orders of the High Court exercising original jurisdiction were appealable with leave. He submitted that when the applicants lost in the High Court on 27th April 2016, they were late in applying for leave, so they lodged Miscellaneous Civil Appeal No. 100 of 2016, for extension of time to apply for leave, but that application was dismissed for want of prosecution by the High Court, Massengi J., on 15th August 2016. The same court, Maige X dismissed an application for restoration of Miscellaneous Civil Appeal No. 100 of 2016, on 15th November 2018. However, Mr. Msangi added, that when the matter was pending before Maige J., the law was changed. On 25th September 2018, the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2018, was published with the effect of amending section 47 of the Land Courts Act [Cap 216 R.E. 2002, now R.E. 2019], such that from that date on wards, no leave to appeal to this Court was necessary from orders of the High Court exercising original jurisdiction. According to Mr. Msangi, from that day (25th September 2018) onwards, any appeal arising from the High Court exercising original jurisdiction in a land matter would not need any leave. Therefore, on 3rd January 2019 he lodged this application seeking for extension of time to appeal to the Court. He submitted that from 25th September 2018 when the leave was no longer a legal requirement, his clients were looking for an advocate who would take up the matter after their case was abandoned by their previous legal counsel. So, he submitted that, extension in the circumstances be granted. Before winding up his submissions, I asked him whether looking for an advocate, can be deemed to be good cause for purposes of extension of time within the meaning of rule 10 of the Rules, and he responded affirmatively. Mr. Panga, whom I had permitted to submit on pure legal points only, if he had any, instead of confining himself on such points, he went all the way to criticize the affidavit and the details that were missing in it. In my view, his submissions were all based on factual aspects of the application. As learned counsel for the respondent had not lodged any notice of preliminary objection under rule 107 (1) of the Rules, and since he did not seem to have any pure point of law known as such, I disregard his entire submissions in this application. I will therefore resolve this application based on the affidavit supporting the notice of motion, together with the submissions of Mr. Msangi. I have carefully reviewed the notice of motion, the affidavit supporting it, and I have as well considered the submissions of Mr. Msangi. The fact is that all the time from when the Judgment of Moshi J. was passed in the High Court on 27th April 2016, through to 15th November 2018 when Maige J. dismissed an application for restoration of Miscellaneous Civil Appeal No. 100 of 2016, such delay is explainable because the applicants were busy in courts pursuing the above referred applications. That delay is technical and it is, under the law, excusable. So, there is lawful and acceptable explanation for the delay up to 15th November 2018. From that time onwards up to 3rd January 2019, there is nothing on affidavit attempting to account for that period of about 44 days. The position of this Court is that, for an extension of time to be granted, the applicant must explain or account for the entire time period that he delayed to lodge a particular proceeding, that he is seeking extension of time to file, see Michael Lessani Kweka v. John Eliafye (1997) T.L.R. 152) and Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). At the hearing, Mr. Msangi submitted that during the time, his clients were looking for advocates and they managed to instruct him on 3rd January 2019, a day he lodged this application. At the level of law, that submission is faulty, because I indicated above that there is nothing on affidavit suggesting that after 15th November 2018 the applicants were looking for lawyers, which means the submissions of Mr. Msangi on that point orally in Court before me, cannot be taken seriously because they are mere statements from the bar, see Richard Mchau v, Shabir F. Adulhussein, Civil Application No. 87 of 2008 and Ahamed Teja t/a Almas Outoparts v. Commissioner General TRA, Civil Appeal No. 283 of 2021 (both unreported). Nonetheless, suppose I assume, just for the sake of argument, that it is true that the applicants were all the time busy looking for legal counsel to assist them, the issue is then whether looking for an advocate to assist a lay person in court matters, amounts to good cause in the context of rule 10 of the Rules. Luckily, this issue is not coming up in this Court for the first time. The same point cropped up in the case of Azizi Mohamed v. R, Criminal Application No. 84/07 of 2019 (unreported), and it was held that a delay by a litigant while looking for legal assistance was not good cause to explain a delay to file any court process. See also Boniface Alistedes v. R, Criminal Application No. 06/08 of 2019 (unreported). Thus, I am unable to agree with Mr. Msangi, that his clients' delay to file this application in time is, at all, justified. In summary, whereas the applicants explained the delay from 27th April 2016 to 15th November 2018, there was no valid explanation to account for the delay of about 44 days from 15th November 2018 to 3rd January 2019, when the present application was filed. Based on the above reasons, this application for extension of time to file appeal, is hereby dismissed with no order as to costs, because there was no worthwhile participation of the respondent. Order accordingly. DATED at ARUSHA, this 5th day of December 2022. Z. N. GALEBA JUSTICE OF APPEAL This Ruling delivered this 6th day of December, 2022 in the presence Mr. Haruni Msangi, Counsel for the Applicants, and Mr. Haruni Msangi holding brief for Mr. Bungaya Panga, counsel for the Respondent, is hereby certified as a true copy of thejjngmal. G. H. HERBERT DEPUTY REGISTRAR COURT OF APPEAL