Exim Bank

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO.12322 OF 2024 {Arising from the decision of District Land and Housing Tribunal for Temeke in Land Application No.06 of2023} EXIM BANK.................................................................. APPLICANT VERSUS JOYCE CLADIUS MASEKO 1st RESPONDENT STANLEY DAVIS VUMU...................................... 2nd RESPONDENT KISHE AUCTION MART AND COURT BROKERS........................................................... 3rd RESPONDENT RULING Date ofLast Order: 25.07.2024 Date of Ruling: 29.08.2024 T.N, MWENEGOHA, J The applicants are seeking for an Order of extension of time so that they can lodge an Appeal out of time, against the Decision, delivered by Temeke District Land and Housing Tribunal, vide Land Application No. 06 of 2023, dated 17 October, 2023. The Application was brought under section 14(1) of the Law of Limitations Act, Cap 89 R.E 2019, section 41 (1) and (2) of the Land Dispute Courts Act, Cap 216, R.E 2019 and section 95 of the Civil Procedure Code Cap 33 R.E 2019. The same was accompanied by the affidavit of Edmund Mwasaga, Principal officer for the applicant herein above. The Application was heard by written submissions and ex-parte against the 2nd and 3rd respondents. i Submitting in favour of the Application, Advocate Caster Lufungulo for the applicant insisted, the original Appeal was filed within time, but the same was struck out after being found incompetent. Therefore, the Court has to consider the time used in prosecuting the Land Appeal No. 26528 of 2023, and was struck out on the 25th April 2024. To cement his position, the counsel for the applicant cited the case of Peter William Matke versus Abdallah Champion, Civil Appeal No. 56 of 1994, High Court of Tanzania at Dar es Salaam (unreported) Advocate Alexander Kapela for the 1st respondent, replying to the arguments by the applicant's counsel, insisted that, the applicant has failed to provide a sufficient cause for her delay. Above all, she relied on technical delay, following the struck out of the previous Appeal upon being found incompetent. However, the case was struck out due to the reason that, some of the parties were not included. This was due to the negligence of the counsel for the applicant who is the same person representing her in this Application. Therefore, the applicant's counsel was negligent. He beefed up his arguments with the case of Lyamuya Construction Company Limited versus Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010, Court of Appeal of Tanzania, (unreported). In her rejoinder, the applicant's counsel reitarted his submissions in chief and insisted that, the Application has merits and the Court should exercise its discretion accordingly to allow it. I have considered the submissions by the counsels for applicant and the 1st respondent respectively. I have also read the affidavit in support of the 2 Application and also went through the counter affidavit, opposing it. The issue for determination is whether the Application has merits or not. It was settled in Oswald Masatu Mwizarubi versus Tanzania Fish Processors Ltd, Court of Appeal of Tanzania, Civil Application No. 13 of 2010 (unreported), that; "What constitutes good cause cannot be laid down by any hard and fast rules. The term good cause is a relative one and is dependent upon the circumstances of each individual case. It is upon the party seeking extension of time to provide the relevant material in Order to move the Court to exercise its discretion." In this Application, the applicant's counsel gave only one reason for the delay to file the intended Appeal. That, she appealed within time, but her Appeal was struck out for being incompetent, hence the 2nd Appeal could not be filed as the same had already been barred by time when the Decision on the first Appeal was out. Therefore that, this was not caused by the applicant's negligence, rather a technical delay. The applicant's counsel insisted that, the Court should exclude the time used in prosecuting the previous Appeal so as to find the applicant has a sufficient cause for her delay. This argument was strongly opposed by the counsel for the 1st respondent. To him, there is no such thing like technical delay. He was of the view that the counsel for the applicant was negligent in filing the former Appeal while excluding other parties, hence it was found incompetent. In consideration to what was submitted and the facts of the Case; I find that what had happened to the applicant is a technical delay. That, the time used in prosecuting the former case, vide Land Appeal No. 26528 of 3 2023 should be excluded in computing the time to file the intended Appeal. The law of Limitations Act, Cap 89, R.E 2019, provides under section 21(1) that; - "In computing the period of limitation prescribed for any suit, the time during which the plaintiffhas been prosecuting, with due diligence, another civil proceeding, whether in a Court of first instance or in a Court ofAppeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause ofaction andis prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is incompetent to entertain it." There is no doubt the applicant was prosecuting the former Appeal in good faith, therefore what led to her Appeal be incompetent does not prevent the applicability of the above provision in favour of the Application. In that case, I find the applicant to have given this Court a sufficient cause for her delay and therefore her Application has to allowed as it has merits, see Oswald Masatu Mwizarubi versus Tanzania Fish Processors Ltd, (supra). For the foregoing reasons, I allow the Application with costs. The applicant is given 14 days from the extraction of this Ruling to lodge her intended Appeal. TJ^MWENEGOHA. JUDGE 29/08/2024 4