fatuma hassan and 2 others vs ramadhani kiholanzi 2020 tzhclandd 3935 18 december 2020

N THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 213 OF 2016 FATUMA HASSAN Ist APPLICANT ASHAJUMANNE 2nd APPLICANT HADIA MWINYIMKUU 3RD APPLICANT VERSUS RAMADHANI KIHOLANZI................................. ........RESPONDENT Date of Last Order: 10.12.2020 Date of Ruling 18.12.2020 RULING V.L. MAKANL J The applicants FATUMA HASSAN, ASHA JUMANNE and HADIA MWINYIMKUU are seeking for orders of extension of time within which to file a Notice of Appeal against the decision of this Court (Hon. Mgetta, J) dated 08/01/2016. The application has been made under section 11(1) of the Appellate Jurisdiction Act, CAP 141 RE 2002, and it is supported by the affidavit sworn by Symphorian Rvelian Kitare, Advocate for the applicants. Respondent opposed the application by filing the counter affidavit. The application was argued orally and the applicants were represented by Mr. S. Kitare, Advocate while the respondent was represented by Mr. Ntonge and Mr. Masinde, Advocates. Submitting in support of the application, Mr. Kitare said that, the reasons for the applicant's delay in filing the Notice of Appeal are that the applicants and the respondents were not notified of the judgment date. He said that after the hearing of the appeal on 19/05/2014 the judgment date was set for 07/08/2014. He said that when the applicants appeared, judgment was not ready and they were not told of another date. He said that upon follow up on 15/05/2015 the judgment date was set for 06/08/2015. He said before the date set for judgment he received a phone call that judgment was not ready and that he would be notified. He said they were not notified until 19/02/2016 when the applicants discovered that judgment was delivered on 08/01/2016 and by that time the applicants were out of time to file Notice of Appeal. He said that the requirement to serve parties notice of the Judgment date is under Order XXII of the Civil Procedure Code. He relied on the case of Cosmas Construction Co. Ltd vs. Arrow Garments Ltd (1992) TLR 127 (CA) where he pointed out that the application in this case was granted for failure of 2 notice of judgment date to the applicant. The second reason by the applicants is that they became aware of the judgment when the period to file the Notice of Appeal had already lapsed. He said that they became aware on 19/02/2016 while the judgment was delivered on 08/01/2016. Further Counsel said that there was illegality of the procedure, since the court failed to notify the parties of the judgment date, the same amounts to illegality which is a good reason for extension of time. He supported his position with the case of Khadija Rehire Said & 5 Others vs. Mohamed Abdallah Said, Civil Application No.39 of 2014 (CAT-DSM) (unreported) Another reason by Mr. Kitare was that the judgment itself was tainted with illegality as the court failed to consider the grounds of appeal that the respondents in Land Case No.50 of 2012 executed the decree without having letters of administration. In reply, Mr. Ntonge said that the arguments by the applicants were not pleaded. For example, he said the issue of the Clerk calling the 3 applicants regarding the judgment date was not pleaded in the affidavit. Even the name of the Clerk calling him is not in the affidavit nor mentioned. He said that there is neither evidence of the applicants' follow-up nor evidence that the court said judgment would be on notice. He said that when his client appeared, he was told that the judgment would be delivered on 08/01/2016 but unfortunately on that date they were both indisposed and that is why they did not appear. On the other hand, he said that, the applicants stated that they became aware of the judgment on 19/02/2016 and applied for the copies and got the same on 20/02/2016 but this application was filed on 23/03/2016 more than a month. He said that it was expected for the applicant to apply for extension of time immediately. Further he said that the Notice of Appeal does not require a copy of judgment to accompany it. He said that parties were notified of the date of judgment therefore the authorities relied upon by the applicants are irrelevant. Basing on that he said that there were no procedural irregularities. He insisted that the applicants have failed to account for each day of delay. On the issue of illegality, the counsel said that, the issue of letters of administration has never been a ground of appeal and he doesn't see 4 why it has been brought at this juncture. He prayed for this application to be dismissed with costs. In rejoinder, Mr. Kitare reiterated his main submissions and added that paragraph 2 of the affidavit indicates that they were making follow-ups of the date of judgment. He said that it is not true that the respondents were informed of the date of judgment as the same is not in the proceedings. He added that although there is no need of attaching the copy of the judgment to the Notice of Appeal but the applicants need to know the contents of the judgment so as to determine the need to appeal especially when the same judgment was read in their absence. He insisted that there were illegalities in the impugned judgment. He prayed for this application to be allowed. Having gone through the affidavits and submissions from the parties, the issue for determination is whether this application has merit. The applicant's reasons for delay in filing the Notice of Appeal is that the copies of judgment were delayed by the court as it kept adjourning the date set for judgment. Further, Mr. Kitare said that the judgment was read on 08/01/2016 in their absence and without 5 notice. On his side, Mr. Ntonge said that filing of Notice of Appeal does need to be accompanied by the copy of the judgment, further that they were both informed of the judgment date. He said that on the date set for judgment neither he nor his client could appear. The records in Land Appeal No. 50 of 2012 shows that the judgment was delivered on 08/01/2016. The applicants wrote a letter requesting for copies of the judgment and decree on 19/02/2016. The applicants allege to have received the copy of judgment on 20/02/2016, however, this application was filed on 23/03/2016. This is one month later. Whether or not there was a delay by the court in issuing copies of the judgment, but still this application was not filed promptly after receipt of copies of the judgment. There was a delay of one month which delay has not been accounted for. It is settled law that, in an application for extension of time the applicant should account for every single day of delay. Mr. Kitare has submitted nothing about the 30 days delay after the copy of the judgment was supplied to the applicants. On top of that and as correctly submitted by Mr. Ntonge, the filing of a Notice of Appeal does not need to be accompanied with the copy 6 of the judgment. This is categorically stated by Rule 83(1) and (5) of the Court of Appeal Rules that: "83(1) Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court. (2) N/A (3) N/A (4) N/A (5) Where it is intended to appeal against a judgment or decision of the High Court, it shall not be necessary for a copy of the judgment or decision to accompany the notice of appeal." From the above provision, it is apparent the argument that the delay was occassioned by late receipt of the copy of the judgment cannot stand. In his rejoinder, Mr. Kitare submitted that the applicants were waiting for the copy of the judgement to determine whether there are grounds of appeal. As per the provision of the law above, one does not need grounds of appeal to file a Notice of Appeal as the said grounds comes in later when a Memorandum of Appeal is filed. Having so observed, this court is of the finding that this application lacks merit for two main reasons. Firstly, the applicants have failed to account for the delay of over 30 days, starting from the date they 7 were availed with the copy of the judgment to the date of filing this application. Secondly, the law does not require that a Notice of Appeal be accompanied by a copy of a judgment. For the foregoing reasons, the application herein lacks merit and it is hereby dismissed with costs. It is so ordered. 8