CIVIL APPL NO

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 373/02 OF 2023 FELIX ERNEST JOHANES (Administrator of the estate of the late ERNEST JOHANNES................................ .............................APPLICANT VERSUS JOHANNES FRANCIS.............................................................RESPONDENT (Application for extension of time within which to file an appeal against the decision of the Resident Magistrate's Court of Arusha at Arusha) (Temu, PRM - Ext. Jur.V Dated the 24th day of January, 2022 in Land Appeal No. 367 of 2019 RULING 09th & 16th August, 2024 MGEYEKWA. J.A.: This is an application for extension of time within which to lodge an appeal to the Court. The notice of motion is made under Rules 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by an affidavit of the applicant. The respondent did not file an affidavit in reply. The brief facts giving rise to the present motion are pegged in the affidavit in support of the application which states that: The applicant lodged Application No.39 of 2007 before the District Land and Housing tribunal at Arusha (the DLHT). On 17th December, 2019, the DLHT delivered an exparte judgment against the applicant. Aggrieved, the applicant unsuccessfully filed Misc. Application No. 5 of 2020 in the DLHT to set aside the exparte judgment. Undeterred, the applicant appealed to the High Court of Tanzania at Arusha through Land Appeal No.34 of 2021. His appeal was transferred to the Resident Magistrate's Court of Arushaa to be heard by Temu, PRM with extended jurisdiction (PRM -Ext. Jur). The appeal was not successful. Still aggrieved, on 11th February, 2022, the applicant filed a notice of appeal in this Court and successfully lodged an application for leave at the High Court vide Misc. Land Application No. 12 of 2022. Hence, he lodged the instant application. At the hearing of the application, the applicant appeared in person unrepresented, the respondent did not enter an appearance, he was summoned three times but he avoided the Court summons. Therefore, the hearing will proceed exparte against him. Upon the applicant being asked to amplify his application, he prayed to adopt the notice of motion and the supporting affidavit. In his submission, the applicant was very brief, as a lay person, he argued that the delay to lodge the appeal before the Court was occasioned by his advocate who delayed to prepare necessary documents before lodging the intended appeal. He therefore beseeched me to grant the prayer for extension of time as prayed. I have considered and weighed the arguments from the applicant. To begin with, I feel it is useful to reiterate, as a matter of general principle that whether to grant or refuse an application like the one at hand is entirely in the discretion of the Court. However, this unfettered discretion, has to be exercised judicially upon good cause being shown. In determining whether or not the applicant has shown good cause in terms of Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) under which this application is preferred, a number of factors has to be considered. The instant application is preferred under Rule 10 of the Rules which requires good cause to be shown for the Court to exercise its discretionary powers to extend time. For ease of reference, I reproduce the said rule hereunder: "10. The Court may, upon good cause shown> extend the time lim ited by these Rules or by any decision o f the High Court or tribunal fo r the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. " Although rule 10 does not go further to define as to what amounts to good cause, case law states that extension of time being a matter within the court's discretion, cannot be laid down by any hard and fast rules but will be determined by reference to all the circumstances of each particular case. There are numerous authorities to this effect. See for instance the cases of Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd (2006) TLR 235, Osward Masatu Mwizarubi v. Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010 (unreported) and Attorney General v. Tanzania Ports Authority & Another, Civil Application No. 87 of 2016 [2016] TZCA 897 (12 October 2016TanzLII). In Osward Masatu Mwizarubi (supra), the Court held that: "What constitutes good cause cannot be laid down by any hard and fast rules. The term "good cause" is relative one and is dependent upon the party seeking extension o f time to provide the relevant m aterial in order to move the court to exercise its discretion . " Another factor to be considered in the application of this nature is whether the applicant has accounted for each day of delay. The requirement of accounting for each day of delay has been emphasized by the Court in numerous decisions, for instance, the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) and Finca (T) Limited and Another v. Boniface Mwalukisa, Civil Application No. 587/12 of 2018 [2019] TZCA (15 May 2019). Let me turn to the applicant's affidavit and follow the sequence chronologically. According to paragraph 2, the decision sought to be challenged was delivered on 24th January, 2022. On 11th February, 2022, the applicant filed a notice of appeal to the Court and oh 22nd February, 2023, he obtained a copy of proceedings. On 8th March, 2023, he engaged an advocate who assisted him to prepare necessary legal documents for lodging an appeal. The present application was filed on 17th March, 2023. From this explanation, the applicant was supposed to account for the days of delay from 11th May, 2022, when he was supposed to lodge an appeal to the Court to 17th March, 2023 when he lodged the instant application. It was about eleven months out of time. I have scrutinized the applicant's affidavit in particular in paragraph 4 and noted that, he has accounted for the days of delay from 11th April, 2022 when he was supposed to lodge the intended appeal to 22nd February, 2023 when he received the necessary documents for lodging an appeal. This explains that, the applicant was in court corridors which amounts to a technical delay. 5 Apart from the technical delay, the applicant in his affidavit in particular paragraphs 5 and 6 has accounted for the days of delay from 22nd February, 2023 to 8th March, 2023 when he engaged an advocate. Also, he has explained the delay from 8th March, 2023, when he engaged an advocate to 17th March, 2023, when the applicant prepared and lodged the present application. Therefore, I am satisfied that the applicant has accounted for the whole period of delay. In the upshot, the applicant is granted extension of time to file an appeal. It ordered that the intended appeal should be lodged within sixty (60) days from the date of the delivery of the ruling. Considering the circumstances of this application, I make no order as to costs. It is so ordered. DATED at ARUSHA this 16th day of August, 2024. A. Z. MGEYEKWA JUSTICE OF APPEAL The Ruling delivered this 16th day of August, 2024 in the presence of the Applicant in person and in the absence of the respondent is hereby certified as a true copy of the original.