FRANCES GEORGE

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA MISC. LAND APPLICATION NO 15462 OF 2024 (Originating from the District Land and Housing Tribunal for Masasi at Masasi in Land Application No. 16 of 2021) FRANCES GEORGE MWATUKA.............................. APPLICANT VERSUS NANGANGA"A" VILLAGE COUNCIL............ ............ ......................RESPONDENT RULING 2(7-'' November & 2** December, 2024 DING'OHI, J.; The Applicant, that is; Frances George Mwatuka has made this Application seeking to be heard for the following orders; i. This Honourable be pleased to grant an extension of time to appeal against the judgment, decree, and proceedings of the District Land and Housing Tribunal for Masasi at Masasi in Land Application No. 16 of 2021 by Hon. Ngukjlike, N.O Chairman dated 19th April 2024. ii. Cost to follow the event. iii. Any other relief this court may deem fit to grant. Page l of 13 An applicant's affidavit supports the Application while on the other side, the respondent filed a counter affidavit sworn by Gertrude C. Songoi, the learned State Attorney opposing the application. Before going further, it is worth stating the brief background of this dispute as shown in the applicants supporting affidavit. The Respondent in this application had in the year 2021 sued the applicant in the Masasi District Land and Housing Tribunal for trespass over the suit premises. On 19th April 2024, the tribunal decided the matter in the respondent's favour which she was recognized as a rightful owner of the suit premise. The applicant was not happy with that decision and, according to him, on the same day, the judgment was pronounced (19th April 2024), he applied orally for the certified copies of the judgment and decree through his advocate to challenge the impugned decision of the trial tribunal. The presiding chairman promised that the certified copies and judgment would be ready for collection after two weeks from 19th April 2024. Thus, on 3rd May 2024, the applicant paid to the tribunal the prescribed fees of Tshs. 10,000/= for the supply of the certified copies of the judgment and decree. On 13th May 2024, he was supplied with the said copies of judgment and decree. Instantly, on 20th May 2024, he instructed his Page 2 of 13 advocate to draft and file an appeal to this court. One day after, that is, 21st May 2024, the applicant's advocate informed him that he failed to file the appeal because the Respondent's name (NAN.GAN'GA"A" VILLAGE COUNCIL) was not registered on the Case Management System and according to the applicant, his advocate has made several follow-ups to register the Respondent's name in CMS in vain. On the 3rd and 4th of June 2024, the applicant also visited the court premises to make a physical follow-up but he did not succeed. The applicant’s advocate continued to follow up tirelessly until 11th June 2024 when the Respondent's name was successfully registered in the system. On the same day, the applicant's advocate filed an appeal to this court. On 13th June 2024, the applicant visited this court to submit hard copies of the drafted memorandum of appeal and to procure a control number for registration only to be told that the appeal was rejected on CMS for being time-barred hence, the present application. At the hearing of this application, the Applicant enjoyed the services of Mr. Florence Mwanawima, the learned advocate while the Respondent had the services of Ms. Getruda C. Songoi, the learned Senior State Attorney. Page 3 of 13 Both parties agreed that the application be disposed of by way of written submissions. The submissions were filed as scheduled. On his submission, the applicant prayed this court to adopt what was testified in his affidavit in support of this application. In my view, I won't need to repeat them here again because I have already spelled them out herein above when I was explaining the brief facts of this application. Even after going through his written submission, I have seen the same narration as appeared in the affidavit except for the fact that the applicant has cited the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4, where according to Mrs. Mwanawima, the Court of Appeal on pages 6 and 7 has laid down the principles to be considered for an extension of time. The Court held inter that; Ms 5 matter ofgeneral Principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason andjustice, and not according to private opinion or arbitrarily. On the authorities however the following may be formuiated:- Page4ofl3 a. The applicant must account for all the period ofdelay. 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, d. If the Court feels that there are other reasons, such as the existence of a point of iaw of sufficient importance, such as the illegality of the decision sought to be challenged.' The learned advocate submitted further that the extracted facts adduced from the applicants accompanying affidavit reveal the truth that the applicant did not delay in filing his appeal, the applicant has accounted for the series of events that culminated in technical delay due to lack of registration of the Respondent's name in CMS judiciary, the alleged delay was not inordinate, the applicant was extremely diligent in the prosecution of the intended appeal and the applicant had never been negligent, apathy or sloppy in exercising his right to appeal. He thus prayed to this court to grant the application. In rebuttal, Ms. Songoi contended in the first place that for an application of this nature to proceed the applicant is required to adduce a sufficient cause for the delay. To support her stance, she cited the case of Page 5 of 13 Tanzania Cigarette Co. Ltd (TCC) vs Hassan Marua (Civil Application No. 49 of 2018) [2019] TZCA 172. According to Ms. Songoi, the applicant in his submission has only narrated stories to verify how lazy and negligent he was in filling his appeal. She was of the view that the applicant has not shown any good cause or reason to satisfy this court to enlarge time. The learned State Attorney added further that the applicant did not adhere to the principles stipulated in the case of Lyamuya Construction Co. Ltd (supra) because he never bothered to give any explanation on his whereabouts for the days he was late in filling an appeal as the 1st principle require. Ms Songoi submitted further that the applicant was required to account for each day of delay or to provide some sort of reasonable explanation but he didn't bother to do the same. It is Ms. Songoi's further submission that the applicant has not adduced any proof that he has applied to be supplied with copies of the judgment and decree from the trial chairman. She argued that the court cannot agree to enlarge time based on just mere words, proof is needed to show how the applicant did not sleep oyer his right to appeal. Page 6 of 13 The learned State Attorney faulted the complaint that the applicant's advocate failed to file an appeal because the respondent's name was not registered on CMS. She submitted that, lately, the CMS works faster and one can upload the documents within a minute. Ms. Sengoi insisted further that she is aware of the position underscored in the case of Kalunga and Company Advocate vs. National Bank of Commerce LTDTLR 235 that the courts have wide discretion to extend time but such discretion cannot be exercised where there is inaction or delay or material substance upon which the court may exercise its discretion. She added that there's no material substance that may warrant this court to exercise its discretionary power and grant an extension of time. Ms Songoi did not further agree with the applicant that he incurred some difficulties in filing his appeal until he was advised by the Deputy Registrar to file this application. In her view, the above argument is mere afterthought and hearsay and he has no proof for that. In the end, the learned State Attorney referred this court to the English case of R.B POLICIES AT LLOYDS V BUTLER (1950) 1KB 76 AT 81 OR (1949) 2 ALL ER 226 AT 230 where on pages 229-230 it was remarked that those who go to sleep on their claims should not be assisted by the Page 7 of 13 Courts In recovering their property, there shall be an end of matters filed In court and there shall be protection against stale demands. According to Ms. Songoi, the holding of the above English case was also reflected in the case of Kenya Airways Ltd vs. Nyanda Mgwesa Nyanda, Civil Appeal No. 23 of 2012 (Unreported) when referring to the case of Tanzania Breweries Ltd vs. Robert Chacha, Civil Revision No. 34 of 1998. The learned State Attorney prayed this court to dismiss the application with costs. Having considered the arguments made by both parties as to why this court should grant or not this application for an extension of time within which to file an appeal out of time, I will now proceed to determine the matter. It is trite law, and it is now long settled that for one to succeed in this kind of application, he is required to advance sufficient cause for delay to convince the Court to exercise its discretion and grant an extension of time sought. The word 'sufficient causers been expounded by the Court of Appeal of Tanzania in the case of Tccia Investment Company Limited vs Dr. Gedion H. Kaunda (Civil Appeal 310 of 2019) [2022] TZCA 599, where the Page 8 of 13 Court quoted with approval the decision of the Court of Appeal for East Africa in Shanti v. Hindoche and Another [1973] E.A. 207. It was stated that; '..the more persuasive reason...that he can show is that the delay has not been caused or contributed by dilatory conduct on his part. But that is not the only reason.' In another case of Rose Irene Mbwete vs. Phoebe Martin Kyomo (Civil Application No. 70 of 2019) [2023] TZCA 111, the Court of Appeal also quoted the case of Benedict Mumello vs. Bank of Tanzania, [2006J E. A. I. R Vol. I. It was observed inter alia that; 'It is trite law that an application for extension of time is entirely in the discretion of the Court to grant or refuse it and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause' Having made that finding, let me now see whether sufficient grounds for the delay have been advanced by the applicant or not. The main reason for the delay in this case is that at the time the applicant filed an appeal through the CMS, he found that the respondent's name was not registered in the system (CMS) otherwise he would have filed his appeal on May 20, Page 9 of 13 2024. That, upon making a physical follow-up to this court, he finally found himself out of time and brought this application. Having gone through the records, I have observed that from the date that the judgment was pronounced, that is 19th April 2024 the forty-five days required to file the kind of an appeal had ended since 3rd June 2024. Going by that fact, almost 18 days had elapsed from when the appeal period ended, to the date the applicant brought this application to this court. Admittedly, the applicant has not accounted for 18 days of the delay in filing an appeal to this court. The law is very clear now and it is well settled that in an application for the extension of time, there are circumstances in which the applicant is not mandatorily required to account for the delay. The circumstance is like where the applicant has raised the matter of illegality in the application against the decision intended to be appealed against. That may amount to a sufficient cause upon which the court may extend the time. The position has been underscored by the Court of Appeal of Tanzania in the case of Ally Salum Said vs Idd Athumani Ndaki (Civil Application 450 of 2021) [2023] TZCA 191, where the Court referred the decision in the case of Attorney General vs. Emmanuel Marangakisi (as Attorney of Anastansious Page 10 of 13 Anagnostou) & 3 Others, Civil Application No. 138 of 2019 (unreported). It was stated that; 'again echoed the position, that despite failing to account for the delay, the Court can exercise its discretion and extend time applied, once there is illegality claimed, that is a sufficient cause to warrant the grant of the application.f Again, the Court of Appeal in the case of Power & Network Backup Ltd vs Olafsson Sequeira (Civil Application No. 307 of 2021) [2023] TZCA 80 had the following to say; 'In exercising its discretion under rule 10 of the Rules, and in determining whether good cause has been shown, the Court is enjoined to consider the existence of certain factors such as whether the applicant was diligent, the length of the delay, the reasons for the delay, the degree ofprejudice the respondent stands to suffer if time is extended, whether there is a point of law of sufficient Page 11 of 13 importance such as the illegality of the impugned decision.' In our case, the applicant under paragraph 6 of the affidavit supporting the application the applicant has averred that he drafted and filed a memorandum of appeal to this court but it was not admitted because as stated herein above the respondent's name was not registered in the CMS. The said intended memorandum of appeal is annexed to the applicant's affidavit as 'annexure FGM-3'. Careful scanning of Annexure FGM-3, the applicant raises a point of illegality that had been claimed by the applicant in that he question the legality of the sale agreement which is the subject matter of the case. The applicant is of the view that the said sale agreement is unlawful, null and void. In Aliy Salum Said vs Xdd Athumani Ndaki (supra), The Court Appeal observed inter alia that; 'In my considered view, the points of illegalities raised in the notice of motion, affidavit, and expounded on in the rival ora! submissions constitute good cause for the Court Page 12 of 13 to exercise its discretion to grant extension oftime so that they can be determined in the intended appeal.' Since there was a point of illegality that has been raised in the applicant's affidavit, I find and hold that this is a proper case in which this court may exercise its discretional powers to extend the time. The application is therefore granted. The applicant is availed fifteen (15) days after today within which to lodge his intended appeal. There will be no order as to costs. DATED at MTWARA this 2nd December 2024. COURT: The Ruling delivered on 2nd December, 2024 in the presence of applicant in person and absence of the respondent. Page 13 of 13