FRANK NGONYANI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO. 18824 OF 2024 (Arising from the decision of this court in Misc. Land Application No. 39 of 2023) FRANK JOHN NGONYANI............................................... .APPLICANT

VERSUS 1 DODOMA CITY COUNCIL...................................... st RESPONDENT ATTORNEY GENERAL............................................ 2nd RESPONDENT

RULING Date of Last Order: 16th October 2024. Date of Ruling: 15th November 2024. MASABO, J.:- The present application is for an extension of time within which to file a memorandum of review of the decision of this court in Miscellaneous Land Application No. 8 of 2023. It has been filed under section 14 of the Law of Limitation Act Cap. 89 R.E 2019 and it is braced by an affidavit sworniby the applicant. From this affidavit, the following background to the application is gathered. The applicant is the defendant is in a summary suit filed ‘by the defendants in this court as Civil Case No. 8 of 2023. Eager to defend his interest, she filed Misc. Land Application No. 39 of 2023 praying J for an I unconditional leave to file a written statement of defence. Her application was partly successful. On 10th May 2024, this court gave its ruling permitting I him to file her written statement of defence subject to the condition that the Page 1 of 7 uncontested sum of TZS. 324,150,000/= be deposited first in the court's bank account within 30 days from the date of the ruling. This decision aggrieved the applicant. On 3rd June 2024, he filed a memorandum of review vide Land Review No. 138331 of 2023. The application ended barren after it was struck out on 16th July 2024 for being I incompetent. The applicant is still aggrieved by the impugned decision. Since he was then out of the time limit

for filing the memorandum of review, he filed the present application beseeching the court for an enlargement of the time within which to re institute the review out of time. The application was opposed by the respondents. The hearing of the application proceeded by way of written submission. The applicant was represented by Ms. Elizabeth Kagembe, learned counsel whereas the respondents were represented by Mr. Omary Ngatanda, learned State Attorney. Submitting in support of the application, Ms. Kagembe narrated the background of the application as summarized above and submitted that, the I delay is excusable as it was not caused by the applicant's negligence. She submitted that section 14(1) of the Law of Limitation Act gives this court discretion to extend the time provided that a good cause for delay has been paraded by the applicant. Further, she submitted that, although there are no hard and fast rules in determining what amounts to sufficient cause1, it has been established through case law that, in determining whether a good cause has been demonstrated, the court may consider the following factors. One, the applicant must account for all the period of delays. Two, the delay Page 2 of 7 should not be inordinate. Three, the applicant must show diligence and not apathy. Four, if there are other reasons such as the existence of a point of law of sufficient importance, such as

the illegality of the decision sought to be challenged (see the case of Lyamuya Construction Companty Limited vs The Board of Registered Trustees of Young Women Christian Association of Tanzania Civil Application No. 2 of 2010).' p It was argued further that looking at the circumstance of this application, the applicant has succeeded in establishing a sufficient cause for delay as he has demonstrated that, he timely filed the application for review but the same was struck out after he lost in a preliminary objection raised by the respondent which was sustained by this court. Thus, the delay is a technical delay which is excusable as held in the case of Constantine Victor John vs Muhimbili National Hospital Civil Application No. 214/18 of 2020 [2014] TZCA 2147 TanzLII. In reply, Mr. Ngatanda submitted that the applicant's delay was occasioned by ignorance of legal procedures established by the laws. Therefore, it is not excusable. In fortification of his submission, he cited the case of Ngao Godwin Losero vs Julius Mwarabu Civil Application No. 10 of. 2015 [2016] TZCA 302 TanzLII. He added that the applicant has contravened the conditions set out in the case of Lyamuya Construction(supra) where it was held that the applicant must show diligence and not apathy, negligence I or sloppiness in the prosecution of the action he intends to take. To the contrary, the applicant has been

negligent and sloppy in the prosecution of the application for review as he was ignorant of the legal procedures! Thus, he should not be granted an extension of time. Page 3 of 7 On my side, I have carefully considered the submissions by both parties alongside the chamber summon, its accompanying affidavit and the counter affidavit filed by the respondent in opposition to the application. As the substantive prayer is for the enlargement of time, the sole question awaiting decision is whether the application has merit. As per item 3 Part III of the Schedule to the Law of Limitation Act, Cap 89 R.E 2019, the time limitation for instituting a memorandum of review of a decree, judgment or order is 30 days. The time may, however, be enlarged under section 14(1) of the same law which provides thus:- 14(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application. The law is now settled that, the powers vested in this court by section! 14(1) above, are discretionary meaning that it has clothed the court with the discretion to enlarge the time. However, as

correctly argued by both counsels, such discretion can only be exercised judiciously upon a! good cause for delay being demonstrated by the applicant. As stated in Karibu Textile Mills Limited vs Commissioner General, Tanzania Revenue Authority, Civil Reference No. 21 of 2017 [2021] TZCA 261 TanzLII:- "It is settled that extension of time is a matter of discretion oip the part of the Court and that such discretion must be exercised judiciously and flexibly with regard to the relevant facts of the Page 4 of 7 particular case. Admittedly, it has not been possible to lay down an invariable definition of good cause so as to guide the exercise of the Court's discretion. Nevertheless, the Court has consistently looked at a number of factors such as the reasons for the delay,1 the length of the delay, whether the applicant was diligent, the degree of prejudice to the respondent if time is extended" Further, expounding this principle in Lyamuya Construction Co- Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 TanzLII, the Court of Appeal held thus:- "As a matter of general 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 and justice, and not according to private opinion or arbitrarily. On

the authorities, however, the following guidelines may be formulated:- (a) the applicant must account for all the period of delay j (b) the delay should not be inordinate (c) the applicant must show diligence, and not apathy; negligence orsloppiness in the prosecution of the action that he intends to take. i (d) if the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged." The present application can, therefore, succeed if in view of the authorities above, the applicant has established a good cause. As per the record, the decision earmarked for review if the present application succeeds was delivered on 10th May 2024. As per item 3 of Part III of the Schedule to the Page 5 of 7 Law of Limitation Act, the memorandum of review had to be filed on or before 10th June 2024 when the 30 days lapsed. However, this was not the case as the present application appears to have been filed on 2nd August 2024. The delay is not inordinate and, in my firm view, excusable if it has been accounted for. The applicant has, through his affidavit and his counsel, demonstrated that the applicant is not an idler. He has been actively pursuing his rights. His first application for review landed in court timely as it was instituted on 3rd June 2024 vide Land Review No.138331 of

2024 but t the same was struck out for incompetence on 16th July 2024 and, thereafter, I he lodged the present application on 2nd August 2024. It is from these facts that Ms. Kagembe has prayed that the delay be deemed a technical delay I and has cited the case of Constantine Victor John vs Muhimbili National Hospital (supra), in fortification. Admittedly, in this case, and many others, it has been held that if the applicant had timely filed an appeal I or application contending the impugned decision, the days spent when I prosecuting such an application should be exempted from the days of delay as they are deemed by law to be technical as opposed to actual delay,’ hence excusable. ! i Since, as stated above, the applicant's memorandum for review was timely filed on 3rd June 2024, the duration during which he was prosecuting this application is excusable. Accordingly, I agree with Ms. Kagembe that, the time between 3rd June 2024 when the applicant filed his first memorandum of review in Land Review No. 138331 of 2024 to 17th July 2024, when it was Page 6 of 7 struck out, is excusable and it is henceforth exempted from the computation of the time. As the present application was lodged on 2nd August 2024, the question that should follow is whether these days are similarly excusable or put otherwise, whether the applicant has sufficiently accounted for these days. For, it is

a cardinal principle in applications for extension of time that, for such application to succeed, the applicant must fully account for each day of delay even if it is just a single day see the cases of Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported); Charles Richard Kombe t/a Building vs Evarani Mtungi and 2 Others Civil Application No. 38 of 2012 [2017] TZCA 153 TanzLII and Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another Civil Appeal No. 82 of 2017 [2018] TZCA 297 TanzLII. The applicant's affidavit is silent on these days. Hence, they have not been accounted for. Accordingly, since the period between 16th July 2024 and 2nd August 2024 has not been accounted for, this application fails and it is dismissed with costs. DATED and at DODOMA this 15th day of November 2024. J. L. MASABO

JUDGE Page 7 of 7