fungwe mbasa administrator of estate of the late fungwe shija vs goi manweki ntuzu administrator of estate of the late manweki ntuzu and another 2023 tzhc 16781 31 mar

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA DISTRICT REGISTRY ATTABORA * MISC. LAND CASE APPLICATION NO. 27 OF 2022 (From the Decision of District Land and Housing Tribunal ofNzega, District at Nzega in Land Case Appeal No. 82 of 2019 and Original Ward Tribunal of Nata Ward in Application No. 12 of 2019) FUNGWE MBASA(Admnistrator of the Estate of the late Fungwe Shija)........................................................................APPLICANT VERSUS GOI MANWEKI NTUZU ( Administrator of the Estate of the Late Manweki Ntuzu and Another)........................................... RESPONDENT RULING Date: 28/3/2023 & 31/3/2023 BAHATI SALEMAJ.: The applicant herein, named Fungwe Mbasa approached this court seeking an order for an extension of time to file an application for restoration of withdrawn Land Case Appeal No. 27/2006 dated 30/04/2013, costs of the application, and any other relief this Court may deem fit and just in the circumstances. 1 The application was made under Section 14(1) of the Law of Limitation Act, Cap.89. The application was made by way of chamber summons supported by the applicants affidavit. The grounds as deposed in the affidavit upon which extension of time is sought run as follows that the applicant deceased filed application No. 19 of 2006 at the District Land and Housing Tribunal of Shinyanga applying for an order to set aside exparte judgment dated 31/8/2006. / w• That the said application No. 19/2006, on 5/12/2006 dismissed with cost I for want of prosecution of the applicant's Advocate Kaunda. On 30/4/2013, the High Court of Tabora before Songoro withdrew the t said appeal as prayed by the appellant's advocate as a result of the death of Fungwe Shija who died on 26/02/2013. After the death of the applicant deceased and withdrawal of Land case K appeal No.27 of 2006, the applicant was appointed the administrator of* the Estate of the late Fungwe Shija by Itilima Primary Court. Tv That after the appointment of the administrator, the applicant filed Misc Land Application no 38 of 2022 at the High Cout of Tanzania seeking to restore an appeal which was withdrawn out of time but the said application was struck out on 5/8/2022 for the reason that the High court r 2 4 .y J I. «5 t f X of Tanzania at Shinyanga has no jurisdiction to restore a case which was .4«. *• y on his register. When the application was called up for hearing, the applicant was •i? represented by Mr. Akram Magoti. The application was heard exparte '4 ft* r following the absence of the respondent. In his submission, he prayed the court to adopt his affidavit to form « % part of his submission and further he submitted that after his appointment as Administrator on 25/04/2022 he became sick for more 4 than three months, to prefer an application for restoring the withdrawn -f appeal No.27/2006 within the time. Amplifying his stance he cited the case of Alasai Josiah (suing by his Attorney Oscar Sawuka) V Lotus i Valley LTD Civil Application No. 498/12 of 2019 on sickness can be ground for extension of time. A «> Also on the other aspect of illegality, he submitted that the* % Chairman of Shinyanga District Land and Housing Tribunal curtailed the applicant's right to be represented by advocate Kaunda(deceased) by >• ordering the deceased to represent himself. To bolster his stance he cited the case of WETCU V Kassim Omary Kibwana, Labour Application No. 10 of 2019 in respect of illegality. He submitted that in paragraph 9 3 the applicant had the right of representation as per Article 13(6) (a) 1977 of the Constitution of the United Republic of Tanzania, however he was 11 3 •iK- 5 !• •jk r r 1 not granted. He emphasized that illegality is among the reasons for the extension of time. s fl Having carefully read the respective submissions from the applicant, the issue is whether the application has merit. Section 14(1) of the Law of Limitation Act, Cap. 89 provides that; "Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of the 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." '.V From the section above, this court has the discretion to extend the time to the applicant upon good cause or sufficient reasons being showm What amount to a good cause or sufficient reasons, there are no hard and fast rules as it depends on the reasons advanced by the applicant to account for the delay or convince the court to grant him that extension, depending on the circumstances of each case. This position of the law ■ & was well stated in the *case of Osward Masatu Mwizarubi Vs. Tanzania Fish Processing Ltd., Civil Application No. 13 of 2010, (CAT-unreported). £ I ) X 4 <x f I This is a requirement of the law under which the present application has been made. To grant or not to grant extensions is within the unfettered v discretion of the Court. That is, it must be exercised judiciously. See the case of Lalji Gangji v Nathoo Vassanjee [1960] 1 EA 315 and Noormohamed Abdulla v Ranchhodbhai J. Patel & Another [1962] 1 EA 447. I have perused the affidavit and the substance of the application, I have noted that Annexture "P5" stated in the application is not the reason for the grant of application since the applicant was appointed as3 administrator on 25/04/2022 and the annexture which has been produced in court reveals the date for commencing medical was on 30/09/2016 which is different from the allegation of sickness. It is trite law that a person alleging the existence of a certain fact is duty-bound to prove that fact exists. Sickness is proved by medical evidence and the applicant has to show how sickness barred her from appealing in time: ? Therefore as stated above the said reason is not a sufficient cause for an % 1 extension of time. i As to the issue of illegality, the applicants counsel has submitted that the Chairman of Shinyanga District Land and Housing Tribunal.V curtailed the applicant's right to be represented by advocate Kaunda(deceased) by ordering the deceased to represent himself. 5 5 ;■ I I I .1 In the case of the Principal Secretary, Ministry of Defence, and National Service Vs. Dervan P. Valambia (1992) TLR 387 (CAT) relied on by the applicant and Transport Equipment Vs. Valambia and Attorney General (1993) TLR 91 (CAT), when the point of illegality was pleaded, the Court of Appeal held that: "When the point at issue is the illegality or otherwise of the decision being challenged, that is a point of law of sufficient importance to constitute reason within rule 8 of the Court of Appeal Rules to overlook compliance with the requirements of the rules and to enlarge the time for such compliance." The Court went further; f S' "In our view, when the point at issue is one alleging illegality of the j decision being challenged, the court has a duty, even if it means Jr extending the time for the purpose, to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and record straight." i I have keenly perused the court records, I find the issue raised by the applicant's counsel is with merit since the applicant's right to be v" I represented was curtailed. 7 6 i . I % ?! a -F With the above observation and in the interest of justice, I grant the applicant extension of time to file an application for restoration of withdrawn Land case Appeal No. 27 of 2006 as prayed. Cost to follow the event. Order accordingly. A. BAHATI SALEMA JUDGE 31/3/2023 a Court: Ruling delivered in presence of Mr. Akram William Magoti, advocate for the applicant. A. BAHATI SALEMA JUDGE 31/3/2023 W. Right of Appeal fully explained. A. BAHATI SALEMA JUDGE 31/3/2023 7