MISC CIVIL APPLICATION NO 30 OF 2023 GERADA ZACHARIA VS NICODEMU LUSAMBO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (KIGOMA SUB-REGISTRY) AT KIGOMA MISCELLANEOUS CIVIL APPLICATION NO. 30 OF 2023 (Arising from Land Application No. 43 of 2019 of the District Land and Housing Tribunal for Kigoma at Kigoma) GERADA ZACHARIA (Administratrix of the estate of the late Zakaria Lusambo) APPLICANT VERSUS NICODEMUS LUSAMBO (Administrator of the estate of the late Julius Lusambo) RESPONDENT RULING Date: 22/06 & 15/07/2024 NKWABI, J.: The trial tribunal found and held in favour of the respondent to the effect that: "Having found so it is obvious that the suit land is not among the estates of the late Zacharia Lusambo because the same belonged to the late Julius Lusambo subject to be administered by the applicant herein. " That holding appears to have offended the applicant and wishes to appeal before this Court. That zeal of her happens to have encountered an impediment. That impendent, is that the appeal is time barred. She has knocked at the door of this Court to get the following orders: 1 1. That, this honourable Court be pleased to extend time within which the applicant can file appeal out of time against the judgment of the District Land and Housing Tribunal for Kigoma Land Application No. 43 of 2019. 2. Costs of this Application be granted to the applicant. 3. Any other reliefs this Honourable Court may deem fit and just to grant. The chamber summons is based on section 41(2) of the Land Dispute Courts Act, Cap. 216 R. E. 2019 and any other enabling provisions of the laws. The chamber summons is supported by the affidavit of the applicant. The respondent traversed this application. He filed a counter affidavit duly sworn by Mr. Eliutha Kivyiro, learned counsel in which Mr. Kivyiro avowed that the applicant lacked proof on how she made follow-up. He further asserted that she did not indicate the date she discovered the decree had not been supplied to her. Mr. Kivyiro stated, on oath that the receipt does not conclusively prove the date when the judgment was ready for collection. He criticized the form used for having no name and signature of the officer who supplied the said decree. He added that the applicant has failed to account for days from 1/12/2020 to 22/02/2021. 2 The application was disposed of by way of oral submissions. The appellant appeared in person, unrepresented. The respondent had the representation of Mr. Eliutha Kivyiro, learned counsel. In her submission in chief, the applicant simply adopted her affidavit in support of the application and prayed for extension of time so that she may lodge her appeal out of time. The counsel for the respondent was unmoved. Mr. Kivyiro adopted the counter affidavit. He stressed that they dispute the claim that the decree was supplied to her in a delay. Mr. Kivyiro explained that the letter praying for necessary documents for appeal purpose was not found in the original file. He added that in the judgment of the Court of appeal she is reported to be making follow-up physically and not by a letter and pressed that that letter is an afterthought. He elaborated his stand view that the applicant ought to file an affidavit from the District Land and Housing Tribunal regarding the receipt of annexure C. Mr Kivyiro recapitulated that, the delay is not a technical one because annexure "E". has nothing to assist her because the applicant did not account for the delay from 10/11/2020 to 22/02/2021. Mr. Kivyiro took 3 the stance that the applicant was negligent. He added that that is reinforced by what she said she came to know that she had no decree on 01/12/2022 while she had the copy of the judgment on 10/11/2020. He concluded by praying that the application be dismissed for want of merit with costs. In her tiny rejoinder submission, the applicant maintained that it was the tribunal which ought to have supplied her with the decree timely. She reinforced that she used to make physical follow-up tirelessly. She reiterated her prayer for extension of time because it was the tribunal which is to blame. I have closely considered the stand points of each party to this application. First of all, the applicant, in the background, is alleging to have accounted for each day of the delay by claiming a technical delay of which she is not the author on the ground that she was not timely supplied with the necessary copies of the judgment and decree of the district land and housing tribunal. The counsel for the respondent attributes the delay to negligence of the applicant. I do not accept the stance of the counsel for the respondent. The copy of the hand over document attached by the applicant bears clearly that that copy of the decree was handed over to 4 the applicant on 22/02/2021 and the reason for the delay being supplied with the decree to the applicant was because there was delay in typing the decree. Thus, I accept the contention of the applicant that it was the tribunal to blame for the delay and not the applicant. Truly, where a party fails to account for each day of the delay and there is no illegality in the impugned decision, the application for extension of time to appeal has to be dismissed. That position was taken in Tanzania Coffee Board v. Rombo Millers Ltd, Civil Application No. 13 of 2015, CAT, amplified that: "The decision of the Court in Bushiri Hassan versus Lahfa Lukiko Mashayor Civil Application No. 3 of 2007 (unreported) correctly articulates the settled law that dismissal of an application is the consequence befalling an applicant seeking an extension of time who fails to account for every day of delay. But, since the decree was handed over to the applicant on 22/02/2021, how could she be blamed for the delay? I accept her delay is a technical one. The officer who handed over the decree is the chairperson as it bears the stamp of the office and the signature thereof. The reason for the delay to supply is indicated that there was a delay in typing the same. The 5 criticisms against annexure E are lame, so are the criticisms against annexure C. The ruling of the Court of Appeal that revised the judgment of this Court was delivered on 9 th June 2023. This application was lodge in this Court on 17th June 2023. Thereafter she took only 7 days to lodge the application in this Court. Even if that would be taken to be a delay by the respondent, the delay is not inordinate as envisaged by Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 CAT (unreported). The applicant is supported too by the decision in Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002 where it was stated: ''In the instant case/ it is common ground that the respondent applied for copies of the proceedings and judgment on 6.1.1999 which was just about 14 working days of the date of the decision intended to be appealed against. It is also common ground that the respondent was supplied with the same on 8.12.1999 after a reminder and filed the application on 16.12.1998. In our vie~ applying for copies of proceedings and judgment within such a short time from the date ofjudgment and 6 later making a follow up by way of remiader; and finally lodging the application immediately after being supplied with the same, depicts diligence on the respondent. '[emphasis mine]. I take the firm view that this application is merited, because the applicant has accounted for each day of the delay thus, I grant it. Time for lodging the intended appeal in this Court is extended for twenty-one days from the date of this ruling. Costs shall abide by the outcome of the intended appeal. It is so ordered. DATED at KIGOMA this 15th day of July, 2024. 7