godwin elieza ntenga vs equity bank tanzania limited another 2023 tzhclandd 16780 22 august 2023

"N IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 175 OF 2023 (Originating from Misc. Land Application No. 38/2022, Kisarawe Land and Housing Tribunai) GODWIN ELIEZA NTENGA APPELLANT VERSUS EQUITY BANK TANZANIA LIMITED 1^ RESPONDENT CHOTEC COMPANY LIMITED 2^° RESPONDENT JUDGMENT 10-22 August, 2023 E.B. LUVANDA,J The Appellant above named is appealing against the ruling of the Tribunal refusing to extent time to set aside the dismissal of the Appellant's suit/application. In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the tribunal erred in law and fact in its acting (sic) finding that no sufficient cause for delay had been shown; Two,the Tribunal erred in law and fact in failing to invoke and apply the overriding objective principle thus acting contrary to justice; Three, the Tribunal erred in law and fact in invoking irrelevant considerations to arrive at its decision. Mr. Amin Mohamed Mshana learned Counsel for Appellant submitted that the Appellant adduced sufficient reasons for delay to set aside the dismissal order for want of prosecution dated 8/6/2021. He submitted that it is on the 1 record that after learning the dismissal, on 18/7/2021, about ten days thereafter the Appellant filed a fresh Application No. 97/2021 which had added new Respondent. He submitted that the said application was dismissed on 16/08/2022 for the ground of being res-judicata. It was the contention of the iearned Counsel that, thereafter the Appellant unsuccessful applied for extension of time on 27/09/2022, which was dismissed on 19/04/2023, hence this appeal. He submitted that, the Appeliant ought not to have been required to account for each day of delay for the period from 8/06/2021 to 27/09/2022 as per paragraph five of the ruiing, because all this time save for ten days, the Appeilant was not idle but prosecuting Application No. 97/2021 and fresh application on 18/07/2021. He submitted that the time for prosecuting wrong court process ought to have been excluded. He cited section 21(2) of the Law of Limitation Act, Cap 89 R.E. 2019; the case of Damari Watson Binja vs Innocent Sangano, Misc. Civii Application No. 30/202 HC Kigoma; Patrick Magologozi Mongella vs The Board of Trustees of The Public Service Pensions Fund, Civil Application No. 1999/18 of 2018. He submitted that in the affidavit, the Appeliant gave only one reason of having bereaved by his brother, arguing that it cannot be imputed that the Appeiiant was explaining the alieged fifteen months delay from 8/6/2021 to 27/09/2022, rather was trying to explain the ten days from the dismissal to the date of filing a fresh application. He cited Waryoba Ellas vs The Republic, Criminal Appeal No. 112/2020 for a proposition that each case ought to be decided according to its own peculiar circumstances. In reply, Ms. Dorothea Rutta learned Counsel for the Respondent submitted that the reason adduced by the Appellant in his submission that he was not idle rather prosecuting Application No. 97/2021, is an afterthought, arguing parties are bound by their pleading in the lower court and in appeal no new facts should be introduced. She submitted that, the reasons adduced in the Appellant's affidavit in Misc. Land Application No. 38/2022 under paragraph three and four are that he was not properly aware of the dates and also he was bereaved by his brother. She submitted that, the reason newly introduced by Appellant in the current submission, is an afterthought and ought to be ignored by the court for cannot be introduced at the appellate stage. She cited the case of Kisanga Tumainiel vs Frank Pieper & Another, Civil Appeal No. 139/2008 CAT; Jimmy Lugendo vs CRDB Bank LTD, Civil Appeal No. 224/2020 CAT. She submitted that the Chairman clearly enunciated the reasons for the decision being the Applicant(Appellant herein) failed to account for each day of delay from the dismissal order on 8/06/2021 to 27/09/2022 when the Appellant filed the application. Frankly speaking this appeal Is unmerited. In his submission, the learned Counsel for Appellant conceded a fact that, in the affidavit in support of the application subject for this appeal, the Appellant adduced only one reason for delay being bereavement of his brother. Therefore a course taken by the learned Counsel to Introduce a new ground of technical delay (alleged the Appellant was busy prosecuting Application No. 97/2021 alleged filed within ten days from dismissal order, to wit on 18/07/2021 up to 16/08/2022 alleged when it was dismissed for account of being res-judlcata, and thereafter prosecuting a purported fresh application for extension of time, alleged filed on 27/09/202 and dismissed on 19/04/2023) are new grounds, which cannot be entertained at appeal stage. In the case of Jimmy Lugendo (supra), the Court of Appeal, at page 11 ruled, I quote, \..the point ofIllegality of the parties'agreement assuming that the appellant retired. Instead of being retrenched was not raised before the first appellate court nor Is one of the grounds In the present appeal before us. To entertain that new Issue at this stage Is tantamount to attempting to fault the High Courtjudges on a matter which was notpresented before them iet aione deciding on it' Indeed herein, the question of technical delay was not among the grounds raised in the memorandum of appeal. Therefore, as alluded by the Counsel for Respondent, It was raised In the submission as an afterthought. It Is thus Ignored. The Appellant did not file a rejoinder even after an extension of time to file the same was granted on 15/08/2023. Going by the affidavit In support of the application subject for this appeal, the Appellant grounded delay to have been attributed by a fact that he was unaware of proper dates, which entailed him to ask from the Tribunal clerk who Informed him that his application has been dismissed. At paragraph four, the Appellant alleged that after being Informed that his application was dismissed, on the same day he learnt sad news of the death of his brother, hence travelled to Dodoma. It Is to be noted that, the Appellant failed to mention a specific date he visited to the Tribunal clerk, avoided to mention a date of travel to and from bereavement at Dodoma, neither mentioned the name of the deceased, nor tendered or attached a certificate of death, burial permit let alone travelling tickets to Dodoma or mentioned the mode of transport used. Therefore, these were mere concocted facts. In fact, the Tribunal was justified to rule that the application was unmerited for reason that the Appellant failed to account the delay of more than one year from 8/6/2021 when the matter was dismissed to 27/09/2022 when he filed the application for extension of time. The appeal is dismissed^with costs. A s ^ ^ 'it . X t- .B^>tJVANDA /JUDGE ft.:. i'/ \Q 22/0812023 Judgment delivered by of remote judging attended by Mr, Amir M. Mshana learned _Advocate for the Appellant and Dorothea Ruta learned Advocate f0^®^?^s^^ondent. £ E.p. LIJVANd/ UDGE 2/08/2023