haji yahya seseme vs hamis sultan mtitu 2020 tzhclandd 3845 26 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 533 OF 2019 (Originating from Land Application No.521 of 2015, Misc. Land Application No.736 of 2018 & Misc. Application No.736 of 2018) HAJI YAHYA SESEME APPLICANT VERSUS HAMIS SULTAN MTITU (The Administrator of the lateMAUA MAULID)i RESPONDENT Date of Ust Order: 18.08.2020 Date of Ruling 26.10.2020 RULING V.L. MAKANI. J The applicant HAJI YAHYA SESEME Is seeking for orders of extension of time within which to file an application for leave to appeal to the Court of Appeal of Tanzania against the decision of this court In Land application No. 521 of 2015 (Hon. Kente, J). The application has been made under section 11(1) of the Appellate Jurisdiction Act, Cap 141 RE 2002, and It Is supported by the affidavit of the applicant. The court ordered that the application be argued by the way of written submissions. The applicant drew and filed his submission personally; while the respondent's submission were drawn gratis by the Legal and Human rights Centre and filed by the respondent. In his main submission, the applicant prayed to adopt the chamber summons and affidavit. He said that before this application he had filed two other applications: One, Misc. Land Application No.521 of 2015 for extension of time to file appeal which did not succeed and the second. Misc. Land application No.736 of 2018 for extension of time to file an application for leave to appeal to the Court of Appeal which was struck out for want of proper citation of enabling provision. He said that this application is maintainable on the basis laid down in the case of Ngoni Matengo Cooperative Marketing Ltd vs. Ali Mohamed Osman, (1959) EA 577, that once an appeal has been struck out for any reason, the appellant is at liberty to refile his appeal. He argued that the same principle applies to his application. The applicant further argued that, there are sufficient reasons to support this application. He said that he was prevented by the Tribunal to file his appeal on time as he was not given copies of judgment on time as required by law therefore it caused hardship to the applicant which resulted to the applications he filed. He argued the court to look back where the error was done. He further said that he has a great chance of succeeding in his appeal and that the court should grant him the constitutional right to be heard as per Article 13(6) (e) of the Constitution of the United Republic of Tanzania. He further argued the court to apply the principle of overriding objective and have regard to substantive justice. He prayed for this application to be allowed. In reply, the respondent prayed to adopt the contents of his counter affidavit and stated that, it is the discretion of the court to grant or refuse extension of time, however the applicant is obliged to show good cause for his delay. He said that, to move this court to grant extension of time, the applicant ought to provide concrete reasons for his delay. He said that the applicant's affidavit is silent, and he has failed to account for everyday of delay. He said that the rationale of counting days is set in the case of Bushiri Hassan vs. Latifa Lukiko Mashayo,Civil Application No.03 of 2007 (CAT) where it was stated that: Delay of even a single day, has to be accounted for, otherwise there would be no proof of having rule prescribing periods within which certain steps have to be taken" He insisted that the applicant has failed to provide the reasons for delay and he therefore prayed for the court to dismiss this application. In rejoinder the applicant reiterated the contents of his main submission. Having gone through the affidavits and submissions from the parties, the court's duty is to consider whether the application before it has merit. For easy reference the applicant in Misc. Application No. 521 of 2015, unsuccessfully applied in this court for extension of time within which he could file his appeal against the decision of the Tribunal. And this decision was delivered on 23/06/2016. Later on, through Misc. Application No. 736 of 2018 he unsuccessfully applied for extension of time for leave to appeal to the Court of Appeal against the decision in Misc. Land Application No. 521 of 2015. It should be noted that the applicant issued the Notice of Appeal on 03/07/2016, however, he did not file his application for leave to appeal to the Court of Appeal until on 18/10/2018 when he filed an Incompetent application for extension of time to file an application for leave to the Court of Appeal. About two years lapsed from the date he Issued the Notice of Appeal. I have gone through the affidavit by the applicant. The affidavit does not reflect the reasons for the delay in filing the application for leave to appeal to the Court of Appeal two years down the lane. In his submissions, the applicant puts this blame on the Tribunal,that the delay by the Tribunal ultimately caused delay in the filing of the application for leave to appeal. However, the records are very clear that the alleged delay by the Tribunal was found to have no merit in Misc. Application No 521 of 2015. And since the applicant is seeking for leave to appeal to the Court of Appeal against the decision in Misc. No. 521 of 2015, he was duty bound to establish what made him late Into filing the application for leave to appeal to the Court of Appeal and not otherwise. The alleged delay by the Tribunal cannot be used to determine subsequent applications. That is, even if the deiay by the Tribunal were to be found to have merit in Misc. Application No. 521 of 2015; the same could not have been used as a reason for delay In the subsequent applications. This is simply because delays have to do with time, and the applicant is the one who manages his time in filing applications, and he has to do so within the period prescribed by the iaw. The applicant cannot therefore attribute the present delay on the basis of the former delay because each delay is ascribed to different circumstances and reasons; it does not happen automaticaily. It is settled principle that every day of delay has to be accounted for as was held in the case of Bushiri Hassan vs. Latifa Lukio Mashayo,(supra). It is apparent therefore that, the applicant has failed to fulfil his duty to account for the delay in filing the application for leave to appeal to the Court of Appeal. For the reasons above, it is my considered view that the applicant has failed to advance good reasons to warrant this court to exercise its discretion to extend the time within which to file an application for leave to appeal to the Court of Appeal. In the premise, the application is hereby dismissed with costs for want of merit. Order aceofdingly. f "I F rA O c *5: O (x\CQaox. 2 V.L. MAICANI JUDGE 26/10/2020