HAMISA SIMBAKIWANGA

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT IJC MOROGORO. MISC.CIVIL APPLICATION NO.25960 OF 2024 (Arising from the decision of the District Land and Housing Tribunal for Kilombero at Ifakara in Land Application No. 40 of 2022). HAMISA ABDALLAH SIMBAKIWANGA……………………. APPLICANT VERSUS KRESENSIA ELMAN MWAKA………………………………. RESPONDENT RULING 27th of May ,2024. MANSOOR, J. By way of chamber summons predicated under section 14 (1) of the Law of Limitation Act Cap. 89 R.E. 2019, the applicant preferred the present application for extension of time within which to lodge an appeal against the decision of the District Land and Housing Tribunal “DLHT” for Morogoro in Land Application No 40 of 2022. Page 1 of 10 According to the affidavit in support of the application deponed by the applicant, the said decision was delivered on 12/09/2023. However, it was the applicant’s averment that, due to financial difficulties, she delayed to file the intended appeal on time as she was seeking for legal assistance. On his part, the respondent opposed the application through his counter affidavit lodged before the court on 14th March 2024. When the matter was called for hearing, the applicant had the legal services of Ms Neema Ndayanse, the Learned Advocate, whilst Ms Kanisia Komba, the Learned Advocate entered appearance for the respondent holding brief of Advocate Josephina Mbena with instructions to proceed. The hearing of the application was conducted through oral submissions. The first to address the court was Advocate Neema Ndanyase who first and foremost prayed to adopt the chambers summons and applicant’s affidavit. Relying on the decision in the case of Yusuf Salee and another vs Hadija Yusufu, Civil Appeal No. 1/2002, CAT, Dar Es Salaam (Unreported), Ms Ndayanse submitted that the period of one month of delay by the applicant was caused by financial difficulties as averred under paragraph 5 and 6 of Page 2 of 10 the affidavit in support of the application, and that such reason cannot be held to be an insignificant since she was depending on Legal Aid support. She went on submitting that, the applicant managed to get legal aid within time and unfortunately the first advocate assigned failed to act on time as indicated in the letter from TLS dated 22 November 2023 addressed to Advocate Neema Ndayanse. She added that, the applicant intends to challenge the irregularities in the proceedings and judgement passed by the District Land and Housing Tribunal for Morogoro, as the Tribunal failed to consider her status as the Administrator of the deceased’s estates as gleaned from page 2 paragraph 1 of the impugned Judgement. According to her, the irregularities are fatal since the parties are not properly addressed hence contravening Order I Rule 10 of the Civil Procedure Code, Cap 33, R.E 2022 as the tribunal ought to have ordered the name of the respondent to be struck out and the name of the applicant be added. Referring the court to the case of Principle Secretary Ministry of Defence and National Service v. Derran Valambia, 1982 TLR 185, it was Ms Ndayanse’s submission that existence of the alleged illegalities is Page 3 of 10 sufficient reasons for extension of time. In that regard, it was her view that the applicant has shown sufficient warranting the extension of time. In response, Ms Kanisia Komba, prayed to adopt the reply to counter affidavit from paragraph 7 and 8 of the counter affidavits and contended that, the applicant did not attach proof that previously there was a letter showing that the present matter was at first assigned to Advocate Ester Shoo. She said the letter attached is addressed to Advocate Neema who said that the delay is 30 days but failed to account for each day of delay as the law requires. Having considered the parties’ pleadings and submission from the parties, the major issue for determination is whether the applicant has advanced sufficient reason enough to warrant extension of time for her to file the intended appeal. Much as I know, it has now been established that, extension of time is the discretion of the court which must be exercised judiciously upon the applicant’s demonstration of good cause to the court’s satisfactions that the same has to be granted. [Benedict Mumello vs Bank of Tanzania, Civil Appeal No. 12 of 2012 (unreported)] According to the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Page 4 of 10 Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (03 October 2011), in the application of this nature, the Court has to be convinced that the applicant has accounted for each day of delay, that the delay is not inordinate, there is diligence and not apathy ,negligence or sloppiness on the part of the applicant in the prosecution of the action that he intends to take; and that there are any 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. In the present application, the applicant has pleaded financial constraint and illegality as sufficient reasons for the grant of the application. As for the first reason averred on paragraph 5, the applicant claimed that the financial constraint that she was facing caused the delay as she had to seek for legal aid support in order to pursue her right of Appeal. The law is now settled that, as a general rule financial constraint does not constitute sufficient cause for extension of time with exception under certain circumstances as underlined by the Court of Appeal in the case of Costantino Victor John Vs. Muhimbili National Hospital, (Civil Application 214 of 2020) [2021] TZCA 77 (17 March 2021), that; Page 5 of 10 “As observed in Yusufu Same (supra) in the excerpt reproduced above, financial constraints may not be a sufficient ground for extension of time. However, as observed in the same excerpt, there are exceptional circumstances when it can be sufficient. In that case, the person seeking extension of time was a widow on legal aid. It was observed that, in such circumstances, her plea of financial constraints could not be held to be insignificant. I have the same sentiments here. In the case at hand, the applicant, was equally on legal aid. On the authority of Yusufu Same (supra),his plea of financial constraints cannot be taken to be insignificant. I take it as sufficiently demonstrated that the applicant’s delay is exceptionally excusable.” In the instant application, as rightly submitted by Ms Komba, although there is proof that the applicant sought for legal assistance from the Tanganyika Law Society, Morogoro Chapter, she has failed to account for her delay from the date the impugned judgment of the District Land and Housing Tribunal for Morogoro was delivered on 12nd September 2023 up to the day she knocked the doors of the TLS offices for legal aid facilities. My reasons for Page 6 of 10 so holding are obvious. The applicant’s advocate, has miserably failed to disclose to the court as to which date the applicant approached the TLS offices for help and whether at that time she was still within the clock of time limitation. All the same, despite the fact that Ms Ndayanse told the court that previously the present matter was to be handled by Ms Esther Shoo, learned Advocate, she has not revealed the date in which the same was handled to Ms Shoo for the court to ascertain as to whether during the time the initial assignment of the case was done to her, the applicant was within the prescribed time to appeal. Further to that, nothing has been explained for the delay from 22nd November, 2023 when the matter was assigned to Ms Ndayanse up to the 15th January, 2024 when the instant application was lodged before this court. As such there is nothing left suggesting that the applicant has accounted for each day of her delay to file the intended appeal as it had been expounded by the Court of Appeal in the case of Bushiri Hassan Vs. Latifa Mashayo, Civil Application No. 3 of 2007(Unreported), where it held; Page 7 of 10 "Delay even of a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. ” Turning to the ground of illegality, I would straight away hold that the alleged illegality as to the tribunal’s failure to consider her status as the Administrator of the deceased estates as gleaned from page 2 paragraph 1 of the impugned Judgement unfounded and misconceived. Having taking a look on the impugned judgment in line with Order I Rule 10 of the Civil Procedure Code, Cap 33, R.E 2022 which is alleged to have been contravened, what I have gathered is that instead of indicating that the applicant was the administrator of the estate of her father Abdallah Kiwanga, the heading in the name of the parties to the case omitted the same. However, in my view, the said error is not in its own an irregularity that has affected the legality of the impugned judgment. There are pethlora of authorities as to the test on what constitutes illegality worthy of extension of time. For instance in the case of Charles Richard Kombe vs Kinondoni Munipal Council (Civil Reference No 13 of 2019) 2023 TZCA 137 (23 March 2023), the Court of Appeal observed; Page 8 of 10 “....it is our conclusion that for a decision to be attacked on ground of illegality/ one has to successfully argue that the court acted illegally for want of jurisdiction, or for denial of right to be heard or that the matter was time barred. In Chunila Dahyabhai v. Dharamshi Nanji and Others, AIR 1969 Guj 213 (1969) GLR 734,which we find persuasive, the following paragraph was quoted from the decision of the Supreme Court of India in AIR 1953 SC 23:- "the words ‘Illegally' and 'material irregularity' do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not errors of either law or fact after the formalities which the law prescribes have been complied with". Reading the above holding in the light of Order I Rule 10 of the CPC it is plain clear that the error does not affect the legality of the judgment and that is why it is curable under the section 96 of the CPC which provides; “Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be Page 9 of 10 corrected by the court either of its own motion or on the application of any of the parties.” Flowing from the above analysis, it is my firm position that the applicant has not presented sufficient reason for her delay to warrant the court’s exercise of its discretion to grant her extension of time within to file the appeal out of time. That said and done, the present application is found unmerited and it is hereby dismissed. Due to the nature of the application, each party shall bear its own costs. It is so ordered. DATED AND DELIVERED AT MOROGORO THIS 27th DAY OF MAY 2024. L.MANSOOR JUDGE 27/05/2024 Page 10 of 10