Lielepwike 20010101022326 safii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 29020 OF 2024 (Arising from the decision of the District Land and Housing Tribunal for Mkuranga at Mkuranga in Land Application No. 47 of2021 Hon P.J Chinyeie, Chairperson) HAMISI LIELEPWIKE MOMBOKA................................................... APPLICANT VERSUS HAFIDHU ATHUMANI (the administrator of the estate of the late ATHUMANI SAID MCHUCHULI).....................................................RESPONDENT RULING 11/12/2024 & 20/02/2025 N.E. MANDIA, J The application has been preferred under section 14(1) of the Law of Limitation Act [Cap 89 R. E 2019]. The applicant is praying for the following orders: - 1. That this Honorable court be pleased to extend the period of limitation of time for the applicant to file an appeal out of time. 2. Cost of this application be provided for 3. Any other and further relief the court may deem fit and just to order. The application is supported by affidavit of Hamisi Lielepwike Momboka, the applicant and is opposed by the counter affidavits of the respondent, Hafidhu Athumani. i The brief facts surrounding the application as gathered from the pleadings is that on 20/08/1993 the applicant bought a piece of unsurveyed land from the late Athumani Said Mchuchuli. The said land was trespassed by the respondent and the applicant filed an Application No. 47/2021 in the District Land and Housing Tribunal for Mkuranga. After hearing of the application, judgment was delivered on 03/11/2023 in favour of the respondent. Aggrieved by the decision, the applicant filed Land Appeal No. 27884 of 2023 to the High Court, Land Division where it was found that the dates on the said judgment and decree were different hence, it was ordered that the same be corrected within 30 days. The applicant failed to refile the application within the period hence, this application. The application was heard by way of written submission. The applicant submission was drawn and filed by himself whereas the respondent submission was drawn and filed by Mr. Phales Mshana, learned advocate. In support, Mr. Momboka submitted that he is the lawful owner of the disputed portion of land which be he bought from his blood relative one Athuman Said Mchuchuli on 20th August, 1993. That in 1994 he 2 constructed an eight roomed residential house thereon. He submitted further that the seller of the disputed portion of land died in 2000 and that before his death they lived peacefully. That in 2009 the respondent instituted a land application in the District Land and Housing Tribunal for Kibaha against applicant's mother claiming ownership of the disputed portion of land. That he raised an objection as to why his mother was sued while she was not the owner of the suit portion of land. Mr. Momboka contended that in its ruling, the Tribunal opined that any person with interest in the said land should file a case against a proper respondent(s). He contended further that in 2021, the respondent without any lawful court order or color of right demolished the applicant's house at Ikwiriri Kusini, Coast Region. That he was dissatisfied with the respondent's action thus instituted a Land Case No. 47/2021 in Mkuranga District Land and Housing Tribunal. The matter was heard and determined in favour of the respondent. Mr. Momboka was aggrieved by the trial Tribunal decision and thus appealed to the High Court, Land Division, Appeal No. 27884 of 2023. That the appeal was struck out on ground that the dates on the decree and judgment were at variance. That thereafter, it was ordered that the same 3 be corrected by the trial Tribunal within one month from the date of the court's ruling. Mr. Momboka submitted that following the said order, on 18th June, 2024 he wrote a letter to the trial Tribunal notifying it about the required correction. That thereafter he made several follow ups but could not obtain the corrected documents timely until 16th October, 2024. That on 15th November, 2024 he filed the instant application. Mr. Momboka submitted that the delay to file his appeal was neither due to negligence nor due to lack of diligence but was occasioned by the circumstance as they happened in the trial Tribunal. That his application has an overwhelming chance of success. He prayed that extension of time be granted so he can file his appeal. In rebuttal, Mr. Mshana submitted that for the court to exercise its discretion to grant the order sought, the applicant has to show sufficient cause of his delay and account for each day of delay. That the order to correct the judgment and decree was issued on 30th May, 2024 granting 30 days' time to correct the same. That it was until 18th June, 2024 that the applicant wrote to the trial Tribunal notifying it about the ordered 4 correction. That the applicant obtained the corrected decree on 16th October, 2024 but filed the application on 15th November, 2024. Mr. Mshana submitted further that at paragraph 5 of the respondent's counter affidavit, the respondent has contested the applicant's affidavit as it does not disclose sufficient reasons to support the application as the applicant has failed to account for each day of delay. That he failed to account the days from 30th May, 2024 when the appeal was struck out to 18th June, 2024 (18 days) when he wrote a letter to the trial Tribunal and, from 17th October, 2024 when the application was prepared to 15th November 2024 (28 days) when it was filed. Mr. Mshana contended that the applicant has all along been sleeping on his right and he has always been negligent and inactive. Mr. Mshana prayed for dismissal of the application with costs. After going through the submission of the parties, the question for determination is whether the applicant has adduced sufficient reasons to warrant grant of extension of time. It is crystal clear to me that the ground upon which this court can exercise its discretion to grant or refuse an extension of time is stated in numerous authorities but notably in the famous case of LYAMUYA 5 CONSTRUCTION CO. LTD VS. BOARD OF REGISTERED TRUSTEE OF YOUNG WOMEN S CHRISTIAN ASSOCIATION OF TANZANIA, CAT, Civil Application No. 02 of 2010. The grounds are as follows: - (a) Applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the court feels that there are 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 After going through the affidavit, counter affidavit and submission of the parties, it is my considered view that the reason adduced by the applicant cannot suffice for a grant of extension of time. It is clear on the records that Appeal No. No. 27884 of 2023 filed in the high court, land division was struck out on 30th May, 2024 where the applicant was given thirty (30) days to seek for the corrected judgment and decre. For unknown reasons, the applicant wrote a letter to the trial Tribunal on 18th June, 2024 notifying it of the required corrections. He was issued with the corrected documents on 16th October, 2024 yet he filed the instant application on 15th November, 2024. It remains unknown to this court as to why the applicant took so long to ask for the corrected documents in the 6 trial Tribunal while he was aware that the time given by this court was only thirty (30) days. Again, it is not known how did the applicant made the said follow up from when he wrote to the trial Tribunal on 18th June, 2024 to 16th October, 2024 when he was issued with the corrected documents. In my view, it is unbecoming to think that the applicant was pursuing his case with the required standard of zeal and diligence. The applicant has not accounted for the delay of one hundred and thirty-seven (137) days. These days are reckoned from 30th June, 2024 when the thirty days' time given by this court expired to 15th November, 2024 when he lodged the application. He failed to account and substantiate what was being done on each day from the day this court issued the order for correction of the judgment and decree to the date of filling this application. It is correct therefore, to state that the applicant was not diligent, rather he was sloppy and negligent. In the case of BUSHIRI HASSAN VS. LATIFA LUKIO MASHAYO, Civil Application No. 3 of 2007 (unreported) the CAT held that. "...Delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within certain steps have to be taken"[Emphasis added] 7 In the upshot, I find that the applicant has failed to show good cause to warrant extension of time. Consequently, the application is unmerited and dismissed with costs. It is so ordered. N.E MANDIA JUDGE 20/2/2025 8