hassan seif mtungakoa and 2 others vs kuruthum yusufu administrator of the estate of sugra jafari 2020 tzhclandd 3940 7 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO 71 OF 2020 (Originating from Land Case No.170 of 2018) HASSAN SEIF MTUNGAKOA........................................................... IstAPPLICANT SALEHE SEIF MTUNGAKOA............................................................ 2NDAPPLICANT ALLY SEIF MTUNGASKOA.............................................................. 3rdAPPLICANT VERSUS KURUTHUM YUSUFU (As Administrator of the Estate of SUGRA JAFARI)................................................................. 1st RESPONDENT SHABANI HASSANI................. ...................... ...... 2nd RESPONDENT Date of Last Order: 22.10.2020 Date of Ruling 07.12.2020 RULING V.L. MAKANI, J The applicants named above are seeking for orders of extension of time within which to file an application for review against the ruling of this court (Hon. V.L Makani, J) dated 19th December, 2019. The application has been made under section 14(1) of the Law of Limitation Act, Cap 89 RE 2002 (the Limitation Act) together with any other enabling provision of the law and is supported by the affidavit sworn by Job C. Kerario an Advocate for the applicants. The application was argued by way of written submissions. Applicants' submissions were drawn and filed by Mr. Kerario. The 1st respondent's submission were drawn and filed by Mr. Mluge Karoli Fabian, Advocate while Mr. Amin Mohamed Mshana, Advocate drew and filed submissions on behalf of the 2nd respondent. Mr.Kerario prayed to adopt the contents of his affidavit and added that, the decision intended for review was given on 19/12/2019 and on 14/01/2020 (within 30 days) they instituted Misc. Application No. 19 of 2020 seeking for review. He said that in the said application there was a typing error which went to the root of the said application, that is, instead of enabling provisions reading section 78 (b) and O.XLII R.l(l) (b), it read under section 78 (a) and O.XLII R.l(a) whereas the latter was not applicable. He said upon discovery he waited until 11/02/2020 when the matter came for the first mention and he successful prayed to withdraw the matter with leave to refile. He added that on the 11/02/2020, the time for filing application for review had lapsed and hence this application. He relied on the cases of Attorney General vs.Twiga Paper Products Limited, Civil Application No.108 of 2008 (CAT-DSM) (unreported) and Shaban Hassan vs. Kuruthum Yusuph, Civil Appeal No. 171 of 2011 (CAT-DSM) (unreported) and added that the instant application meets the criteria for extension of time as the one withdrawn was filed within the prescribed time only that it had some minor mistakes. On the length of delay the Counsel said that, the application for review was withdrawn on 11/02/2020 and the present application was lodged on 17/02/2020, the difference of 7 days. He insisted that, the 2 grant of this application is likely to bring the main suit to immediate end and no one is going to be prejudiced. He prayed for the grant of this application with costs. In reply, Mr.Mluge said that the facts set out in the applicants' affidavit for the delay are irrelevant to the application as they do not afford any reasons for the delay. He added that the applicants have not acted diligently because the ruling of the court was delivered on 19/12/2019. He said that on 14/01/2020 the applicant filed Miscellaneous Application No. 19 of 2019 under wrong provisions and alleged that it was due to typing error. He said that the same was withdrawn on 11/02/2020 and the current application was filed on 17/02/2020 so the applicant slept for seven days without accounting for them. He said that had the applicant been keen, he should have filed it on the same date because he was aware that he is going to withdraw it and therefore was supposed to have already prepared another application. Further, Counsel contended that, the allegation that wrong citation in Application No. 19 of 2019 was a typing error is a lame excuse. He insisted that wrong citation is rather negligence and cannot therefore said to be a good reason for delay. He said that neither the affidavit nor the submission by the applicants elucidate as to why this application is made after such a long time. He insisted that typing error is an ignorance of the law is not an excuse. He said that it is not even clear as to when the applicant became aware that the application was wrongly cited resulting to withdrawal. He said that 3 the applicants7 affidavit and his submissions disclose negligence on the part of the applicants7 Counsel which is not excusable. He relied on the case of Inspector Sadik and Others vs. Gerald Nkya, 1997 TLR 290. He insisted that although the Misc. Application No. 19 of 2019 was withdrawn because there was alleged typing error yet there were seven days delay which was not accounted for and the applicants7 were supposed to account for each day of delay. He said that the delay is entirely of the applicants' own making and can only be described as an abuse of the court process. He prayed for the application to be dismissed with costs. On the other side Mr. Mshana submitting for the 2nd respondent said that, if a party succeeds to account for each day of delay then leave for extension of time is granted. He said that the applicants in their submissions have given sufficient reasons for the cause of their delay, that the first application was on time but the provision moving the court was improper and therefore it had to be struck out with liberty to refile causing the latter application to be out of time. He added that for an application of this nature to succeed two grounds must be proved. Firstly, the reasons for delay and secondly, sufficient reasons as provided for under section 78 of the Civil Procedure Code, CAP 33 which provides for the grounds of review similar to Rule 66 of the Court of Appeal Rules, 2009.He relied on the case of Tanzania Rent a Car vs.Peter Kimuhu, Civil Application No.226/01 of 2017(2019] TZ CA 173 (30 April 2019) (unreported). He prayed for the court to grant the prayers sought by the applicants for extension of time for review. 4 7 In rejoinder, Advocate Kerario reiterated his main submissions and insisted that what happened in the application which was stuck out was a typing error in the enabling provision. He added that the former application was struck out with leave to refile on 11/02/2020 which was Tuesday and the current application was filed on Monday 17/02/2020. He insisted that the difference is only 3 days which is reasonable. Having gone through the submissions from both sides, the point for determination is whether this application has merit. Though the parties have given long submissions, but the main concern rests on the accounting of seven days within which the applicant filed the current application after the striking out of the former Misc. Application No. 19 of 2020. The issue of whether the wrong citation in the initial application was caused by a typing error or negligence is immaterial at this juncture as the application was struck out for being incompetent with liberty to refile, the fact which is not controverted by the parties. Now, has the applicant accounted for the alleged seven days delay? In his rejoinder Mr. Kerario said that, Misc. Application No. 19 of 2020 was struck out on 11/02/2020 which was a Tuesday, the current application was filed on Monday 17/02/2020. Counting basing on the working days and as correctly submitted by Mr. Kerario there is a difference of 3 working days. In other words, the applicants' filed this 5 application on the fourth day from when the former application was struck out. In view of this thereof, this court is of the firm view that the applicants have acted diligently in pursuing this application and I hereby proceed to grant this application. The applicants shall file their application for review within seven (7) days from the date of delivery of this ruling. There shall be no order as to costs. It is so ordered. V.L. MAKANI JUDGE 07/12/2020 6