ilyasa mtumwa maqsoud the legal administrator of mtumwa maqsoud vs abraham mwambine others 2018 tzhclandd 402 6 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPL. NO. 800 OF 2016 ILYASA MTUMWA MAQSOUD (The legal Administrator of Mtumwa Maqsoud.........................................APPLICANT VERSUS ABRAHAM MWAMBINE....................................................... ^RESPONDENT DOTO MAIGE.....................................................................2 nd RESPONDENT RAJABU ALI BWILANI......................................................... 3rd RESPONDENT OMARI MAIGE....................................................................4™ RESPONDENT BAKARI MAIGE...................................................................5™ RESPONDENT HADIJA MAKUBI................................................................. 6th RESPONDENT MWANAHAMISI JAULE BAKARI......................................... 7™ RESPONDENT ASUD ABDALLAH................................................................ 8™ RESPONDENT KANISA LA WAADVENTISTA - WASABATO....................... 9™ RESPONDENT RULING P. M. Kente. J: The Applicant one llyasa Mtumwa Maqsoud who is administrator of the estate of Mtumwa Maqsoud has moved this court under section 14(1,2) of the Law of Limitation Act [Cap. 89 RE 2002], Section 41(2) of the Land Disputes Courts Act, Cap 216 R.E 2010, Order XLIII (2) and Section 95 of the Civil Procedure Code [Cap 33 R.E. 2002], seeking for extension of time within which to file appeal from the judgment and decree of the Kibaha District Land and l Housing Tribunal, out of time. The application is supported by an affidavit deponed to by llyasa Mtumwa Maqsoud, the applicant and is opposed by the respondents in their jointly swor and affirmed counter affidavit. Submitting in support of the application, the applicant contended that, the delay to file appeal within time was a result of the negligence of the District Land and Housing Tribunal which refused to give him copies of judgment and decree on time despite several follow ups which he made. He added that the ruling which is sought to be appealed was certified on 5th May, 2016 but it was supplied to him on 18th August, 2016. He added that it was important for him to secure first the copies of the drawn order and ruling against which he intended to appeal. He based his argument on the provisions of Order XXXIX Rule 1(1) of the Civil Procedure Code [Cap 33 R.E. 2002]. It is the applicant submission that, computation of the time prescribed by law, starts from the date when the necessary documents were obtained by the intending appellant. He argued that the computation of time to appeal should be reckoned from 2 18/08/2016 when he paid for and was supplied with documents necessary for appeal purposes on the same day, and not from 01/10/2014 when the decision was made. He went on submitting that, the limitation period should be counted from 22/10/2014 when his request by the applicant to be supplied with the said copies was received by the court, not from 06/05/2016 when the copies were certified. To support his argument he referred this court to the case of Mary Kimaro Vs. Khalfani Mohamed [1995] TLR 202 where it was held that:- “(i) A copy of proceedings and copy of judgment are necessary for purpose of framing a sound memorandum of appeal. (ii) It is from the time of supply of both such documents that the limitation of time for appeal begins to run.” In reply the respondents submitted that, the applicant has not shown good cause to account for the delay which would entitle him to an extension of time. According to the respondents, the documents were ready for collection on 06/ 05/2016 but the applicant did not make any efforts to get them earlier. As a result 3 he filed this application on 29/009/2016. It is submitted that from 06/05/2016 up to 29/09/2016 it is more than 100 days. The applicant is accused of not making any serious follow ups to get the said documents in time or within reasonable time. Now, it is part of our jurisprudence that, the determination of an application for extension of time is purely on the discretion of the court. However, that discretion is to be exercised judicially by considering whether the applicant has given sufficient cause to account for the delay. This position was stated by the Court of Appeal of Tanzania in the case of Yusuf Same and another versus HadijaYusufu, Civil Appeal No.1 of 2002, (unreported), where Kaji J.A had this to say:- “It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it. This discretion however has to be exercised judicially and the overriding consideration is that there must be sufficient cause for so doing. What amounts to "sufficient cause" has not been defined. From decided cases a number of factors have to be taken into account including whether or not the application has been brought promptly; the 4 absence of any or valid explanation for the delay; lack of diligence on the part of the applicant". In the case of Oswald Masatu Mwizarubi V. Tanzania Fish Processors Ltd, Civil Application No 13 of 2010(unreported)Mjasiri JA citedwith approval the case of Ratnam v Cumarasamy and Another (1964) 3 ALL ER 933 in which it was held that:- “The rules of court must prima facie be obeyed, and, in order to justify a court extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conduct of litigation." Having carefully read the contents of paragraphs 4 and 5 of the affidavit in support of this application, it appears to me that, the applicant would wish us to believe that the delay to file appeal within time was caused by the failure of the court to supply him with the necessary documents which would enable him to file sound grounds of appeal. However as I will herein-after demonstrate, that is not the case. 5 Guided by the above cited authorities, I think the reasons given by the applicant cannot constitute sufficient cause to convince this court to exercise its discretionary powers and grant this application. I say so because, the Judgment which is intended to be appealed was delivered on 01/10/2014 and according to the applicant he requested for the copies of judgment and decree on 29/10/2014 and the said documents were supplied to him on 18/08/2016. With due respect, I am unable to believe the applicant’s reasons for delay because there is no supporting evidence proving his allegation. There is nothing on record which shows that the applicant wrote a request letter for the copies of judgment and decree to the District Land and Housing Tribunal. The applicant is trying to shift the burden onto the court but no substantial evidence has been given to substantiate his allegations. This court cannot rely on mere words of a mouth; there must be supporting evidence. It is the position of the law that, in an application for extension of time, the applicant has to account for each day of the delay that passes after the limitation period. The applicant in this case has not so accounted and therefore no sufficient causes have been given. 6 To the contrary it is my observation that there was a lack of follow ups because the judgment was delivered on 01/10/2014 and this application was filed on 29/09/2016 that is, after almost two years. If at all the applicant was diligent enough to make follow ups of his case, then he would have been able to get the necessary document and file his appeal much earlier if not in time. But his negligence made him to delay and for that matter, he cannot now be heard to shift the burden to the trial tribunal. Under the circumstances, this application lacks merit as there is no sufficient reason to convince this court to invoke its discretionary powers under section 14 (1) of the Law of Limitation Act, [Cap 89 R.E 2002]. In the upshot, this application is dismissed with costs. Dated at Dar es salaam this 6th day of July, 2018. 7