IMANI JAMES ILOMO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DODOMA MISCELLANEOUS LAND APPLICATION NO. 85 OF 2023 IMANI JAMES ILOMO.............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS DIAMOND TRUST BANK (DTB).............................. RESPONDENT / DEFENDANT RULING HASSAN, J, IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LAND APPLICATION NO. 85 OF 2023 (Originating from the Decision o f the High Court o f Tanzania in land case No. 4 of2018) IMANI JAMES ILOM O............................................................. APPLICANT VERSUS DIAMOND TRUST BANK (DTB)............................................ RESPONDENT RULING Page. 1 10. 09. 2024 Hassan, J.: In term of section 14 (1) and (2) of the Law of Limitation Act, Cap. 89 R.E. 2019 and section 95 of the Civil Procedure Code, Cap. 33 R.E. 2019, the applicant knocks the door to this court asking for extension of time within which to file an application to set aside a default judgment/decree dated 9th September, 2019 in Land Case No. 4 of 2018. The application was made under chamber summons and affidavit deponed by the applicant setting the evidence as to why the application should be granted. On the other hand, the respondent has also filed a counter affidavit deponed by one Victoria s/o Lupembe, a company secretary and Head of Legal Department of the respondent, setting the facts to disprove the applicant’s application. When the matter came up for hearing, the applicant was represented by Mr. Emmanuel Bwire, learned counsel who filed the applicant’s submission. Whereas, Mr. Ditrick Mwesigwa, also learned Counsel appeared for the respondent by filing her written submission. Moving forward, the applicant’s counsel firstly prayed to adopt the applicant’s affidavit to form part and parcel of the applicant’s submission. Next, Mr. Bwire readily submitted that the applicant has acknowledged that, the impugned decision sought to be set aside was delivered on 9th September, 2019. And that, up to the time of filing this application, three years has lapsed down the line. Mr. Bwire submitted further that, failure to act within time was due to the health issue suffered by the applicant. He thus mentioned paragraph 4, 5 and 7 of applicant’s affidavit together with the annexure GA-1 to be the proofs of what the applicant alleged about his health condition. He also detailed that, annexure GA-1 shows that the applicant had suffered from fatty infiltration liver and supraumbilical hernia which had prevented him from taking essential steps regarding the impugned default judgment. Moreover, the applicant’s counsel submitted that, because of such sickness, the applicant was exempted from duty for not less than three years. And as such, he was unable to pursue any other necessary application up until October, 2023 when he recovered and came to realise that he is out of time, hence this application. Mr. Bwire further submitted that the applicant came to realise existence of decree on 8th July, 2023 when respondent’s agent attempted to undertook auction process over the impugned property namely; Plot No. 7 Block 7 Nkuhungu North, within Dodoma City as shown under paragraph 6 of the applicant’s affidavit. Reflecting on the counter affidavit specifically paragraphs 5 and 6, learned counsel Bwire reiterated that annexture GA-1 proves that the applicant has been admitted in hospital to undergo medication for at least three years from the day of admission and equally was exempted from duty. With respect to paragraphs 7 to 10 of counter affidavit, he contended that the applicant has met legal prerequisite in pursuance of his application. Further to that, he contended that the so-called former filing as listed in Page. 2 the counter affidavit do not preclude the applicant from standing before the court seeking for enlargement of time. Submitting further, learned counsel Bwire protested that the counter affidavit filed by the respondent is incurable defective due to the fact that, the respondent’s affidavit was sworn before learned advocate, Ms. Mariana Merida Medard who also takes charge of the applicant’s affidavit. Thus, he prayed the court to expunge a counter affidavit from the records. Finally, Mr. Bwire cemented that in order for the court to allow an application of this nature three questions have to be answered namely: one, whether or not the application has been brought promptly; two, the absence of any or valid explanation for the delay; and three, lacks of diligence on the part of the applicant. To that effect. He submitted that; the applicant has met the requirement as he demonstrated through his affidavit in support of application. Authoritatively, he referred the court the decision in Tanga Cement Co. Ltd vs Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 (8 April 2004). In the end, he prayed the court to grant the application with costs. On the other hand, to oppose the application and facts raised by the applicant in the affidavit in support of application, the respondent filed a counter affidavit of which Mr. Mwesigwa, learned counsel prayed the court to adopt it to form part of evidence. Therefore, in his submission learned counsel for respondent generally opposed the application for extension of time as it lacks sufficient course. Submitting on the claim of sickness, he submitted that, in his affidavit, the applicant did not disclose the dates of which he was admitted in hospital and when he was discharged. Further to that, he pressed that the applicant did not issue a medical chit to support his assertion that he was hospitalised at Regency Hospital in Dar es Salaam. Thus, to cement his submission, he referred decision in Cosmas Construction Co. Ltd v. Arrow Garments Ltd (1992) TLR 127 where it was stated: “On the other hand, and quite seriously, the applicant has held back an information which he should have supplied if he really wanted to have time extended. Just as he did not quite come out and say in so many words that the proceedings were ex-parte, he said, instead, he was unfortunately absent. He does not say when he eventually got to know that the judgment had been delivered. Both Mr. Subash Patel’s affidavit and Mr. M aira’s before me were conveniently silent on this vital aspect o f the matter. Judgment was delivered on 17/10/1991. The affidavit in support o f the motion was not sworn until 17/03/1992. How can one know how long the applicant kept quite after knowing the outcomes." The respondent’s counsel submitted further that under paragraph 6 of the applicant’s affidavit, the applicant contended that he got to know the existence of the default judgment on the 8th July, 2023 when auction was about to be conducted. However, counsel for respondent resisted such assertion and he contend that, the applicant assertion is tainted with lies, as he knew the existence of the default judgment earlier than on 8th July, 2023. That, it is plainly asserted in the counter affidavit that, the default judgment was pronounced on 9th September, 2019 in the presence of the applicant’s advocate. And on 7th October, 2019 which is within 28 days, the applicant filed Misc. Land Application No. 102 of 2019 praying for the order to set aside the default judgment and decree in Page. 3 Land Case No. 04 of 2018 and on 30th April, 2021. However, the applicant later prayed the court to withdraw the same. Copies attached as annexure A1 to the counter affidavit. Learned counsel for respondent further submitted that, the said application to set aside default judgment was withdrawn with leave to refile and thus, preclude the applicant from refiling the same. To cement his contention, he referred Order XXII rule 3 (3) of the Civil Procedure Code, [Cap. 33 R.E. 2019]. Furthermore, learned counsel submitted that under paragraph 8 of counter affidavit, the respondent contended that, the applicant was sloppy and negligent and by his conduct, he demonstrated that he lost interest in prosecuting his matter. He also held that, the applicant did not account for each day of delay for 76 days from 8th July, 2023 when he was alleged to have been informed about the said default judgment, until 2nd October, 2023 when the applicant filed his application. Thus, he pressed that, the application to set aside default judgment ought to have been filed within 30 days, but the applicant stayed mute for 76 days and no explanation offered thereof. To support this contention, learned counsel for respondent cited decision in Dar City Council v. S. Group Security Company Ltd, Civil Application No. 234 of 2015 CAT (unreported) at page 7 of judgment it was held: “As a matter o f general principle, it is always in the discretion o f this court to grant extension o f time under rule 10 o f the rules. But the stance which this court has consistently taken is that in an application for extension of time, the applicant has to account for every day o f delay." As well, the leaned counsel for respondent cited more authorities for determination of this court including; Allison Xerox Sila vs. Tanzania Harbours Authority, Misc Civil Reference No 14 of 1998 (unreported) where it was held merit of application becomes instrumental for extension of time. Thus, in her counter affidavit at paragraph 9, the respondent submitted that the applicant has no chance to present his defence since the application to file written statement of defence out of time has been already rejected by this court. Additionally, with respect to the issue that the counter affidavit is defective for it being sworn in by the same commissioner for oath who had also took charge of the applicant’s affidavit, one Mariana Medard. In the circumstance, learned counsel for the respondent averred that, the applicant’s counsel has not mentioned in his submission under which law such undertaking has been prohibited. To that effect, he contended that the prayer to expunge a counter affidavit is baseless. More so, he also observed that, such objection cannot be raised at this stage of submission. He added that the same is submission from the bar because there is nowhere in the affidavit such issue has been raised. Finally, he prayed the court to dismiss the application with costs since the applicant has failed to demonstrate sufficient cause to warrant grant for extension of time. That being the submissions from both sides, it is now my duty to consider as to whether or not the applicant uploaded a sufficient cause to warrant enlargement of time within which to file the application to set aside the default judgment. Basically, in his affidavit in support of application the applicant raised one reason which he alleged to have caused his failure to promptly acted to the requirements of the law, as such, it was due to the health issue which he had suffered. Page. 4 Now, going through the application generally, I find it sufficient first, to lay foundation of the relevant legal bases as to the context of this matter. Therefore, to start with, reference should be made in the case of Benedict Mumello vs. Bank of Tanzania, Civil Appeal No. 12 of 2002 (CAT-DSM) the Court of Appeal had once held that: "It is the trite law that an application for the extension o f time is entirely in the discretion o f the Court to grant or refuse it, and that extension o f time may only be granted where it has been sufficiently established that the delay was with sufficient cause." At best, from the above dictum, the follow up question will be, what can exactly amount to sufficient cause. The inquiry directed my mind to recollect what was decided in the case of Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda - Civil Application No. 6 of 2001 (unreported), where the court had this to say: "What amounts to sufficient cause has not been defined. From decided cases, a number o f factors has to be taken into account, including whether or not the application has been brought promptly; the absence o f any or valid explanation for the delay; lack o f diligence on the part o f the applicant." At this juncture, at least I am cautiously alive that if it comes to the application for enlargement of time, amongst others, it should be considered that to achieve proper administration of justice, the law requires that matters should get to an end. See for instance decision in Granitech T. Company Limited vs Diamond Trust Bank Tanzania Limited & Others (Civil Application No.447/16 of 2021) [2023] TZCA 17470 (1 August 2023) where it was held that: “For proper and timely administration o f justice, there must be strict deadlines in filling legal documents. The deadlines are set to maintain order and efficiency in the legal process. Therefore, there must be genuine reasons which prevents someone from meeting a dead line o f which forgetfulness is not among those reasons." Certainly, as it appears at paragraph 6 of the applicant’s affidavit in support of application and as it has been admittedly submitted by learned counsel for applicant in his submission, it is apparent that the impugned default judgment was delivered on 9th September, 2019. And it is also admitted by the applicant that he was informed about such default judgment on 8th July, 2023 which is almost three years later. And, it is also clear that the instant applicant was filed before this court on 25th October, 2023. Thus, based from the above facts, undoubtably this application was filed beyond the time frame as required in law. Now, by calculating a time from the period when the default judgment was pronounced, to the period when the said default judgment comes to the knowledge of the applicant, it is clear that more than three years lapsed.Yet again, by counting dates from the time the applicant got informed of the default judgment to the timehe filed the instant application, it is more than three months later. Knowingly, it is trite law that, time available for aggrieved party to make an application to set aside default judgment is 30 days as per item 2 of part III of the schedule to the Law of Limitation Act. Page. 5 Thus, by analysing the reason for delay as raised by applicant in his affidavit, it is in the record that the applicant had been suffering from sickness and he was admitted in Dar es Salaam at Regency Hospital where he had undergone medication for such a period of time. To supplement his edict, the applicant attached to the affidavit annexure GA-1 as proof of his assertion. Unsympathetically, going through annexure GA-1 which are, the Ultrasound Report from Regency Hospital and a medical chit (clinical note) from Mirembe Hospital thus, I observed the following: firstly, to start with an Ultrasound Report, its authenticity is questionable as the same was altered on the date purported to have been issued. It appears from the face of it, that such ultrasound report was made or issued on 24/04/2012 which later a number “2” which appears in the year 2012 was altered to become number “8” in order to read 2018 without certification of the said changes. Likewise, even if we supposed that the ultrasound report was issued on 24/04/2018 as it appears in the chit, yet, that tells he had undergone diagnostic check or admitted before he filed the main case No. 4 of 2018 on 14th June, 2018 as indicated under paragraph 4 of his affidavit. which means, these facts are contradicting from each other as to when the sickness started, and when he was admitted. Again, the annexed Ultrasound Report is a copy of which it has been neither certified nor stamped to confirm its authenticity. Therefore, with those shortfalls, it is obvious that the Ultrasound Report cannot be relied to prove the applicant’s ailment he alleged. Worth enough, the applicant alleges in his affidavit at paragraph 4 and 5 respectively that, he was admitted in the hospital and exempted from duty for a long period. However, those facts have not been proved by any medical chit or report. Secondly, with respect to medical chit which has been marked as “clinical notes”, it is upon my observation that, the same cannot be relied as proof of the applicant’s diagnostic allegation. This is due to the reason that, the annexed medical chit does not show any diagnostic measure undertaken at Mirembe Hospital, but rather, it only reports that the applicant had undergone treatment at Regency Hospital since 2018. Again, this medical chit was issued on 06/09/2023, the period which the applicant was already beyond the 30 days allowed by the law, or even if we can count from the date when he became aware of the default judgment, still, he was out of time and it is unfortunately that the delay has not been justified. At the outset, I must admit that it has been held in a number of decisions from this court and the court above that sickness can serve a sufficient ground for the Court to enlarge time. However, it is ordinarily insisted that, there must be medical reports to prove such sickness and again, it has to be further proved that the same illness had contributed the delay. See for instance in Juto Ally vs Lukas Komba & Another (Civil Application 484 of 2019) [2020] TZCA 354 (15 July 2020), in rejecting the argument of sickness the court held that: “Indeed, she has also not explained how her illness contributed to the delay as the medical evidence she attached to her affidavit concerns the period specifically for the dates when she attended to hospital on 8th October, 2016 and 19th June, 2016. Besides, there is no indication that on those particular dates she was admitted and for how long. The only indication is that she attended at Mwananyamala Hospital as an outpatient where she was attended and allowed to go to her residence on both occasions." Page. 6 As I am now faced with similar predicament, that is to say, that the applicant has failed to show in his affidavit as to when exactly he was admitted in hospital, and when he was discharged therefrom. Also, the applicant did not provide any report which shows, what treatment he received apart from ultrasound report thus, his argument becomes inconsequential. Before I pen down, though in brief, I feel obliged to address the issue raised by the applicant’s counsel in his submission with regard to deficiency in the counter affidavit. That is, that the counter affidavit was bad in law for being signed by the same learned advocate who had signed an affidavit for the applicant in this matter. In my view, the allegation was raised at the wrong timing. As rightly contended by learned counsel for the respondent, the allegation has not been raised in the applicant’s affidavit, the fact which the counsel for the applicant admitted. Consequentially, it becomes a submission at bar and accord no value. Likewise, in my opinion, there is no restriction in law which deny the advocate to attest affidavits of different individuals which can be jointly or separately sworn. To my view, there is no prejudice occasioned as such, and similarly, there is no avenue for respondent to reject his rival’s affidavit and restore his own, based on such reasoning. Therefore, from this observation, generally, I am in agreement with the respondent attestation given under paragraph 4 and 5 of her counter affidavit, and to her submission thereof, that, the applicant failed to sight post a tangible reason for his delay to file the application to set aside the default judgment within the prescribed period of thirty days. I thus, reject his argument of sickness and therefore, for it being the sole reason raised by applicant to support the application thus, the application must fail. To that end, I dismiss the application with costs. Accordingly ordered. DATED at DODOMA this 10th day of September, 2024. S. H. HASSAN JUDGE 10/09/2024 Page. 7 Dated at DODOMA this 10th of September 2024 S. H HASSAN JUDGE OF THE HIGH COURT Page. 8