final for upload ISRAEL ANDERSON

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI MISC. LAND APPLICATION NO. 9378 OF 2024 (Arising from the decision of the High Court at Moshi dated 28th June, 2023 in Land Appeal no. 03 of 2023 and originating from District Land and Housing Tribunal of Moshi at Moshi in Land Application No. 82 of 2019) ISRAEL UNDERSON MUNIS ………………….………APPLICANT VERSUS GEMA IZZACK MUSHI ……………...……..………..RESPONDENT RULING 3rd & 29th July 2024 A.P. KILIMI, J.: This is an application for extension of time wherein the applicant mentioned above has moved this court by way of chamber summons under Rule 10 and 47 of the Court of Appeal Rules 2009 praying for extension to file an appeal to the court of appeal. He has supported this application by his duly sworn affidavit. Briefly the applicant has averred in his affidavit that, he filed the land application No. 82/2019 against the respondent herein at the District Land and Housing Tribunal for Moshi at Moshi ‘DLHT’ wherein the judgment was entered in his favor. Being dissatisfied with the DLHT decision, the respondent herein appealed to this Court in Civil Appeal No. 3 of 2023 and on 28/06/2023 the decision of the DLHT was set aside and appeal was allowed with costs. 1 The applicant being dissatisfied with the High Court decision filed the Notice of Appeal to Court of Appeal on 5th July, 2023 as annexed ‘A1’ and served to the respondent. On 23rd October, 2023 vide civil application No. 35 of 2023 in this court, the applicant then filed an application for leave to appeal to the Court of Appeal. But on 5th March, 2024 his application bared no fruits as it was struck out due to changes of the legal sector Laws (Miscellaneous Amendment Act No. 11 of 2023, GN 48/2023 amended section 5 of the Appellate Jurisdiction Act Cap 141. Its effect was that leave to appeal to Court of Appeal “CAT” was no longer a requirement. He then found out that he was out of time to appeal to CAT hence the application at hand. In his counter affidavit, the respondent admitted to have been served with the Notice of appeal to CAT but put the applicant to strict proof thereon by stating that the applicant application was out of time regardless the changes of the law as he failed to account each day of his delays. The respondent further replied that there were sixty more days which the applicant failed to account for from the date the application for leave was struck out to the day he filed the application at hand, he then prayed for the application to be struck out. 2 When the matter come for hearing, the same was argued by way of written submissions, the applicant fended for himself while the respondent was represented by Mr. Innocent Habakuki Nsyenge learned advocate. Submitting in support of the application, the applicant reiterated the substance he stated in his affidavit and added that he has chances to succeed the appeal as the delay was not occasioned by the applicant rather it was beyond his capacity. He submitted that if the application for leave would have been heard earlier and on time, then the Court would have found a point of law to be determined by the Court of Appeal. In reply, Mr. Innocent Habakuki argued that the applicant failed to account each day of delay as the only reasons which was not enough was that while he applied for leave to appeal to CAT, the law was amended and resulted to a strike out of his application. He stated that the applicant failed to honor the principle laid down in the decision of Lyamuya Construction Co. Ltd vs. Board of the Registered of Young Women’s Christian Association of Tanzania (Civil Application No. 2 of 2010 [2011] TZCA 4 that in granting extension of time the applicant must account for all period of delay, the delay should not be inordinate, the applicant must show diligence and not apathy, negligence or slopeness in the prosecution of the action that he intends to take and if the Court feels that there are other sufficient reasons, such as the 3 existence of point of law of sufficient importance such as illegality of the decision sought to be challenged. The counsel went on contending that the decision which the applicant sought for leave was an application No.3/2023 and his application for leave to appeal to CAT was delivered on 5/03/2023. He added that the applicant filed the application at hand on 7/05/2024 thus from 5/03/2024 to 7/05/2024 he failed to account for 60 days of delays. Emphasizing on accounting even a single day of delay which has to be accounted for, the counsel invited this court to consider the decision of Board of Trustees of the Free Pentecostal Church of Tanzania vs. Asha Selemani Chambada and another (Civil Application No 63 of 2023 [2023] TZCA 147 (TANZLII). He added that even if there were issue on illegality for instance, the same had to be apparent on the face of records, the learned advocate stated that illegality or a point of law were neither laid down by the applicant in his affidavit nor in his submissions. The counsel replied that the respondent being the widow, the applicant was trying to take advantage and infringe her rights and prayed his application be struck out with costs. In a brief rejoinder, the applicant added that a time to appeal usually starts from when judgment is delivered. He added that judgment of this 4 Court in Land Appeal No. 3/2023 was delivered on 28th June 2023 and a notice to appeal to CAT were filed by the applicant on 05 July 2023 and when leave to appeal to CAT was still a mandatory, he filed also application No 35/2023. He added that as leave was still pending up to 5th March 2024, those delays were not occasioned by the applicant as the reasons were beyond to his capacity. Having considered the application and the rival submissions of the parties, the issue for determination is whether the application at hand is attainable or has merits. It is a trite principle of law that, the court has discretionary power in granting extension of time upon showing reasonable grounds. The question which follows the flow in the case at hand is whether the applicant has adduced reasonable ground for this court to grant her prayers. The applicant assertion is that the cause for his delay to appeal to CAT was occasioned by this court vide Civil application No 35/2023 which was filed on 23rd October, 2023 and later finalized/heard on 5th March 2024 by being struck out by reasoning that leave to appeal to CAT was no longer a requirement. The respondent reply was that; such reasons are not enough for this court to grant extension of time as the applicant failed to account the sixty (60) days from the date of the struck order 5/03/2024 5 to the date the applicant filed the application at hand which was on 7/5/2024. Upon my scrutiny of the records, and as the court records depict itself, it is crystal clear that the applicant filed the application at hand on 29th April 2024. Despite the fact that, both parties are not disputing that there were changes in law, still the day to be accounted for is from the date of the struck order to the date of filing of the application at hand which is from 5/3/2024 to 29 / 04/ 2024. By counting, these are fifty-four (54) days in total which were not accounted for by the applicant. Further parties are not disputing that the amendments of the law stopped the leave to be sought while already that application for leave was legally presented in this court. As stated above though allowing extension is discretion of the court but there must be sufficient cause to move that discretion, what amounts to sufficient cause has not been defined, thus in my view it depends on a number of factors or circumstances of the case. For instance, questions may be applied as tests in the above regard such as First; Whether or not the Application has been brought promptly; Second; There is absence of any or valid explanation for the delay; and third Lack of diligence on the part of the applicant. (See also Benedict Mumeno vs Bank of Tanzania, Civil Appeal No. 12 of 2002 (unreported) 6 As correctly argued by the respondent counsel Mr. Habakuki that each day has to be accounted for. But in the application at hand changes of the law as alluded above found the applicant in the course of pursuing his rights which was application for leave to appeal to CAT, this is because at the time he lodged the application for leave the new law was not enacted. Therefore, in my view the applicant was prompt to move forward to the court of appeal. Therefore, I think had the law not changed the applicant could have been at the legal pace to CAT since his intention was prompted as alluded above, it is this court notified him through its order dated 5th March 2024. Thus, in my considered view the applicant has shown that he was not negligent or sloppy but was diligent. Furthermore, in considerate being a lay person his preparation to move this court again infer me to belief that the delay in lodging this new application within time was not occasioned by negligence on his part and consequently in the circumstances I hold that delay of 54 days as calculated above is not inordinate. On the premises and from what I have endeavored to discuss above, I am satisfied that, under the circumstances of this case, the applicant has shown sufficient cause to warrant grant of extension of time as 7 sought. Consequently, I grant the application and give the applicant fourteen (14) days from the date of this ruling delivered, within which he should file his appeal to the court of appeal. Having the circumstances of this application, I order each party shall bear his own costs. It is so ordered. DATED at MOSHI this 29th day of July, 2024. X JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 29th day of July, 2024 in the presence of both Applicant and Defendant. Sgd; A. P. KILIMI JUDGE 29/07/2024 Court: Right of Appeal duly explained. Sgd; A. P. KILIMI JUDGE 29/07/2024 8