jacquline magesa werema another vs osca butalingaya kombo 2018 tzhclandd 71 9 april 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 01 OF 2016 {Originating from the Decision o f the District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Land Application No. 428 o f 2012) JACQUELINE MAGESA WEREMA............................. 1st APPLICANT JOHN MAGESA WEREMA.......................................2nd APPLICANT VERSUS OSCAR BUTALINGAYA KOMBO.............................RESPONDENT Date o f last order: 15/3/2018 Date of Ruling: 9/4/2018 RULING Makuru, J. By chamber summons, the Applicants have moved this court under section 14 (1) of the Law of Limitation Act, Cap 89 R.E. 2002 seeking for extension of time within which to file an appeal against the decision of the District Land and Housing Tribunal of Kinondoni which was delivered on 8th May, 2015. The application is supported by a joint affidavit of Jacqueline Magesa Werema and John Magesa Werema, the Applicants. Mr. Mwarabu Learned Counsel appeared for the Applicants while Mr. Rweyongeza Learned counsel represented the Respondent. With leave of the court the application was disposed of by way of written submissions. In support of the application Mr. Mwarabu submitted that, immediately after delivery of judgment of the trial Tribunal the Applicants, through their advocate, wrote a letter to the trial Tribunal requesting to be supplied with l copies of judgment, decree and proceedings for appeal purposes. The said letter was dated 13th May, 2015. According to him, in spite of their daily follow-ups the said documents could not be supplied in time until on 23rd June, 2015 when the same were furnished to them after being certified by the successor Chairman on 18th June, 2015. It is further submitted that after being supplied with the copies, the Applicants filed an application for extension of time before this court on 22nd July, 2015. However, the said application was struck out for want of proper citation. Hence, the present application. The learned counsel further informed the court that, from 23rd June, 2015 when the Applicants were supplied with the said copies to 1st January, 2016 when the present application was filed, the Applicants have been prosecuting the case with due diligence. Hence, they are protected by the provisions of section 21(2) of the Law of Limitation Act, Cap 89 RE 2002 as they have not slept on their rights. The learned counsel urged the court to exclude the aforementioned period. He also added that, the delay was not caused by negligence, lack of interest or laxity on the part of the Applicants but due to reasons which are beyond their control. In response, Mr. Rweyongeza learned counsel contended that, the 45 days which the Applicants ought to have filed their appeal lapsed on 22nd June, 2015. According to him, the Applicants ought to have filed their application for extension of time immediately as they did not need any document to accompany an application for extension of time. The learned counsel added that the law does not require the Applicants to attach certified copies of 2 proceedings in the memorandum of appeal. What is required is only certified copies of judgment and decree. It is therefore the learned counsel's contention that, the Applicants slept on their rights as they ought to have filed the first application immediately after obtaining copies of judgment and decree. The learned counsel further contended that the Applicants ought to have accounted for each day of the delay as per the case of Interchick Company Limited V. Mwaitenda Hobokile Michael, Court of Appeal Civil Application No. 218 of 2016 (Dar es Salaam Registry, unreported). In determining an application for extension of time, what the court is supposed to consider is whether the Applicant has advanced sufficient reasons for the delay. This position was established by the Court of Appeal in a number of cases, including the case of Benedict Mumello Versus Bank of Tanzania, Court of Appeal Civil Appeal No. 12 OF 2002(Dar es Salaam Registry, unreported) Kaji, JA. (as he then was) had this to say: "It is trite law that an application for extension o f time is entirely in the discretion o f the court to grant or refuse it, and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. " In determining what amounts to sufficient cause the Learned Justice of Appeal went further to cite, with approval, the case of Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Court of Appeal Civil Application No. 6 of 2001(unreported), whereby it was held that: 3 "What amounts to sufficient cause has not been defined. From decided cases a number o f factors have 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." In the instant case, the reasons adduced for the delay are firstly, that the Applicants were not supplied with copies of proceedings, judgment and decree in time. Secondly, that the Applicants made an application for extension of time, to wit Misc. Land Application No. 391 of 2015, but the same was struck out. Hence, the present application. The time limitation to file an appeal originating from the District Land and Housing Tribunal to this Court is 45 days. Going through the record, the decision of the District Land and Housing Tribunal, which is subject of appeal, was delivered on 08th May, 2015. Therefore, the Applicants ought to have filed their appeal on or before 22nd June, 2015. The record speaks further that the necessary documents were certified on 18th June, 2015. Thus, they were readily available for collection on 18th June, 2015 when they were certified. It is further stated under paragraph 3 of the affidavit that on 13th May, 2015 the Applicants wrote a letter to the trial Tribunal requesting for copies of proceedings, judgment and decree. The Applicants further averred 4 that they made a follow up on the documents but in vain. However, there is no evidence available on record to that effect. Had they been diligent enough to make a follow up with the trial Tribunal they would have collected the documents earlier before lapse of time and they would have filed their appeal in time. But for reasons best known to them, they decided to wait until on 23rd June, 2016 when time to appeal had already expired. I say so because counting from 08th May, 2015 to 18th June, 2015 it is only 41 days. The documents were therefore ready for collection well within the period prescribed by law for appeals of this nature. In the case of Alison Xevox Sila Vs Tanzania Harbours Authority, Court of Appeal Misc. Civil Reference No. 14 of 1998 (Dar es Salaam Registry, Unreported) it was held that: "Lapses, inaction or negligence on the part o f the Applicant seeking extension o f time, does not constitute sufficient cause to warrant extension oftim d'. From the foregoing, it follows that the Applicants' allegation that the reason for the delay is that they did not obtain copies of judgment and decree on time is an afterthought because, as stated earlier, the documents were certified and ready for collection within the 45 days for filing an appeal. It should also be noted that the relevant documents which are required to be attached to the petition or 5 memorandum of appeal are copies of judgment and decree only. Attachment of a copy of proceedings is not a requirement under the law. From the foregoing, I find that the reasons adduced by the Applicants for the delay are not sufficient enough to convince this court to invoke its discretionary powers to grant the orders sought. The application is accordingly dismissed with costs. C.W. Makuru JUDGE 09/04/2018 Court: Ruling delivered in court this 9th day of April, 2018 in the presence of Mr. Godfrey Gimeno learned counsel for the Applicants and Mr. Theodory Primus learned c o l jent. C....... ........ JUDGE 09/04/2018 6