ruth mmary vs mrisho ramadhani 2020 tzhclandd 2293 7 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 636 OF 2019 {Arising from Misc. Application No. 221 of 2017 from District Land and Housing Tribunal for Kiiombero/Uianga for Ifakara) JOSEPHINE LITEREKO.................................................. APPLICANT VERSUS BONIFACE KIMWERI................................................ RESPONDENT RULING. S.M. MAGHIMBI, J: The applicant herein is moving this Court to grant an order for extension of time to file reference. The application is brought under the provisions of Section 8(1) of the Advocate Remuneration Order, 2015 and Section 95 of the Civil Procedure Code, Cap. 33 R.E 2002 and is supported by an affidavit of the applicant Josephine Litereko dated 05th November, 2019. The application was strongly countered by the counter affidavit of the respondent Boniface Kimweri dated 21st February, 2020. In this application, the appellant was represented by Mr.Modesta Medard, learned advocate while the respondent appeared in person and unrepresented. In his submission to support the application, Mr. Medard submitted that the applicant herein was the applicant in Land Reference No. 5 of 2019. He pointed out that in the Chamber Summons and affidavit of the said application, the parties names read as Boniface Kimweri as Decree holder i and Josephine Litereko as the Judgment debtor. He added that when he discovered some anomalies that were to be rectified, he prayed to withdraw the suit with leave to refile and the Respondent did not object the as he had not yet filed the counter affidavit. He added that the Order to withdrawal with leave to refile was granted subject to limitation of time hence this Application. Mr. Medard submitted further that this application is necessary as the applicant was given right to refile however subject to the limitation of time, and that it is after the order to refile was granted and obtaining the above said order the applicant made an application to file reference out time as per requirement of the law. He concluded that the leave to refile was granted and the respondent did not object on the application to withdrawal with leave to refile therefore this application should be granted for the interest of justice. In reply, the respondent submitted that the Applicant's submissions have no explanation as to why she delayed to file the intended reference. He argued that Mr. Medard attached some annexures while it is well known that annexures should not be appended to submissions for a good reasons that submissions are not evidence, he referred to the case of Tanzania Union of Industrial and Commercial Workers (TUICO) v. National Insurance Corporation, 2005 TLR 41. He went on submitting that the Applicant's affidavit does not tell why she delayed to lodge the reference in time and that although the present application by its nature is grantable by discretion of the court the same can be done only upon the court being satisfied that the applicant has placed materials upon which the court can 2 exercise that discretion. This submission was supported by citing the case of Ratma v Cumarasamy and Another, (1964) 3 All ER 933. The Respondent's prayer was that this application be dismissed with costs. I have considered the parties submissions and have gone through the records of the application, in this application, what the applicant is supposed to do is to adduce sufficient reasons for the delay in lodging his application for reference. In the case of OSWALD MASATU MWIZARUBI versus TANZANIA FISH PROCESSORS LTD CAT Civil Application No. 13 of 2010 (Mwanza Registry, unreported) dealing with an application for extension of time, Mjasiri JA (as she then was) had this to say; "What constitutes good cause cannot be laid down by any hard and fast rules. The term good cause is a relative one and is dependent upon the circumstances of each individual case. It is upon the party seeking extension of time to provide the relevant material in order to move the court to exercise its discretion." Therefore sufficient cause in this case shall be analysed according to the prevailing circumstances for the delay. The record reveals that on 24th October 2019 the applicant prayed to withdraw his Land Reference no. 5 of 2019; which was filed on time; in order to cure defects found on the names of the parties. The prayer to withdraw was granted subject to time 3 limitation hence the current application. Following the withdrawal on 24/10/2019, this application was filed on 07th of November 2019, which is 13 days from the date of the order. For me, the 13 days delay cannot be termed as inordinate assuming that the applicant did not get a copy of the withdrawal order on the same date that the application was withdrawn. For this reason, I find that the applicant had adduced sufficient grounds for the delay hence I grant this application. Time is hereby extended for the applicant to file her intended Reference to this court. The intended application shall be filed in court within thirty (30) days from the date of this order. Costs shall follow cause in the intended application. Application Allowed. Dated Dar Es Salaam this 21th September, 2020 MAGHIMBI JUDGE 4