judith godwin mwailenge vs green marko malanyingi 2020 tzhclandd 96 20 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO 136 OF 2018 (Originating from the decision of Ilala District Land and Housing Tribunal in Land Application No. 281 of 2011 delivered on 25th November, 2016 before J.M. Bigambo, Chairman) JUDITH GODWIN MWAILENGE................. .......... APPLICANT VERSUS GREEN MARKO MALANYINGI........................... RESPONDENT Date of Last Older: 12.02.2020 Date of Ruling 20.04.2020 RULING V.L. MAKANI, J This application is by JUDITH GODWIN MWAILENGE. She is applying for extension of time within which to appeal against the decision of Ilala District Land and Housing Tribunal (the Tribunal) in Land Application No. 281 of 2011 on 25/11/2016. She is also praying for costs of the application. The application is made under section 41(2) of the Land Disputes Courts Act, 2002, section 14 of the Law of Limitation Act and any other enabling provisions of the law and is supported by the affidavit of the applicant herein. Both the applicant and the respondent were unrepresented. The applicant's submission was drawn gratis by Ms. Glory Sandewa, Advocate from Tanzania Women Lawyers Association (TAWLA) and was filed by the applicant, whereas the submissions by the respondent were personally drawn and filed by himself. Submitting in support of the application, Ms. Sandewa said that the applicant is a lay person hence not conversant with procedural requirements on how and where she could lodge her appeal. She said that in the judgment of the Tribunal the applicant was not notified of the right to appeal and the time within which an appeal could be filed. She said in the midst of the confusion, sometimes in 2016 the applicant lost her father. Ms. Sandawe stated that this frustrated and affected the applicant both mentally and physically and that incident prohibited her from lodging the appeal within the time. She added that the applicant had financial constraints and therefore was unable to consult a private lawyer which resulted into her meeting a bush lawyer who tricked her and prepared incompetent documents which were filed in this court in 2017. She said the applicant later received assistance from TAWLA and it was discovered that the documents filed by the bush lawyer had defects. Ms. Sandawe said that all what happened was beyond the control of the applicant, but she was not idle and in fact she took steps to secure the involvement of a lawyer in the matter only to learn that he was a bush lawyer and they were already out of time. Ms. Sandawe relied on the case of Ibrahimu Amani Fundi vs. Tanzania Electric Supply Company Limited & Another, Application No 9 Of 2014. She further said that TAWLA assisted the applicant to withdraw Application No 58 of 2017 which contained a lot of defects on 12/06/2018 and was allowed. 2 Ms. Sandawe said that the applicant exercised due diligence and the delay was not caused by the applicant's negligence. She said it can be evidenced from applicant's affidavit that the applicant took various measures to pursue her rights but was prevented by reasons beyond her control. She called upon this court to give a wide interpretation of what amounts to sufficient cause. She cited the case of Tumbo Kisima vs. TTCL & Another, Civil Application No 1 Of 1997 where it was stated: "/£ should be observed that sufficient cause should not be interpreted narrowly but should be given a wide interpretation to encompass ail the reasons or cause which are outside the applicant's power to control or influence resulting in delay in taking any necessary steps" She prayed for the application to be granted. In reply, the respondent prayed to adopt his counter affidavit and gave a brief his background the matter. He said that the applicant totally failed to exhibit any sufficient reasons for her extraordinary delay to file revision (sic!) on time. He said the applicant had all the way submitted on general principles and unfounded facts instead of certifying sufficient reasons for her failure to file revision (sic!) within the time. He said that applicant was addressed of her right to appeal by the Tribunal and that from 2011 she was prosecuting the application therefore was aware of how she could fight her rights, if any. He added that the applicant has failed to indicate the date and month of her father's death or even produce a death certificate. 3 Further he said that financial constraint has never been good reason for delay as alleged by the applicant. He added that the applicant is trying to draw sympathy and moral issues instead of advancing real reasons for delay. That the engagement of a bush lawyer by the applicant is unfounded as she even failed to indicate the alleged bush lawyer. Further he stated that the applicant has failed to account for the days of delay almost two years from 25/11/2016 to 2018 an action which is inexcusable and inordinate. He said that the cases of Ibrahimu Amani Fundi and Tumbo Kisima (supra) as cited by the applicant are irrelevant to the facts of the case and they just stress on sufficient cause for delay which the applicant has supplied none. He further cited the case of Moto Matiko Mabanga vs. Ophir Energy Pic & 2 Others, Civil Application No.463/01 of 2017, CA where the Court of Appeal set a position that any applicant seeking for extension of time is required to account for the delay of each day. He added that the applicant has failed to show why she did not file the appeal on time despite of being aware since 25th November 2016. He therefore prayed for the application to be dismissed with costs. The applicant did not file a rejoinder. I have gone through the affidavit and the submissions by the parties herein. It is a settled principle of the law that an application for extension of time is entirely the discretion of the court to grant or refuse it, and extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. 4 (See Mumello vs. Bank of Tanzania Civil Appeal No. 12 of 2002 (CAT-Dar es Salaam (unreported). As submitted by the applicant and from her affidavit, the main reasons for her delay is that apart from being unaware of her right to appeal she was mentally and physically frustrated due to the death of her father. That she had financial difficulties and was tricked by a bush lawyer which rendered filing of defective documents in court which were later withdrawn. Going through the records, it is evident that the decision of the Tribunal was delivered on 25/11/2016. There is no date as to when the applicant requested for the copies of the said judgment but the same was ready for collection on 12/12/2016. The applicant stated that her father passed away in 2016 but there was no explanation and evidence as to when her father passed away. That is, she did not mention the date and month of the death or the place, but she generally stated that it was sometimes in 2016. That apart, the applicant also failed to produce a death certificate. But nevertheless, even without the death certificate, it was expected of the applicant to remember the loss of her parent even if not by the date but at least the month. On the other hand, the applicant did not even state the date and month when the defective application was filed. Mentioning 2017 as the time she met the bush lawyer is not enough as the whole year has 12 months which should have been accounted by the applicant. 5 The same discrepancy in accounting for the period of delay goes until 06/06/2018 when she visited TAWU\ and was admitted for Legal Aid and consequently the defective application was withdrawn on 05/07/2018. The applicant has not accounted for the period of about 8 months from when the application was withdrawn to 19/03/2019 when this application was filed. No concrete evidence and proof have been stated as to what she was doing alt these days. In the case of Bushir Hassan vs. Latifa Lukiko Mashayo, Civil Application No 3 Of 2007 (unreported) the Court of Appeal held that: "Delay o f even a single day, has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken". Basing on the above, it is apparent that no sufficient reason has been duly advanced to warrant extension of time. I therefore proceed to dismiss the application for want of merit. There shall be no order as to costs considering that the applicant is under Legal Aid. It is so ordered. V JUDGE 20/04/2020 6