juma hamad juma vs fakh adam athuman 2023 tzhclandd 16809 24 august 2023

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC LAND APPLICATION No.296/2023 (Arising from the Judgment of District Land and Housing Tribunal for Temeke in Land Application NO.88/2022) JUMA HAMAD JUMA..................................... ..APPLICANT

VERSUS FAKHI ADAM ATHUMAN................................................................... RESPONDENT

RULING Date of last Order:27/07/2023 Date of Ruling: 24/08/2022 K. D. MHINA, J. This is an application for an extension of time within which the applicant herein can lodge an appeal to this Court against the decision of the District Land and Housing Tribunal ("the DLHT") for Temeke in Land Application No. 88 of 2021. The application has been preferred under Section 41 (1) and (2) of the Land Disputes' Courts Act No.2, Cap 216 R: E 2019 The chamber summons is supported by the affidavit duly sworn by Silas Adam Nziku, counsel for the applicant, which expounds the grounds for the application. The application was argued by way of written submission. The submissions were duly drawn by Mr. Silas Adam Nziku, learned advocate i on behalf of the applicant, and Leslie Saliyana Koini, a learned advocate on behalf of the respondent. Briefly, in support of the application, the counsel for the applicant submitted that there is good and sufficient cause to warrant the issuance of an order for an extension of time within which to allow the applicant to pursue an appeal out of time for five reasons; First, he submitted that on 12 July 2022, during a hearing at the trial tribunal, the presiding Chairman committed irregular misconduct by quashing the proceedings conducted by another Chairperson of the same tribunal and went ahead ordering an ex parte hearing without following the rules for ex

parte hearing. That act triggered the applicant's Counsel on 14 June 2022 to write a complaint letter to the Judge in charge of this Court via letter with Ref No. JIHC/JHJ/42/22. Second, on 2 August 2022, the judge in charge replied via a letter with Ref No.AB.43/167/01/74 and advised the applicant's counsel to present his complaint to the Registrar of the Tribunals or to file a Revision before this Court. 2 Thirdly, surprisingly, the trial Chairman on 19 October 2022 delivered judgment and decree in favour of the Respondent without regard to the applicant's complaints to the superior court. Following that decision, the applicant, on 15 December 2022, applied for revision before this court vide Land Revision NO.50/2022 Fourth, on 28 April 2023, the application was struck out on the ground that it ought to have been brought by way of appeal and not revision. Fifthly, he submitted that the time to file an Appeal was disrupted by the application for revision, which the applicant filed in good faith following advice from the Judge in charge; therefore, the delay was not caused by the Applicant's negligence but rather by relying bonafide upon the advice given in view of getting his rights through the revision application. Furthermore, he submitted that as per chronological events, the applicant was trying to pursue his right in court corridors, which does not constitute an actual

delay but a technical delay, which constitutes good cause for granting an extension of time to file an appeal out of time. To bolster his argument, he cited the decision of the Court of Appeal in Filson 3 Mushi vs. Jitegemee Saccos Ltd, Civil Application No.313/2021 (Tanzlii), where it was held that; "Z am mindful ofthe renowned legalprinciple that, any delay arising from the time taken by the applicant in Court corridors pursuing his right, whether incompetently or otherwise it is not actual delay. It is referred to as technical delay which constitutes good cause for the grant of an extension of time." Responding to the submission, briefly, Mr. Koini submitted that the applicant has failed to account for each day of delay. His reason was that the decision, within which the applicant is seeking extension of time to challenge, was delivered on 19 October 2022 and this application for extension of time was filed in this court on 18 May 2023. In that case, counting from the date the decision was delivered to the date when the applicant filed this application more than 200 days have elapsed. He stated that according to section 41(2) of Land Disputes Courts Act Cap 216 (R.E 2019) the applicant was supposed to file his appeal within 45 days from the date when the judgment was delivered. He narrated that the applicant was supposed to file his appeal on or before 04 December 2022 he

chose to file an application for revision on 15 4 December 2022. In that case, by the time the applicant filed an application for revision no.50 of 2022, he was already out of time to file an appeal for 11 days. To bolster his submission, he cited the decision of the Court of Appeal in Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 3 Of 2007(Unreported) quoted in Tujijenge Tanzania Limited vs. Fadhil A. Mpinga And Others Misc. Land Application Number 156 of 2020 (unreported) at page 5 the court has this to say; "Delay of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken." From above he submitted that writing a letter and a reply to it from the Judge In charge has nothing to do with his delay as they happen before the pronouncement of Judgment. Again, he cited the case of Tujijenge Tanzania (Supra) "It is upon the party seeking extension of time to provide to provide the relevant material in order to move the court to exercise its discretion." 5 He concluded by submitting that this application be dismissed with cost for lack of merit as the applicant has failed to account for each day of delay and even the reasons addressed by him were caused by the applicants negligence to take proper procedure after being aggrieved by the decision of the tribunal. In a

brief rejoinder, the applicant's counsel reiterated that the time spent at Revision at the High Court was the source of the delay in pursuing an appeal in time. Therefore, it is technical delay. Having considered the chamber summons and its supporting affidavit, the affidavit in reply, and the submissions, made by both learned counsel for the parties, the issue that has to be resolved is whether the applicant has shown a good cause for this Court to exercise its discretion in granting an extension of time to file an appeal in this court Having considered the chamber summons and its supporting affidavit, the affidavit in reply, and the submissions made by both learned counsel for the parties, the issue that has to be resolved is whether the applicant has shown a good cause for this Court to exercise its discretion in granting an extension of time to file an appeal in this court. 6 The only ground of delay advanced by the applicant is based on technical delay; the time he spent in prosecuting an improper application for revision can be considered a technical delay. On this, the entry point is the decision of the Court of Appeal in Bharya Engineering and Construction Ltd vs. Hamoud Ahmed Nassor, Civil Application No. 342/01 of 2017 (Tanzlii), where it was held that the prosecution of an incompetent appeal when made in good faith and without negligence, ipso facto constitutes

sufficient cause for an extension of time and delay arising from the prosecution of that appeal was not actual, it is a mere technical delay. The advocate for the applicant in paragraphs 4 and 5 of the affidavit elaborated that he filed a Revision as directed by the Judge in Charge. Having gone through the affidavit and its annexures, it is quite clear that there was a complaint letter from the applicants counsel complaining about the procedure adopted in the trial (annexure API). The letter was responded to by the judge in charge on 19 August, 2022 (Annexure API). That letter was written as follows; 7 '■■to bring the matter to the attention of Deputy Registrar Hon. Mguiambwa, it is within her power. Otherwise, the iearned counsel be advised to apply for Revision before this court." At that time, the matter was still ongoing at the Tribunal. The judgment was delivered on 19 October 2022. Nothing was pleaded in the affidavit, and no annexure was attached to indicate that the applicant's counsel acted upon the advice of filing a revision at that time. He waited until the matter was determined then he applied for a revision while there was already a judgment. That is why the decision of this Court in Land Revision No. 50 of 2022, the application was struck out because of the applicant's failure to exhaust the right to appeal. In the cited case of Filson Mushi (Supra), it was held

that; "Categories of technical delays are never dosed. However, it couid be a different and fatal scenario where such incompetent cases causing delay were drawn by an unqualified person" Flowing from above, the application for revision was drawn by an advocate and taking into consideration that, the letter of the judge in charge was advice to the counsel and at the time of the advice the case at the tribunal was still ongoing, therefore the counsel was supposed to act 8 diligently by searching relevant laws before filing the revision. Especially after the matter was determined by the Tribunal. In Calico Textile Industries Ltd vs. Pyaraliesmail Premji [1983] TLR 28 the court held that; "failure to check the requirements of the law properly.... Can not be sufficient reason for allowing appellant, who is represented by a learned Advocate, to file his appeal so much out of time..." From the above discussion the circumstances of this matter fall short of the requirements of technical delay, the are insufficient reasons to persuade this court to exercise its discretion of granting extension of time. The applicant's advocate was negligence on the proper procedure to be taken when he was aggrieved by the decision of Temeke District Land and Housing Tribunal. In the upshot, the applicant fails to advance good and sufficient ground to warrant this court to exercise its discretion in granting an extension of time. Consequently, I decline to grant this application, and I dismissed it with costs. 9 It is so ordered. k. d. j Lina ; i".

JUDGE L , wSvife? n|I 24/08/2023 V'*-'' 10