jumanne mkukuri vs national housing corporation 2019 tzhclandd 68 16 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 510 OF 2018 (Arising from Misc. Land Application No. 208 o f2015) JUMANNE MKUKUR1 ....... .................... ......... APPLICANT VERSUS NATIONAL HOUSING CORPORATION......... ......... RESPONDENT RULING S.M. MAGHIMBL J: The applicant has lodged this application under the provisions of Section 11(1) of the Appellate Jurisdiction Act, Cap. 141 R.E 2002 and Rule 47 of the Court of Appeal Rules, G.N. 368/2009 seeking for the following orders: a) Extension of time to file an application for leave to appeal against the decision of Judge Wambura of 08/04/2016. b) Costs and incidentals of the application abide results of this application. c) Any other order(s) this Honorable court might deem fit to grant This Application was supported by an Affidavit of Symphonia Revelian Kitare, learned advocate representing the applicant dated 10/07/2018. On the 11/04/2019, the court ordered the application to be disposed by way of written submissions and both parties adhered to the schedule of submissions which included extension of the submissions on 20/08/2019. i As said earlier, the applicant was represented by Mr. Symphonia Revelian Kitare while the respondent was represented by Mr. John Laswai. In his submissions to support the application, Mr. Kitare's reasons for the delay were submitted in the sequence of events that led to the current application. He submitted that the Land Case No. 02/2009 was dismissed for want of prosecution which led the applicant to file Misc. Land Application No. 208 of 2015 which is a subject of this application, to set aside the dismissal order. Upon hearing of the application, the court dismissed the Misc. Land Application No. 208 of 2015 a on the 08/04/2016 for want of merit. Aggrieved, the applicant filed a Notice of Appeal and an application for leave which he could not identify the number to, which while making follow ups, he was informed that the application was struck out for having cited the wrong provisions of the law. He submitted further that subsequently on the 17/06/2016, a Misc. land Application No. 465/2016 for extension of time to apply for leave was filed and the said application was struck out on technicalities on the 03/07/2018 and on the 13/08/2018 the current application was filed. Mr. Kitare submitted further that the delay to file an application for leave to appeal was not deliberate but was caused by the fact that the former application for leave to appeal filed on time was rejected after the required period for filing the application had already lapsed. Further that the previous application for extension of time was struck out on technicalities. Mr. Kitare submitted further that the intended application for leave has overwhelming chances of success as it intends to put forward a question of law on whether the dismissal of Misc. Land Application No. 208/2015 which sought to set aside a dismissal order in Land Case No. 09/2009 was proper in the event the suit was dismissed prior to appearing of parties for Final Pre-Trial conference contrary to Order VIIIA of the CPC. He prayed that the application is granted. In reply, the respondent who highly contested the grant of this application made his submissions on the two reasons for grant of the application as submitted by the applicant. On the advanced reason for the delay, Mr. Laswai's reply was that no justification can explain the delay in filing the first application for extension under the wrong provisions of the law. That had there not been any negligence that led to the court to strike out this application, there would not be necessity to file the current application. On the overwhelming chances of success, Mr. Laswai submitted that the argument should be raised on appeal against the dismissal of Land Case No. 09/2009 for want of prosecution and not on the intended application for leave on which the extension of time is sought. He concluded that the applicant has failed to advance any sufficient reason for the delay to entitle him to the orders sought and prayed that the application be struck out. I have noted that the applicant did not make any rejoinder submissions to the respondent's reply. My analysis of the merits of the application will begin on the 08/04/2016 when the Misc. Land Application No. 208/2015 was dismissed for want of merits. As per the applicant's affidavit and his submission, he had filed an application for leave to appeal on time which was struck out on technicalities. However, I have perused through the records of this application and found no proof that the said application for leave was actually filed by the applicant. On para 2 of his affidavit in support of the application, the applicant has referred to the said application as KCA-3 but he did not identify the exact number of the application filed. I had to go through the said KCA-3 and found that it was a mere copy of an application with no court number or even proof that the same was actually received/admitted by a court by at least a stamp. It is just a computer printout which by all means cannot be a conclusive proof that the said application was filed. In order for a party to prove that an application/suit was actually filed in court, he should bring a copy with the number and in principle, the best proof that an application was filed in court and disposed anyhow, a copy of an order of the court is a conclusive proof of the existence of such application. That was not the case in this application as no copy of the court order was attached to prove that there was an application for leave filed on time. After all, the KCA-3 had a proper citation of the provisions of the law where it cited Section 5(l)(c) of the Appellate jurisdiction Act and Section 47(1) of the Land Disputes Courts Act, Ca. 216 R.E .2002. That said, the applicant's argument that there was an application for leave filed on time and was rejected, fails. That leaves me with analysis of reasons for the delay between the 08/04/2016 when the Misc. land Application No. 208/2015 was dismissed and the 17/06/2016 when the Misc. Land Application No. 465/2016 was filed. This is a period of more than 60 days from the 08/04/2016 and at that time, the period for filing an application for leave to appeal to the court of appeal was only 14 days. Indeed the applicant has not adduced any reasons for this delay apart from attaching a computer printout of what he termed to as an application for leave which has no evidence that it was ever filed in court. It is trite law that in order to extend time, the applicant must explain the reasons for the delay for each day of delay. In the case of Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 3/2007, (unreported), the court of appeal held that; 4 "Delay o f even a sing/e 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." As for the current case, the applicant has failed to explain the delay of more than 60 days before filing the first application for extension of time hence at this juncture, there is no sufficient cause explained to warrant the discretion of this court in extending time. The second argument for extending time as argued by the applicant was the overwhelming chances of success of the intended appeal. Mr. Kitare submitted that the intended application for leave has overwhelming chances of success as it intends to put forward a question of law on whether the dismissal of Misc. Land Application No. 208/2015 which sought to set aside a dismissal order in Land Case No. 09/2009 was proper in the event the suit was dismissed prior to appearing of parties for Final Pre-Trial conference contrary to Order VIIIA of the CPC. In his reply, Mr. Laswai contended that the argument should be raised on appeal against the dismissal of Land Case No. 2009 for want of prosecution and not on the intended application for leave on which the extension of time is sought. In Civil Appeal No. 147 Of 2006, The Registered Trustees Of The Archdiocese of Dar Es Salaam Vs. The Chairman Bunju Village Government & Others, the Court of Appeal had this to say:- "In similar vein; Rustomji, (quoted at page 548 o f Parry's case (supra) had the following to say: "Though the court should no doubt give a liberal interpretation to the words '!'sufficient cause/' its interpretation must be in accordance with judicial principles. I f the appellant has a good case on the merits but is out time and has no valid excuse for the delay, the court must guard itself against the danger o f being ied away by sympathyand the appeal should be dismissed as time - barred, even at the risk o f injustice and hardship to the appellant" (emphasis is mine) As per the holding of the court, the chances of success of an intended appeal should not supersede the delay of the applicant to file his application on time. Even if the applicant has great chances of success, in the absence of illegality or any points of law of the decision to be appealed against, extension of time should cautiously be granted and in these cases, sufficient cause for the delay must be given regardless of whether or not there are chances of success in the intended appeal. As for the current application, the applicant has not convinced the court on any point of law or illegality to prompt this court to exercise its discretionary powers to extend time over and above the obvious fact that there is an unjustifiable delay on his part. Since I have already determined that no reasons for the delay had been adduced to the satisfaction of this court to extend time, this application is without merits and is hereby dismissed with costs. Application Dismissed Dated at Dar es Salaam this 16th day of September, 2019