kabula azaria ngondi and others vs maria francis zumba and another 2020 tzhclandd 4 9 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION No. 198 OF 2018 {Arising from Misc. LandAppi.No. 932 of 2017 before Wambura,J) KABULA AZARIA NG'ONDI.................................... 1st APPLICANT ADIEL KUNDASENY MUSHI.......................... ..... 2NDAPPLICANT NEEMA ADIEL MUSHI........................................... 3rdAPPLICANT VERSUS MARIA FRANCIS ZUMBA ................................... 1st RESPONDENT IGALULA AUCTION MART LIMITED.................... 2nd RESPONDENT RULING S.M.MAGHIMBI. J: The Applicants has moved this Court under the provisions of Section 14 (1) of the Law of Limitation Act, Cap 89 R.E 2002 ("The Limitation Act"), seeking for extension of time within which to file an application for review of the Ruling of this court in Misc. Land Application No. 932 of 2017 dated 19/02/2018. The application is supported by the affidavit of Adieli Kundasenyi Mushi on behalf of the Applicants. While the applicants were represented by advocate Peter Nyangi, the 1st respondent enjoyed the service of Ms. Regina Herman, Advocate. i The applicants started their submission by citing the case of Tanzania Revenue Authority Vs Tango Transport Co. Ltd And Tango Transport Co. Ltd Vs. Tanzania Revenue Authority consolidated Civil Applications No.4 of 2009 and 9 of 2008, where the Court of Appeal of Tanzania at Dar es Salaam listed the factors included in consideration of an application for extension of time. The factors include the reasons for the delay, the degree of prejudice to the respondent if the application is granted and whether there is an arguable case as such, whether there is appoint of law on the illegality or otherwise of the decision sought to be challenged. Mr. Nyangi submitted that the delay of six months is not inordinate due to the fact that, the applicants did not have instruction fee to pay the advocate to initiate and prosecute the application for review in court. He submitted further that there is arguable case as there is a point of law on the illegality of the decision that will be subject to review if extension of time is granted. That the ground of illegality constitutes a good cause for extension of time and that this is cemented in the case of Principal secretary Ministry of Defense and National service Vs. Divram P. Valambia [1992]T,L,R 387 whereby the Court of Appeal held tha: ''Where the point o f Law at issue is the illegality or otherwise o f the decision being challenged, that is a point o f law o f sufficient importance to constitute a sufficient reason within rule 8 ( now a days is rule 10) o f the court o f appeal rules to overlook non-compliance with the requirements o f the rules and to enlarge the time for such compliance." 2 He further cited the cases of Kalunga And Co. Advocate Ltd Vs. National Bank Of Commerce Ltd [2006]T.L.R 235 arguing that the illegality of the decision comes from the fact that the applicants were not aware of the existence of a judgment, decree and the execution process in the said Land Case No. 95 of 2012 as they were not parties, I have noted that Mr. Nyangi spent a lot of his valuable time arguing on why they were out of time to file Misc. Land Application No. 932/2017 than explaining why they have delayed in applying for review. I will not waste time to analyse those submissions. On the substance of this application, Mr. Nyangi submitted that the record shows clear that when Misc, Land A ppI.No.932 of 2017 was being heard on 19th October 2018 the applicants and their advocate were absent and were not served with summons to appear. He argued that the decision is hence illegal as the applicants were denied rights to be heard when hearing of preliminary objection was being done. He cited the case of Sadiki Athuman Vs. R (1986) T.L.R 235 where it was held that the requirement that a party to the proceeding must be given the opportunity to lay his views is a fundamental principal of natural justice. He concluded that there is a very low degree of prejudice to the respondent if the application is granted as the the applicants are seeking for an opportunity for the parties' rights to be determined. In rely, Ms. Herman submitted that the applicants have to account for each day of delay from 20th October 2017 to 3rd November, 2018 and the reasons for staying mute for almost 150 days. She argued that it is a 3 settled principle that any applicant seeking for extension of time is required to count for the delay of each day citing the Bushin Hassan Vs. Latifa Lukio Mashayo Civil Application No. 3 of 2007 Court of Appeal of Tanzania (unreported) where the position was emphasized. She argued further that the in his submissions, Mr. Nyange has highlighted that there is a point of law on the illegality of the decision that will be subject to review if extension is granted. Ms. Herman then misled herself by arguing that the Misc. and Application No. 696/2017 was struck out for the reasons that it was brought under the wrong provisions of law that order XXI Rule 57(i) and (ii) of the civil procedure code cap 33 R.E 2002, however, the application that extension of time to review is sought for is Misc. Land Application No. 932/2017 and not the one she cited. I will therefore ignore her submissions on Misc. and Application No. 696/2017. Ms. Herman submitted further that in order for the court to grant extension of time, the court has provided guidelines among them is for the applicant to account for all the period of delay as it was held in the case of John Dongo and others vs. Lepasi Mbokoso Civil Application No. 14 of 2018. She argued that this application is intending to delay and increase multiplicity of the case while the litigation has to come to an end. She prayed that the application be dismissed with costs for lack of merits. To start with that, let it be clearly understood that what is in dispute at this stage is whether the applicant has demonstrated sufficient or reasonable cause that prevented from applying for review within the statutory prescribed period. 4 On my part I have noted on record that when the objection was heard and the ruling was delivered, the applicants and they were not present and no order to notify them on the said ruling was issued. In my view, this creates a sufficient or good cause for extension of time. It is for the said reason that this application is allowed and time is extended for the applicants to lodge an intended application for review of the decision of this court in Misc. Land Application No. 932/2017. The intended application shall be filed in court within fifteen (15) days from the date of this ruling. Costs shall follow cause in the intended application. Dated at Dar es Salaam this 09th March, 2020 S.M-WAGHIMBI JUDGE. 5