20150824 TZHC Arusha2

J IN THE HIGH COURT O;F TANZANIA AT ARUSHA I i MISCELLANEOUS LAND CASE NO 71 OF 2015 KEFAS METAME (As an administrator Of the Estate of Meta me Mbayani) •••••••••••••••••••••••••••••••••••• , APPLICANT VERSUS JASMINE SAINGAMIE ..................................... RESPONDENT RULING MWAIMU, J. I I This is an application for extension of time made under section 38 (1) of the Land Disputes Courts Act cap 216. The applicant is inviting the Court to extend time to him Jo that as an administrator of I the estate of his late father Meitame Mbayani who passed away on 22 nd day of May, 2007, he could appeal! against an abatement order made by the Arusha District Land and Housing Tribunal in respect of Appeal No 20 of 2007 of which the decision was made on the 05 th day of October, 2010. According to Mr. Siay's submission' the applicant attempted to set aside the order but on a ruling made by the Tribunal on the 06 th day of September, 2011 the Tribunal refused to grant the application. I, II 1 l .J He contended that the ruling which ruled out that the case abate has an error material to the merits of the case and failure to set it aside occasioned a failure of justice to him. He added that his first attempt to apply for extension of time was futile because on the 13th day of March, 2014 he was forced to withdraw his application due to some technical grounds. He is in need of the extension of time so that he could pursue the rights of the estate of his late further. In reply Mr. Lume counsel for the respondent opposed the application urging that it is untenable because the applicant failed to account for the period between the 05 th : day of October, 2010 when I th the ruling was delivered to 20 day 9f April, 2015 the time he I preferred the application. Also he subri,itted that three years has passed from the date the applicant withdrew Miscellaneous Land Application No. 119 of 2013 to the : date of filing the instant application. Further, Mr. Lume cited the case of Agness Sekoroto versus Asinat J. Laizer, Misc. Land Application No. 27 of 2009 (HC AR- Unreported); Regional Manager Tanroads Kagera versus Ruaha Concrete Company Ltd, Misc Commercial Cause No. 18 of 2006 (Unreported) on what amounts to reasonable cause and adherence to the rules on courts exercising its powers . inI extending time. I In another note the learned coun~el also contended that the application is untenable because the intended appeal has no chances 2 of success. He contended that the citation of the application shows that the instant application originates from Appeal No. 20 of 2007 and Mateves Land Application No. 23 of 2006 and not from the ruling which dismissed the application for exte~sion of time to enable him to appeal against the abatement order. He prayed for the dismissal of ; the application with costs. I would wish to deal first with Mr. Lume's last argument. I have gone through the court record and found that although there is I Appeal No. 20 of 2007. The ruling which ordered for the abatement was an interlocutory one made in the appeal thus bearing the same number 20 of 2007. In that regard I see no harm in the applicant's citing the number of the appeal. The rul_ing has been extracted from the appeal. For those reasons I find the argument without merit. I would now revert to the merits of the substantive application. From the affidavit by the applicant and the submission by Mr. Siay it is I crystal clear that the applicant failed to! pursue the appeal after the demise of his father Metame Mbayani 6n time. On the 31 st day of August, 2009 the District Land and Housing Tribunal made an order requiring the administrator to file an application to be joined as a I party in the appeal. : The applicant was appointed the administrator on the 08th day of October, 2009. On the 09 th day of October,- 2009 one Ms Mutayagulwa I I an advocate who appeared for the applicant before the Tribunal 3 applied to amend the petition of appeal so as to implead the administrator the application which was granted. The amendment was never made on time because the said advocate is said to have attending a maternity leave. On the 05 th day of October, 2010 the tribunal declared the appeal abated on ground that there was no any attempt by the legal representative of the demised appellant to be joined as a party. On the 1st day of September, 2010, a period of about one year letter, the learned counsel sought for an amendment of the petition of appeal. The application was objected by the respondent and the tribunal sustained the objection and ordered for the abatement of the appeal in the ruling delivered on the 05 th day of October, 2010. Two issues arise before the Court. These are whether the applicant furnished sufficient reasons for the delay in filing the appeal against the abatement order. The second one is whether the court tribunal correctly exercised its discretion in ordering the appeal to have abated while there was a person whp had applied to be joined to the appeal as an administrator. On the first issue I have noted that there are some patches of periods which the applicant failed to account. However, I found that the intended appeal has overwhelming chances of success. 4 Of recent the Court of Appeal has settled the principle that time I can be enlarged where there are ''special and peculiar circumstances"warranting an appeal. In Edwin Urio versus The Director of Public Prosecutions Criminal Appeal No. 105 Of 2002 the Court of Appeal cited the case of 1 A.G. v. Saidi Juma Muslim Shekimwe ri (DSM Civil Application No. 45/97 (unreported) on the point. ' I I I In applications for extension of time the applicant must show sufficient reasons for the delay, cause or the existence of points of law and mixed law and facts. This is also the position in the case of I Said Said versus Said Mohamed [1989] TLR 206 and the case of Attorney General versus Consolidated Holding Corporation i and Another Civil Application No. 26 of 2014 (CAT) (Unreported). The issues of illegality were also held to form good reasons for granting extension of time. From the court record I think the is~ue whether a person applies to be joined as a party as an administrator into a matter pending in court following the death of a party and that application is rejected, is a good ground for consideration in ar appeal. For that reason, although there are some patches of periods which the applicant failed to account it would be just the issue of abatement to be considered in I appeal. For that reason the application is hereby granted. The 5 .:; I applicant should file his appeal within fourteen days from the date of . I deliverance of the ruling. Costs should follow event. SGD: M.P.M. Mwaimu JUDGE I . 24/08/201, Ruling delivered on this 24th day of Augu_st, 2015 in the presence of I both parties. ' SGD: M.P.M. MwLmu ' JUDGE I hereby certify this to be a true copy of Original. ~DE~EGIS~R, ARUSHA. i 6