luciano

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA LAND APPEAL NO. 11110 OF 2024 (From the decision of the District Land and Housing Tribunal for Tabora in Land Appeal No. 21 of2021, Original, Land Case No. 1 of2021 before Mtendeni Ward Tribunal) LUCIANO ANDREA MKUMBI....................................... APPELLANT VERSUS JALALA SHABANIIDDI............................................... RESPONDENT RULING Last order: 18/09/2024 Judgement date: 07/11/2024 MANGO J Luciano Andrea Mkumbi filed this application praying for this Court to extend time within which he can file an appeal against the decision of the District Land and Housing Tribunal for Tabora in Land Appeal No. 21 of 2021. The application is made under S.41 (2) of the Land Disputes Courts Act [Cap 216 R.E 2019] and is supported by an affidavit sworn by the applicant himself. At the hearing of this application, both parties appeared in person and the application was argued orally. In support of the application, the Applicant submitted that, he was the Respondent in Land Case No. 1 of 2021 before Mtendeni Ward Tribunal and 1 the Appellant before the District Land and Housing Tribunal in Land Appeal 21 of 2021. He submitted further that, the decision of the District Land and Housing Tribunal was delivered on 4th December 2023. In its decision the tribunal declared the Respondent to be the lawful owner of the land in dispute. Aggrieved by the decision, he notified the tribunal orally on his intention to file an appeal. The Applicant contended further that, he made follow up to obtain a copy of judgement and on 22/02/2024 he was availed with a copy of the decision. The Applicant informed this court that, he couldn't appeal on time because he was looking for money to hire an advocate and his relatives failed to assist him financially. It was his view that, his appeal stands greater chance to succeed because the Respondent was declared the owner of the land without proof of letters of administration of the estate of the late Shabani Idd. Despite lack of locus standi on the part of the Respondent, the District Land and Housing Tribunal confirmed the decision of the Ward Tribunal. He also argued that, the District Land and Housing Tribunal confirmed the decision of the Ward Tribunal without considering the fact that, the Ward Tribunal determined an issue which was not tabled before it. In this he argued that, the Ward Tribunal determined a dispute over ownership of Plot No. 427 Block A Mtendeni Ward which was not before it, instead of determining a dispute over the farm which was instituted before the Tribunal by the Respondent. On his part, the Respondent briefly stated that he doesn't have letters of administration because he inherited the land customarily as he is the only 2 child of the late Shabani Iddi and that Plot. 427 Block A Mtendeni is within the farm in dispute. In rejoinder, the Applicant reiterated what he submitted in chief. It is trite law that, for an Applicant in an application for extension of time to succeed, he should account for his delay with a good reason. Having heard and considered oral submissions by the parties and examined the record relevant to this application, the only issue that need to be considered in this application is whether the Applicant has advanced good cause to warrant extension of time to file an appeal. Court record indicates that the decision subject to this appeal was delivered on 4th December 2023. The law, section 38 of the Land disputes Courts Act, [Cap. 216 R.E 2019], provides for time limit for appeals to the High Court for matters that originate from Ward Tribunals to be sixty days. In that regard, the Applicant ought to have lodged his appeal by 2nd February 2024. He however failed to file his appeal on the prescribed time limit. He filed the application at hand on 15th May 2024. In accounting for the delay, the Applicant managed to account for the delay from 3rd February 2024 to 22nd February 2024 as time spent waiting for copy of judgement subject of the intended appeal. Such period is automatically excluded from computation of time limit for appeals under section 19(2) of the Law of Limitation Act, [Cap. 89 R.E 2019]. By excluding the mentioned period, time limit in this matter started to run on 22nd February 2024 and sixty days expired on 29th April 2024. In that regard, the Applicant ought to have accounted for delay from 30th April 2024 to 15th May 2024 when he 3 filed the application at hand. The Applicant advanced two reasons for his delay in this particular period. The reasons advanced by the Applicant are financial constraints and greater chances of success in the intended appeal. I will start with the alleged financial constraints. I am of a considered view that, financial constraint is not a sufficient reason for extending the time in our jurisdiction. I hold so because the law, The Legal Aid Act, [Cap. 21 R.E 2019] provides for legal aid services which would have assisted the Applicant to file his appeal within time. The Court of Appeal of Tanzania when faced with similar ground in the case of Abdallah Salanga & 63 Others vs Tanzania Harbours' Authority, Civil Reference No. 8 of 2003 (unreported), it held that: "Financial constraint is not a sufficient reason to warrant the grant of extension of time " With regard to the chances of success if the application is granted as indicated under 9 of the affidavit, the application cannot succeed as it is not among the good cause for extension of time. The Court of Appeal in the case of Wambele Mtumwa Shahame vs Mohamed Hamis (Civil Reference No. 8 of 2016) [2018] TZCA 39 (9 August 2018) cited with approval the case of Shanti Vs. Handocha (1973) EA 2007 where the East African Court of Appeal made a distinction between an application for extension of time and that for leave to appeal that:- "The position of an application for extension of time is entirety different from an application for leave to appeal. He is concerned with showing "sufficient reason" why he should be given more time and the most persuasive reason he can show is that the delay has not been caused or contributed to by dilatory conduct on his part. But there may be other reasons and these are all matters of degree. He does not necessarily have to show that his appeal has a reasonable prospects of success or even that he has an arguable case." The Court held further that:- "The notable criteria in applications for extension of time is to show a good cause and not over whelming chances of success. In any case, that would amount to considering the appeal's merits." I am aware that it is in the discretion of the Court to grant extension of time. Discretion which must be exercised according to the rules of reason and justice. Since the Applicant has failed to advance good reasons for his delay, I find the application for extension of time meritless. It is accordingly dismissed with costs. Dated at Tabora this 7th November 2024 Z.D.MANGO JUDGE 5