madeni kipande vs mkolokolo hamisi gayo others 2019 tzhclandd 44 6 september 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM (Arising from High Court Land Appeal No. 120 of 2017) MISC. LAND APPLICATION NO. 594 OF 2018 MADENI KIPANDE.......................................................APPLICANT VERSUS MKOLOKOLO HAMIS GAYO & OTHERS.................... RESPONDENT MAIGE, J RULING By way. of chamber summons support by his affidavit and a supplementary affidavit of his advocate Dr. Mutabazi Julius Lugaziya, the applicant is inviting the Court to grant an order extending time within which to lodge a notice of appeal against the decision of this Court in Land Appeal No. 120 of 2017. The application is preferred under sections 11(1) of the Appellate Jurisdiction Act Cap. 141 RE, 2002 and rule 47 of the Court of Appeal Rules. Advocate Adolf Wenceslaus Mahay has, on behalf of the respondents, deposed an affidavit in opposition to the application. The decision sought to be appealed against was delivered by my sister justice Mgonya on 19th October 2017. In effect, it dismissed the appeal by the applicant herein and upheld the decision of the trial tribunal. Before filing the instant application, it is in the affidavit, the applicant filed a similar application on 5th December 2017. It was struck out, on 27th August 2018 on technical grounds. On 6th September 2018, the applicant filed the instant application. The applicant attempts to justify the period between the pronouncement of the judgment and lodging of the struck out application on two accounts. First, that upon instructing his advocate to institute an appeal, he was summoned to attend his mother who subsequently passed away on 24th October 2017. Second, before the end of the vigil, he was taken ill such that he was subsequently hospitalized at Amana Hospital between 10th November 2017 and 20th November 2017. He has attached in his affidavit a copy of medical chit. The third ground which is in the supplementary affidavit of Dr. Mtabazi is that, upon being intructed, he mistakenly filed a notice of appeal without paying filing fees. On discovery, he could not proceed because the time within which to serve the adverse party had expired. They could also not get the applicant to timely file an affidavit in support of an application for extention of time because he was sick and subsequently hospitalized. By leave of the Court, the appeal was argued by way of written submissions. I have duly considered the rival submissions in my ruling. From the affidavits, counder affidavit and parties submissions, it would appear to me, the justification for the delay for the reason of the prosecution of an ealier application for extention time is not serious controversial. The controversy is on the justification of the interval between the date of the pronouncement of the judgment and the date of filing of the struck out application. Both in the affidavit of the applicant and his counsel, there is a concurrent proposition that the sickness and subsequent death of the applicant's mother was subsequent upon the counsel being instructed to lodge the appeal. Equally so for the claimed sickness and hospitalization of the applicant. Perhaps, the facts under discussion would have been relevant in justifying delay to promptly file an application for extention of time to lodge a notice of appeal. That is implicit in the supplementary affidavit of Dr. Mtabazi. A notice of appeal, it is trite law, does not necessarily require a signature of a party. An advocate can sign it. The applicant claims in the supplementary affidavit that his counsel timely filed an ealier notice of appeal which he however inadveretely omitted to pay the filing fees. A copy of the said affidavit has not been attached in the affidavit. In his written submissions, the counsel for the applicant admitted the omission. He has not assigned any reason therefor. Yet, he wants the Court to exrcise its indulgency and ignore the omission. The applicant has for the reason better known to himself, not attached the affidavit in support of his ealier application. The Court is thus left with no factual materials on the basis of which it would infer whether the grounds for the delay to file a notice of appeal in the said application are similar with those in the instant applicatio. He did not attach it in the struck out application as well. In my opinion therefore, the applicant has not justified for the delay. The application is therefore dismissed with costs. It is so ordered. i.r m iu c JUDGE 06/ 09/2019 06/ 09/2019 Coram: Hon. C. M. Kisongo, DR For Applicant: Mr. Yusuph Mathias Advocate For Respondents: Mr. Remetius Masala Advocate for Mahale Advocate RMA: Bukuku COURT: Delivered ruling in the presence of Mr. Yusuph Mathias Advocate for Applicant also holding brief of Mr. Mahale Advocate for Respondent. C. M. Kisongo DEPUTY REGISTRAR 06/ 09/2019