MAGRETH YOHANA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO. 7225 OF 2024 (Arising from Misc. Land Application No. 105 of 2019 before the District Land and Housing Tribunal for Singida) MAGRETH YOHANA HAMISI (The Administratrix of the Estate of the Late Yohana Hamisi)................................ APPLICANT VERSUS JUMANNE NG'WANDI.................................................... RESPONDENT RULING Date of last order: 18/10/2024 Date of ruling: 30/10/2024 MASABO, J.:- The ruling is in respect of an application for extension of time within which to file an appeal out of time. It is made under section 41(2) of the Land Disputes Courts Act, Cap. 216 R. E. 2019. The application is accompanied by the applicant's affidavit from which it is deciphered that the respondent successfully sued the applicant in Land Application No. 105 of 2019 before the District Land and Housing Tribunal for Singida (the trial tribunal) over a parcel of land located at Ntondo village, Msisi Ward within Singida Region. Aggrieved by the decision of the trial tribunal the applicant filed an appeal in this court on 10th November 2021. However, the same did not bear fruits as its documents were lost by this court during the transfer of its seat from its Page 1 of 7 old building to the Integrated Justice Centre (IJC). After complaining to the authorities, she was advised to seek leave for an extension of time so as to refile her appeal. Hence, the present application. The application was contested by the respondent through a counter affidavit filed in this court on 02nd June 2024. The hearing of the application proceeded by way of written submission. The applicant appeared in person whereas the respondent was represented by Ms. Neema Ahmed, learned advocate, who drew gratis and filed the reply submissions. Submitting in support of the application, the applicant submitted that she is blameless for the delay because, after the tribunal's decision, she timely filed her appeal but it was misplaced and even though she made endless efforts to trace them, nothing was recovered. She later on complained to the Deputy Registrar of this court who confirmed the loss and advised her to file an application for extension of time so that she could be allowed to file her appeal out of time and she has now done do. In conclusion, she prayed that it is in the interest of justice that her application be allowed. In reply, Ms. Ahmed adopted the respondent's counter affidavit and submitted that the application is devoid of merit and should not be granted. The applicant has not proved whether she actually filed the appeal on time as asserted. Apart from her averment, there is no concrete evidence that she indeed filed the appeal in this court. Had she filed it, she could have submitted documents supporting her claim but she did not. Ms. Ahmed narrated the procedures applicable in filing an appeal from the district land Page 2 of 7 and housing tribunals and argued that the averments made by the applicant are not true because had she truly filed an appeal she could have produced, in support of the application, a copy of the petition of appeal and an acknowledgement of receipt of payment of the filing fees. In fortification of her submission, she cited the case of Misungwi Shilumba vs Kanuda Njile Pc Civil Appeal No. 13 of 2019 [TZHC 2376 TanzLII where it was held that a document is deemed to be filed in court when payment is done and the proof of payment of fees is exhibited by the exchequer receipt. Regarding the letter written to the Deputy Registrar and the reply thereto, Ms. Ahmed argued that the reply does not confirm the alleged loss of records. Rather it shows that the Registrar received the letter and advised the applicant to apply for an extension of time. In the alternative, Ms. Ahmed submitted that the applicant did not account for each day of delay. As per affidavit, the judgment that has aggrieved her was delivered on 7/10/2021 and the letter of the Deputy Registrar which advised her to file an application for extension of time was availed to her on 25/11/2022. However, she never took any step until 28/03/2024 when she filed the instant application. Thus, she had to account for these days of delay but she miserably failed contrary to the well-established principle as stated in Lyamuya Construction Company Limited vs Board of Registered of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010 [2010] TZCA 4 TanzLII. In conclusion, Ms. Ahmed prayed that the application be dismissed with costs as the applicant has failed to substantiate it and to account for the days of delay. Page 3 of 7 I have thoroughly examined the application and its accompanying documents which I have keenly read alongside the respondent's counter affidavit and the submissions by the parties. The sole issue for determination in this application is whether it has merit and should be granted. Section 41(1) of the Land Courts Disputes Act which has been used to move this court provides that the court may extend the time to file an appeal upon a good cause being shown by the applicant. In light of this and similar provisions, the law is now settled that, granting of leave for extension of time lies in the discretionary powers of the court and it is only exercised upon a good cause being demonstrated. As stated in the case of Tanga Cement Company Ltd vs. Jumanne D. Masangwa and Amos. Mwalwanda, Civil Application No. 6 of 2001 [2004] TZCA 4, TanzLII:- "It is trite law that an application for extension of time is entirely in the discretion of the Court to grant or refuse it. This unfettered discretion however has to be exercised judicially, and the overriding consideration is that there must be sufficient cause for doing so. What amounts to sufficient cause has not been defined. From the decided cases a number of factors have to be taken into account, including whether or not the application was brought promptly; the absence of any valid explanation for the delay; lack of diligence on the part of the applicant." These factors were further amplified in the case of Lyamuya Construction Company Ltd Versus the Board of Registered Trustees of Young Women's Christian Association of Tanzania (supra) where, as rightly submitted by Ms. Ahmed, it was held that a good cause is established by looking at such factors as the duration of delay, that is, whether the delay is not inordinate; whether the applicant has sufficiently accounted for the Page 4 of 7 delay; whether the applicant has demonstrated diligence and not apathy, negligence or sloppiness in the prosecution of the action he intends to take; or whether there exists a point of law of sufficient importance such as the illegality of the decision sought to be challenged. Thus, in this case, it has to be determined whether the applicant has demonstrated a good cause warranting the leave for extension of time. As shown in the prelude, the appeal intended to be filed if the present application sails will be challenging the decision delivered by the trial tribunal on 7th October 2021. As per section 41 of section 41(1) of the Land Disputes Courts Act which regulates appeals from the district land and housing tribunals to the high court, the time limitation for filing such appeals is 45 days from the date of delivery of impugned decision. In the matter at hand this period, reckoned from 7th October 2021, lapsed on 20th November 2021. The present application appears to have landed in court on 27th March 2024. By then, about 2 years and 6 months had lapsed since the date of the impugned judgment. This is an inordinate delay and going by the above principle, it is innexusable unless the applicant has fully accounted for each of these days. Did she sufficiently account for them? The applicant has deponed and passionately submitted that she bears no blame for the delay as it was wholly occasioned by this court. She has deposed that the sole reason for the delay is the loss of the record she had prepared and it was occasioned by the registry of this court. Thus, she cannot be condemned as she did not occasion it. The documents appended to her affidavit are self-explanatory and supportive of her assertion as regards the loss of her documents and the steps she took in pursuing her Page 5 of 7 right. It is discerned from these correspondences that after the documents were presented and vanished, she wrote a letter to the Deputy Registrar on 20/10/2022 and on 25/11/2022 she received the reply thereto both letters are appended to her affidavit. In my firm and considered view, the delay from the date of the impugned decision on 7th October 2021 to the date when the applicant received the reply from the Deputy Registrar on 25th November 2022 is excusable as from the materials provided, it has been fully accounted for. From the records in the electronic case management system (eCMS) it is deciphered that, the instant application landed in this court on 3rd April 2024 about one year and 3 months from the date when the applicant was furnished with the letter of the Deputy Registrar directing her to lodge an application for extension of time. This period ought to have been accounted for but, inexplicably, the applicant's affidavit is conspicuously silent on these dates suggesting that she retreated and sat on her right. It is a cardinal law in our jurisdiction that, in an application for extension of time, the applicant must fully account for each day of the delay even if it is just a single day (see Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported); Charles Richard Kombe t/a Building vs Evarani Mtungi and 2 Others (Civil Appeal No. 38 of 2012) [2017] TZCA 153 TanzLII, Wambele Mtumwa Shahame vs Mohamed Hamis (Civil Reference No. 8 of 2016) [2018] TZCA 39 TanzLII and Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another (Civil Appeal No. 82 of 2017) [2018] TZCA 297 TanzLII. The applicant was, therefore, obligated to fully account for all delay and not to just account Page 6 of 7 for half of it as she did. Her omission to account for the 15 months reckoned from 25th November 2022 to the date she filed the instant appeal is fatal and injurious to her application as the leave cannot be granted if the delay is not fully accounted for. Accordingly, the application fails and is dismissed with costs for want of a good cause. DATED and DELIVERED at DODOMA this 30th day of October 2024. J. L. MASABO JUDGE Page 7 of 7