MISC

© THE JUDICIARY OFTANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OFTANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) MISCELLANEOUS LAND APPLICATION NO. 14 OF 2023 MANASE H SOGOMBA COMPLAINANT I APPELLANT/ APPLICANT I PLAINTIFF VERSUS GERVAS GILAGIZA AND OTHERS RESPONDENT I DEFENDANT RULING Fly Notes Facts Ratio Decidendi 24th of July 2024 Hon. RWIZILE.: This application is for extension of time to file an appeal before this court. It traces its origins in Land Application No. 30 of 2022, filed by the applicant Manase Sogomba, against the respondents at the District Land and Housing Tribunal of Kigorna (to be referred herein as the Tribunal). According to the ruling of the tribunal, originally, the applicant had unsuccessfully filed a land dispute before the Msambara Ward Tribunal claiming against the respondent a piece of land. His application No. 4 of 2007 was dismissed. His attempt to appeal to the Tribunal failed. His appeal No. 226 of 2020 was dismissed. The applicant did not rest, he filed appeal No. 10 of 2021 before this court, which unfortunately suffered similar fate. The impugned application was filed in turn. The tribunal dismissed the same on ground that it was res judicata. It did so, upon sustaining an objection to that effect on 18th December 2022. Still, not satisfied, the applicant desired to appeal to this court, but was late to do so. This application therefore is an attempt to coax this court extend time for him to file an appeal. Naturally, the application for extension of time, is filed with a chamber summons supported by an affidavit stating grounds for which the application may be granted. His prayer is for the court to extend time within which the applicant can file an appeal out of time in Land case No. 30/2022 of District Land and Housing Tribunal ofKasulu. Page. l Hon. AUGUSTINE RWIZILE ,_ At the hearing, the applicant was in the services of Mr. Hamis Kimilomilo, learned advocate, while the respondents were under the services of Mr. Method Kabuguzi learned advocate. Mr. Hamis argued that the decision of the Tribunal was made on 08th December 2022 in land application No. 30 of 2022, where it was decided by the tribunal, and it was done after the preliminary of objection on res judicata was sustained. The applicant, he added, was not satisfied with the decision and lodged his appeal before the High Court on 23rd January 2023. Upon filing, he waited for a long time, until when he was called on 14th March 2023 by the court and was told, his appeal was rejected because it was out of time. He was advised to file an application for extension of time. According to the learned counsel, on 24th March 2023, this application was filed online, and the physical document was stamped on 12th April 2023, which was out of time for two days when he filed his appeal on 23rd January 2023. In the aggregate, he said, the application was delayed for 10 days. The learned counsel prayed the application be granted. On his part, Mr. Kabuguzi, argued that it was delayed for 124 days. That is from 8th December 2022 when the judgement was delivered. According to him, it was an inordinate delay. He further said, the applicant did not account for all days of delay. Further, he added that, he did not have evidence to prove all he argued, because he did not annex any document showing how he filed this application online and it was rejected. He therefore prayed; the application be dismissed with costs. I have considered the arguments by the learned counsel for the parties. It is as clear as crystal that extension of time is granted when sufficient cause has been shown, and/or that the applicant has accounted for each day of delay, as held in the case of Wambura Waryuba v. The Principal Secretary Ministry of Finance & Another. (CAT), Civil Application No. 320/01 of 2020, on page 8; - " ... it is trite law that, in an application for extension of time, the applicant should account for each day of delay, andfailure to do so would result into the dismissal of the application" Section41(2) of The Land Disputes Courts Act, [CAP. 216 R.E. 2019] provides, the appeal originating from the tribunal to this court, has to be filed within forty-five days after the decision. The applicant ought to file his appeal in 45 days after the judgment date. The record has it that, the judgment was delivered on 8th December 2022. The application for extension of time was filed on 24th March 2023. The reasons for delay must be as I have shown before, stated in the affidavit supporting the application. The same, should as a matter of procedure be traversed at the hearing. Apparently, the affidavit in support states as follows for avoidance of doubt; l. That, I am the applicant in this application therefore conversant with all facts which I depone hereunder. 2. That, I filed Land case No. 30/2022 before District Land and Housing Tribunal of Kasulu and the respondent brought preliminary objection and the tribunal heard the same and dismissed the suit on 08.12.2022. 3. That, the applicant was aggrieved by the decision and went to the advocate for preparation of the petition of appeal and he filed the same on 23.01.2023 to the high court of Tanzania at Kigoma and the RMA told me to wait until he calls me after admission. Page.2 Hon. AUGUSTINE RWIZILE 4. That, it takes days up to March 14th, 2023, when I went to the high court to ask the continuation of my appeal and they answered me that it was not admitted because it was time barred. Upon telling that it is out of time, they did not state how many days elapsed and I went back to the advocate for drafting this application, but I knew that the appeal was filed on time. 5. That, as the result of the aforesaid applicant's delay in lodging the appeal was not deliberate or intentional but rather for reasons aforesaid which were beyond their control and hence it is interest of Justice to pardon the delay and allow the application so as to attain substantialjustice. The above in my view does not justify and actually does not clearly show the reasons for delay and the amount of delay. Extension of time, though in the absolute discretion of the court, still, the applicant has to seriously show how such delay occurred. That, it occurred on the fault that is not of his own. This is lacking in the application. It is not therefore supportable. The applicant, I dare to say was sloppy. Accordingly, the application for extension of time is dismissed with costs. Dated at KIGOMA ZONE this 24th of July 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE