20161220 TZHC Arusha

I, IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ·1•,1·· ':, IN THE. DISTRICT REGISTRY OF ARUSHA MISC. LAND• APPLICATION NO. 85 OF 2016 (C/F High Court Based civil case no 18 of 1992) MARIAM IDD (As an Administratix of The Estate of the Late Abubakari Omari) ............................APPLICANT Versus ABDULRAZACK OMARY LAIZER As administrator of the Estate of the late Abubakari Omari ........................................... 1 st RESPONDENT RODRICK HUMPHREY JONAS ................................ 2N°RESPONDENT RULING DR. M.OPIYO, l The applicant through services of Mr. Loomu Ojare and Company advocate filed a chamber summons made under section 11 (1) of the Appellate Jurisdiction Act, Cap 141. R.E 2002. The orders being sought are:- (a) An extension of time within which to file application for leave to appeal to the Court of Appeal of Tanzania against the judgment and decree of this honourable court in Civil case No 1B of 1992. (b) That the costs of this application be in the cause. (c) Any other order (s) that this honourable court may deem fit and just to grant. 1 The application is supported by the affidavit of Mr. Fadhili Nangawe, learned advocate. The application was argued by the way of written submission, Arguing the application, the learned counsel for the applicant submitted that the Applicant in this application seeks for an order of extension of time within which to file an application for leave to appeal to the Court of Appeal of Tanzania against the judgment and decree of this honourable Court in Civil Case No: 1B of 1992. It was the learned counsel's argument that the crux of the Applicant's application is essentially that she appealed two times to the Court of Appeal of Tanzania against the judgment and decree rendered against her in Civil Case No: 1B of 1992 dated 12/7/2012. The said Appeals to the Court of Appeal of Tanzania are Civil Appeal No: 20 of 2013 and Civil Appeal No: 42 of 2015. Both the said appeals were struck out on grounds of technicalities. He further argued that after the striking out of Civil Appeal No: 42 of 2015 by the Court of Appeal of Tanzania on 29/9/2015, the Applicant intention was to restart the appeal process afresh. Consequently, on 5/10/2015, the Applicant filed in this honourable Court, Misc. Civil Application No: 203 of 2015, seeking for extension of time within which to file a Notice of Appeal of intention to appeal to the Court of Appeal of Tanzania. The said application was granted on 22/4/2016 and the Applicant filed the requisite Notice of Appeal on 3/5/2015. · 2 The learned counsel further submitted that in the two appeals instituted by the Applicant before the Court of Appeal of Tanzania, i.e Civil Appeal No: 20 of 2013 and Civil Appeal No: 82 of 2014; neither the Court of Appeal itself nor the Respondent's counsel raised the issue of absence of leave of appeal therein and that the Applicant has never at any point in time filed application for leave to appeal since she started the appeal process because her Advocates genuinely believed that the matter she intended to appeal against, that is High Court of Tanzania at Arusha Civil Case No: 18 of 1992 was filed and registered as an ordinary civil case long before the establishment of the Land Division of the High Court. He said the Court of Appeal of Tanzania in the case of BAVON JOHN MREMA v. SILVESTER PAUL MREMA, Civil Appeal No: 54 of 2015 dated 19/2/2016; clarified the position on requirement of leave to appeal to the Court of Appeal of Tanzania on all land matters regardless of the time and mode the matter or suit was filed so long as the subject matter is land. The said decision of the Court of Appeal of Tanzania jolted the Applicant and her counsel into action hence the filing of the present application before this honourable Court on 22/4/2016, now seeking for extension of time within which to file the requisite application for leave to appeal. On the issue of good or sufficient cause he said that the Applicant's intended appeal is based on serious illegalities which need the intervention of the Court of Appeal of Tanzania, he said a cursory look thereof shows that all the 3 substantive grounds of appeal raises serious points of law constituting serious illegalities. He added that it is now generally agreed 3 and the Court of Appeal of Tanzania has already held that an issue of illegality in a decision sought to be challenged on appeal constitutes good or sufficient cause for extension of time. And the leading case in that chain or sea of judicial authorities is the case of PRINCIPAL SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE v. DEVRAM VALAMBHIA (1992) T.L.R. wherein at page 189 it was held as follows:- ''In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending time for the purpose, to ascertain the point and if the alleged illegality be established to take appropriate measure to put the matter and record right. " He said again in a case involving the same parties in this application; Mariam Idd (As Administrator of the Estate of the late Mbaraka Omari) V. Abdulrazack Omary Laizer (As Administrator of the Estate of the late Abubakar Omari) and Jonas Humphrey Jonas, Civil Application no: 29 of 2014 (unreported), wherein at page 7 last paragraph thereof it is held: "The legal position is settled. When there is an a/legation of illegality, it is important to give an oppqrtunity to the party making such a/legation to have the issue considered. " 4 Again, the Court of Appeal of Tanzania in the case of Ezrom Magesa Maryogo V. Kassim Mohamed Said and Another Civil Application No: 227 of 2015the Court held as follows:-. "Even if, there was an attributed negligence on the initial advocate of the applicant to timely lodge an application for leave to appeal, the applicant deserves the grant of enlargement of time to seek leave on the complaint of illegality of the impugned decision which has not been vigorously contested by the 1st respondent. The complaint raising possible illegality constitutes good cause whether or not a reasonable explanation has been given to account for the de/av. '( emphasis supplied). He did pray that the Applican~'s application for extension of time within which to file application for l~ave to appeal to the Court of Appeal of Tanzania be allowed with costs.:I Mr.Materu on his part strongly opposed the application. He submitted that the applicants has not advanced any reasons leave alone sufficient reasons to warrant an order for extension of time, he said that the learned counsel for the applicant is aware that for an appeal relating to land dispute to stand in the Court of Appeal leave of the High Court is mandatory. It was his submission that the law is very clear that in any appeal relating to land matters leave is a mandatory requirement before one can appeal to the Court of Appeal. He said that. the position is enumerated in the Land 5 Disputes Court's Act which came into force in 1st October 2003 through the Government Notice No 223/2003 and that the striking out of the appeals, civil appeal No 20 of 2013 and appeal No 82 of 2014 were both filed after the enactment of the Land Disputes Court Act, thus the issue raised by the learned counsel for the applicant that neither the court nor the respondent has raised the issue of absence of leave cannot be termed as a sufficient cause for delay, to support his arguments he cited the case of The National Bank of Commerce Versus Sadrudin Meighji (1998) TLR 503 where it was held that "it is a common knowledge and elementary too that counsel's inadvertence inaction or lapse which goes to the very root of the matter is a serious matter amounting to negligence on the party of the counsel. This in our view would not constitute sufficient reason of the court .. " On the issue of Illegality, he argued that, the applicant's counsel was aware of illegalities since July, 2012 when the said decision was delivered. He said the counsel ought to have exercised due diligence from the time he became aware of the illegalities to ensure that the appeal is filed in time and not to wait for four years to pass until the execution process has been completed before he came out with the present application. He added that the matter before this court has been overtaken by event as the execution has already been completed since 20th November, 2015. He prayed for the application to be dismissed with costs. 6 After the submission above, the main issue for consideration by this court is whether the good cause has been established. Section 11 of the Appellate Jurisdiction Act provides:- "(1) Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a Judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired" This court has wide discretionary powers to grant extension of time as per the provision above, however it is upon a party to provide the relevant material in order for the court to exercise its discretion, see the case of the case of Regional Manager Tanroads Kagera Vs Ruaha Concrete Company Limited, Civil application No 96 of 2007 Court of Appeal of Tanzania at Dar es salaam. (Unreported) Nsekela JA, held that:- "What constitutes ''sufficient reason" cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must place before the Court material which will move the Court to exercise its Judicial discretion in order to extend the time limited by the rules. 7 • Also in the case of Ratma v Cumarasamy and Another (1964) 3 All ER 933, Lord Guest had this toI say at page 935A "The rules of court must, !prima facie be obeyed, and, in order to Justify a court extending. the time during which some step in ' procedure requires to be taken there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in brea~h would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conduct of litigation" While the advertence is not sufficient cause for delay, extension of time I may be granted where the party has raised the issue of illegality. The legal position is settled that when' there is an allegation of illegality, it is important to give an opportun:ity to the party making such allegation to have the issue considered as argued by counsel for the applicant. In the I caseof VIP Engineering and marketing Limited V Citibank Tanzania Limited, consolidated civil references No, 6, 7 and 8 of 2006 (unreported) it was stated that as follows:- i I " We have already accepted it as established law in this country that where the point of law at issue is the illegality or otherwise of the decision being challenged, that by itself constitutes" ''sufficient reasons" within the meaning of Rule 8 of the Rules I for extending time" 8 This position was reiterated in Attorney General V Consolidated Holding Corporation and Another, Civil Application No 26 of 2014, it was stated thus:- "With regard to the last point contentions as to Hlegality or otherwise of the challenged decision have now been accepted as a good cause of extension of time" In Arunaben Chaggan Mistry V Naushad Mohamed Hussein and Others, Civil Application No 06 of 2016(unreported) it was held that:- "In view of the fact that there is an alleged illegality/ I find it appropriate under the circumstances to allow the application on the basis of this point so that the issue may be considered" For the fore going reasons the applicants have demonstrated good · cause warranting grant of the application. The applicants must lodge an application for leave within fourteen (14) days from the date of this ruling. Cost to be in the cause. (Sgd) DR. M. OPIYO, JUDGE 14/12/2016 I hereby certify this to be a true copy of the original. AG. DEPUTY REGISTRAR ARUS~A _ ,1- _6 I t p_() i )- -z/'-- 9