MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA MISC. CIVIL APPLICATION NO. 207 OF 2023 (C/F District Land and Housing Tribunal of Arusha Miscellaneous application No. 225 of 2022 and 112 of 2020) MARYAM ABDUL MUQBEL............................................................ APPLICANT VERSUS KILICRAALS ADVENTURE LTD.................................................1st RESPONDENT NMB BANK PLC.......................... ............................................ 2nd RESPONDENT RULING 28/05/2024 & 26/06/2024 NDUMBARO, J Before me, is an application for an extension of time brought by the applicant under the provision of section 14 (1) of the Law of Limitation Act Cap 89 R.E 2019. The applicant is seeking an extension of time to file an appeal against the decision of the District Land and Housing Tribunal of Arusha Miscellaneous application No. 112 of 2020. The application is further supported by an affidavit duly sworn by the applicant where a series of events have been narrated culminating in the delay of the applicant to file his appeal within time. The matter was heard exparte as 1st respondent did not intend to file a counter affidavit to oppose and the second respondent, never showed appearance since the matter was instituted. The applicant's affidavit is that, the applicant herein was the applicant in miscellaneous application No. 112 of 2020 and 225/22 District Land and Housing Tribunal of Arusha which proceeded with interparty seeking declaration that she is a legal owner of a residential home bought in 2017 by paying 55,000,000 in auction sale conducted by CRDB Bank. The matter was Dismissed in the District Land and Housing Tribunal for nonappearance. The applicant went on to state that, the judgment in the above-captioned matter was delivered on the 5th day of July 2023 before Honourable F Mdachi in his absence and she was not aware till 9 November and found that. The application was out of time because the applicant failed to keep abreast of a case due to a domestic predicament out of her control. The applicant wishes to challenge the judgment for the reason that the said judgment is tainted with illegalities with an overwhelming chance of success. Therefore, the applicant prays for this court to grant an extension of time so that may file an appeal. The first respondent did not intend to counter the affidavit and the second respondent did not show up since the matter was filed before this court. On submission in support of his application, the applicant enjoyed the service of Advocate Yoyo Asubuhi, the first respondent who was represented by Manjane Fred Lusenga. The applicant's counsel submitted that his client intends to challenge the judgment delivered by the District Land and Housing Tribunal of Arusha in miscellaneous application No. 112 of 2020 and 225/22 respectively. The counsel argued they delayed filing the said appeal; however, the delay was due to reasons that she was not aware, she was out of Arusha due to a family problem, and she became aware on 9 November 2023. In arguing his application put forward two hypotheticals to guide the submission; - i) whether the application has substance in law, and ii) whether for interest of justice should be granted On the first hypothetical argued, the application has substance in law because extending time is judicial discretion which needs to be exercised judiciary on considering sufficient reasons adduced by the applicant. Argued, in paragraphs 5,6,7 and 8 the applicant pleaded that she was not aware of the final order till November 9th 2023 when he took a necessary step and his lawyer fails to act in the absence of client instruction. Lack of knowledge claimed to be sufficient reason. The second reason argued there is illegality in the intended appeal, that the matter was not heard, and the right to be heard is the major right in appeal. The case was dismissed for want of prosecution because the advocate was in another court, and there will be no prejudice against the respondent if this application is granted. Hence pray to be declared the lawful owner of the suit property. Having considered the applicant's submissions, the question is whether the applicant has exhibited good cause to warrant this court to grant the relief sought. In the instant application, the judgment which the applicant intends to challenge was delivered on the 15/6/2023 whereas this application was filed by the applicant on 29/09/2023. It has been a well-settled position of the law that, a party seeking for extension of time must sufficiently account for each day of delay. See the decision in the case of Sebastian Ndaula vs Grace Rwamafe, Civil Appeal No. 4 of 2014 CAT at Mbeya (Reported Tanzlii) where it was held that; "The position o f this court has consistently been to the effect that in an application for extension o f time, the applicant has to account for every day o f delay." On this application, reason was adduced for non-appearance on a hearing date because her advocate was in another court, which I consider not sufficient. Even though that was the fact, he was vested with the duty to follow up the order of the court and inform his client. The advocate confessed that on the hearing date he appeared in another court, this is to say he was aware and did not take the trouble to follow up order of the court thereafter. The applicant cannot claim that, she was not heard while she knew her case was fixed for hearing. It is my view that she was not heard because she chose to appear before another court when the matter was fixed for hearing and never took the trouble to make follow-up thereafter. Therefore, she cannot claim her human right of being heard was denied, rather she chose to make opportunity cost to forgo her right of being heard on the date fixed for hearing of the matter and attend another court. Yet the door was open before the court for her to make a follow-up on what happened but she chose not to do so. Therefore, she cannot claim her human right of being heard was denied. It is trite law that, an application for extension of time is entirely in the discretion of the Court to grant or refuse. This unfettered discretion however has to be exercised judicially and an overriding consideration is that there must be "sufficient cause" for doing so. What amounts to the sufficient cause has not been defined, but it is guided by a number of cases among others the case of Registered Trustees of Bakwata Vs Registered Trustee of Dodoma General Muslim Association Civil Application No. 512/03 of 2019 CAT, page 11 which put 6 down conditions to be considered by the court on granting an extension of time that; i. Applicant must account for all the periods of delay ii. The delay should not be inordinate iii. Applicant show diligence iv. Illegality of decision thought to challenge From decided cases, a number of factors have to be taken into account including; - a) whether or not the application has been brought promptly; b) the absence of any valid explanation for the delay; c) lack of diligence on the part of the applicant and d) illegality. It is my view that despite the fact that the respondent did not oppose the application, the reasons for the delay are not sufficient and not verified. The delay was not counted for, no valid explanation was given and there was no diligence by the applicant. I agree with Mr Yoyo's submission that illegality is a reason for the court to grant an extension of time. However, the illegality raised in this application that the matter was not heard is not sufficient due to the fact that the matter was dismissed for want of prosecution because the advocate did not appear on a fixed date of hearing. He was attending another court. The advocate ought to inform the court or make a follow-up on the court order thereafter, and inform her client. The fact that the advocate was with no instruction to proceed with appeal do not take away the duty to inform client on the date of judgment. I am certain that, a claim of illegality does not constitute a good cause for extension of time. Guided by the submission by the applicant in relation to the application under consideration, this Court is of the view that the alleged illegality can not discerned as a good cause for an extension of time. With due respect, I wish to state at this juncture that, what this court needs to pronounce is only whether sufficient grounds for the extension have been advanced by the applicant, in my view it was not. The applicant has not shown sufficient reasons to warrant an enlargement of time to file his appeal. The application is not allowed. Because the respondent did not defend the application no cost is awarded. It is so ordered. v D. D. NDUMBARO ^\\ "A JUDGE 26/06/2024 9