CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA CIVIL APPLICATION NO. 274/08 OF 2024 MASATO MANYAMA...........................................................APPLICANT

VERSUS LUSHAMBA VILLAGE COUNCIL........................................ RESPONDENT (An application for Extension of time for filing Record of Appeal out of time in an Appeal from Judgment and decree in Appeal of the High Court of Tanzania at Mwanza) fMutunqi. J.) dated the 26th day of June, 2014 in Land Appeal No. 73 of 2012

RULING 17lh & 20“’ February, 2025 MURUKE. J.A.: Before me, is an application for extension of time to lodge an appeal out of time, filed by Masato Manyama (the applicant). The application is supported by an affidavit sworn by the applicant himself explaining reason for the delay. The respondent filed replying affidavit sworn by Mr Fransis Wisdom, learned State Attorney, from the office of Solicitor General1to contest the application. For reasons to be adduced latter, the background of this case is of essence. It was however, well summarized by Justice GALEBA J.A., in Civil Appeal No. 43 of 2020, which I wish to adopt as follows:- The applicant, Masato Manyama, on 24th November 2008 filed Land Application No. 55 of 2008, in the District Land and Housing Tribunal for Geita the (DLHT), against the respondent, Lushamba Village Council. In that case, the applicant was claiming Tanzania Shillings 40,000,000.00 as compensation in respect of a piece of land, which he claimed to be his. The land is measuring approximately 10 acres located in Lushamba Village in Sengerema District within Mwanza Region. He also claimed for general damages and costs. As for the respondent, the story was different. The Council had built a Public Secondary School on part of that land on the basis that in 1974, during Operation Vijiji, the land was set aside as communal land for the benefit of all village

members. So, the respondent disputed the claim, and in addition, she raised a preliminary objection that the appellant did not have locus stand in the matter. Based on that objection, the appellant's application was initially dismissed with costs by the DLHT (Mwashambwa, Chairperson) on 3th September 2009. The applicant was dissatisfied with that decision such that he lodged Civil Appeal No. 39 of 2010 to the High Court to challenge the dismissal of his application. That appeal was successful. The DLHT's dismissal order was set aside, because according to the High Court (Sumari, 1, as she then was), the preliminary objection upon which the dismissal was based, was not per se, a pure point of law, as the disputed issue could only be determined upon adducing evidence. In addition, the court directed that the original record of the DLHT be remitted to it, so that parties could be heard on merit before another chairperson. The original record was accordingly remitted to the DLHT, and upon a full trial before another chairperson (Kitungulu chairperson), still the DLHT dismissed the applicant's application with costs for want of merit, on 3rdJuly 2012. The applicant could not however give in easily, he approached the High Court and filed Land Appeal No. 73 of 2012, but that appeal was dismissed with costs for want of merit on 26thJune 2014 by the High Court (Mutungi J., as she then

was). That order, like several others preceding it, aggrieved the applicant. He thus made up his mind to appeal to this Court. In order to exercise his right of appeal, the applicant approached the same High Court, and file Miscellaneous Land Application No. 113 of 2014, severing leave of the High Court in order to appeal to this Court. The High Court, heard the matter ex parte but that notwithstanding, still the applicant lost. The learned Judge found the application devoid of merit; thus, leave to appeal was accordingly refused. The applicant was not satisfied with the High Court Judge decision, thus filed Civil Appeal No. 43 of 2020, that was struck out for being incompetent by the Court on 24/02/2023. It was then followed with Civil Application No. 345/08/2023 for extension of time to file application for revision to the Court of Appeal, that was marked withdrawn on 13 February 2024 upon applicant own request. Wishing to persue his rights further, applicant filed present application for extension of time to appeal to the Court on 26/03/2024. When the application came for hearing, the applicant was in person not represented, whereas the respondent was represented by Mr. Gureni Mapande assisted by Mr. Felician Daniel, both learned State Attorney. When the applicant was given the flow, he rightly adopted his Notice of motion, affidavit in support of the application, and

written submission filed on 15/5/2024 to support his application. He further insisted that he has been in Court for almost 10 years trying to challenge the decision of High Court that dismissed his appeal on 26/06/2014. With that brief submission, applicant urged me to allow the application. On the other hand, Mr. Mapande objected grant of extension of time on the following reasons: One, applicant has not accounted for 42 days passed from 13/02/2024 when application No. 345/08/2023 was withdrawn, to 26/03/2024, when present application was filed. Two, Applicant did not show diligent as he filed present application after 42 day. Three, Delay of 42 today was inordinate that suggest that, applicant has not bothered to take action promptly. While citing the case of Lyamuya Construction Company Limited vs. Registered Trustee of Young Christian Association of Tanzania in Civil Application No. 2 of 2010, page 6 & 7 and case of Jubilee Insurance vs. Mohamed Samir Khan, Civil application No. 432/2020, at page 12, (both unreported) the respondent counsel implored me to dismiss the application for lack of merit. In rejoinder, Mr. Masatu Manyama, repeated that, he has been in Court for more than 10 years trying to challenge decision of Mutungi J. dated 26/06/2014. It is time now he be granted extension for him to file appeal. On being asked by the Court as to whether in the affidavit

in support of the application there is any paragraph that has explained as to what happened from 13/02/2024 to the date of filing present application, he quickly said there is none. He however pressed for the application to be allowed. It is settled position of the law that, extension of time is a matter of the discretion of the Court which must be exercise judiciously according to the facts of each case. In application for extension of time, the court is required to consider whether or not sufficient cause for delay has been shown to warrant extension. There is however, no definition of what amounts to "sufficient cause" but in determining whether, in a particular case sufficient cause has been established or not, a number of factors have to be taken into account depending on the circumstances of that particular case. The court has to look for instance, at whether the applicant was diligent, reason for delay, the length of delay, the degree of prejudice to the respondent if time is extended, whether there is a point of law or illegality or other wise of the impugned decision. In general, it is a matter of discretion on the part of the Court, exercisable judiciously and flexibly by considering the relevant factors of the case. In the case of Phares Patson Matenya (As administrator of the estate of the late Patson Matonya) v. The Registrar, Industrial Court of Tanzania and two

others, Civil Reference No. 26 of 2019 [2023] TZCA 160 (29 March 2023), TANZLII the Court held that: "Undoubtedly, it has notbeenpossible to lay down an invariable definition o fgood cause to guide the exercise o f the Courts discretion. Nevertheless, the Court has consistently looked at a myriad o f factors such as the length o f delay involved, reason for delay; the degree o f Prejudice, if any, that each party stands to suffer depending on how the Court exercises it's discretion the conduct o f the parties; the need to balance the interest o f a party who has a decision in his or her favour against the interest o f a party who has constitutionally under pinned right o f appeal; whether there is point o f such as illegality o f the decision to be challenged." Applying the above principal in the current application, as explained above, the law is settled. In an application for extension of time each day passed beyond prescribed time has to be counted for. In the case of Bushiri Hassan vs. Latifa Lukio Mashayo, and application No. 3 of 2007 (unreported) Court stressed that: "Delay, o f even a single day, has to be accounted for otherwise there would be no point o f having rules prescribing periods within which certain steps have to be taken." In the application at hand, applicant has admitted, and as correctly submitted by the learned State Attorney that from 13/02/2024

when application for extension of time to file review was withdrawn upon the applicant's request, to 26/03/2024 when present application was filed (period of 41 days) have not been countered for. Failure to account for 41 days by the applicant is inordinate delay in the circumstances of this case. Applicant has been in Court corridor for more than 10 years trying to challenge High Court decision, the above notwithstanding, he ought to have acted promptly and not to unreasonably await.for a long time of 41 days to file application for extension of time. I have seriously gone through the affidavit of the applicant supporting the application and noted that, apart from narrating series of appeals and applications filed, there is no reasons let alone sufficient reasons, therein to justify the delay. From what I have discussed above, I find the application without merit it is therefore dismissed. DATED at MWANZA this 17th day of February, 2025. Z. G. MURUKE

JUSTICE OF APPEAL The Ruling delivered this 20thday of February, 2025 in the presence of the applicant in person and Mr. Gureni Mapande, learned State Attorney for the respondent, is hereby certified as a true copy of the original. R. W. CHAUNGU

DEPUTY REGISTRAR

COURT OF APPEAL