MELAU MAUNA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT ARUSHA MISCELLANEOUS LAND APPLICATION NO. 105 OF 2023 MELAU MAUNA COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS EVANGELICAL LUTHERAN CHURCH OF TANZANIA NORTH CENTRAL DIOCESE RESPONDENT / DEFENDANT RULING BADE,J, 03/09/2024 & 22/11/2024 BADE,J. This is an Application for the grant of an order for an extension of time within which the Applicants can file notice of appeal out of time to challenge the order of Hon. DRNkwabi, vide Execution in Land Case No. 13 of2004. The Application is made under section II (1) of the Appellate Jurisdiction Act (Cap 141 R. E. 2019) through a Chamber Summons supported by the Applicants’ joint affidavit. The Applicant’s affidavit has canvassed various facts in support of the Application explaining the reasons for seeking an extension of time. The Respondent filed their separate counter affidavits to oppose the Application. To give context to the Application, I revisited the facts of the case albeit briefly. It appears that Applicants instituted a suit before this Court (Nchimbi, J.) claiming ownership over a piece of land. The judgment was entered in the favour of the Respondents. Respondents filed an Application for execution against the Applicants, vide Execution Land Case No. 13 of 2004 before Nkwabi, J. then a Deputy Registrar. The Ruling was delivered on 20/11/2019. The Application was heard ex-parte following the non-appearance of the Applicants. The Applicants were aggrieved by the ex-parte Ruling, they made an Application for Revision before the Court of Appeal. However, their application was struck out for being incompetent on 23/08/2023. They wanted to appeal to the Court of Appeal but unfortunately, they were out of time, hence they decided to lodge the present Application. This Application was disposed of by way of written submission. The Applicants were represented by Ms. Sara S. Lawena, learned advocate while the 1st Respondent was represented by Ms. Lillian Justo, learned advocate. The 2nd Respondent was represented by Ms. Christabella Madembwe, State Attorney. Ms. Lawena submitted that paragraphs 4 to 11 of the Applicants’ affidavit have specifically stated the reasons for the Applicants’ delay in filing their appeal to the Court of Appeal within the prescribed period of 60 days. The Applicants were never served the notice to show cause why execution should not be issued and thus when the Application for execution was granted on 10/11/2019, they were not aware of the Ruling, not until 09/12/2019 when the notice of eviction was annexed to their premises. Ms. Lawena further argues that the Applicants were served with the said Ruling on 11/12/2019 and they started to take further action to challenge the said decision. They argue that they have accounted for the days of delay. A further contention by Ms. Lawena is that the Applicants filed an Application for Revision against the Ruling on 20/12/2019, so they used a total of 10 days preparing the said Application. That, from 20th December to 23rd August 2023 the Application was pending before the Court of Appeal and on the date when it was called for hearing the Applicants conceded to the preliminary objection that the Application for Revision was brought as an alternative to appeal and thus it was struck out. Moreover, Ms. Lawena submitted that the intended appeal is meritorious as the ground for appeal among others is the failure by the Deputy Registrar to direct himself on the propriety of the service of the notice to the Applicants with the consequence of denying them the right to be heard. Ms. Lawena further contended that this court has the power to grant an extension of time either before or after the expiration of the time to do such an act. To support his position, he cited section 11 (1) of the Appellate Jurisdiction Act and the case of Lyamuya Construction Company Limited vs The Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No.2 of 2010. Ms. Lawena insisted that the Applicants in their affidavit in support of tlie Application have accounted for all days of delay since 09/12/2019 when they became aware of the said order after the court broker annexed the eviction order. They obtained a copy of the order on 11/12/2019 and filed the Application for Revision on 20/12/2019. Further, from 11th December to 20th December 2019 the Applicants used those days to prepare their Application as per paragraphs 5-7 of the Applicants’joint affidavit. Ms. Lawena maintained that counting from 20th December 2019 to 23rd August 2023 when the Application for Revision was struck out, all this period they were awaiting the hearing of the Application. That, the Applicants can not be punished for the filing of the Revision Application as they were diligently prosecuting the Application before the Court of Appeal which was filed within time but unfortunately was struck out for being incompetent as it was filed as an alternative to appeal. To cement her position, she cited the case of Fortuiiatus Masha vs William Shija & Another [1997] TLR 154. Ms. Lawena contended further that the Applicants acted promptly after the Application was struck out on 23/08/2023. They were given a copy of the Order on 28/08/2023 and they used 7 days to prepare and file this Application and on 08/09/2023 it is when it was physically presented in Court. She referred this court to paragraphs 10 and 11 of the Applicants’ affidavit. She insisted that the Applicants acted promptly, and diligently in prosecuting their case, and there were no inordinate delays. She argues that the Applicants intend among other things, to challenge the Ruling and Order of the Deputy Registrar in Execution Application no. 12 of 2004 on the grounds as stated in the intended Memorandum of Appeal, among which is that they were denied the right to be heard when he decided to proceed ex-parte without giving them the right to be heard and that, the decision to order that the 2nd Applicant to pay for general damages by attachment and sell of their properties out of 25 judgment debtors was contrary to the decree that was being executed which ordered all the judgment debtors to pay general damages. Opposing the Application, on the allegation that the Applicant’s delay was occasioned by the waiting for the determination of the Application for Revision which was struck out, Ms. Justo submitted that the omission by the Applicants’ counsel to take reasonable steps was due to ignorance of the law and it is clear that ignorance of the law is no defense. She argues that the failure to take reasonable steps by the counsel for the Applicants depicts negligence, and the reason that the counsel was busy prosecuting the Application for Revision instead of filing an Appeal before the proper court shows negligence and ignorance of the law. Moreover, Ms. Justo argues that it is trite law that advocates must be conversant with the provisions of the law and the defense on failure to adhere to the position of the law is not tenable. To support her argument, she cited the case of Consolidated Holding Corp vs Fauzia S. Nassor, Civil Application No. 107 of 2003. Her further argument is that reasons advanced by the Applicants that they were delayed because their first Application was struck out cannot hold water as the same stands to show negligence on the side of the Applicant’s counsel on failure to be well acquainted with the law. She contends the argument by the Applicants’ counsel that they have accounted for each day of delay is a total misdirection as from 28th day of August 2023 to 8th day of September 2023 it is a total of 11 days. The Applicants’ counsel submitted that they received the copy of the Ruling from the Court of Appeal on 28th September and they used 7 days to prepare the instant Application, and filed the same on 08/09/2023, in her view, from 28th September if you add seven days it means the Application was required to be filed by 04/09/2023, offering that the Applicants did not explain why they filed it on 08/09/2023 after a lapse of4 days which they were also required to account for. She further argues that it is trite law that as far as one wishes to be granted the extension of time they should account for each day of delay. To support her argument, he cited the case of Lyamuya Construction Co. Ltd (supra). She submits that the Applicants were duly served with the notice to show cause which was received on 18/09/2018, and the same was signed by an advocate by the name of Severine Lawena. So the contention that the method used to sei've the Applicants as being an improper serving of the document is baseless and mere words as the document was served and proof of the same was received. Further, there is no proof of how the documents of the said otfice were officially received. The court was duly convinced and satisfied that the said notice to show cause was well received by the Applicants and that is why the court ordered an ex-parte hearing. Ms. Justo added that going caretlilly through the court proceedings, it is obvious that on 26/06/2019 advocate Sang’ka appeared in court and held brief for advocate Lawena, and this proved that the counsel for the Applicants was fully aware of the execution, and for reason best known to them, the Applicants decided to ignore the court summons. On the other hand, Ms. Madembwe adopted the contents of 2nd Respondent counter affidavit to form part of her submission. She submitted that the argument by the Applicants that the cause of their delay is not being served with a notice to show cause is a misconception because the Respondents complied with the requirement of the law as provided for under Order XXI Rule 20 of the Civil Procedure Code, by serving the Applicants with a notice to show cause whereby it was received by their advocate whom they were using his service in the Execution Land Case No. 13 of 2004, going by the name of Severine Lawena. The same was signed on 18/09/2018. Ms. Madembwe’s further contention is that the Applicants through their joint affidavit have failed to prove that there was no inordinate delay. She argues that the Applicants failed to account for and give the reason for the delay of 15 days from 24/08/2023 when the order was ready for collection to 08/09/2024 when they filed this Application. The position of the law as decided by the apex Court is that eveiy day of delay must be accounted for. To support her position, she cited the cases of Lyamuya construction Co. Ltd (supra) and the case of Sebastian Ndaula vs Grace Rwamafa, Civil Application No.04 of 2014 (unreported). Ms. Madembwe insisted that the Applicants disclosed no good reasons that may waiTant this court to extend the time as they have failed to fully account for the 15 days of the delay. Having considered the rival submission by parties, the issue calling for determination before me is whether the Applicants managed to show a good cause to move this court to exercise its Jurisdiction to grant the Application. In the cited case of Lyamuya Construction Co. Ltd (supra) there have been established guidelines to be followed before granting an extension of time which are; 1. The applicant must account for all the period of delay. 2. Delay should not be inordinate. 3. The application must show diligence, and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take. 4. If the court feels that there are other sufficient important reasons such as the illegality of the decision sought to be challenged. The Court will exercise its discretion in favor of the Applicants only upon showing good cause for the delay. The term “good cause” having not been defined by the law, cannot be laid by any hard and fast rules but is dependent upon the obtaining facts in each case. This stance has been taken by the Court of Appeal in a number of its decisions. See for instance the case of Vodacom Foundation vs Commissioner General (TRA), Civil Application No. 107/20 of 2017(unreported). Going through the record of this Application, it’s clear that the Ruling that the Applicants intended to challenge in the Court of Appeal was delivered on 20/11/2019. The notice of motion was filed on 20/12/2019. Applicant s Application for the Revision before the Court of Appeal was struck out on 23/08/2023 and the instant Application was filed on 08/09/2023. From 20/11/2019 when the Ruling was delivered to 20/12/2019 when the Applicants filed the notice of motion they were within the time, as fate would have it, their Application for Revision was struck out on 23/08/2023. So, from the time when the Ruling was delivered, to the time when the Applicants filed the notice of motion and when the Revision Application was pending up to when the Application was struck out, such period is termed as technical delay, and the Applicants are not required to account for that period. In the case of Fortunatus Masha vs William Shija and Another [1999] TLR 154 it was held that: "A distinction had to be drawn between case involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetentfor one or another reason and afresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement ofthe ruling ofthe court striking out thefirst appeal. In these circumstances an extension oftime ought to be granted”. Now, the Applicants are required to account for the days of delay from when the Application for Revision was struck out on 23/08/2023 to 08/09/2023 when they filed the instant Application which is about 16 days. On paragraph 10 of the Applicants’ joint affidavit, they stated that they obtained the copy of the order that struck out their Application on 28/08/2023 and under paragraph 11 of the said affidavit they stated that they used 7 days on the preparation of necessary documents to file this Application. The second Respondent through their counter affidavit under paragraph 6 is claiming that the copy of the Order was ready for collection on 24/08/2023 and not 28/08/2023 as alleged by the Applicants. Assuming the copy was ready for collection from 24th August, as the Applicants had no proof that they were served with the copy of the Order on 28th August, the Applicants have 15 days to account for. The Applicants argue that they spent 7 days on the preparation of necessary documents to file the instant Application, which in my opinion is a reasonable time, however, the Applicants still have 8 days to account for. In essence, the Applicants have failed to account for the 8 days of delay. For this reason, I am supposed to dismiss their Application, but then again, under paragraph 12 of the Applicants’ joint affidavit, they stated that there is a crucial point in their intended appeal that the Court of Appeal is supposed to look into and make a decision on. Going through the Ruling on Execution Land Case No. 13 of 2004 indeed I can see that the legal point which the Court of Appeal should look into and make its determination. In that Ruling, the total number ofjudgment debtors was 25, but under page 6 of the Ruling, it is only properties owned by Francis Moita and those owned by Herman Moita were ordered to be attached and sold to realize the Award of TZS 25,000,000 out of the 25 judgment debtors. The Ruling is silent on why out of the 25 judgment debtors, only the properties of the two of them were ordered to be attached and sold. I think this issue requires the attention of the Court of Appeal so it can look into it and make a determination. The last principle in the case of Lyamuya Construction Co. Ltd,(supra) allows the court to grant an extension of time even if the applicant failed to account for each day of delay if the court feels that there is a sufficient important reason such as illegality of the decision sought to be challenged. As already explained above, the Ruling of the Deputy Registrar (as he then was) ordering attachment of the properties of only two judgment debtors out of the 25 judgment debtors could, in my considered opinion, constitute an illegality, calling for the attention and determination by the Court of Appeal. The above said, I find the present Application meritorious and accordingly, grant it. The Applicants are accorded thirty (30) days reckoned from the pronouncement of this Ruling within which to lodge their Notice of Appeal. Order accordingly. Dated at ARUSHA this 22nd of November 2024 . V A.Z BADE JUDGE OF THE HIGH COURT