MISC

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA MISC. LAND APPLICATION NO 20469 OF 2024 (Originating from the Land Appeal No, 22 of 2019 of the High Court of Tanzania at Mtwara) MJAKA AHMADI SAIDI (Administrator of the Estate of the Late AHMADI SAIDI)......................................... ............................... ............... APPLICANT

VERSUS RUKIA SHABANIYUSUFU............................... Is* RESPONDENT MFANGAVU MUSTAFA 2ND RESPONDENT

RULING 13* November & 13^ December, 2024 DING'OHI, J.; Mjaka Ahmadi Saidi, the applicant herein, has filed this application against the above-mentioned respondents for the following orders; i. Extension of time to file a Notice of Appeal out of time, ii. Costs of the suit iii. Any other order (s) or relief (s) this court may deem fit to grant. Page 1 of 10 The affidavit sworn by the applicant supports the application, Mr Willson Edward Ogunde the Respondents' legal officer swore and filed a counter affidavit in opposition to the application. During the hearing, the applicant appeared in person whereas the respondents were represented by the same learned advocate who swore their counter affidavit. This application was disposed of by way of written submissions. A brief background to this application is as follows; The matter that necessitated this application originated from the District Land and Housing Tribunal for Lindi in Land Application No. 8 of 2019. The matter was ended in the favour of the respondents who were declared lawful owners of the land in dispute. Unhappy with that decision, the applicant appealed to this court via Land Appeal No. 22 of 2019. The applicant was unsuccessful. Dissatisfied again with the decision of this court, the applicant filed an appeal in the Court of Appeal. The appeal was struck out for being time-barred. The applicant intends to appeal

further but he found that he did not lodge a notice of appeal, hence the present application. Page 2 of 10 In his submission for this application, the applicant claimed that this application has merit. He argued that the law provides that to succeed in this application the law requires the applicant to demonstrate good cause for the delay. To support that position, the applicant cited the case of Kundah Singh Construction Co. Ltd vs. Peter Ngugi Kamau Misc Labour Application No 11 of 2013 (Unreported). It is the applicants case that once the judgment was pronounced by this court he started to make follow-ups for the copy of the judgment. Being a layman, the applicant thought that he had first to be supplied with a copy of the judgment and there after finding a lawyer for assistance. He further argued that he did not succeed in finding a lawyer until he managed to get Mr Steven S. Tonya whom he had entrusted and gave him all documents to facilitate the process. Unfortunately, that lawyer also passed away. According to the applicant, he contacted the lawyer before he died who assured him that he had done everything. It was after his lawyer's demise, that he found out that the Notice of Appeal was not served when the appeal was already in the hearing before the Court of Appeal. Page 3 of 10 According to the applicant, the act of not serving a notice amounts to a technical delay

which has always been held to be a sufficient ground to condone the delay. The applicant cited the case of Fortunatus Masha vs. William Shija and Another [1997] TLR. 154 to buttress his arguments. The applicant is of the view therefore that the delay was not inordinate. It was justifiable under the circumstances of this matter as it was observed in the case of Irene Temu vs. Ngassa M. Dindi and 2 others Civil Application No. 278/17 of 2017 (Unreported). It was stated that; 7 think the applicant has sufficiently explained away the delay. Likewise, the delay of 26 years, between the discovery of the failure to serve and file written submissions, in the course of relocating to other offices, to the time of filling the present application was, in my considered view and bearing in mind the peculiar circumstances of the case, can be condoned.' In rebuttal, Mr Ogunde adopted his counter affidavit to form part of his submission. He contended that this application has no merit and does not meet the conditions stipulated in the case of Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women’s Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 where Page 4 of 10 the Court of Appeal of Tanzania demonstrated at page 6 and 7 in the following words; Ms a matter ofgeneral principle, It is in the discretion of the Court to grant extension of time. But that

discretion is judicial, and so it must be exercised according to the rules of reason andjustice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period ofdelay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the Illegality of the decision sought to be challenged.' The learned advocate submitted further that the Civil Appeal was struck out by the Court of Appeal on 7th June 2024. The present application was filed on 3rd September 2024 which is almost 88 days. According to Mr Ogunde, not in the affidavit nor the submission in support of this application the applicant has shown any reasons for the delay in filing the present Page 5 of 10 application for 88 days. The applicant was supposed to count for each day of delay as provided in the case of Lyamuya (supra). It is the learned advocate's view that the applicant acted negligently on the following reasons; in the first place, Mr Ogunde argued that the applicant's affidavit was full of lies as under paragraph four of his affidavit the applicant

asserted that he sought consultation, and gave the document to Mr Wilson Edward Ogunde to help him to appeal. Surprisingly, according to the learned advocate, in the applicant's written submission he mentioned another person namely Steven S. Tonya (advocate) to be his counsel whom his practising license is claimed to have expired while the said Steven S. Tonya did not feature anywhere in his supporting affidavit. The learned advocate was of the view therefore that a person who is twisting words like the applicant cannot be trusted. He further argued that the reason why the Court of Appeal struck out the appeal was initiated by the fact that the appeal was filed outside of the prescribed time. In addition to that, it is Mr. Ogunde's further submission that this application was not attributed to a technical delay as claimed by the applicant because a technical delay cannot be advanced when a person Page 6 of lO sleeps over his rights for 88 days. According to him, 88 days is an inordinate delay, and if not counted for, cannot be attributed to a technical delay. Having read the rivals' submissions of both parties the issue for determination is whether the application has merit. I will be straightforward in answering the above-raised issue. It is a cardinal principle of the law that the court has discretion power in granting an application for the extension of time and that depends

on the applicant adducing good cause to justify the delay. As a matter of general principle, the said discretion must be exercised judiciously and per the rules of reason and justice, not based on private opinion, arbitrarily, vaguely, or fancifully, but according to the law and principles. See; Damas Assesy & Another vs. Raymond Mgonda Paula & Others (Civil Application No 32/ 17 of 2018) [2019] TZCA 648. After reviewing the affidavit and counter affidavit alongside the submissions of both parties, l am of the considered view that the applicant delayed lodging a notice of appeal for no apparent and sufficient reason. I shall explain. Page 7 of 10 It is a settled position that any applicant seeking for extension of time is required to account for the delay, of each day. The position has been underscored by the Court of Appeal in its numerous decisions. I will just mention a few of them. For instance/ in the case of Florence Mwilinga vs. Laiton Mwilinga (Civil Application No. 11/09 of 2024) [2024] TZCA 184, the Court of Appeal quoted with approval the decision in the case of Elias Mwakaiinga vs, Domina Kagaruki and 5 Others, Civil Application No. 120/17 of 2018 (unreported), stated that: 'Delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken.' Basically, according to

the decision of the Court of Appeal in Civil Appeal No. 88 of 2023, the applicant was already out of the prescribed time at the time he filed an appeal to the Court of Appeal . However, even after the decision of the Court of Appeal that was delivered on 7th June 2024, the applicant still waited for almost 88 days until he came to file this application to this court. Neither in his affidavit nor in his submission has the applicant been able to account for all days of delay. Page 8 of 10 As described herein above, the applicants' affidavit not only failed to account for the delay of each day but the same contained untrue information. It is a well-established principle of the law that an affidavit containing a false statement cannot be relied upon by the court to determine any matter. The Court of Appeal in the case of Bashir Ally vs. Anyegile Andendekisye Mwamaluka & Others (Civil Appeal No. 49 of 2021) [2024] TZCA 47 approved the decision in the case of Ignazio Mesina vs. Willow Investments, Civil Application No. 21 of 2001. It was observed inter alia that; '...An affidavit which is tainted with untruths is no affidavit at all and cannot berelied upon to support an application. False evidence cannot be acted upon to resolve any issue...' Given that position of the law and what I have found herein above, I will agree with Mr. Ogunde, for the respondent that the applicant's

affidavit herein not only failed to account for the delay of each day but also contains untrue information. As the basis of the reason for the extension of time, in his affidavit under paragraph 4, the applicant mentioned Mr Willson Edward Ogunde as the lawyer who helped him file his appeal. But in his submission, he also mentioned another lawyer named Steven S. Tonya as the lawyer Page 9 of 10 who also dealt with him in this matter but passed away. And, if you carefully read the facts in the application affidavit accompanying this application and the argument in his written submissions, they do not match. All in all, as the applicant has failed to account for all days of delay in lodging a notice of appeal, this application will not succeed. It is hereby dismissed with costs. DATED at MTWARA this 18th December 2024. DING'OHI

JUDGE 18/12/2024 COURT: Ruling delivered this 18th day of December 2024 in the presence of Mr Ahyadu Nannyohe for Adv. Wilson Edward Luhunde the learned advocate for the respondents, and the applicant who appeared in person. 18/12/2024 Page 10 of 10