MISC

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA MISCELLANEOUS LAND APPLICATION NO. 15 OF 2023 MOSES EDGAR MAKOTA (As Administrator of the estate of the late Edga Mussa Makota) -......... -............ APPLICANT VERSUS AHMED ABDALLAH MOHAMED.........-------........ RESPONDENT Date of last order: 03.07.2024 Date of Ruling: 19.07.2024 RULING Ebrahim, J.: In this application I am called upon to decide whether this court should exercise its discretion under the provisions of Order IX Rule 9 of the Civil Procedure Code [Cap. 33 R.E 2019], section 14 (1) and Item 5 of Part III to the Schedule of the Law of Limitation Act, [Cap. 89 R.E 2019], section 95 of the Civil Procedure Code [Cap. 33 R.E 2019] to extend time to enable the applicant to file an application to set aside an exparte judgment and Decree dated 31st March 2023 in Land Page 1 of 11 Case No. 3 of 2020. The application was supported by the affidavit sworn by Moses Edgar Makota, the applicant. Brief facts of the case are that; on 25th May 2023 the applicant said that he was informed that there was an exparte judgment against his late father Edga Mussa Makota from Land Case No. 3 of 2020. On 26‘h May, 2023 he received said judgment and sent it to him. The exparte judgment was delivered on 31st March, 2023. The applicant further alleged that sometimes in 2017, his late father was suffering from diabetes and it was in the same year his left lower limb was amputated. In 2019 the right lower limb of his late father was also amputated. Since 2020 his father's situation has been worse causing him to attend several medical treatments. On 7th February 2022> the applicant’s late father had knee surgery at Tanzania Peoples Defense Hospital. The applicant stated further that his late father neither received court summons nor publications about the case. He said the late Edga Mussa Makota died on 10th June 2023. On 21st August, 2023 he was appointed as an Administrator of the estates of the late Edga Mussa Makota. Page 2 of 11 The application was disposed of by way of written submissions. The applicant appeared in person unrepresented whereas the respondent was represented by Advocate Rainery Songea. Submitting in support of the application, the applicant began by praying to adopt his affidavit. He argued that the instant application is for extension of time to set aside exparte judgment. He asserted that he is the administrator of the Late Edgd Mussa Makota, the defendant in Land Case No. 3 of 2020. He said from 2017 to 2023 the late Edga Mussa Makota was suffering from diabetes which caused him other medical issues, and underwent treatment in different health institutions including Lugalo Military Hospital and Muhimbili National Hospital. The applicant went on to submit that his late father was not aware of the suit against him and considering his medical condition he could not have known. The suit came to his attention around May 2023 after the judgment was delivered. He contended that he filed this application because his late father was not given a fair opportunity to defend himself. To bolster his argument, he cited the case of The Page 3 of 11 Principal Secretary, Ministry of Defence and National Service V. Devram Valambia (1992) TLR 387. He insisted that there are several questionable illegalities that occurred during the proceeding of the Land Case No. 3 of 2020 which this court should determine. He prayed for the exparte judgment to be set aside so that they get an opportunity to defend his estate inter parte. He prayed for this court to grant the application. Responding, Mr, Rainery Songea, learned Counsel for the respondent referred this court to the applicant’s affidavit and argued that the affidavit contains false statements it should therefore not be acted upon to support his application. He submitted that in granting an extension of time the applicant is required to demonstrate sufficient grounds for this court to extend time as 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 (3 October 2011). He submitted further that the applicant and his late father were aware of Land Case No. 3 of 2020 they simply neglected to appear and Page 4 of 11 prosecute the case and his advocate withdrew from representing him. He explained further that before the hearing of the suit, the respondent made an effort to serve the applicant with summons. He added that they opted for a substitution of service and the summons was published in Mwananchi Newspaper on 10th November, 2021. The applicant appeared through his advocate who later withdrew himself from the case. He further argued that the applicant was aware of the judgment date as he did not mention a person who informed him about the judgment. Thus, it was his view that the applicant was aware that there was a pending case Land Case No. 3 of 2020 before the High Court. He claimed that the applicant had failed to account for days of delay from May 2023 when he claims to have received information to 12,h September 2023 when he filed this application. He cited the case of Sebastian Ndaula v. Grave Rwamafa (Legal Personal Representative of Joshwa Rwamafa), Civil Application No. 4 of 2014 where it was observed that; “the position of this Court has consistently been to the effect that in an application for exfention of Page 5 of 11 time, the applicant has to account for every day of the delay,..." He submitted also that the applicant has raised the issue of illegality in the impugned judgment and cited the case of The Principal Secretary, Ministry of Defence and National Service V. Devram Valambia (Supra). He contended that the cited case is distinguishable from the case at hand, in the case at hand there is no point of illegality that has been expressed. Arguing further, Mr. Songea alluded that the applicant's affidavit did not stipulate clearly when the late Edga Mussa Makota started to be sick. He referred this court to the case of Esther Manonga vs. Esther Lohay (Misc. Civil Application 74 of 2022) [2022] TZHC 13180 (2 September 2022). He thus urged the court to dismiss the application with costs. In rejoinder, the applicant submitted that it came to his surprise that the respondent is represented by Phonex Advocates while he knows the respondent is a political detainee. He reiterated his submission in chief. Page 6 of 11 He added that by that time was not appointed as an administrator of the estate of the late Edge Mussa Makota. Having considered the submissions by the parties notwithstanding the foregone fact, it is a settled principle that granting or refusing to grant an extension of time is the court’s discretion. Nevertheless, the same has to be judiciously exercised upon sufficient cause being shown. See the case of Benedict Mumello vs Bank of Tanzania, Civil Application No. 12 of 2012, where the Court of Appeal of Tanzania held inter alia that; “...It is trite law that an application for extension of time is entirely in the discretion of court to grant or refuse, extension of time may only be granted where it has sufficiently established that the delay was with sufficient cause..." I am also fortified by the case of Wambura N.J. Wdryuba vs The Secretary Ministry of Finance & Another (Civil Application No. 320 of 2020} [2021] TZCA 457 (2 March 2021), when the Court of Appeal held that; it is trite law that, in an application for extension of time, the applicant should account Page 7 of 11 for each day of delay, and failure to do so would result info the dismissal of the application." In this circumstance, the issue for determination is whether the applicant has established sufficient cause to warrant this court to grant an application. Admittedly, there is no hard and fast rule in determining what amounts to sufficient cause. Nonetheless, the principles set in the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Supra) are the best guidance. These are; the applicant must account for all the period of delay, the delay should not be Inordinate, the applicant must show diligence, and not apathy, negligence, or sloppiness in the prosecution of the action that he intends to take; and 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. In the application at hand/it should be noted from the outset that the application was filed in this court after a lapse of five months and Page 8 of 11 eleven days, i.e. the impugned judgment was delivered on 31.03.2023 while the application was filed in this court on 12.09.2023. I hasten to agree with the counsel for the responded that the applicant has not demonstrated any good reason for this court to grant the application for the following reasons: Firstly, the reason that the applicant became aware of the impugned judgment on 25.05.2023 in itself does not form a good reason for the extension of time unless it is further shown that it took a long time to be supplied with the same and immediately after being supplied, the applicant filed the application. This is not the case in the instant matter. Secondly, the applicant's: reason that he was appointed as an administrator of the estate on 21.08.2023 does not also form a good reason for the extension of time. This is because the applicant failed to account for the 24 days delayed before filling the application. Thus, his general averment cannot be condoned by this court. Third, the applicant has raised the issue of illegality which he did not state in his affidavit. The applicant did not depict what the illegality Page 9 of 11 is. In my view, the account by the applicant is just mere words. This is because the applicant did not portray the same in his affidavit. See the observation by the CAT in the case of Karlbu Textiles Mills Limited vs Commissioner General Tanzania Revenue Authority (Civil Reference No. 21 of 2017) [2021] TZCA 261 (10 June 2021). Fourthly, the records are dear that the late Edga was very aware of the case against him and he even hired an advocate. Moreover, after the advocate stopped representing him, no further efforts or information was sent to court. I therefore agree with Mr. Songea that the Applicant is lying in saying that the late Edga was not aware of the case against him. I have further gone through the annextures, an an annexure Emx-collectively - two shows that the deceased was discharged from hospital on 21st February, 2022. Another medical chit from TPDC which needs not forensic expertise to show that it is doctored, states that he was discharged on 04 March, 2022. The Judgment was passed on 31/03/2023. What was he doing all that time without taking any action for the case that he verily knew that existed. Page 10 of 11 As hinted earlier the applicant has delayed for five months and eleven days, the applicant did not account for each day of delay and there are no sufficient reasons for this Court to allow this application. The Court has emphasized the requirement of accounting for each day of delay in the case of Bushiri Hassan v. Latifa Lukio, Mashayo, Civil Application No. 3 of 2007, the Court stated as follows: "Delay, of even a single day, has to be accounted for otherwise there would be no proof of having rules prescribing periods wifhin which certain steps have to be taken." At the end result, the applicant has hopelessly delayed and has not given any sufficient reason for granting the application. Therefore, I dismiss the application with costs. Ordered accordingly. R.A Ebrahim JUDGE Mtwara 19.07.2024 Page 11 of 11