CIVIL APPLICATION NO 19 17 OF 2023 MOSHI MOHAMED PAZI VS MWAJUMA MSHINDO PAZI ANOTHER

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM. CIVIL APPLICATION NO. 19/17 OF 2023 MOSHI MOHAMED PAZI (Administrator of the Estate of the late Mohamed Pazi................................................. APPLICANT VERSUS MWAJUMA MSHINDO PAZI...............................................1st RESPONDENT NASORO MOHAMED...................................................... ....2nd RESPONDENT (Application for extension of time within which to file an application for Revision of the decision of the High Court of Tanzania (Land Division) at Dar es Salaam) (Kente, J) dated the 30th day of September, 2015 in Land Case No. 66 of 2010. RULING 07th & 16thJuly, 2024 MWAMPASHI, 3.A.: This is an application for extension of time brought by way of a notice of motion under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). In this application, the Court is being asked to extend time within which to file an application for revision of the decision of the High Court of Tanzania (Land Division) at Dar es Salaam, in Land Case No. 66 of 2010. The application is supported by an affidavit affirmed by i the applicant Mr. Moshi Mohamed Pazi. There is no affidavit in reply filed by the respondents to resist the application. According to the notice of motion, the application is premised upon two grounds: 1. That there is a decision o f the High Court Land Division in the case o f MWAJUMA MSHINDO PAZI V NASSORO MOHAMED PAZI delivered by Kente/ J. on 3(fh day of September, 2015, affecting the Applicant's interest as heir, occupant and administrator of land known as Piot No. 408 block 45 C Kijitonyama, Dar es Salaam in the name o f M. Pazi whose estate the Applicant administers when the said Applicant was not a party to the suit hence denied the constitutional and natural right to be heard on a matter of utmost interest to it and for an order that the time to challenge the decision by way o f revision expired long ago. 2. That upon recently learning o f the presence o f the High Court judgment, the Applicant lodged revision in the Court on 14th December, 2022 but the same was rejected and returned upon advice that extension of time ought to be sought and granted before filing revision, notwithstanding that the Applicant was not a party to the suit the subject o f revision. As gathered from the supporting affidavit, further facts relevant to the instant application are that; the applicant being the administrator of the estate of his late father, Mohamed Pazi, did on 01.12.2022, in the course of administering the estate, came to learn that the house on plot No. 408 block 45 C Kijitonyama, Dar es Salaam, which falls within the estate he is administering, was adjudged the property of the 1st respondent in High Court Land Case No. 66 of 2010 between the 1st and 2nd respondent to which he was not a party. Because he had never been a party to that case and as he cannot appeal against the decision, he prepared an application for the decision to be revised and filed it in Court on 07.12.2022, the application which was rejected on 15.12.2024 and returned to him on the ground that extension to file the same out of time had to be applied and obtained first hence, the instant application which was filed on 11.01.2023. At the hearing of the application, whereas, the applicant was represented by Mr. Amin Mohamed Mshana, learned advocate, the 2nd respondent appeared in person unrepresented. The 1st respondent defaulted appearance though duly served. The hearing of the application proceeded in her absence in terms of rule 63 (2) of the Rules. Having adopted the notice of motion and the contents of the supporting affidavit, Mr. Mshana made clarifications of some relevant facts as deposed in the supporting affidavit. He insisted that the application has been filed in time and further that since under rule 65 (4) of the Rules, the limitation period within which an application for revision is required to be filed is sixty (60) days from the date of the impugned judgment, then the period from 01.12.2022 when the applicant became aware of the judgment to 11.01.2024 when the instant application was filed cannot be regarded as an inordinate delay. It was further submitted by Mr. Mshana that, in paragraph 12 of the supporting affidavit, issues of illegality of the impugned decision, including the issue regarding the right to be heard, have been raised. Relying on the decisions of the Court in V.I.P Engineering and Marketing Limited & 2 Others v. CITIBANK Tanzania Limited (Consolidated Civil Reference Nos. 6, 7 and 8 of 2006) [2007] TZCA 165 (26 September 2007; TanzLII) and Zainul Naushad Fazal (as the Administrator of the Estate of the late Naushad Gulamabbas Fazal) v. Zulfikal Pyall Shamj & Another (Civil Application No. 582/04 of 2022) [2024] TZCA 287 (30 April 2024; TanzLII), he pointed out that illegality constitutes good cause for extension of time. He thus, urged the Court to grant the application as p rayed in the notice of motion. The 2nd respondent had nothing to say in resistance. The power of the Court in matters of extension of time is derived from rule 10 of the Rules, under which it is provided that: "The Court, may, upon good cause shown, extend time limited by these Ruies or by any decision o f the 4 High Court or Tribunal, for the doing of any act authorized or required by these Rules, whether before or after expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended". Extension of time under rule 10 of the Rules, is both broad and discretionary. The discretion in extension of time must be exercised judiciously in accordance with the rules of reason and justice and not according to private opinion or arbitrary. See- Lyamuya Construction Company Limited v. Board of Young Christians Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 4 (03 October 2011; TanzLII). The Court can only exercise its power given under rule 10 of the Rules, if good cause is shown. Whereas there is no invariable universal definition of what constitutes good cause, in exercising its discretion under the said provision, the Court is bound to consider the prevailing circumstances of the particular case and should also be guided by a number of factors such as the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent and whether there is a point 5 of law of sufficient importance such as illegality of the decision sought to be challenged. This position of law has been restated by the Court in a number of cases including; The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R 387, Lyamuya Construction Company Limited (supra), Dar es Salaam City Council v. Jayantilal P. Rajan (Civil Application No. 20 of 1987) [1988] TZCA 26 (25 February 1988; TanzLII) and Regional Manager TANROADS Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007 (unreported). It is also settled that in applications for extension of time, the applicant is required to account for each day of delay. This was emphasized by the Court in Elius Mwakalinga v. Domina Kagaruki and 5 Others (Civil Application No. 120/17 of 2018) [2019] TZCA 650 (22 May 2019; TanzLII), where it was stated that: "Delay, of even a single day, has to be accounted for otherwise there would be no point o f having ruies prescribing periods within which certain steps have to be taken". Guided by the above principles of law, the issue calling for my determination in the instant application, is whether good cause has been shown to warrant extension of time within which to file revision of the High Court judgment in Land Case No. 66 of 2010, as sought in the notice of motion. According to rule 65 (4) of the Rules, where the revision is initiated by a party and not by the Court on its own accord, the party seeking the revision shall lodge the application within sixty (60) days from the date of the decision sought to be revised. The law under rule 65 (4) of the Rules, apply to all the parties including the applicants to applications for revision who might not have been parties to the decision sought to be revised. To my considered view, where the prescribed period of sixty (60) days has elapsed, an applicant desiring for the decision to be revised but who was not a party to the impugned decision, must act diligently and fast in filing an application for extension of time within which to file the desired application for revision, once he becomes aware of the said impugned decision. That being the case, the issue that arises here, is whether the applicant in the instant application, was diligent and not dilatory in filing the application. There is no denying that the applicant was not a party to the High Court Land Case No. 66 of 2010 of which its judgment was rendered on 30.09.2015. Further, according to paragraphs 7 and 13 of the supporting affidavit, the fact that the applicant became aware of the existence of the impugned judgment on 01,12.2022, is undisputable. It should also be 7 borne in mind that there is no affidavit in reply which has been filed by the respondents to dispute the fact that 01.12.2022 is when the applicant became aware of the impugned judgment. It is also deposed in the supporting affidavit that after learning about the existence of the impugned decision on 01.12.2022, the applicant, thinking that because he was not a party to Land Case No.66 of 2010, the prescribed period of sixty (60) days within which an application for revision should be filed, was not applicable to him, filed an application for revision on 07.12.2022. However, the application was rejected on 15.12.2022, on the ground that leave to file the same out of time has to be sought and obtained first. The application for revision having been rejected, the instant application was filed on 11.01.2023. Considering the fact that Land Case No. 66 of 2010 in which the applicant's alleged rights over the house on plot No. 408 block 45C Kijitonyama, Dar es Salaam, were allegedly decided against him in his absence and without him being heard and further in consideration of the above given facts while guided by the relevant principles, I am satisfied that the applicant has shown good cause to warrant extension of time within which to file an application for revision of impugned High Court decision. I find that the delay has been accounted for and it is not 8 inordinate. The applicant has also been diligent and not negligent or sloppy. For the above given reasons, the application is granted. Time within which an application for revision of the High Court decision in Land Case No. 66 of 2010 is to be filed, is extended. Under the circumstances of this case, the intended application for revision should be filed within thirty (30) days from the date of the delivery of this ruling. No order is made as to costs. It is so ordered. DATED at DAR ES SALAAM this 15th day of July, 2024. A. M. MWAMPASHI JUSTICE OF APPEAL The Ruling delivered this 16th day of July, 2024 in the presence of Mr. Rochus Assenga, learned counsel for the applicant, 2nd respondent in person, unrepresented and in absence of the 1st Respondent is hereby certified as a true copy of the original. ___ts. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL