Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM MISC.LAND APPLICATION NO. 14905 OF 2024 (Originating from the District Land and Housing Tribunal for Kibaha at Kibaha in Land Appeal No. 87 of 2021) MUSTAPHA IBRAHIM MSIGALA (as an Administrator Of the estate of the late IBRAHIM MUSTAPHA MSIGALA) APPLICANT VERSUS SEMENI MZEE FUNUA........................ ................................ RESPONDENT RULING Date of last Order: 09/09/2024 Date of Ruling: 25/11/2024 LALTAIKA, J The Applicant herein MUSTAPHA IBRAHIM MSIGALA (as an Administrator of the estate of the late IBRAHIM MUSTAPHA MSIGALA) is seeking an extension of time to file an appeal out of time. The application was preferred under Section 14 of the Law of Limitation Act (Cap 89 R.E. 2019). He supported the application with an affidavit by Mustapha Page 1 of 10 Ibrahim Msigala, which he adopted as part of his submission to avoid unnecessary repetitions. When the matter came up for orders, it was directed that the application be disposed of by way of written submissions. Neither the Applicant nor the Respondent had legal representation. I take this opportunity to register my commendations to the unnamed legal aid providers who drafted the documents for and against the application. The next part of this Ruling is a summary of submissions by both parties followed by my analysis of the law and consequential verdict. The Applicant acknowledged that in an application of this nature, the Applicant must show justification for the grant of the application. However, he quickly noted that the Court enjoys discretion to grant an extension of time upon showing good cause, which is not confined to delay but takes into account the circumstances of each particular case. To support his argument, the Applicant cited the case of National Housing Corporation & Others vs Jin Lang Li (Civil Application No. 432 of 2017), where it was noted that the extension of time is a matter for the Page 2 of 10 Court's discretion and must be determined based on all the circumstances of each case. The Applicant explained that one of the special circumstances that warrant the Court's consideration is the excusable delay in receiving copies of the judgment and decree. He provided proof in paragraphs 4 and 5 of his supporting affidavit that he was prevented from filing the appeal on time due to the delayed supply of necessary documents. He asserted that the judgment was delivered on 26th March 2024, but the copies of the judgment and decree were not supplied to him until 7th June 2024, after being extracted on 31st May 2024, which was outside the prescribed time for filing the appeal. These circumstances contributed to the delay in filing the appeal. On excusable delay, the Applicant reiterated that he took the necessary steps to apply for the copies of the judgment and decree and acted immediately once they were provided. He argued that the delay was not due to negligence on his part but was caused by the tribunal's failure to supply the documents in time. He referred to the case of Alliance Insurance Corporation Limited vs Arusha Art Limited (Civil Application No. 33 of Page 3 of 10 2015), where the Court held that the delay in receiving documents was not due to the applicant's fault, thus justifying the extension of time. The Applicant further stated that his delay in obtaining the requisite documents should not impair his right to access justice by filing an appeal. He emphasized that he had a plausible defense, as outlined in the supporting affidavit, and that the delays were beyond his control. The Applicant concluded by reiterating that he had acted diligently and immediately after receiving the judgment and decree. He affirmed that the delay in filing the application was justified, and he had met the tests for the Court to exercise its discretion in his favour The Respondent, on her part, submitted that the Applicant had applied for copies of the judgment and decree on 24th April 2024, and a reminder letter was sent to the Tribunal on 21st May 2024. The Applicant was eventually supplied with the judgment and decree on 7th June 2024. Therefore, the 45-day period to file the appeal expired on 21st July 2024, but instead of filing the appeal, the Applicant filed an application for an extension of time. Page 4 of 10 The Respondent referred to Section 41(2) of the Land Disputes Courts Act, which provides that an appeal under Subsection (1) may be lodged within 45 days after the date of the decision or order, and that the High Court may, for good cause, extend the time for filing the appeal either before or after the expiration of the 45-day period. She highlighted that the time for filing the appeal starts to count from the date the copy of the impugned decree is extracted, especially in cases where attaching the copy of the decree is mandatory. She also cited Section 19(1)(2) of the Law of Limitation Act (Cap 89 RE 2019), which states that the day on which the judgment was delivered and the time required to obtain a copy of the decree are excluded when computing the period of limitation for an appeal, application for leave to appeal, or application for review of judgment. The Respondent argued that in counting the 45 days for lodging the appeal with the Honorable Court, the limitation period started from the date the trial tribunal delivered the judgment and decree to the Applicant on 7th June 2024. Therefore, the Applicant was within the time to lodge the appeal until filing the application for extension of time on 18th June 2024. Page 5 of 10 She maintained her stance from the counter-affidavit, asserting that the Applicant had failed to prove that he was out of time and that this failure did not warrant the use of the Court's discretionary power to grant the application for an extension of time. The Respondent submitted that the Honorable Court should not exercise its discretion to grant the Applicant an extension of time, as he was still within the time to file his appeal. She concluded by praying that the application be dismissed with an order of costs. In his rejoinder submission, the Applicant reiterated his main submissions in response to the Respondent's arguments and further highlighted, albeit briefly, the weaknesses inherent in the Respondent's submissions. The Applicant pointed out that the Respondent had incorrectly calculated the days, alleging that the 45-day period began from the date the judgment was pronounced on 26th March 2024. The Respondent contended that the time had passed by 7th June 2024, which the Applicant argued was wrong. The Applicant clarified that, according to his calculations, the 45-day period had lapsed by 10th May 2024, and the Page 6 of 10 documents were only received on 7th June 2024, which was already beyond the time allowed for filing. The Applicant further submitted that the Respondent had a misimpression about the deadline, claiming that the Applicant should have filed the appeal on 7th June 2024, which the Applicant insisted was already outside the allowed time. The only remedy, the Applicant argued, was to seek an extension of time, which is what they had done through this application. The Applicant reiterated that the Respondent's submission was based on a misunderstanding of the day-counting process, especially given the Applicant's struggle to obtain the necessary documents for the appeal. By the time the Applicant received the documents, the appeal period had already expired, and the only option available was to seek an extension of time through this application. The Applicant contended that the factors presented formed a good cause for granting the extension, emphasizing diligence and the length of the delay as not being inordinate. In conclusion, the Applicant humbly submitted that, based on the submissions in both the chief and the rejoinder, and the supporting authority Page 7 of 10 cited, the appeal should be allowed by setting aside the judgment and decree to grant the Applicant the right to be heard. I have dispassionately considered the rival submissions. The parties in this application are senior citizens probably in their seventies. They have been diligent in pursuing this Application and have been to court every day the matter was scheduled. They deserve commendations. My only wish is that their legal aid providers would use the same efforts and zeal to resolve the dispute amicably. This could spear the wazee from anguish of litigation. Section 41(2) of the Land Disputes Courts Act (supra) provides that an appeal may be lodged within 45 days from the date of the decision or order. However, the High Court has discretion to extend the time for filing an appeal for good cause, either before or after the expiration of the 45-day period. Additionally, Section 19 of the Law of Limitation Act, Cap. 89 [R.E. 2019], stipulates that the time for filing an appeal is computed from the day the judgment or order was delivered, excluding the time it took to obtain a copy of the judgment or decree. The Applicant has demonstrated that he made repeated efforts to obtain the necessary copies of the judgment and decree for appeal purposes. Page 8 of 10 While the judgment was delivered on 26th March 2024, the Applicant did not receive the documents until 7th June 2024, which is after the statutory deadline for filing an appeal. The Applicant has also shown that he acted promptly after receiving the documents by filing this application for an extension of time on 18th June 2024, within the time permitted by law. The Respondents argument that the Applicant should have filed the appeal on 7th June 2024 overlooks the fact that the Applicant was still within the time allowed to file the appeal when he received the documents on 7th June 2024. The failure to receive the documents in time to lodge the appeal within the prescribed period was due to no fault of the Applicant. The apex Court of our jurisdiction namely the Court of Appeal of Tanzania, has consistently held that delays caused by the failure of the court or tribunal to provide the necessary documents in time are excusable, and the Applicant should not be penalized for such delays. The Applicant has also shown that the delay in obtaining the documents was not inordinate, and the time spent in waiting for the documents was reasonable under the circumstances. The Applicant has Page 9 of 10 acted diligently in seeking the documents and filing this application for an extension of time. In the upshot, I hereby grant the Applicant's application for an extension of time to file the appeal. The Applicant is allowed a further 14 days from the date of this ruling to file the appeal. Each party to bear their own costs. It is so ordered. E.L LALTAIKA JUDGE 21/11/2024 Court: Ruling delivered in Court Chambers this 25th day ofNovember2024at 14:45 PM in the presence of both he Applicant and the Respondent. 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