nakomolwa matepeli shila vs mwanahamisi nongwa 2021 tzhclandd 250 28 june 2021

IN THE HIGH COURT OF THE UNITTED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR-ES-SALAAM MISC. LAND APPLICATION NO. 89 OF 2021 (C/0 Land case NO. 155 of 2010) NAKOMOLWA MATEPELI SHILA ................................ . APPLICANT VERSUS MWANAHAMISI ALLY NONGWA Legal representative of the Late KIDAWA SEIF (Deceased) .....................RESPONDENT RULING Before J. F. Nkwabi, J. Date: 22 & 28/06/2021 The applicant filed this application praying for this court to extend the time within which the applicant could lodge a notice appeal against the decision of this honourable court delivered on 19th May, 2015 in land case no 155/2010 by Madam Justice Mutungi, J. entering judgment in favour of Respondent. The applicant prayed for costs as well as any other reliefs the court may deem fit and just to grant. The chamber summons was made under section 11(1) of the Appellate Jurisdiction Act Cap 141 R.E. 2019. The application is supported by the affidavit of Nakomolwa Matepeli Shila, the applicant. r-.L-,' The application was resisted by the respondent through her advocate one Robert R. Rutaihwa, learned advocate, who filed a counter-affidavit. Before me, this matter proceeded by way of oral submissions, this matter being fixed for hearing in a special session. Mr. Mlinga, learned advocate, appeared for the applicant while Mr. Rutaihwa, learned advocate, appeared for the respondent just as indicated above. Both learned advocates argued forcefully for and against the application respectively. Mr. Mlinga insisted that the application be granted while Mr. Rutaihwa urged the same be dismissed. He, at the outset, said litigation must come to an end, implying that the applicant is abusing the court process. I am grateful to the counsel of both parties for their well researched submissions. Upon reading carefully the affidavits of both parties and going through the submissions of both parties, I am of the view that the pertinent issues to be determined by this court in this application are: 1. Whether the applicant has accounted for every day of the delay or at least acted promptly and diligently. 2. Whether the applicant has managed to establish that there is illegality in the decision of the high court he intends to challenge in the Court of Appeal. 3. Whether the applicant has assigned good cause for this court to grant extension of time within which to file the notice of appeal. I have to start discussing the 1st issue. This is in respect of whether the applicant has accounted for every day of the delay or at least acted promptly and diligently. On this question for determination, the counsel for the applicant argued in submission in chief, that this application was lodged without delay. He further argued that the ground which is found on paragraph 10 and that ground found on paragraph 11 of the affidavit which is to the effect that the delay in filing notice of appeal was not result of applicant's negligence but due to the fact that the appeal no 21/2016 lodged was struck out due to the fact that the same was incompetent due to incomplete record of appeal lodged. He further argued that the applicant has always been pursuing the matter diligently and in good faith as his interest are at stake. 3 @Tk*L' In the counter-affidavit, Mr. Robert averred that the applicant is estopped from bringing further applications following the delivery of the judgment of the Court of Appeal. The present application was filed about 63 days had lapsed and the applicant has not accounted for each day of the delay in those days. He argued there is inordinate delay which cannot be overlooked. I readily agree with the counsel for the respondent that in the affidavit in support of the application for extension of time there is nothing to suggest, that the applicant accounted for the 63 days of the delay in lodging this application for extension of time within which to lodge, the notice of appeal to the Court of Appeal. The ground in respect of accounting for each day of the delay fails on the part of the applicant. The record is clear as eggs is eggs that the appeal was struck out in the Court of Appeal on the 24th December 2020 but the present application was filed on 24/02/2021 which to me appears to be an inordinate delay in merely filing this application for extension of time within which to file the notice of appeal. No reason (account) is assigned by the counsel for the applicant for the delay for each day. The applicant and his counsel were not diligent and did not act promptly hence cannot be condoned, else litigation will be endless to the detriment of justice. On this point, I fully subscribe myself to the decision of the Court of Appeal in Civil Application No. 218 of 2016 Interchik Company Limited v Mwaitenda Ahobokile Michael (unreported) delivered by Hon. Ndika, Justice of Appeal, where he had these to say at page 12: It is this Court's firmly entranched position that any applicant seeking extension o f time under Ruie 10 of the Ruies is required to account for each day of delay. The first issue, therefore, must be answered in the negative. I turn next to discuss the 2nd issue which is whether the applicant has managed to establish that there is illegality in the decision of the high court he intends to challenge in the Court of Appeal. The complaint on this issue could be seen in paragraph 12 of the affidavit the applicant averred that the intended appeal raises issues of law to be determined by the appeal citing Badru Issa Badru v Omary Kilendu & Another Civil Application no. 97/17 of 2020 (CAT). These, according to the counsel for the applicant, include whether the suit was time barred, whether the High Court was justified to declare the respondent (legal representative of Kidawa Seif deceased) Lawful owner of the disputed piece of Land while the same do not form part of the estate of the late Kidawa Seif; that the suit stood dismissed, whether the High Court was justified to 5 m<nL declare Respondent lawful owner of the suit premises while the first administrator of estate of the late Kidawa Seif one said Seif Kitambulio who was appointed in 1994 immediately after death of Kidawa Seif up to 2010 when he withdrew from administration had never in time memorial for all that period of more than (15) years claimed that the suit property forms part of the estate of the late Kidawa Seif and lastly, whether the High Court rightly ordered permanent injunction restraining the applicant from dealing with the suit premises whatsoever while the evidence on record clearly shows that the applicant purchased first plot from the late Kidawa Seif in 1971 and the 2nd plot in 1977 ( the one in dispute) and he has been in physical occupation and possession since then without any disturbance and or claim of that piece of land, these he argues were left undetermined. He further argued that granting this application is in the sole discretion of the court based on number of reasons as already shown in the same paragraph 12 of the affidavit in support of this application. On his side the counsel for the respondent argued with some force, while supported by the counter affidavit that, all issues had been raised and determined, what the applicant is doing is manifestation of dissatisfaction which is common. He prayed the application be dismissed with costs and the respondent be awarded costs. I have had ample time to go through the affidavit, the counter-affidavit as well as the submissions of both parties and I am of a firm view, with the greatest respect to the learned counsel for th^ applicant, that this application is devoid of any merits and it is just an abuse of legal process. It would appear that the applicant and his counsel are just employing delaying tactics in order to make the responded who was declared owner of the land in dispute fail to execute her decree. It should be noted, that at this juncture, what I am supposed to determine is whether there are some irregularities on the face of the record. I am not persuaded that that is the case. For instance, the issue of the suit being time barred, there is nothing apparent on the face of the record to suggest what the counsel for the applicant is trying to indicate. With respect the applicant and his counsel have failed to demonstrate that on the face of record that the suit was time barred. Further, looking at the face of the record I do not see the complaint that whether the High Court was justified to declare the respondent (legal representative of Kidawa Seif deceased) Lawful owner of the disputed piece of Land while the same do not form part of the estate of the late Kidawa Seif has been established by looking on the face of the record hence it cannot be the bases of granting extension of time to file notice of appeal. With respect, I agree with the argument of the counsel for the respondent that what the applicant is showing is dissatisfaction with the decision which does not necessarily mean there was an irregulanty^apparent on the face of the judgment of this court. With respect to the counsel for the applicant, this argument is found to be devoid of merits. I turn next to discuss the alleged irregularity on whether the High Court was justified to declare Respondent lawful owner of the suit premises while the first administrator of estate of the late Kidawa Seif one said Seif Kitambulio who was appointed in 1994 immediately after death of Kidawa Seif up to 2010 when he withdrew from administration had never in time memorial for all that period of more than (15) years claimed that the suit property forms part of the estate of the late Kidawa Seif. This alleged irregularity, in my respective view, is answered when I was deciding the above alleged irregularity as they are of the same nature. It is found to have not been established and is dismissed. With respect, another manifestation of dissatisfaction with the judgment of this court is the complaint in respect of the perpetual injunction issued after the court decreed in favour of the respondent. Dissatisfaction cannot be a determinant factor that there is an apparent error on the face of the record on that matter. This claim too, with respect, has not been established by the applicant. Admittedly, and as rightly admitted by the counsel for the respondent, that though the judgment is in favour of the respondent, that is, the judgment is for the respondent (the plaintiff in the Land case), yet in the judgment the suit is indicated that that the suit stood dismissed. However, that is in my considered view, nothing other a slip o f the pen and cannot be equated an irregularity on the face of the record for to warrant grant of extension of time to lodge the intended notice of appeal. [Emphasis mine]. In the circumstance of this application, the authority in Civil application no. 97/17 of 2020 Badru Issa Badru v. Omary Kilendu and Another (CAT) (Unreported) is distinguishable since the Court of Appeal noted that some issues (based on the grounds of appeal) were not determined, which is different to the situation of the case at hand. The 2nd issue must be answered in the negative as well. Lastly, I turn to discuss the 3rd issue which is whether the applicant has assigned good cause for this court to grant extension of time within which to file the notice of appeal. This issue, would appear, in the submission of Mr. Mlinga, was summarizing the above two issues and emphasizing that based on them the applicant has shown good cause for this court to grant this application within which the applicant to file the notice of appeal as it was not expounded by the learned advocate. In reply submission, however, Mr. Robert was of a different view on this matter, he stressed, in the present application there is no good cause for the delay established. He said the case of Yusuph Juma and the other case cited by the counsel for the applicant are, with respect, of no assistance. With respect to Mr. Mlinga, I am not inclined to buy his argument. I am respectively in agreement with the observation of Mr. Robert that the applicant has failed to show good cause for this court to grant the application for extension to file notice of appeal. I agree that there are no hard and fast rules in determining sufficient causes to enlarge time as per the decision in Christmas Eliamikia Swai & 2 Others v Tanzania Electric Supply Co. Ltd & Another Civil Application No. 559/01 of 2018 but since there is no good cause has been shown this case law cannot assist the applicant. The 3rd issue is as well answered in the negative. Consequently, the application is dismissed with costs. It is so ordered. Dated at Dar-es-Salaam this 28th day of June, 2021 J. F. Nkwabi, J. 10 Court: Ruling delivered in chambers this 28th day of June 2021 in the presence of Mr. Mlinga, learned counsel for the applicant and the applicant present in person and in the presence of Ms. Jackline Rweyongeza, learned counsel for the respondent. 3 .F. Nkwabi, 3 . li