anna futte vs amina ismail mhiki and another 2022 tzhc 15081 2 december 2022

IN THE HIGH COURT OF TANZANIA LAND DIVISION , MOROGORO DISTRICT REGISTRY AT MOROGORO MISC. LAND APPLICATION NO. 20 OF 2022 (Originating from the Decision of Land Application Case No. 69 of 2012; & from the ■ District Land and Housing Tribunal for Kllombero/Ulanga District, at Ifakara) ANNA FUTTE APPLICANT VERSUS AMINA ISMAIL MHIKI RESPONDENT KILOMBERO DISTRICT COUNCIL 2"^ RESPONDENT RULING 2"'' December, 2022 CHABA,J. Before me, is an application for extension of time filed by the applicant herein,seeking for enlargement of time to file an application for revision against the decision of the District Land and Housing Tribunal for Kilornbero/Ulanga District, at Ifakara In Land Application Case No. 69 of 2012 (the DLHT). The application has been made under section 14 (1) of the Law of Limitation Act [Cap. 89 R. E, 2019], and it is supported by an affidavit deponed by the Page 1 of9 Applicant, Anna Futte. On the other hand, the 1=' respondent filed her counter affidavit opposing the applicant's application. The matter was argued orally. The applicant was represented by Mr. George Kipuiikapuiika Kaiuma under the auspices of special power of attorney, while the 1^' respondent enjoyed the services of the learned advocate Mr. Augustine Mathern Kusalika. The 2"" respondent did not enter appearance. Submitting in support of the application, Mr. George submitted that in July, 2017 the applicant was dumbfounded to find that the 1®' respondent, Amina Mhiki brought to her house so called "Madaiali" or Brokers who broke the applicant's fence (a guard or barrier enclosing to her house) while she had ho any case against them. Mr. George went on submitting that the applicant filed this application-seeking for an intervention of the court to revise the decision reached by the DHLT. According to Mr. George, the applicant delayed to filing petition of appeal because he(Mr. George) was obliged to go to the Commission for Human Rights and Good Governance (the Commission) seeking for Legal Assistance in respect of the disputed matter that was before the DHLT within Kiiombero District. According to him, he was assisted to the extent that some instructions were issued to DLHT Chairperson namely, Mr. Kamugisha but he did not gratify it. He submitted further that the DHLT cancelled the said instructions. He highlighted that, though he was advised to sue the Kiiombero District Council (2"'' respondent) but he refused because he had no any case with the 2"'' respondent. Page 2 of 9 He concluded his submission by stating that when the said directives from the Commission were cancelled by the Chairperson, his case was transferred to this court. In reply, Mr. Kusalika accentuated that In essence the applicant filed this application seeking for an extension of time so that she could be able to file an application for revision against the decision of Land Application Case No. 69 of 2012 delivered on 23/9/2014. However, the application was resisted by the 1=' respondent through her counter affidavit filed before this court on 18/7/2022. The respondent's counsel, Mr. Kusalika prayed to adopt the same and form part and parcel of court proceedings. He argued that, for this application to succeed or accepted by the court, the following legal requirements must be complied with; One,sufficient reasons for the delay have to be shown. Two, such an application must be promptly filed in time, and Three,the applicant has to account for each day of delay. To bolster his arguments, the learned advocate highlighted that at first, the disputes was between the and 2"=" respondents and had no connection whatsoever with the applicant. This is why the DLHT entertained the matter and ruled that her decision be executed accordingly.' He submitted that the disputed land is located at Plot No. 40, Block J, situated at Kilosa - Tangani Road, Ifakara whereby the applicant also claimed that she was allocated the same on 16'*^ February, 1982. Thus, the applicant through Land Application Page 3 of 9 Case No. 80 of 2018 sued the and 2"^ respondents over the disputed land and claimed to be declared the owner of the disputed land. On 30*'^ January, 2020 the DLHT delivered her judgment and stated that filling of a relevant notice was inevitable before suing the 2"^^ respondent. As the applicant did not comply with the legal requirement, her case was struck out. As to the second point, Mr. Kusaiika contended that the applicant's application was not promptly filed within the prescribed time because when Land Application Case No. 80 of 2018 was struck out on the 30^^ January, 2020, the applicant didn't take any action until on the 3'^ June, 2022 when she filed this application seeking for an extension of time to file an application for revision against the decision of Land Application Case No. 69 of 2012, delivered on 23'"'^ September, 2014. He averred that from 30^^ January, 2020 to 3''^ June, 2022 is a period of almost two years and three months and the applicant failed to explain and or give an account why she delayed to file the same. As regard to the third point, Mr. Kusaiika underlined that the applicant claimed that her fence was destroyed in July, 2018 and then filed her case before DLHT which ended to be struck out on the 30^'' January, 2020. But sometimes later, on the 3''d June, 2022 which is a period (2) years and three (3) months she decided to file the instant application seeking to revise the decision of the DLHT in Land Application Case No. 69 of 2012 delivered on 23/9/2014. In his opinion, the appiicant failed to advance sufficient reasons as to why she delayed to file this application. 1 Page 4 of 9 On those grounds, the learned advocate prayed the court to struck out the application for being incompetent. To rejoin, Mr. George blamed the DLHT to be the source of delay. He further mentioned the Covid 19 pandemic as the main source of delay. In addition, Mr. George submitted that the Commission for Human Rights and Good Governance also contributed to the delay because it dealt with the applicant's complaint for quite sometimes. Having examined the parties' oral submissions, and upon considered parties' pleadings, the main issue for determination is whether the applicant has exhibited sufficient cause to warrant this court to exercise its discretionary power to enlarge time sought by the applicant. It is a well settled principle of law that in order for the court to exercise its discretionary power of extending time, sufficient reasons for the delay have to be shown. Such a duty is bestowed to the applicant. As correctly submitted by the learned advocate for the 1'^ respondent, sufficient reasons for the delay have to be shown by the applicant if at all wants to succeed, and such an application has to be promptly filed in court and it is so imperative for the applicant to account for each day of delay. As gleaned from the applicant's oral submission, it is apparent that the applicant has placed reliance on the following factors. First, the applicant blamed the DLHT and further mentioned the Covid 19 pandemic as the main Page 5 of 9 sources of delay. Mr. George explained further that the Commission also caused the delay because It dealt with the applicant's complaint for quite long-time. As hinted above, this application has been brought under section 14(1) of the Law of Limitation Act [Cap. 89 R. E, 2019]. The law provides that: "Notwithstanding the provisions ofthis Act, the court may,for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeai or an application, other than an application for the execution ofa decree, and an application for such extension may be made either before or after the expiry of the period of iimitation prescribed for such appeai or appiication". [Emphasis is mine]. From the above excerpt of the provision of the law, It Is clear that the court may, for any reasonable or sufficient cause, extend the period of limitation for the Institution of an application after the expiry of the period of limitation prescribed for such application. Now, reverting to the applicant's submission, her affidavit and as correctly submitted by Mr. Kusallka, It Is undisputed that the P'respondent filed a land matter before the DLHT for Kllombero / Ulanga District, at Ifakara; Land Application Case No. 69 of 2012 against the 2"'' respondent. According to the record, the matter was heard ex-parte due to non-appearance of the 2"^ respondent as a result the 1=' respondent was Page 6 of 9 declared a- lawful owner of the disputed land. Such a declaration awoke the applicant herein and began claiming that the respondent did trespass into her parcel of land (the disputed land). About six (6) years later, through Land Application Case No. 80 of 2018 the applicant instituted a land matter against the 1^"= and 2"^ respondents before the DLHT at Kilombero / Ulanga District, at Ifakara. Upon afforded with the rights to be heard, on 30^^ January, 2020 the DLHT did struck out the matter for want of necessary party. According to Mr. George, sometimes later, the applicant was advised by the Commission to file the instant application and accordingly filed it on June, 2022. From the foregoing, it is apparent that the applicant generally highlighted the reasons for delay but without accounting the reasons why she delayed to file this application. As garnered from her sworn affidavit, the applicant truly did not mention the DLHT and Covid 19 pandemic as the main sources of delay. She only submitted that in the course of pursuing for other remedies the Commission caused delay as hinted above. In view of the above, it is my considered opinion that the applicant did not advance sufficient reasons for the delay and further the application was not promptly filed in court 'as required by the law. More so, the applicant totally failed to account for delays for each single day of delay and left a lot to be desired by this court. In my considered view, the surrounding circumstance of this case shows that the applicant didn't not only sleep (slept) over her rights, but also she was negligent and laxity in filing this application on time. Page 7 of 9 From the forgoing discussion, it is apparent that the applicant failed to advance sufficient cause to persuade the court to exercise its discretionary power to grant the prayers sought. No doubt that the applicant's delay is inordinate and have not been justified. Since the applicant has failed to account each day of delay, it is my holding that If the application will be granted, it will seriously prejudice the P' respondent rights. In the final event, this application has no merits, and it is hereby dismissed with no order as to costs. It is so ordered. DATED at MOROGORO this day of December, 2022. M.J/CHaba Judge 2/12/2022 Court: Ruling delivered at my hand and Seal of the Court in Chamber's this 2"^ day of December, 2022 in the presence of Mr. Kusalika, learned Advocate for the respondent and Mr. George Kipulikapulika Kaluma who under the auspices of special power of attorney, entered appearance for the Applicant. The respondent also appeared in court. Page 8 of 9 M. J. aba Judge 2/12/2022 Rights of the parties fully explained. o c (J? 7 M. J. Cnaba ■7^ > UJ •i: Judge 2/12/2022 r5^ .Va Page 9 of 9 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO MISC. CIVIL APPLICATION NO. 20 OF 2022 (Originating from Civil Appeal No. 35of2021, In the High Court of Tanzania - Dar es Salaam, dated 10^ day ofDecember, 2021) NAOMI 3. MAKULUSA..... APPLICANT VERSUS ALEX SUTA RESPONDENT RULING 5th ^ 28"^ October, 2022 CHABA,J. This is an application for leave to appeal to the Court of Appeal of Tanzania against the decision of this Court (Kalunde, J.) in Civil Appeal No, 35 of 2021 delivered on the 10^ day of December, 2021. The application has been taken out under Rule 45(a)of the Tanzania Court of Appeal Rules, 2009 as amended by GN. No. 344 of 2019 and accompanied by an affidavit deposed by the applicant. On the other hand,the respondent filed a counter affidavit to contest the application. Page 1 of8 In nutshell, the background of this matter may be told as follows: The applicant successfully sued the respondent for compensation following unlawful arrest and detention, in the District Court of Kilombero, at Ifakara (the District Court). The respondent was not amused by the findings of the District Court hence appealed to this Court in which the Court, in its decision delivered on the 10^^ December, 2021 by my brother Hon. Kalunde, J., held that the applicant failed to clearly establish unit of all the four essential ingredients of malicious prosecution and hence quashed and set aside the proceedings of the District Court of Kilombero, at Ifakara and the resulting judgment and decree, respectively. However, the applicant was dissatisfied with the decision of this Court hence, she is determined to challenge it in the Court of Appeal of Tanzania. As such, the applicant filed the instant application seeking leave to appeal as a pre-condition requirement for appeal before the Court of Appeal, and prayed for costs of the suit and any other retief(s) this Honorable High Court deems fit, just and equitable to grant. Page 2 of8 When the application was cailed on for hearing, Ms. Josephine Mbena, learned counsel appeared for the applicant, whereas the respondent appeared in person, unrepresented. In her submission, Ms. Josephine Mbena, learned advocate adopted the applicant's affidavit and further argued that they have filed the instant application seeking leave to appeal to the Court of Appeal of Tanzania which is the requirement of the law. She further highlighted that, as indicated at paragraph 4 of the applicant's affidavit, the impugned decision dated 10/12/2021 was founded on misconception of the claims of the applicant herein before the District Court of Kilombero. Ms. Josephine lamented that, the claim before the District Court of Kilombero, at Ifakara was due to unlawful detention of the applicant and the evidence did indicate to that effect, but this court had the view that it was malicious prosecution which was not the case. To substantiate her argument,she quoted the words from the impugned decision at page 10 of the typed copy of the judgment, where the court stated that: Page 3 of8 ""In the present case, it Is uncontroverted evidence of the respondent that the appellant's action In reporting the matter to the police and demanding compensation were unjustifiable and illegal". According to her, In this regard the matter before the District Court did Involve the claim of unlawrfui arrest and detention, but the case was decided based on torts of malicious prosecution From the above, the learned counsel stressed that, the appellant sued the respondent for compensation of unlawful arrest and detention, the case ended on her favour because she was able to prove that the respondent's action to report the applicant at police was Illegal and justifiable. She Insisted further that, the High Court decision based on the Issue of torts of malicious prosecution, the claim which was not alleged at the District Court. In her opinion. In the circumstance of this case, there was no need to prove the four elements of malicious prosecution. She further submitted that, the High Court ruled against the claims which were not subject of discussion before the trial court thus the judgment is full of confusion as the analysis of evidence shows that the claim was Page 4 of8 unlawful arrest and detention whereas the judgment dealt with the issues of torts of malicious prosecution. To round up, Ms. Josephine prayed the Court to grant leave to the applicant so that she can file her appeal before the Court of Appeal of Tanzania seeking for her rights as she beiieve that this Court has created miscarriage of justice and the irregularity is very serious. She added that, the decision reached by the Court led to misinterpretation and the parties have been misdirected as the Court came up with a new set of ciaims which were never pieaded before the trial court. The respondent being a lay person, in his brief reply he prayed to adopt his counter affidavit and submitted that, he is still opposing the present application as the decision of this Court was correct and right Having heard the rival submissions for and against the appiication, the main issue for determination in this application for leave to appeal to the Court of Appeal of Tanzania is whether the intended grounds raises arguable issues of law and or facts worth of determination by the Court of Appeai of Tanzania as it was underscored in the cases of Bulyanhulu Mine Limited and 2 Others vs. Petrolube(T) Limited and Another, Civii Appeal No. Page 5 of8 364 of 16 of 2017, CAT at Dar Es Salaam and Grupp vs. Jangwani Sea Breeze Lodge Ltd, Commercial Case No. 93 of 2002. It is settled position of the law that for the Court to consider an application for leave to appeal to the Court of Appeal of Tanzania,there must be point(s) of law to be determined. It is also trite law that grant of leave or certificate to appeal to the Court of Appeal is a discretionary power of the court. In the case of Rutagatina C. L. vs. Advocates Committee and Clavery Mtindo Ngalapa, Civii Application No. 98 of 2010 (CAT-DSM) (Unreported) which cited with approvai the case of British Broadcasting Corporation vs. Eric Sikujua Ng'mao, Civii Appiication No. 133 of 2004 (Unreported), the Court had the foliowing to state, and I quote: "Neediess to say, ieave to appeal is not an automatic. It is with the discretionary of the court to grant or refuse. The discretion must however, be judiciousiy exercised on the materiais before the court. Leave to appeai will be granted where grounds of appeal raise of general importance or a novel point of law or where the grounds show a prima facie or arguable appeal.(See: Buckle Versus Holmes (1926) ALL ER Rep. 90 at page 91) Page 6 of8 However, where the grounds of appeal are frivolous, vexatious or useless or hypothetical, no leave will be granted". In the instant application, the applicant has, under paragraph 4 of her affidavit, pointed out the grounds on which the decision of this Court was founded as claimed by the applicant upon misconception on the claim of the applicant herein before the District Court of Kilombero. The applicant's averments are to the effect that the intended appeal has greater chances of success as the applicant in the District Court at Kilombero claimed for unlawful detention of the applicant while the High Court ruled basing on malicious prosecution. According to the applicant's counsel, there was no need to prove the element of malicious prosecution since it was not the claim in the trial court hence the presiding Judge erred in law and facts by misdirecting the parties to a new set of claims which was not pleaded before the trial court. From the depositions and submissions of parties as indicated above, I am of the view that, the grounds advanced by the applicant as to whether the judgment of the High Court was founded on misconception in respect of Page 7 of8 her claim before the District Court of Kilombero, at Ifakara raises arguable issues of both facts and law which deserve consideration of our Apex Court. That said and done, I hereby grant the applicant leave to appeal to the Court of Appeal of Tanzania. Each party should bear its own costs. 1 so order. DATED at MOROGORO this 28^ day of October, 2022. c 7: -1. M. J. CHABA -2: X > JUDGE '<y. 28/10/2022 Page 8 of8