NASIBU BUDA VS FREE PENTECOSTAL CHURCH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY ATTABORA MISC. CIVIL APPLICATION NO. 10326 OF 2024 (Arising from Misc. Land Application No. 04 of2023 before the High Court of Tanzania at Tabora sub~Registryand Originating from the District Land and Housing Tribunal in Misc, LandApplication No. 71 of2017) NASIBU BUDA.............................. ............... ................... APPLICANT VERSUS FREE PENTECOASTAL CHURCH OF TANZANIA (FPCT) ...... . RESPONDENT bate of Last Order: 24/09/2024 Date ofDelivery: 15/10/2024 RULING KADILU, J, The Applicant has applied for an extension of time to appeal against the decision of the District Land and Housing Tribunal in Misc. Land Application No. 71 of 2017. The application is made under Section 41 (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] and is supported by an affidavit of Mr. NaSibu Buda, the applicant. The applicant's major ground of the application is that after being aggrieved by the decision of the District Land and Housing Tribunal, he filed Misc. Land Revision No. 04 of 2023 in this court. The application was struck out for the reason that he was required to appeal instead of applying for revision. At that stage, the time for appeal had already expired. He then applied for an extension of time within which to file an appeal out of time. One of the grounds of the application contained in the applicant's affidavit is that the respondent has been blocking him by raising legal technicalities whenever he tried to put up his case. The i respondent filed a counter affidavit in which he discredited all the grounds of the application. She averred that legal technicalities are based on law and not the discretion of the parties. When the application came up for hearing, the applicant was represented by Mr. Lucas Ndanga the learned Counsel while the respondent was represented by Mr. Kelvin Kayaga, also the learned Advocate. Mr. Ndanga submitted that the applicant failed to file an appeal on time because he was trying to pursue the matter in various ways but failed. He elaborated that the applicant was not negligent as he had been pursuing his right consistently for about 23 years. The learned Advocate cited the case of Hamisi Mahamudu v. Misc. Criminal Application No. 113 of 2018 in which it was held that where the applicant has shown diligence, he should be granted an extension of time. He prayed for the court to find the applicant deserving an extension of time to file his appeal out of time as he has been in the court corridors following up his case for more than 20 years non-stop. On his part, Mr. Kelvin Kayaga submitted that the applicant has not shown good and sufficient cause warranting this court to grant him an extension of time. He argued that the applicant has not accounted for each day of delay, has not shown a good cause of delay, and has not elaborated on what he has been doing for more than 20 years relating to this case. The learned Advocate referred to the case of Wambele Mtumwa Shahame v. Mohamed Hamis, Cw\\ Application No. 138 of 2016 where the Court of Appeal at Dar es Salaam held that the applicant should account for each day of delay, and a delay of even a single day has to be accounted 2 for, if the applicant is to be granted an extension of time. He added that the applicant has given a seeming statement that the case involves an illegality but he has not shown the alleged illegality. Mr. Kelvin opined that for the illegality to stand as a ground for an extension of time, it should be apparent on the face of the record or touch the jurisdiction of the court. To support his argument, the learned Advocate cited the case of Ngao Godwin Losero v. Julius Mwarabu, Civil Application No, 10 of 2015/ the Court of Appeal at Arusha. He urged the court to dismiss the application with costs. Having gone through the prayers set out in the chamber summons and the grounds stated in the applicant's affidavit, the issue for determination is whether the applicant has demonstrated a good cause of delay for this court to grant him an extension of time. The law does not define what a good cause is. However, case law has established factors to be considered in determining whether a good cause has been established. They include the length of delay, the reasons for the delay; whether there is an arguable case such as where there is a point of law or the illegality or otherwise of the decision sought to be challenged; and the degree of prejudice to the respondent if the application is granted. It is trite law that an application for an extension of time is entirely at the discretion of the court to grant or refuse it. It is also settled that an extension of time may only be granted where the applicant has sufficiently established that the delay was due to good and sufficient cause. On scrutiny of the whole application, it is my holding that the applicant has not succeeded in convincing this court that, the delay in lodging his petition of appeal was caused by genuine reasons. I hold so because as correctly 3 argued by Mr. Kelvin Kayaga, the applicant has not accounted for the days of delay from 2017 up to 07/05/2024 when he filed this application. Under Section 41 (2) of the Land Disputes Courts Act, the applicant was supposed to appeal within 45 days after the date of the decision or order. He informed this court that the delay was caused by a wrong application he had filed earlier In this court. He also blamed the respondent for raising legal technicalities every time he tried to make his case. With due respect, these are not good and sufficient reasons for the delay warranting this court to exercise discretion in granting the applicant an extension of time. The delay of more than 20 years in taking an appropriate step is indeed inordinate. The applicant has not accounted for all the days of delay. He has not also shown diligence in following up on his case because instead of instituting an appeal, he wasted a long time pursuing a wrong action. In AdrofuFulgensiMfunya v. Juma Hereye & Othersf Civil Application No. 33 of 2021, it was observed that: "l am not in the least persuaded that going into forum shopping and filing several incompetent matters as the applicant did after he feltaggrieved with the settlement order amounted to being diligent and prudent in the pursuit of his rights." The applicant's act of filing an incompetent application which was later struck out for being incompetent cannot be equated with promptness and diligence to form the basis for the extension of time. In Kigoma Ujiji Municipal Council r, UHmwengu Rashid t/a Ujiji Mark Foundation, Civil Appeal No. 222 of 2020z the Court of Appeal quoting with approval what 4 was observed in John Cornel v. A. Grevo (T) Limited, Civil Case No. 70 of 1998, High Court of Tanzania at Dar es Salaam, stated: "However unfortunate it may be for the plaintiff, the law of limitation on actions knows no sympathy or equity. It is a merciless sword that cuts across and deep into all those who get caught in its web," The above observation brings to the fore the reality that in deciding cases, the courts are not driven by emotions or sympathy, but by the law. Thus, observing the procedural rules does not mean punishing the parties, but placing them in the right spot and reminding them that the law and procedures have to be complied with. That is why I fully agree with the respondent's argument that the legal technicalities faced by the applicant herein emanate from the law and are not at the discretion of anyone to impose. In Tanzania Rent a Car Limited v. Peter Kimuhu, Civil Reference No. 68 of 2019, the Court of Appeal at Dar es Salaam held that failure by the Counsel to check the law is not sufficient ground for extending the period of appeal, and failure by the advocate to act within the dictates of the law does not constitute a good cause for enlargement of the time. The applicant laments that during the execution of the tribunal's decree, the respondent demolished some structures that were not part of the disputed property. Mr. Kelvin responded that this is a question of fact that needs proof. Indeed, in terms of Rule 23 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, the concern was not supposed to be raised as a ground in an application for an extension of time. 5 It is the law under Section 14 (1) of the Law of Limitation Act that for the applicant to be granted an extension of time, he has to advance before the court reasonable or sufficient cause explaining what delayed or prevented him from making an application or appeal timely to enable the court exercise its discretion. This was not done in the instant matter before me hence, I agree with Mr. Kelvin that the applicant has failed to show a reasonable cause for the delay to warrant this court to exercise its judicial discretion in granting him an extension of time. Consequently, the application fails and I dismiss it with costs. It is so decided. JUDGE 15/10/2024 The Ruling delivered in chamber on the 15th day of October, 2024 in the presence of Mr. Nasibu Buda, the applicant, and Mr. M.K. Mtaki, Advocate for the respondent. JUDGE 15/10/2024 6