nathaniel mwakipiti kigwila vs magreth andulile bukuku 2022 tzhclandd 203 25 march 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.381 OF 2021 (Arising from the High Court Land Case No. 40 of 2019) NATHANIEL MWAKIPITI KIGWILA APPLICANT VERSUS MAGRETH ANDULILE BUKUKU RESPONDENT RULING Date ofLast Order: 08. 03.2022 Date ofJudgment: 25.03.2022 T. N. MWENEGOHA,J. The application is made under section 14(1) of the Limitation Act, Cap 89 R.E 2019. It is supported by two affidavits, the one being that of the appiicant here in above, Nathaniel Mwakipiti Kigwila and the 2"^ affidavit is from his Advocate, Ashiru Hussein Lugwisa. The appiication foiiows the ex-parte judgment against the appiicant, given by Hon. V. L. Makani J, dated 26^^ May 2020, in Land Case No. 40 of 2018. The appiicant is dissatisfied with the decision in question and intends to set aside the same. But he is barred by time. Unless the time is extended by this court, he cannot pursue his intended course. This is why the case at hand was fiied. And, the same was argued by way of written submissions. Advocate Ashiru Hussein Lugwisa appeared for the applicant, while the respondent enjoyed the legal services of Advocate Victor Mwakimi. In his submissions, Mr. Ashiru after praying for the affidavits in support of the application be adopted, gave the reason why the applicant preferred this application to the effect that, the impugned decision contains illegalities. That, the applicant was not given any notice requiring him to appear in court before the ex-parte judgment was delivered. Hence the said judgment is illegal a stated in Cosmas Construction Co. Ltd vs Arrow Garments Ltd (1992)TLR at page 127. He went on to argue that, illegality in a decision, has always been found to constitute a good cause, warranting a time to be extended. This was the position of the court in The Principal Secretary, Ministry of Defense and National Service versus D.P Valambia (1992), TLR 185, that; "Where the point oflaw atissue is the iiiegaiity or otherwise of the decision being challenged, thatIs a pointoflaw ofsufficient importance to constitute a sufficient reason within Rule 8ofthe Court of Appeal Rules to overlook non-compHance with the requirements of the rules and to enlarge the time for such compHancd'. On the other hand, Mr. Mwakimi for the respondent, after adopting the counter affidavit against the application, was of the view that, the applicant has no any good cause warranting his application to be allowed. That, he has failed to account for each day he delayed in taking his intended action, as required under section 14 (1) of the Limitation Act, Cap 89, R.E 2019. Either, the applicant failed to give the number of days he stayed without taking any action/ or when exactiy he became aware of the existence of ex-parte decision against him. He insisted that, the appiicant has stayed idie without taking any action for about 2 years. This period is counted from the date when the ex-parte decision was pronounced, that is on December, 2019, to the date of institution of this case, on 29^'' July, 2021. That, the two years' period has not been accounted for by the appiicant in his submissions. He was of the view that, since the power to grant extension of time order is a discretionary one, the court should satisfy itself that the applicant has shown a good cause before allowing his application. He cited the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.02 of 2010, Court of Appeal,(unreported), that ''As a matter ofgeneralprinciple, itis the discretion ofthe court to grant extension of time. But that discretion isjudicial, and so it must be exercised according to the ruies ofreason andjustice and not according to private opinion or arbitrarily. On the authorities however, the foiiowing guidelines may be formulated; - a) The appiicant mustaccountfor aii the period ofdelay. b) The delay should not be inordinate. c) The appiicant must show diligence and not apathy, negligence orsioppinessin the prosecution ofthe action that he intends to take. d) If the court feels that, there other sufficient reasons as the existence ofpoint ofiaw of sufficient importance; such as iiiegaiity ofthe decision sought to be challengedf He went on to argue that, for the point of illegality to constitute a good cause for extending time, the same must be apparent on the face of records as per the case of The Principal Secretary, Ministry of Defense and National Service vs D.P Valambia,supra. However, In the Instant application as per paragraphs 4 and 5 of the affidavits In support of the application, a leave was granted for the applicant to appear and give his defense In the summary suit, vide Misc. Application No. 395 of 2018. He hired an Advocate for to represent him though the said Advocate withdrew from representing the applicant In the said case. This fact proves that the applicant had knowledge of what was going on In court against him. Therefore, there Is no any Illegality committed by the court as claimed by the applicant. In his brief rejoinder, the applicant's counsel maintained that, the applicant has managed to provide sufficient reasons for his application to be allowed. He added that, since there are no guidelines as to what amounts to a good cause, rather courts have always been looking for the reasons to be sufficient based on the circumstances of each case, then It should do the same In the Instant case also. Above all the applicant has not only relied on the Issues of Illegalities contained In the Impugned decision, but there are other reasons as stated under paragraphs 11-18 of the affidavit. These reasons have been further amplified through the submissions In chief. He Insisted further that, what the applicant Is arguing Is that, when his former counsel withdrew from his case, the court ordered the counsel for the respondent to notify the applicant who was the defendant In the said case. But the said order was not complied with. This was a serious Irregularity which affected the applicant's fundamental rights. In consideration of the submissions of both parties In line with the affidavits and counter affidavit filed by the parties, the main Issue for determination at this juncture Is whether the application has merit or not. As stated In number of authorities. Including the case of Lyamuya Construction Company Limited, (supra), that granting extension of time Is a discretion, however that power has to be exercised judiciously, meaning thereby, the applicant has to give sufficient reasons as to what caused his delay. Further, he has to account for that delay, see also the case of Exim Bank (T)Limited versus Jacqline A. Kweka, Civil Application No. 348/18 of 2020, Court of Appeal of Tanzania, (unreported). In additional to that, as stated by the applicant counsel, we don't have laid down rules as to what constitutes a good cause for extending the time rather the circumstances of each case will decide as what Is a good cause. This was observed In Oswald Masatu Mwinzarubi versus Tanzania Fish Processors LTD, Court of Appeal of Tanzania, Civil Application No. 13 of 2010(Mwanza Registry,(unreported). In the present case, the reasons for lodging this application as advanced by the applicant are mainly two. The first reason Is that, he was not aware of the existence of the Impugned decision, until the same was In Its execution stage. Therefore, he became aware of It on the 13^^ November, 2020 as per the Information contained In paragraph 11 of the affidavit In support of the application. He went on to say that, he decided to look for another Law firm and instructed them to work on the matter. It is from that period up until the 22"^^ June, 2021, when his new advocate discovered of the existence of second reason, that, the decision in question contains illegalities, see paragraphs 12-18 of the affidavit. Hence on the 29^'^ of July, the instant case was filled. In my opinion, based on the facts narrated here in earlier, I disagree with what the applicant is saying. That, he was not aware of the existence of the decision in question, against him. As argued by the respondent's counsel, the records are clear that, when the original case was filed as a summary suit, the applicant was given the right to present his defense. He didn't appear as required, rather he instructed his lawyer who withdrew himself from the case before it was finalized. Later, the same was turned into a normal suit and it was ordered to proceed ex-parte against the applicant. That, followed the ruling of this court to deny the prayer for a summary judgment against the applicant, dated 16^"^ December, 2019. By his failure to appear and defend the original suit, it is evident that he waived his right, and here is where the problems started. In my view, the respondent was duty bound to make follow-ups in this court, to find out what was going on in his case, especially after his Advocate had withdrawn himself from representing him. To me his conducts in the case in question amount to negligence. If that is the case, he cannot afterwards appear and try to benefit from his negligent actions through this application. It is obvious, based on these facts, that, the applicant was not diligent enough to pursue his intended cause. As per the Lyamuya's case (supra), his application has to fail. I therefore agree with the respondent's counsel that, it is obvious that the applicant has not well accounted for the period he delayed. He has stayed idle for a period of 1 year and 2 months, without taking any action. That period is counted from the date when the impugned decision was pronounced, on the 26^'^ of May, 2020, to the date when this case was filed, that is on the 29^'' July, 2021. His failure to account for this period of delay is a mistake in this application that cannot go unchecked see Exim Bank (T)Limited vs Jacqline A. Kweka,(supra). As observed here in above, the applicant was fully aware that there was a case against him in respect of the suit property going on in this court, still he took no actions to inquire on its progress. Besides the reason explained here in above, the applicant also claimed to have found illegalities in the decision of Makani J given in Land Case No. 40 of 2018. His arguments are that. He insisted further that, what the applicant is arguing is that, when his former counsel withdrew from his case, he was not properly notified. Rather, the court ordered the respondent's counsel (plaintiff in the said case) to inform the applicant who was the defendant in the said case. The order itself was not complied with, hence resulting into a serious irregularity which affected the applicant's fundamental rights. It is well settled already that, a person relying on the point of illegality as ground for extension of time, has to satisfy the court that, the same are apparent on the face of records and has to be of sufficient importance see. The Principal Secretary, Ministry of Defense and National Service, (supra). Looking on the pointed-out illegalities, I find them to be falling short of this taste. Indeed, these are factual issues that need to be proved by arguments and proofs, see Lyamuya's case,(supra). This reason also is devoid of merits. In the event, the whole application is dismissed with no order as to costs. It is so ordered. Dated at Dar es salaam this 08^*^ day of March, 2022. Oj? c o T. N EGOHA ❖ o JUDGE 5 a Si m -k !<.0 «s*"