nathaniel mwakipih kigwila versus magreth andulile bukuku 2022 tzhclandd 15726 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 of2019) NATHANIEL MWAKIPIH KIGWILA. APPLICANT VERSUS MAGRETH ANDULILE BUKUKU RESPONDENT RULING Date ofLast Order: 08. 03.2022 Date ofJudgment: 25.03.2022 w i* I : . i ■ '' /A» t\ ■ '.ass'. . j: 2B'- 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 1^ one being that of the applicant here in above, Nathaniel Mwakipiti.Kigwila and.thB2"A'affidavit is from his Advocate, Ashiru Hussein Lugwisa. priginaily, the application fallow the exparte judgment against the applicant> given by Hon. V.L Makani J, dated 26^^ May 2020, in Land Case No. 40 of 2018. The applicant 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 filed. And',"the same was argued by way of 'r'pr f -'[nQ I"?"' ' written submissions. Advocate A^hiru Husseiri'Tugwisa appeared for the ■ '?kir: ■ k ■ 2'''-' '■ ' 1 ; ^ ■ ■ ■'I GQc" '""-.. r. .jai'e:' ?G' ' ' kia / j, 'in if, i applicant, while the respondent enjoyed the iegal services of Advocate Victor Mwakimi. In his submissions, Mr. Ashiru after praying for the affidavits in support of the application be adopted, gave the reasons as to 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 exparte judgment was delivered. Hence the said judgment is illegal a stated in Cosmas Construction Co. Ltd versus Arrow Garments Ltd (1992)TLR at page 127. He went on to -^ . , -v.-) , .I , . 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 iDefenseoand National Service versus D.PiValambia (1992)fiTLR185p that;!^ Where the point of Jaw at issue is the iiiegaiity' or otherwise ofthe decision being ciihiienged, that is a point ' of iaw of sufficient importance to constitute a sufficient' 1' • . -! if-'.- - ^ S' reason within Ruie 8 of the Court of Appeai Ruies to . • ■ *, - --C! • • overiook non-compiiance with the requirements of the ruies and to eniarge the time forSuch compiiancd' On the other hand, Mr. Mwakii7i[ for the respondent, after^jdopdng the counter affidavit against the applicatign, was .of the vjew that, the applicant has no 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 un^er se&ibh'-i4'(1) of th^^^ ?• '• '• rn f'r-n^p''' '' ''' Act, Cap 89, R.E 2019. Either, the applicant failed to give the number of days he stayed without taking'any adion, or when n, or when exac exactly he became ■I aie . > SUC'• i . .. 2 X '"^6 i • -.1 -• , -V.' ' 'i t'" au ■ ■ ■ ■ ■ ■ ■' .nq jhS ^ iG bB . "G . "Gch -G.;.' GG C-: - .r.-d la-tG-in aware of the existence of exparte decision against him. He insisted that, the applicant has stayed idle 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 26^ 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 V.^Board of Registered^iTrustiees of Young Women's Christian Associationciof Tanzania, Civil Application No.02 of 2010, Court ofAppeal,(unreported)/ that i" As a matter ofgenera!principle, itis the discretion ofthe ' court to grant extension of time.''Buf tiiat discretion i's judicial, andso it mustbe e' xerdseSaccdfAng to thejuies ofreason andjustice and not according to private opinidn or arbitrarily. On the authorities however, the foiidwing guidelines may be formulated; - ^ r ■ • ■/. Bo: t ^ T-. ' . _ . a) The appiicant must account for aijthe penqd of delay, , b) The delay should not be inordinate. c) The appiicant must show diligence and not apathy, negligence or sioppihess in the prosecution of tije aWbrPtif^^^ to take. r-r I I n /<< r/r-tiJ ir •-.! ■-r-'\yr.f\n- K' d) Ifthe court feeis that, there other sufTidentreasons as the existence of point of iaw of sufTiddnt irhp6}tan6e;%uch as iiiegaiity of the decision sought to be challenged''! - 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 •/.' t ' 'Of : ntxr/pvfK ■hr ■ ' ■ ■ ; /c. s-j; ■ ■: ci i' e d;. records as per the case of The Principal Secretary, Ministry of Defense and National Service versus 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 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 Illegality committed by the Court as claimed by the.applicant./ . In his brief rejoinder, the applicant's"'Counsel maintairieci. that;' the applicant has managed to provide sufficient reasons for his application to be allowed. He added that, since there are no guidelines^ ai'to'what amounts to a good cause, rather Courts have always been looking the reasons to be sufficient based on the circumstances of each case, then it should do the same in the instant case also. He added that; above all the applicant has not only relied on the isslli&s of illegalities contained in the /. •. , • > r- . -• t-W I V impugned decision, but there are other reasons as stated under paragraphs 11-18 of the affidavit. That,These reasons have been further amplified Through the submissions in chief;:He insisted further that; what the applicant is arguing is that;, when/hisfformercounsel^'withdfewfrom his case, the Court ordered the counsellor the. respondentrto'notify the applicant who was the defendant;in the isaid casei^But the saidrorden was not complied with. This was a serious-Irregularity whichi affectedthe applicant's fundamental rights.-^. . alsi -: - / c [ ' r ,i ' '■ th. • behJ"' 4 ; . riief ■! " ^Jner th'r i, . . ■ ; fvc- • , r ■ -,[ ' ■ ! ;- ri rr lU la a ; ; : sa. : . ' r satd ^ ^ 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^ tanza JL (unreported). ' ''V c! main : si.'.' In additional to that, as stated by the applicant's counsel, we do not have laid down rules as to what constitutes a good cause for extending the time rather the circumstances of each case will decide as'vilfa^is a good cause. This was observed in Oswald i^asatu'MwinzafUbi vef^^^ Tanzania Fish Processors LTD, Court of Appeal of Tanzania, Civil Application No. 13 of 2010(Mwanza Registiy,(unrepdh:eid)i In the present case, the reasons^for lod,gmg this application,as^adyan^^ 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 becameaware of it on the IS'^'NoveWiber, 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 instructedThem 'to'work on the mattef.nt is from that period up until the 22"^ June, 2021, when his new'^advocate (discovered of the existence of secoilf Veason; %at,''th^^ in i'V-- • . ^ C/- i'-- I.' -VaS'Mi >1. . .■ P'- ! I 'h' Vv - question contains illegalities, see paragraphs 12-18 of the afPidavit. 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 did not 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 exparte against the applicant. That, followed the'Ruling of this Court to deny the prayer for a summary judgment against ethe! appiicaht^iiidated 16^ December,;2019. By failure to> appear^and .defend'the originalisuit/it is evident that he waived his right, and that is where the problem started. In my view, the respondent was dutybound to'make,foilowiups in this Court, to find out what was going on tin; his^case,; especially after ihis Advocate had withdrawn himself from representing ;him. icTo^'merhis conducts in the case in question amount to negligence. If thabis the case, he cannot afterwards appear and try benefit from his negligent.actions through this application. It is .obvibus;ebasdd. oh these Tactsp'that," the applicant was not diligent enough to pursue his intendedicausej:As per the Lyamuya's case,supra, his application has to fail. ^ .I . • I",, I therefore agree with the respondenfslcounselThat, it is.obvious thatthe applicant has not well accounted for the period he deiayed.iHerhas stayed idle for a period of 1 year and 2 months, without taking any a'ction; That period is" counted from the date when-the; jmpugnedn decision was (. .. I./',! I, I .. "l li. 6 •-.p;-) • -V": -Qocr. 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 versus Jacqline A. Kweka, (supra).-As observed 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 action to inquire on its progress. He has no one to blame but himself. Besides the reason explained herein, the applicant also claimed to have found illegalities in the decision of MakanH given in Land Case No! 40 of 2018. His arguments are that, When his former counsel withdrew from his case, he was not properly notified. That, the Court ordered the respondent's counsel (plaintif in the said case)to inform the applicant who was the defendant in the said case. The order" itself was'ndt'complied with, hence resulting into a serious IrVegulanty'whicfi ^affected the applicant's fundamental rights. I i , It is well settled already that, a person relying on the point of Illegality as . 1, r)~. . 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, MinistiV of Defense and'National Service, supra. Looking on the'pointed-dut illegalities, I find them to be falling short of this state. Indeed, these'arefactuki issues tha^Pn^^ to be ( . - "i ■ ri"|0 •'•T' "• ^ proved by arguments and proofs, see'Lyamuya s case/(supra).'Tnis ,1 . , -w . . ; , , , y'il j if reason also is devoid of merits. reis.''-"' ' ' I I il of'ili': -• 1.1., -i 'j In' - •"[ -t.. 7 V-' ■d-o - :lnd th'-T) i--' ' Hi" ■ ^ L.V , ■ In the event, the whole application is dismissed with no order as to costs. c> T.r^^wenegoha. Judge 25/03/2022 ir /j