20120807 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 24 OF 2012 NESPHORI LEMUNGE ....... . APPLICANT VERSUS HINDU RAJABU ................... RESPONDENT R u·L ING FIKlRINI, J: On 9 th April 2012, the applicant lodged an application for an extension of time to file an appeal out of time pursuant to section 14 of the law of Limitation Act, Cap 89 R.E.2002. The application was filed immediately after the applicant became aware of the Tribunal's decision which was alleged to be contrary to what Mr. Malamsha the applicant's previous lawyer had told him. The application is supported by the applicant's affidavit which was countered by the counter affidavit of one Massaka Michale Thomas an advocate of the High Court. During the hearing of the application, Mr. Mbuga counsel 1 for the applicant prayed for applicant's affidavit attached to the chamber summons to be adopted in its entirety. Besides, he argued the application by submitting that reasonable and sufficient causes are they key words of the provision which the applicant is required to show to convince the court to exercise its discretion and grant leave for the appeal to be filed out of time. According to him reasonable and sufficient cause depended on case to case, the refore no hard and fast rule in determining such an application. Nevertheless, the court is always obliged to construe the applicant's caused in a liberal manner so as to advance cause of justice rather than technicalities. The applicant in his affidavit deponed that he received information from Mr. Malamsha his former advocate that the case had been decided in his favour. That made him not to launch any appeal nor seek for decree as he was in occupation of the suit land. This changed when he was summoned to appear . before the tribunal. Though he wondered but instructed his advocate one Mr. Malamsha to appear and at the same time seek for services of another advocate to watch brief the matter. It is when the applicant received a contrary story from · that of his advocate. Upon learning of his predicament he decided to appeal, but since he was out of time he had to file this application. This was immediately after learning the situation he was in and this fact has n-ot been disputed the respondent in their counter affidavit. 2 t..,. 0 M\ • ? . ·~~·- -- ~ : : ~ ... ~ ; ~ : ... -:. . . ; ~z: ·.~. ,. . . _./ . . ,-.:>- _:. • It was the applicant prayer therefore leave be granted as sufficient and reasonable cause has been shown to warrant grant of the application. Because it is the advice received from previous advocate which was lacking in good faith which had left him in an awkward situation. And this was beyond the applicant's control. In addition, Mr. Mbuga further submitted that the respondent does not dispute that the applicant is in occupation of the suit land and if this application is granted that they will therefore not be prejudiced in any way. In support of his submission, Mr. Mbuga cited the book of law of limitation, 8 th Ed. 2001 by Rustomji at page 96 regarding the basic requirement of granting application for extension of time. And another citation was from an Indian case of Natheelal v. Nathibai AIR 1989 Mp at page 275; this was in relation to the lawyer's advice. Reacting to the above submission Mr. Massaka, submitted that no sufficient reasons had been advanced to warrant grant of the application. The applicant has not disclosed in his affidavit as to when he was actually made aware of the Tribunal decision as that is vital in course of this court considering this application. He as well submitted that the applicant neither stated how he received the documents i.e. copies of judgment and court decree nor who provided him with the same. Whether it was Mr. Malamsha or the applicant himself got them the Tribunal. As to when according to Mr. Massaka could be proved by the exchequer receipt issued to him after the transaction has taken place. This would have assisted to prove if the application was file immediately. Otherwise the time from when the decision was issued to when this application was filed had to be accounted for. To enhance his submission 3 - . . . ._ ...... Mr. Massaka cited several cases including the case of Ally Imran Investment Ltd v. Printpak (T) Ltd and Another, Miscellenous Civil Cause No. 126 of 1997, page 2. Nsekela, J: as he then was. Another case cited was that of Daudi Haga v: Jenita Abdon Machafu, Civil Reference No.1 of 2000 (unreported). At page.3. It was Mr. Massaka's submission that the applicant has not accounted for each delayed day. Mr. Massaka as well submitted on the complaint by the applicant that it was due to Mr. malamsha's mishandling of his case that he was now in this situation. On this, it was Mr. Massaka's take that, this is not sufficient cause to grant the application. He went as far as citing the case of Maulid Hussein v. Abd~lah Juma Civil Application No. 20 of 1988 (unreported) to support his submission that ,negligence does not constitute sufficient reason. Regarding the affidavit itself, it was Mr. Massaka's submission that 1n its response the respondent acknowledged and noted several paragraphs in the applicant's affidavit, but that did not mean the respondent does not dispute them. Regarding the cited references by Mr. Mbuga above, it was Mr. Massaka's position that the decisions were persuasive but not binding. He thus prayed for the application to be dismissed with costs for want of merits. In rejoinder, apart from reiterating his earlier submission Mr. Mbuga submitted that in paragraph 4 of the applicant's affidavit he stated that he himself was the one served with 4 - . _.. ;._.. ----.- . .=._~-·::· ~··· t. I'- ~ ,.!: •• - Tribunal summons. That he had to appear on 1st February· 2012. That is when he became· aware of the fact that the decision in case he was about to appeal was not in his favour. It is from there and within 8 days he instructed his present advocate and this application was · filed. The application was therefore well within 60 days required by law. It was his conclusion therefore that the two cases cited regarding this aspect were therefore not applicable. As for the other cited case, it was Mr. Mbuga's position that the decision was not ·applicable to the circumstances of the present application. Mr. Mbuga also responded regarding the affidavit filed by the respondent's counsel by stating that the noting done without further information meant that the respondent was not disputing what was alleged by the other party. And in this particular application it meant th~ respondent was not disputing that the application was filed immediately after he became aware of the decision. From the submissions it was thus Mr. Mbuga's submission that sufficient and reasonable cause has been shown to warrant grant of the application. From the submissions by the applicant's counsel this court do not see why it should doubt the applicant's deposition that he relied on what he was informed by his counsel one Mr. Malamsha, until when he heard otherwise by way of Tribunal summons served upon him that he had to appear before the Tribunal on the 1st February 2011. The applicant was not in my view to completely relax from following up on his case before the Tribunal. But again I have been wondering as to what would have been the 5 essence of instructing some one? I believe the crux is so that one can be well and professionally represented at the same time the applicant to go on attending to other matters. The fact that Mr. Malamsha agreed to the instruction to represent the applicant it was thus expected of him to act and behave professionally. And when he was of the feeling that he could not serve the applicant further he was expected to inform him, so that the applicant could look for someone else. It was not prudent at all for him to do what he did. · This is based on the information on the applicant's affidavit. To this court Mr. Malamsha's action and advice had a major contribution to the applicant's predicament. Nonetheless, immediately after learning_ the situation the applicant reacted and hence this application. In my view the applicant wa:s not to be blamed for what happened but his advocate. The advocate was lacking in good faith. Therefore punishing the appellant for something which was out his control in my view would not be fair and just. I have as well had an opportunity of going through the cases cited by Mr. Massaka. Those decisions are relevant, but distinguished from the application at hand. In the present application immediately after learning of his predicament the appellant instructed his present lawyers who filed this application. I would say immediately as it was after about 8 days the application was filed. Again this is based on the information deponed by the applicant in his affidavit. The applicant's situation is different from what transpired in the Daudi's case (supra). In that case the applicant failed to account for the 27 days extra before the 6 application was filed. The same is the position in the Al-:- lmran's case (supra) where no account was given of the delay of the everyday that passes beyond the prescribed time. So though relevant but it is my considered view that they cases were not applicable to the present application. Likewise, in the case of Maulid's case (supra) the circumstances are different to those in the present application. Unlike in the above cited case, in this application the applicant, first and foremost was assured by his advocate that there was no need for him to enter appearance. Logically, if the applicant had other matters to attend to will definitely seize the opportunity. Indeed in this, the applicant had other matters to attend to as averred in paragraph 2 of his affidavit. Second, the applicant was constantly pressing his advocate about the case including requesting to be furnished with the copie~ of judgment, decree and the other documents tendered at the Tribunal during hearing. I do not know what to call this, if not showing some seriousness in following up on his matter. Third, after learning of the actual situation, the applicant took only 8 days before this application was filed. The filing was therefore well within prescribed time in law. This is quite different from the six months delay in the above cited case. Besides, this court believes that there are triable issues. Therefore rejecting this application might deny the parties chances to be heard and thus cause end of justice to be defeated. Additionally, there are overwhelming chances of the applicant winning the appeal in the event he is accorded room to file his appeal. Since there is no hard 7 and fast rule as to what constitute sufficient and reasonable cause and the fact that each case is unique · from the rest, I thus find myself convinced that the applicant had advanced reasonable and sufficient cause warranting the grant of this application~ I accordingly grant the application for extension of time to file appeal o~t of time. The applicant is given 30 days to file his appeal. It is so ordered. Ruling Delivered this 7 th day of August 2012, in the presence of Mr. Mbuga for the applicant and Mr. Massaka for the respondent. P. FIKIRINI JUDGE 7TH AUGUST, 2012 Right of Appeal Explained. P. FIKIRINI JUDGE 7TH AUGUST, 2012 8