NGOGELA LUGATA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. LAND APPLICATION NO. 10787 OF 2024 (Arising from Application No. 235 of 2020 of the District Land and Housing Tribunal for Mwanza at Mwanza) NGÓGELA LUGATA……..………..…………………………………..….…1ST APPLICANT NTAMBU LUGATA………………………………………………………….2ND APPLICANT SOJI LUGATA……………………………………………………………….3RD APPLICANT MBUKE JIDIKU……………………………………………………………..4TH APPLICANT KULIKA KILOYA…………………………………………………………...5TH APPLICANT NZELA MUSA………………………………………………………………..6TH APPLICANT PINDU GOLA………………………………………………………………..7TH APPLICANT NYAMATE NALAMBO………………………………………………………8TH APPLICANT VERSUS MADUHU KACHELI (Administrator of the estate of the late Kacheli Lugata)..……………………………..………………………………………….RESPONDENT RULING 25th June & 28th June, 2024. Kilekamajenga, J. The instant application seeks an order for an extension of time for the applicants to file an appeal before this court against the decision of the District Land and Housing Tribunal in Application No. 235 of 2020. The application was made under section 41(2) of the Land Disputes Courts Act, Cap. 216, RE 2019. The application is supported with two affidavits; the first one is deposed by Mr. 1 Venance Kulwa Kibulika, the counsel for the applicants whereas the second affidavit is deposed by Apaifra Kaserero, the officer of this court responsible for generating control numbers. In response, the respondent filed a counter affidavit resisting the application. The parties were finally invited to address the application; the applicants were absent but were well represented by the learned advocate, Mr. Tuguta whereas the learned advocate, Mr. Maligisa Sasila appeared for the respondent. When addressing the reasons for the delay, Mr. Tuguta prayed to adopt the affidavits in support of the application and submitted that, the decision of the trial tribunal was delivered on 23 November 2023. He reminded the court that, the extension of time is the discretion of this court which is applied judiciously where the applicant advances good cause for the delay. He supported the argument with the case of Kabdeco v. Wetcu Limited, Civil Application NO. 526/11 of 2017. In his view, the applicants advanced sufficient cause for the delay in paragraphs 5, 6, 7, 8, 13 and 14 of the accompanying affidavit. Also, if the application is granted, there are three points of law to be determined by this court. Furthermore, the 2nd 3rd 5th and 6th paragraphs of the affidavit of Apaifra Kaserero are the most relevant. He prayed for the application be allowed and the costs to follow in the course. 2 In response, the learned advocate, Mr. Sakila for the respondents prayed to adopt the counter affidavit and further objected to the application. He pointed out some errors in the applicant’s affidavit; the application seems to have been filed on 2nd May 2024 whereas the same application was prepared on 16th April 2024. Furthermore, the application was dated on 25th April 2024 and presented for filing on 16th April 2024. Again, the reference number shows the application was filed on 12 May 2024. Under such circumstances, the affidavit is not relevant. He urged the court to expunge the affidavit as stated in the case of Rodha Henry v. Samwel S. Lyande and 9 others, Misc. Land Application No. 86 of 2021. The counsel argued further that though the extension of time is the discretion, there is no sufficient cause in this case. The only reason for the delay advanced by the applicants is that the applicant got the wrong control number. The counsel further argued that, the applicants’ advocate confirmed that the application was filed in May but he has failed to inform the court of what transpired between the date of filing the initial appeal and that of filing of the instant application. He blamed the applicants and their advocate for being negligent. Furthermore, in the 15th paragraph of the affidavit, the counsel raised points of law to be determined by this court. In his view, such grounds have no merit. On the proper description of the suit land, the evidence of the respondent was exhaustive. He urged the court 3 to dismiss the application as the applicants failed to demonstrate the reasons for the delay. At best, they failed to account for each day of the delay. In the rejoinder, Mr. Tuguta argued that in the 5th paragraph of the affidavit of Venance Kulwa Kibulika, the initial appeal was filed using an account of advocate Munishi (exhibit NL-01). The appeal intended to challenge the decision of the trial tribunal in Land Application No. 235 of 2020. Filing a case using an account of an advocate has no problem. The officer of this court has filed an affidavit to explain that the system generated the wrong control number. On grounds of appeal, the three raised points are based on the point of law. If the grounds are determined, the decision of the trial tribunal may reversed. He blamed the counsel for a misdirection. Also, in the 13th paragraph in support of the application, there could be an error which is solely a typographical error. In his view, the errors in the dates were minor and may be cured by expunging the offending paragraphs. If the remaining paragraphs support the application, the court may grant the application. He argued further that, the case of Rhoda (supra) should not be relied on due to the following reasons. First, it is the decision of this court which is not binding. 4 Second, the counsel has not stated the nature of the dispute. He reiterated the prayer to grant the application as the applicant advanced good cause for the delay. In this application, it is a settled law that, the court may grant an extension of time whenever there is sufficient cause for the delay. This position is stated in the cases of Tanga Cement Co. v. Jummanne Masangwa and Another Civil Application No. 6 of 2001 (unreported); Sospter Lulenga v. Republic, Criminal Appeal No. 107 of 2006, Court of Appeal of Tanzania at Dodoma (unreported); Aidan Chale v. Republic, Criminal Appeal No. 130 of 2003, Court of Appeal of Tanzania at Mbeya (unreported) and Shanti v. Hindochi and Others [1973] EA 207. In addition, the extension of time is the discretion of the court which must be exercised judiciously. In the case of Tanga Cement Co. v. Jummanne Masangwa and Another, Civil Appeal No. 6 of 2001 (unreported) the Court held that: “This unfettered discretion of the court, however, has to be exercised judicially, and the overriding consideration is that there must be ‘sufficient cause’ for doing so. What amounts to sufficient cause has not been defined. From decided cases a number of factors has been taken into account, including whether or not the application was brought promptly: the absence 5 of any valid explanation for the delay: lack of diligence on the part of the applicant.” In this case, the major reason for the delay is, the applicants filed the initial appeal on 04th January 2024. Due to technical reasons, the judiciary online filing system generated a wrong control number and registration of the case was impossible. The applicants’ advocate followed up the registration of the case but in vain. Despite close follow-ups, on 16th April 2024, the case was pending for bill payment. Therefore, the case could not be registered or assigned for determination. After scrutiny, the counsel was informed that he paid for the wrong number. At that time, the applicants failed to process the same appeal because it was already time- barred. Therefore, the delay is entirely occasioned by the judiciary's online filing system and not the negligence. In this application, the applicants have accounted for the reason for the delay and accompanied the affidavit explaining the complications involved in registering the initial appeal. Extension of time, being the discretion of the court which is normally exercised upon the applicant advancing sufficient cause for the delay, I find the applicants have advanced a good cause for the delay. The application is hereby granted and the applicants are hereby allowed to file the intended appeal within 30 days from 6 the date of this order. The costs of this application will follow in the course. It is so ordered. DATED at Mwanza this 28th Day of June 2024. Ntemi N. Kilekamajenga. JUDGE 28/06/2024 Court: Ruling delivered this 28th Day of June 2024 in the presence of the counsel for the respondents, Mr. Maligisa Sasila and a representative from the law firm of the counsel for the applicants. Ntemi N. Kilekamajenga. JUDGE 28/06/2024 7 8