nicodemu damiani vs nyantare village government 2022 tzhc 13756 31 may 2022

m I nc niun luuki ur i nc uinx i cu KcruDuii^ ur (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA LAND DIVISION MISC. LAND APPLICATION NO. 02 OF 2022 NICODEMU S/0 DAMIANI APPLICANT VERSUS THE NYANTARE VILLAGE GOVERNMENT RESPONDENT RULING 17/05/2022 & 31/5/2022 L.M. MLACHA, J. The applicant, Nicodemus Damian is seeking the leave of this court to appeal out of time against the ruling and order of the District Land and Housing Tribunal for KIgoma (the DLHT) made in Miscellaneous Land Application I No.68/2020 (original Land Application No. 40/2011). He also prayed for costs and any other relief the court may deem fit. The application is supported by an affidavit showing the grounds upon which the application is based. They are two fold; one, that the applicant was detained in the High Court in Civil Revision No. 2 of 2021 and two, that the ruling of the DLHT made in the execution proceedings is tented with illegalities. The Page 1 of 5 respondent, Nyantare village government filed a counter affidavit in opposition. During the hearing, the applicant appeared in person fending for himself while the respondent was represented by Mr. Edwin Rwekaza, a state attorney from Kasulu district council. Submitting before the court, the applicant said that he was delayed by the revision proceedings. Civil Revision No. 2 of 2021. He added that the decision of the district court has many defects. He asked the court to extend the time. Mr. Rwekaza did not accept what was said by the applicant. He said that the decision of the DLHT was made more than 10 years ago. It was made on 17/07/2014 while the revision was filed on 20/10/2021 and decided on 10/12/2021. Counsel added that there is a period In between which has not been counted for; the period between the date when the decision was made and the date when the revision was filled. That, there is a period of 7 years which has not been accounted for. He went on to say that the applicant has failed to account for each day of delay. Counsel finished by saying that the applicant is not merely disturbing the respondent but the court as well. Page 2 of 5 I Submitting in rejoinder, the applicant said that he appealed to Tabora High I Court but the appeal was dismissed. The respondent could not execute the decision until last year. He asked the court to exercise its discretion in his favour because the respondent wants to evict him. I have heard a close look to the pleadings and submissions. The applicant Is not seeking extension of time to appeal against the decision of the District Land and Housing Tribunal made in Application No. 2011. He is seeking extension of time to appeal against the execution ruling and order made in Application No. 68/2020. The ruling in this application was made on 10/08/2021. The revision was filed on 20/10/2021. Counting from 10/08/2021 when the execution order was made to 20/10/2021 when the revision was made, one can find that there was a gap of 2 months and 10 days or 70 days. The period which has not been accounted for was therefore 70 days and not 7 years as submitted by Mr. Rwekaza. I agree that the period when he was in this court in the revision proceedings can be excused because it cannot be said that he sat idle at home or was negligently. He was busy In the corridors of this court trying to pursue his right. But, the period 70 days starting from the day when the ruling in application No. 68/2020 was made to the date when the revision was filed has not been Page 3 of 5 ■ accounted for. The rule is that the applicant has to account for each day of delay. He has therefore failed to account for the 70 days. Para 5 of the affidavit has pointed out five areas of the decision of the DLHT which have illegalities. The applicant being a lay man could not submit on them. Reading through, I could see two areas with an apparent illegality In the decision of the DLHT. i) That, the chairman pronounced an execution order which did not pronounce the limitation of the size of the land to be given to the respondent, ii) That, the execution was done without making any reference to Nyantare Village Council. I find that these areas have serious accusations which are also common in executions of land courts. They are areas calling for the attention of the court for land executions has to be limited to the size of land which was decreed by the tribunal and the right parties. It follows that, together with the fact that the applicant has failed to account for the period of 70 days but the existence of an apparent illegality in the decision of the DLHT calls for an extension of time to allow the court to examine the record and satisfy itself to the correctness of the record and the decision. Page 4 of 5 That said, the application is granted. The applicant is given 14 days from today to file the appeal. Costs in course. J lacha Judge 31/05/2022 Court: Ruling delivered in the presence of the applicant and absence of the respondent. Right of Appeal Explained. I L.M. lacha J Judge 31/05/2022 Page 5 of 5