nikodemu damian vs the nyantare village government 2023 tzhc 18979 14 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF TABORA AT TABORA LAND DIVISION MISC. LAND APPLICATION NO.13 OF 2023 (Arising from the Land Appeal No. 42/2014 and Originating from the Land Application No. 40/2011 from the District Land and Housing Tribunal for Kigoma at Kigoma) NIKODEMU DAMIAN........................................................APPLICANT VERSUS THE NYANTARE VILLAGE GOVERNMENT................... RESPONDENT RULING Date: 21/6/2023 & 14/7/2023 BAH ATI SALEM A, J.: Before this court, there is an application for, firstly, the extension of time to apply for re-admission of Land Appeal No. 42 of 2014 dismissed on 17/3/2016 (as per Hon. Utamwa, J) for want of prosecution; and, secondly, once the time is so extended, re-admission of the dismissed appeal be granted. The application is made under section 14(1) of the Law of Limitation Act, Cap.89 [R.E 2019] and Order XXXIX, Rule 19 of the Civil Procedure Code, Cap.33 [R.E 2019] and any other enabling provisions of the law. It is ► i also supported by the affidavit of Nikodemu Damian. It has been contested ! by the counter affidavit of Mr. Edwin Edward Rwekaza, learned State Attorney. 1 The affidavit made in support of the application detailed the circumstances that led to the filing of the present application, and hence; the reasons why the extension of time and the re-admission of the dismissed application was sought and ought to be granted. As noted from the affidavit, the same goes thus; 1. The applicant in this application and the appellant in Land Appeal No. 42/2014 of this court before Hon. Judge Utarnwa, J and the applicant in Land Application No. 40/2011 of the District Land and Housing Tribunal for Kigoma at Kigoma. 2. In the year 2011, the applicant instituted the Land case against Nyantare Village Government instead of Nyantare Village Council through land Application No. 40/2011 of the District Land and Housing Tribunal for Kigoma at Kigoma and no order from the trial tribunal to rectify the mistake or measure made by the trial tribunal to satisfy itself on the capacity of parties before it. The trial Tribunal decided the matter in favour of the respondent. 3. The Applicant was aggrieved by the said decision that is why within a time on the 21st day of October, in the year 2014 the Applicant lodg^ the Appeal to this court, since the applicant leaves far away from this court premises, on the same date of filling the Application left his phone number at the registry office of the High Court of Tanzania at Tabora and then after the applicant took the number of the one of the 9* V registry officer (0784973887) who introduced herself by the name of Mama Kahombwe who assured him that the information about £ summons will be ready. Then the applicant went back to Kasulu. 2 4. After waiting for some time, the Applicant made follow-up by calling the said registry officer to ask her about the summons she informed him that she had already got a job transfer to another Court Registry, then on 20/03/2016 the Applicant decided to travel to Tabora so th make follow up where the Applicant found his Appeal was already dismissed for want of prosecution without this honourable court to issue summons to the parties and in their absence since 17/03/2016. 5. On the same date the Applicant knocked the door of the Deputy Registrar of this honourable court to complain to him on the said appeal to suffer dismissal by this honourable court without issuing a summons to the parties, the said Deputy Registrar advised the Applicant to wait until the respondent make an application for execution then the applicant can have chance to challenge the legality «■ • of the decision of the Land Application No. 40/2011 from the District- Land and Housing Tribunal for Kigoma. 6. That, in the year 2020 the respondent made an application for Execution of the Order of the Trial Tribunal, where the Executing Tribunal Grant the prayer in favour of the respondent who had no legal capacity to be sued and legal existence via the Application of Execution w* No.68/2020 which was delivered on 10/08/2021 by learned Chairman Mwinyi. 7. That, immediately on 16/08/2021 the Applicant collect the copy of the said Execution Order on the executing Tribunal Registry, anc| 20/08/2021 the applicant went to the Law firm for interpretations ancj 3 legal advice where they advise me to lodge an Application for Revision No. 2 of 2021 where the Applicant spent a lot of time but his prayer was not Granted on the reason that the proper remedy was to make an Appeal. 8. That, on 17/05/2022 the Applicant made an application for an extension of time to lodge an appeal out of time via Misc. Land Application No.02/2022 of this Court at Kigoma where the application was granted based on irregularities on the face of the record, then the applicant on 03/06/2022 lodged an appeal via Land Appeal No. 14/2022 which was decided in his favour but the court deny to disturb the impugned decision of the trial tribunal on the ground that most of the 1 ground need to be discussed on appeal, hence his application to re- admission of land Appeal No.42/2014 for the interest of justice, due to '1 the fact that Applicant up to now face multiple criminal charges. 9. Up to date the time to file an application for setting aside a dismissal order of this court dated 17/03/2016 in respect of Land Appeal No.42/2014 are already lapsed while the same was tainted with and has material irregularities sufficient to this Honourable Court to extend time for the Applicant to file an application for setting aside a dismissal order of this court on the following hints, i. That, the name of Applicant on the said order is different to the name of his petition of appeal filled before his honourable court and on the judgment and decree of trial tribunal subjected to be appealed therein. 4 ii. That, this honourable court granting the said order without giving parties rights to be heard. On the other hand, the counter-affidavit disputed the reasons advanced in a bid to show this court that it was not in the circumstances ■5 justified to grant the extension and re-admission. f When the matter came for hearing, the hearing was conducted via I'1 audio teleconference. The applicant was self-represented while the respondent, the Nyantare Village Government enjoyed representation from Mr. Edwin Edward Rwekaza, learned State Attorney. Supporting the application, the applicant submitted that the applications •r is brought under Order XXXIX Rule 19 of the Civil Procedure Code, Cap. 33 [R.E 2019] and section 14 (1) of the Law of Limitation Act, Cap. 89 [R.E 2019]. He prayed for this court to adopt his affidavit and form part of his submission ' t Responding, Mr. Rwekaza prayed for this court to adopt the counter affidavit to form part of his submissions. He then submitted that the fl■ application is baseless because the applicant has not shown sufficient causes for each day of delay to warrant the court to exercise its discretion to grant an extension of time to re-admit appeal No 42/2014. He maintained that, it is almost 6 years since the appeal was dismissed for want of prosecution and no sufficient reason accounted for each day of delay thereof. i’ He further argued that the phone number of the clerk officer has not been attached to verify the truth. If it was true the office clerk would have: proceeded to swear an affidavit for that but there was no affidavit. To i support his proposition, he cited the case of Zuberi Nassor Mohamud y 5 .•«*F 4* Mkurugenzi Mkuu Shirika la Bandar! Zanzibar, Civil Application No. 93/15 of 2018 where the court held that in the application for extension of time, the applicant has to account for each day of delay. He prayed to this court to dismiss the application since no sufficient reason has been adduced. In conclusion, he urged this court to strike out the application with costs. In his brief rejoinder, the applicant stated that the case cited by the applicant has seconded his application. He also stated that in paragraph 13 of the counter affidavit, the respondent admitted that the disputed area has- *i no size and place. He prayed to this court for an extension of time for re- ...y admission in the interest of justice. After carefully considering the competing arguments of both parties, the main issue calling for determination is whether or not the applicant has 'AS' established good cause to warrant the court to grant his application for an extension of time to file an appeal for re-admission of land appeal which wass dismissed by this court. I have paid due regard to the affidavit in support of the application and the respondent's counter-affidavit along with the rival submissions made by t*.. the counsel for the parties. There was no counter-argument advanced toS challenge the re-admission of the dismissed appeal rather than the issue as to whether there were sufficient reasons for granting an extension of time for applying for re-admission of the appeal. In this respect, the court has thus to only labour on the issue of extension. , One of the reasons advanced in support of the application for an extension was that the applicant being aggrieved by the decision within time•3 on the 21st day of October, in the year 2014 lodged the appeal to this court, * **■? 6 I •4 and since the applicant lives far away from this court premises, on the same date of filling the application left his phone number at the registry office of the High Court of Tanzania at Tabora who assured him that the information about summons will be ready. Then the applicant went back to Kasulu and •3 after waiting for some time, he made a follow-up by calling the said registry officer to ask her about the summons; and that she informed him to had been transferred to another Court Registry. Then, on 20/03/2016, the Vi* Applicant decided to travel to Tabora to make follow up where the Applicant 4'<!■ found his Appeal was already dismissed for want of prosecution without this I honourable court to issue summons to the parties and in their absence since 17/03/2016. / As a result, the applicant could not enter an appearance as he was not J aware that the case was before the date set. It is a settled position of law that an application for an extension of TF w time is grantable only upon the court's satisfaction that the applicant has .5 presented a credible case that warrants the grant of the extension. The rationale for this requirement has been succinctly laid down in the case of Juluba General Supplies Ltd vs Stanbic Bank Limited, Civil Application No. 48 of 2014, where the Court of Appeal held; "AH applicants should be concerned is showing sufficient reasons why he should be given more time and the most persuasive reason that he can show us that the delay has 9% xV ■*> not been caused or contributed by the dilatory conduct on ■T ts his part." 'Z Similarly, for this court to grant an extension of time, the applicant V- must state sufficient reasons for his delay and account for each day of delay; As it was held in the case of FINCA (T) Ltd and another v Boniface Mwaiukisa, Civil Application No. 589/12 of 2018 Court of Appeal Iringa, (unreported). I Furthermore, it should be known that the power to extend time is discretional, but such discretion must be exercised judicially, meaning the making of a logically sound decision based on rules of law that require the attention of the court to all the relevant factors and materials surrounding •u any particular case. These factors include the length of the delay, the reason •/ for the delay, and whether or not there is an arguable case as stated in the cases of Nichoiaus Mwaipyana r the Registered Trustees of the Little Sisters of Jesus of Tanzania, Civil Application No.535/8 of 2019; and Lyamuya Construction Company Limited x Board of Trustees • Tanzania Young Women Christian Association of Tanzania, Civil I Application No. 02 of 2010 (both unreported). In Lyamuya Construction 1 Company {supra}, In (all unreported); the Court said that factors to be considered would normally include the following: - (i) That the applicantS3 must account for all the period of delay, (ii) That, the delay should not lie inordinate, (iii) That, the applicant must show diligence and not apathy s?nui negligence or sloppiness in the prosecution of action that he intends to take, y (iv) That, if the Court feels that there are other sufficient reasons such as J the existence of a point of law of sufficient of a point of law sufficient Mt* importance, such as the illegality of the decision sought to be challenged. a I 7 8 ' 4 After taking into consideration what has been submitted by the applicant and respondent state attorney, I would like to observe that the I applicant's grounds for seeking an extension is to restore the dismissed appeal. In principle, Order XXXIX Rule 19 of the Civil Procedure Code, Cap.33 provides that: "Where an appeal is dismissed under sub rule (2) or rule 17 or 18, the appellant may apply to the court for the re-admission of the appeal, and where it is proved that he was prevented by any '3 ■.If'1 sufficient cause from appeal when the appeal was called on for J hearing, or from depositing the sum so required, the court shall 7 re-admit the appeal on such terms as to costs or otherwise as it thinks fit... '(emphasis supplied). From the records of the court, I have tried to peruse to see if the applicant has adduced sufficient reasons. Much can be said. The applicant I has not been seriously prosecuting his cause which resulted in the impugned dismissal. In paragraphs 3 and 4 of the affidavit, I think, he is not exhibiting f any sufficient reason to justify his delay. I subscribe with the learned state attorney that the appellant has not accounted for each day of his delay since the evidence adduced in the affidavit is insufficient and incoherent. 3 This court, having perused the records, noted Annexure N2 but the applicant does not show the said phone number of the alleged registry I- officer. Further, as submitted by the respondent, the applicant would have I proceeded to the said registry officer to procure an affidavit from her which shows that they really contacted each other on the dealing in respect of summons. In law, in line with the rule against hearsay evidence, an affidavit 9 S 'X It •’{ ^7 “V; I? » of the third person who is alleged to have given certain facts must beA . procured. See, for instance, Narcis Nestory r Geita Gold Mining Ltd} Misc. Labour Application No. 13 of 2020; NBC Ltd v Superdoll Trailer Manufacture Co. Ltd., Civil Application No. 13 of 2002; Awadh Abood (/Is Legal personal representative of the Estate of the Late Salehe Abood Salehe) m Tanroads and AG, Misc. Land Application No. 53 of 2020 (all unreported). Precisely, while discretion is involved in determining whether to grant an extension of time, the decision-maker must still act within the boundaries of applicable laws, rules, and legal principles. They should exercise their $ discretion in a fair and impartial manner, considering the interests of all ■J parties involved and the overall administration of justice. As noted from the >a counter affidavit, it is now 6 years and some months, and the applicant has to account for each day of his delay which undertaking has not been done.n-,1 It is in the interest of the state that there should be an end to litigation. It is my considered view that this application lacks merit. In the circumstances, I will not make any order as to costs. Order accordingly. ? < A. BAHATI SALEMA JUDGE 14/7/2023 Court: Ruling delivered in presence of both parties. A. BAHATI SALEMA JUDGE 14/7/2023 io Right of Appeal fully explained. A. BAHATI SALEMA JUDGE 14/7/2023 11