MISC LAND CASE APPLICATION 15896 OF 2024 scanned

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND CASE APPLICATION NO. 15896 OF 2024 (Arising from Land Case No. 186 of2020) NIKOLAOUS DIAMANDIS DRIZOS.................................. APPLICANT VERSUS MLANDIZI FARMS LIMITED.......................................... RESPONDENT RULING Date of order: 27/8/2024 Date of Ruling: 11/9/2024 k, MSAFIRI. J, In this application, the applicant Nikolaous Diamandis Drizos moved the court under Section 14 (1) of the Law of Limitation Act [Cap 89 RE 2019]. The applicant is seeking for the following orders:- 1. That this Honourable Court be pleased to extend time for the Applicant to file an application to set aside ex-parte Judgment in Land Case No. 186 of 2020 between MLANDIZI FARMS LIMITED and NIKOLAOUS DIAMANDIS DRIZOS, by this Honourable Court delivered by Hon. A. MSAFIRI J, on 29/9/2022. 2. Costs of this application be provided for. 3. Any other order/orders that this Honourable court may deem fit to grant. i The affidavit in support of the application was sworn by Nikolaous Diamandis Drizos, the applicant herein. The application was opposed by the counter affidavit deposed by Scholastica Otto Mosha. Hearing of the application was by way of written submissions. The submissions in chief and rejoinder of the applicant were drawn and filed by Mr. Evodius Mtawala learned advocate and reply submissions by the respondent was drawn and filed by Mr. Jerome Joseph Msemwa, learned counsel, both parties filed submissions as per the court schedule order. In submitting the application, Mr Evodius Mtawala stated that the reasons for the extension of time to set aside the exparte judgment is a technical delay as the applicant became aware of the expatre judgement to wit Land Case No. 186 of 2020 after the lapse of one year and nine months, on 15th December 2023 after been informed by one Ali Bwanga. He submitted that it is a settled principle of law that time against the respondent starts to run from the date when he became aware of the exparte decision. To bolster his point, the counsel cited the cases of A. Mutungi vs A.A.K Sykes and Another, Mise. Land Application No. 517 of 2023 and Cosmas Construction Co. Ltd vs Arrow Garments Ltd [1992] TLR- 127. 2 He said that immediately after becoming aware of the exparte judgment, he filed an Application No. 524 of 2024 seeking to set aside the exparte judgment but the application was struck out for technical reasons. He further contended that the time spent in prosecuting Mise Civil Application No. 524 of 2024 constitutes a good cause, and it constitutes technical delay as the applicant took one year, two months and 14 days to prosecute Mise. Civil Application No.524 of 2024. Mr Mtawala gives a detailed account of efforts taken from when the Mise. Civil Application No. 524 of 2024 was struck out that soon after the application was struck out he filed the instant application on 26th June, 2024. He argued that the days spent in prosecuting Mise. Application No. 524 of 2024 should be exempted, therefore counting from 10th May 2024 when the said Application was struck out to 26th June 2024 when the current Application was instituted, only 45 days has lapsed hence the instant Application was filed within 60 days as per the time required within which to set aside an expatre judgement. Mr Mtawala submitted further that the contents of paragraph 7 of the affidavit divulges the possibility of having a conflicting decisions for the 107 plots as plots were declared to be the property of the respondent? 3 herein in Land Case No. 186 of 2020 by this court and there is another pending case before this court thus Land Case No. 326 of 2023. In reply, Mr Jerome Joseph Msemwa submitted that the applicant failed to account for the days of delay from 10th May 2024 when the Mise. Application No. 524 of 2024 was struck out to 4th July 2024 when this instant Application was filed. To cement his points, the counsel cited the cases of Felix Pantaleo Mselle & Others vs Tanzania Commission on Science and Technology, Civil Application No. 60/17 of 2018, and Lyamuya Construction Company vs Board of Trustees of Young Women Association of Tanzania, Civil Application No.2 of 2010. About the issue of possibility of having two conflicting decisions, Mr. Jerome Msemwa stated that in Land Case No. 186 of 2020, the cause of action was ownership of Plot 107, the applicant failed to attach a copy of the plaint in Land Case No. 326 of 2023 to substantiate the claims of having two conflicting judgements. Thus, the cause of action in Land Case No. 186 of 2020 and Land Case No.2023 are different. In rejoinder, Mr Mtawala restated that he accounted for the delay, and maintained that the cause of action in Land Case No. 326 of 2023 and Land Case No. 186 of 2020 are all the same. He maintained that despite 4 of the applicant being foreigner, he have right to transfer land to Rajesh William who was not party to the expatre judgement. He prayed the court to grant the application. Having carefully gone through the rival submissions, the question for determination is whether the Application has merits. This Application is brought under Section 14 (1) of the Law of Limitation Act which states that;- ",.14.-(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period oflimitation for the institution ofan appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application..." hs to what amounts to a sufficient cause, the Court of Appeal of Tanzania in the case of Jumanne Hassan Bilingi vs The Republic, Criminal Appeal No. 23 of 2013 stated that;- "..In essence, what amount to good cause is upon the discretion of the Court and it differs from case to case. But, basically various judicial pronouncements defined good cause to mean reasonable cause which prevented the applicant from pursuing his action within the prescribed time.." 5 In the case of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women Christian Associations, (supra), several factors to be considered before the court can exercise its discretion of time were set to be; i. The need to account for the period of delay, ii. The delay should not be inordinate. Hi. The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the act that he intends to take. iv. If the court feeis there are other sufficient reasons such as existence of the point of law of sufficient importance such as the illegality of the decision sought to be challenged. It follows then that the issue for determination in the Application at hand is whether the applicant has demonstrated good cause for this Court to exercise its discretion and grant the sought orders. In the instant case, the applicant was late by one year and nine months after getting information in December 2023 that this court has passed an exparte judgement in Land Case No. 186 of 2020 delivered on 29th September 2022 as per paragraph 2 of the affidavit. According to the affidavit of the applicant, after getting the information from Ali Bwanga on 15th December 2023, being a resident of Zambia, he contacted his advocate, who filed Mise. Application No. 524 of 2024 which was the application for an extension of time to set aside expatre judgement. That-; the court stuck out the said application for want of proper attestation as the affidavit supporting the application was deponed outside the country, the said application was struck out on 10th May, 2024. Then, the applicant managed to file the instant Application on 26th June 2024 after 45 days from the date of the ruling. Accounting for the delayed 45 days, the applicant at paragraph 6 of his affidavit has stated that he was sick and being hospitalized. For a person to rely on sickness he/she should be able to prove that such sickness prevent him/her from acting in time to process the matter which he/she seeks for extension of time. In this matter, the applicant has not been able to prove that sickness prevent him from filing the necessary application on time. The affidavit is silent on the nature of the applicant's illness and the duration of the illness. There is no medical proof that the applicant was sick and hospitalized at any time as he claims. In the absence of such proof, the court cannot rely on mere claims of the applicant. I agree with submissions by the counsel for the respondent that the applicant has failed to account for the delay of 45 days which are from the date the Mise. Application No. 524/2024 was struck out to the date the instant application was filed in court. J\t I g. 7 It is mandatory requirement of the law that delay of even a single day has to be accounted for as stated in case of Bushiri Hassani vs Latifa Lukio Mashayo, Civil Application No. 192 of 2016, CAT (Unreported). Furthermore, I find that the applicant has failed to establish his claim that there could be two conflicting decisions in Land Case No. 186 of 2020 and Land Case No. 326 of 2023 both in this Court. I am satisfied that the two cases has different causes of action. Furthermore, this cannot be ground for extension of time as it draws long arguments from the parties hence cannot be termed as an illegality. In the circumstances, I find that there is no sufficient ground advanced by the applicant which has brought forth reasons or good cause upon which the court can use to exercise its discretion and grant the application. All said and done, the applicant has failed to show good cause for the delay for 45 days in filing the instant application therefore the application is devoid of merit and it is thus dismissed with costs. It is so ordered. JUDGE 11/9/2024 8