omary shaban vs ivan e lyimo 2020 tzhc 4569 11 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISRY

AT MOSHI MISC. LAND APPLICATION NO. 4 OF 2020 OMARY SHABANI........................................................ APPLICANT

VERSUS IVAN E. LYIMO.........................................................RESPONDENT

RULING MUTUNGI ,J. The applicant Omary Shabani seeks for extension of time to file his appeal out of time under section 41 (2) of the Land Disputes Court Act, 2002 as amended by written laws (Miscellaneous Amendments) Act No. 2, 2016. The application is supported by the grounds set forth in the applicant’s affidavit. The respondent on the other hand has resisted the application by filing a counter affidavit to that effect. On 17th November 2020 when the mater came up for hearing, the applicant was dully represented by Mr. Erasto Kamani learned advocate and the respondent i was represented by Ms. Diana Solomon learned advocate. Submitting in support of the application Mr. Kamani explained, failure to appeal on time was not due to the applicant's negligence, apathy, lack of diligence or sloppiness but it was caused by reasons beyond his control. He stated that, the first reason was due to the applicant's illness and made reference to paragraph 2, 3, 4, 7, 8 and 9 of the applicant’s affidavit and a discharge form attached thereon. He explained further that, the applicant's sickness lasted for almost 8 months from the date of the judgment to the end of July 2020. He argued, because of the ill-health of the applicant, was unable to do anything let alone preparing for his intended appeal. The second reason as annunciated by the applicant from appealing on time was, the delay by the

trial tribunal to supply him with copies of judgment, proceedings and decree so explained in paragraph 10 and 11 of the corresponding affidavit. Mr. Kamani argued that, the applicant's counsel had applied for the requisite copies on 15th December 2019 which was three 2 days after the judgment was delivered and made frequent follow-ups thereafter. However the documents were not supplied until mid-July 2020. He contended further that, the documents were so important to enable the applicant prepare and accompany the grounds of appeal as required by law. Another reason advanced by the learned counsel is illegality of the decision intended to be appealed against. Apart from the two reasons advanced as above, the learned counsel added the intended appeal raises points of law of sufficient importance that are apparent on the face of record. He mentioned some of the illegalities to include lack of assessor’s opinion in the proceedings, the judgment was reserved for seven months without any justification and an award of general damages which was neither pleaded nor proved in evidence. In light of the glaring illegalities of the decision Mr. Kimani submitted, this alone is a sufficient cause for grant of extension of time as it was held in the case of Principal Secretary Ministry of Defence and National Service vs, Duram P. Valambhia fl 9921 TLR 387 and the same 3 decision in the case of

Lyamuya Construction Co. Ltd vs. Board of Registered Trusteed of Young Women Christian Association of Tanzania, Civil Application No, 2/2010 (Unreported). Other than illegalities Mr. Kamani added, the intended appeal also seeks to challenge the decision of the tribunal on the point of facts to the effect that, the tribunal failed to evaluate evidence and give reasons to justify its findings. He was of the view that the mentioned illegalities and points of facts constitute an arguable case which supports the grant of extension of time sought by the applicant. Responding to the above submissions, the respondent’s advocate very briefly submitted that, she had no objection at all to what was submitted by the applicant through his advocate and he deserves the extension prayed for. I have considered the application and the learned advocate’s submissions in support of the application. Before determining the merit of this application I would like to restate the principle that, extension of time is entirely in the discretion of the court to grant or refuse 4 the same. The extension of time may only be granted where it has been sufficiently established that the delay was with sufficient or good cause. It is therefore the duty of the applicant to adduce good reasons to warrant this court to exercise its discretion to extend time. The same was elaborated in the case of Zaidi Baraka & Ors

vs. Exim Bank (T) Limited (Misc Commercial Cause No. 300 of 2015) Unreported that: - “The discretion must be judiciously exercised after taking into account the circumstances of the case, whether the applicant acted prudently and without delay". Now, in determining the present application, the issue is whether the reasons advanced by the applicant are good enough to convince this court to grant him extension of time. The applicant has stated his reasons which include his illness at the time the judgment was pronounced which landed him in hospital. This reason was well supported by the admission cheet annexed in his affidavit as Annex ‘A21. 5 Another reason advanced by the applicant was delay by the tribunal to supply him with the copies of judgment, decree and proceedings. The learned counsel proved that although the applicant was sick, three days after the judgment was delivered his advocate did write to the tribunal requesting to be supplied with the copies of judgment and decree but it was not until July 2020 when they were supplied the same. This was evidenced by a copy of a letter annexed to the applicant's affidavit as annex ‘A3’. This in my considered opinion is yet another sufficient cause for delay. It wouldn't have been possible for the applicant to prepare his grounds of appeal without being availed with the appeal documents. In view thereof the applicant has also

proved that the delay to file his intended appeal was not occasioned by his inaction rather it was due to reasons beyond his control. I have also noted the fact that, after being availed with the copies of judgment and proceedings, the applicant lodged the present application within two weeks which suggests that the applicant acted promptly and with due diligence in his actions. This was the test laid down in the case of Lyamuya Construction Company Ltd v 6 Board of Registered Trustees of Young Womerfs Christian Association of Tanzania Civil Application No, 2 of 2010 (Unreported) that: - “The applicant must show diligence and not apathy, negligence, or, sloppiness in the prosecution of the action he intends to take’’. In light of the foregoing analysis, the two reasons for delay explained above are sufficient enough to ground the application for extension of time as prayed for in the application. In the upshot and for the interest of justice, the application for extension of time is hereby granted. The applicant is given twenty one (21) days from the date of this ruling to file his intended appeal. I make no order for >— s- B. R. MUTUNGI

JUDGE 11/12/2020 Ruling read this day of 11/12/2020 in presence of the Applicant. 7 4---------------- B. R. MUTUNGI

JUDGE 11/12/2020 RIGHT OF APPEAL EXPLAINED. *__ _ B. R. MUTUNG

JUDGE 11/12/2020 8