ONESMO MGULU MASAMBAI Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA MISC. APPLICATION NO. 6268 OF 2024 (Arising from the decision of District Land and Housing Tribunal in Misc. Land Application No. 475 of 2022 dated 04/012/2023 before Hon. J. F. Kanyerinyeri, Chairman, Original Land Application No. 68 of 2021) ONESMO MGULU MASAMBAI………..……………………………..…………APPLICANT Versus JEMIMA PALINGO.……..…………………….……….………………………RESPONDENT RULING Date of last order: 24th July, 2024. Date of Ruling: 16th August, 2024. E.E. KAKOLAKI, J. This ruling seeks to address applicant’s application for extension of time within which to file appeal to this Court against the decision of the District Land and Housing Tribunal for Dodoma in Misc. Land Application No. 475 of 2022 handed down on 04/12/2023. He has moved the Court under section 14(1) of the Law of Limitation Act, [Cap. 89 R.E 2019] (the LLA) by way of chamber summons supported by the affidavit duly sworn by the him stating the ground as to why this Court should exercise its discretion to grant him the sought extension of time. The application is vehemently contested by the Respondent who filed the counter affidavit to that effect. At the hearing of the matter both parties appeared unrepresented and were heard in written form and filed their submissions in time save for the applicant who indicated his intention not to file a rejoinder submission. Appellant’s 1 submissions were prepared by Tanzania Women Lawyers Association (TAWLA) who also drew his other documents gratis. This Court is clothed with powers to grant extension of time under section 14(1) of the LLA either before or after expiration of the period of limitation prescribed for filing appeal or application upon reasonable or good cause shown by the applicant. As to what amount to good cause there is no hard and fast rule as that depends on the materials placed on the Court’s plate justifying the delay or stating as to why the application should be granted. Normally the applicant has to state the reasonable cause that prevented him/her from pursuing his action within the prescribed time. See the cases of Osward Masatu Mwizarubi Vs. Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010, Regional Manager, Tanroads Kagera Vs. Ruaha concrete Company Ltd, Civil Application No. 96 of 2007 (both CAT- unreported) and Jumanne Hussein Bilingi Vs. Republic (Criminal Application No. 20 of 2014 [2015]TZCA 342 (21 July 2015); www.tanzlii.org.tz. And in so doing the party has to account for each and every day of delay, otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. See the cases of Bushiri Hassan Vs. Latifa Lukio, Mashayo, Civil Application No. 3 of 2007 and Sebastian Ndaula Vs. Grace Rwamafa, Civil Application No 4 of 2014 (CAT-unreported). In the case of Sebastian Ndaula (supra) the Court of Appeal observed that: 2 ’’…even a single day delay has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken.’’ The decision of the District Land and Housing Tribunal for Dodoma in which the applicant seeks to challenge upon time extended on him was delivered on 04/12/2024 in which 45 days within which to appeal to this Court expired on 18/01/2024. This application was filed on 22/03/2024 hence the applicant has to account for 52 delayed days. In his submission he craved court’s leave to adopt his affidavit to form part of the submission. The main ground relied on by him to justify the delay is sickness in which he stated in paragraphs 3 and 4 of the affidavit that as he was intending to lodge the appeal to challenge the said decision he suffered from Pneumonia and bronchial Asthma until 15/03/2024 when he got relief. And that, on consulting his lawyer was advised that he was out of time to institute the appeal hence the present application which was filed within seven (7) days after recovery. He cited to the Court the case of Emmanuel R. Maira Vs. The District Executive Director, Bunda District Council, Civil Application No. 66 of 2010 (CAT-unreported), in justification of the ground of sickness as good cause for extension of time. That apart he argued, extension of time is sought to appeal against the default judgment in Land Application No. 68 of 2021, as its proceedings were tainted with irregularities for not notifying the applicant of the date for delivery of judgment in default. He relied on the case of Shabani Khalfan Kondo Vs. Tajiri Abdi Barua, Civil Appeal No. 232 of 2021 (CAT-unreported) where the 3 Court of Appeal referred the case of Cosmas Construction Co. Ltd Vs. Arrow Garments Ltd [1992] TLR 127 where the Court emphasized that, in the event of ex-parte proof order, the defendant is entitled to be notified of the date of ex-parte judgment. As the applicant was not notified it was submitted that amounted to illegality of the decision which is sufficient ground for extension of time. In view of these two grounds he prayed the Court to find were sufficient cause to warrant it grant the applicant the sought extension of time. In reply the respondent traversing through his counter affidavit she argued on the basis of cherished principle that whoever comes to equity must come with clean hands contending that, the applicant acted negligently when delayed to file the appeal timely instead tried to hide himself on the ground of sickness. She said, it is also not true that he spent only seven days to prepare and file this application rather it is two months from March to June. The respondent added, the applicant failed to state as to when he became aware of existence of the sought to be impugned decision as the principle of law as stated in the case of Cosmas Construction Co. Ltd (supra) is that, it is impossible to measure the extent of delay without disclosure as to when the decision came into your knowledge. According to her if the application is allowed the respondent stands to suffer injustice and irreparable loss, hence a prayer for its dismissal with costs. 4 I have taken time to revisit the affidavit and counter affidavit by the applicant and respondent in support and against the present application. I have as well considered their fighting submission. While I am in agreement with the respondent on the sound principle that, he who comes to equity must come with clean hand, as alluded to above in grant of extension of time the rule of thumb is that, the applicant must demonstrate good cause warranting the Court exercise its discretion to grant him the sought extension. Now the issue for determination in this matter is whether the application has demonstrated sufficient cause warranting grant of the sought relief. As hinted above in his submission the only ground advanced to justify the delay is sickness where the applicant in claiming to have been suffering from Pneumonia and Bronchial Asthma. According to the annexed medical chit from Izava Dispensary located at Chamwino annexure A2, the applicant started attending medical care on 02/12/2023 two days before delivery of the decision sought to be impugned in Misc. Land Application No. 472 of 2022 and continued with medical treatments until 15/03/2024. Such evidence is not challenged by the respondent hence this Court has no reason not to believe it and rely on the same. It was held by the Court of Appeal in the case of Emmanuel R. Maira (supra) that, health matters not being in party’s choice constitute good cause for extension of time if at all prevented the applicant from acting in time or performing any action within prescribed time limitation. In its observation the Court of Appeal had the following to say: 5 ’’Health matters, in most cases, are not the choice of human being; cannot be shelved and not can anyone be held to blame when they strike. Applicant’s failure to file the Notice of Appeal between the handing down of the decision…, has good cause behind…’’ In the present matters as evidenced in the medical chit annexed to paragraph 3 of the applicant’s affidavit, from the time of delivery of the sought to be impugned decision up to 15/03/2024, the Court is satisfied that the appellant was sick and unable to attend Court for being recommended to have bed rest, hence the delayed days accounted for up to 15/03/2024. As again stated above this application was filed on 22/03/2024 seven days after applicant’s recovery from illness. In his paragraph 4 of the affidavit he stated that upon recovery that is when he started looking for legal service where he was advised that was out of time to lodge the appeal hence preparation and filing of the present application. In my humble view the explanation is plausible and accounts of the remaining seven (7) days prior to the filing of this application. I therefore disagree with the respondent’s submission that the applicant failed to account for the seven days. As regard to his contention that the applicant ought to have disclosed the date in which he became aware of the decision he seeks to challenge, I agree with him that, that fact is so vital in establishing the extent of delay. However, none disclosure of such date by the applicant in this matter in my humble view does not have any effect, more so in the 6 situation where the extent of delay is already known and the applicant managed to account for the same. As to the issue of illegality of the decision raised by the applicant, I find the same to be misplaced since he was referring to the decision in Land Application No. 68 of 2021 which is not the subject of this application as extension is sought to challenge the decision in Misc. Land Application No. 475 of 2022 and not otherwise. I therefore disregard the same. All said and done, this Court is satisfied that, the applicant has managed to demonstrate good cause warranting grant him extension of time as prayed. The application is therefore merited and the same is hereby granted. Time is therefore extended to the applicant for 21 days of this ruling within which to file the appeal in respect of the decision in Misc. Land Application No. 475 of 2022. I order each party to bear own costs given the nature of this matter. It is so ordered. Dated at Dodoma this 16th of August, 2024. E. E. KAKOLAKI JUGDE 16/08/2024. 7 Court: The Ruling has been delivered at Dodoma today on 16th day of August, 2024, in the presence of the Applicant in person, the Respondent in person and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 16/08/2024. 8