peter mnanka nyemweli vs anarua mwanga 2021 tzhc 3816 30 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MUSOMA AT MUSOMA MISC. LAND APPEAL NO. 94 OF 2020 (Arising from Misc.Land Appeal 25/2020 at the High Court of Tanzania at Musoma and Land Appeal No 151 of 2018 before the District Land and Housing Tribunal of Tarime at Tarime and originating from Land Case No. 29 of 2018 before Nkende ward tribunal) PETER MNANKA NYEMWELI.................................. ...... APPLICANT VERSUS ANARUA MWANGA....................................................... RESPONDENT RULING 25? May & 30? June, 2021 KAHYOZA, J.; Peter Mnanka Nyemweli filed an application with two prayers; one, he is applying to this Court for extension of time to file an application for this Court to certify that there is a point of law involved in the intended appeal; two, he is praying to this Court to certify that a point of law is involved in the intended appeal. The respondent opposed the application. The issues for determination are, one, whether Peter Mnanka Nyemweli has adduced good reason for delay and two, whether the intended appeal discloses a legal point or a point, which is of public importance. The background of this matter is that Peter Mnanka Nyemweli instituted a case in the ward tribunal (WT) of Nkende within Tarime district against Anarua Mwanga claiming for vacant possession of the disputed land. He lost the case. He appealed to the District Land and Housing i Tribunal (the DLHT), where he correspondingly lost the appeal. Determined, Peter Mnanka Nyemweli, appealed to this Court. Unfortunately, he lost the appeal to this Court. Peter Mnanka Nyemweli lodged a notice of appeal and instituted the application for this Court to certify that there is a point of law involved in the appeal. He withdrew the application and instituted the instant application. At the hearing, Mr. Werema prayed the affidavit to be adopted. He prayed to expound on paragraph nine (9). He submitted that there was no documentary evidence. The ward tribunal based its decision on oral evidence in favour of the respondent. He added that the evidence was not evaluated. He submitted the dispute commenced in 2009 and the case was instituted in 2018. He contended that there was no dispute in 1989. The applicant won the case in 1989 and occupied the said land until 2018 when the respondent instituted the current case. The applicant did not obtain a copy of the judgment of the ward tribunal in 1989. He emphasised that the dispute started in 2018 and before the dispute commenced he, the applicant had occupied the suit land for more than 28 years. The respondent's advocate opposed the application. He submitted that there was no sufficient cause for seeking extension of time. He submitted that the case was based on the credibility of the witnesses as there was no documentary evidence. He contended that the issue as to whether the dispute commenced in 1989 or 2018 is point of fact and not law. He referred this Court to the case of Magige Nyamoyo Kisinja v. Merania Mapambo Machiwa Civ. App. No. 87/2011. He submitted in that case the Court of Appeal emphasized on the need to ensure a point certified is point of law not otherwise. He also referred this Court to the case of Dovina N.Nkumwa v. Edwin David Hamis Civil Appeal No. 53 of 2017 (CAT unreported) I will commence with the issue whether Peter Mnanka Nyemweli has adduced good reason for delay. The applicant deposed that he withdrew the application, he filed on time, because he was unable to file written submission in chief on time. He submitted that he was not acquainted with legal knowledge so he needed an advocate to assist him. He could not engage an advocate on time as he required money to pay for the advocate's services. It is not disputed that the applicant filed the application on time he failed to file written submission. He withdrew the application and filed the current application. The applicant's ground of delay is that he had no requisite knowledge to prepare and file submission or means to pay for advocate's services. Like the respondent's advocate, I do not find good sufficient reason(s) to support the application for extension of time. It is trite law that ignorance of the law or lack of means is not a ground to extend time. See the decision of the Court of Appeal of Tanzania in the Chairman Youth Society Vs John Ndazananye Civ. Rev. No.3/1998 (CAT unreported) where it was stated that: "The law has even gone further to hold that Ignorance of law, old age or poverty are not good grounds for allowing an application for ieave to appeal out of time" The famous author on the Law of Limitation, Rustomji in his book On Limitation, Eight Ed. 2001 at page 27 had this to say: 3 After the prescribed period has elapsed, the door ofjustice is closed and no plea of poverty, distress, ignorance or mistake can be of any avail. The general rule is that even a hand cash should not be allowed to disturb the law. The rule must be enforced even at risk of hardship to a particular party. The Judge cannot on equitable grounds enlarge time allowed by the law, postpone its operation, or introduce exception not recognized by it. Whatever sympathy a Judge may feel for litigation and however dishonest and immoral the conduct of his opponent might have been in pleading the bar of limitation, the courts ae warranted in introducing saving or exceptions which are not in the statute. Eventually, I find that the applicant has not adduced sufficient cause for delay. I dismiss the application for extension of time. Now, that I have dismissed the application for extension of time, the application to certify that there is a point of law involved in the intended appeal lacks ground to stand on. The application for a certificate that there is a point of law involved in the intended appeal dangled on the application for extension of time being granted. In the end, I dismiss the application for want of merit with costs. It is so ordered. J. R. Kahyoza JUDGE 30/6/2021 Court: Ruling delivered in the presence of Mr. Werema advocate for the applicant and in the absence of the respondent. Mr. Mofuga, the Judge's assistant present. J. R. Kahyoza JUDGE 30/6/2021 5