petro deemay

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MANYARA

AT BABATI MISC. CIVIL APPLICATION NO. 4616 OF 2024 (Arising from Bill of Costs No. 203 of 2022, Originating from Land Application No. 63 of 2020 before the District Land and Housing Tribunal for Babati at Babati) PETRO DEEMAY..................................................................... APPLICANT

VERSUS MANDOO AMI.................................................................. RESPONDENT

RULING 25thJune & 16th July, 2024 KAMUZORA, 3 This is application for extension of time to file reference to this court against the decision of the taxing officer in an application for bill of costs that was instituted before the District Land and Housing Tribunal for Babati in Bill of Costs No. 203 of 2022. The application is supported by the affidavit of the Applicant stating the reasons for delay in filing the reference before this court. The Respondent opposed the application by filing counter affidavit. When the matter was called for hearing, Mr. Festo Jackson, learned advocate appeared representing the Applicant while the Respondent was Page 1 of 12 represented by Mr. John Shirima, learned advocate. Counsel for the parties opted to argue the application by way of written submissions and they both complied to the submissions schedule save for the rejoinder submission. In his affidavit, the Applicant pleaded four reasons for delay; technical delay, economic hardship, marital and health problems and illegality. He deponed that he was unable to file refence on time because there was delay in being supplied with necessary copies and after being supplied with copies, he filed Reference No. 1 of 2023 before this court, but the same was struck out for being out of time. That, after that decision, he could not file the application for extension of time for he had financial

difficulties and he was occupied by marriage conflict that resulted into sickness thus was being treated by the native doctors. In his submission in support of application, the Applicant's counsel submitted that the Applicant delayed in filing the application from 4th April, 2023 to 14th November, 2023 was technical delay thus urged this court to grant the application in considering the decision in Constantine Victor John Vs. Muhimbili National Hospital, Civil Application No. 44 of 2013, [2016] TZCS 208. He added that immediately after the ruling was delivered on 14th November, 2023, the Applicant being a lay person and a mere peasant suffered economic difficulties thus, he was unable to take Page 2 of 12 necessary steps on time. He urged this court to consider the Court of Appeal decision in Hamis Mponda Vs NIKO Insurance Tanzania Limited and others, Civil Application No. 254 of 2021 [2023] TZCA 240 to find that financial constraint is a viable reason to extend time. He further submitted that the Applicant had marriage conflicts which made him to become sick and was subjected to treatment to the native doctors until his recovery on 26th February, 2024 when he travelled from Utwari village to Babati town and signed the application on 29th February, 2024. He urged this court to refer the decision in Alasai Josiah (suing by his attorney Osca Sawuka) Vs. Lotus Valley Ltd, Civil

Application No. 498/12 of 2019 [2021] TZCA 51 to find that sickness is beyond human control and grant the application. The Applicant's counsel also submitted that, the ruling of the tribunal is tainted with illegalities for it entertained the matter beyond its scope. That the tribunal acted contrary to the law governing bill of costs and the taxation application was not maintainable for it was defective. That, the Applicant was also not accorded the right to be heard. He referred the case of Principal Secretary, Ministry of Defence, National Service Vs. Devram Valambia, [1992] TLR 185 to insist that where a point of illegality is raised, it can be a reason for extension of time. He insisted that subject to the law and the decision in Benedict Page 3 of 12 Mumello Vs Bank of Tanzania, [2006] 1EA 227, there is no single definition of good cause thus each case should be considered in its circumstance. He therefore urged this court to find that the Applicant has demonstrated good cause for extension of time and grant the application for extension of time to file reference. In reply, the counsel for the Respondent adopted the counter affidavit and submitted that the copy of ruling in Misc. Application No. 203 of 2022 was ready for collection on the date the ruling was delivered and no letter evidencing that the Applicant as frequently making follow up of the same thus, the claim for

technical delay cannot stand. On the argument that the Applicant had marriage conflict and became sick, the counsel for the Respondent submitted that, the Applicant was unable to state when and how the marriage went astray. While the Respondent's counsel agrees that sickness is beyond human control and nobody can fault the Applicant if he was sick, he was of the view that, there is no proof that the Applicant was sick as he fabricated the story for purpose of this application. On the argument that the Applicant suffered economic difficulties, the counsel for the Respondent submitted that there is no explanation in the submission about the economic difficulties that were suffered by the Applicant. Page 4 of 12 On the argument that the Applicant was condemned unheard, the counsel for the Respondent submitted that, the Applicant failed to demonstrate how he was denied the right to be heard. That, the proceedings of the trial tribunal show clearly that both parties were heard before the decision was made. On the argument based on illegalities, the Respondent's counsel submitted that the Applicant's counsel was unable to explain how the tribunal entertained the bill of costs out of its scope and it acted contrary to the law governing bill of costs. The Respondent's counsel was of the view that the Applicant failed to account the delay. He referred the case of Finca (T) Limited

and Kipondogoro Auction Mart Vs. Boniface Mwalukisa, Civil Application No. 589/12 of 2018, CAT (unreported) to insist that the Applicant is bound to account each day of delay. He insisted that the Applicant's application for reference was struck out on 14th November, 2023 but the Applicant was unable to demonstrate the action taken after his reference was struck out or if the application stands chances of success. He maintained that the Applicant was unable to account for each day of delay and unable to convince this court to exercise its discretion hence the application be dismissed with costs. Page 5 of 12 I have considered the records, the application, rival submission by the counsel for the parties and relevant provisions of the laws. It is an established principle of law that the decision to grant or not grant an order for extension of time is within court's discretion however, such discretion should be exercised judiciously being supported by logical, valid, authentic and sound reasoning. It is therefore the duty of a party seeking an order for extension of time to demonstrate sufficiently the reason(s) that made him to delay in preferring the matter before the court. In the case of Benedict Mumelo Vs. Bank of Tanzania, Civil Appeal No. 12 of 2002 (unreported), the Court of Appeal of Tanzania held that; "It is trite law that an application for extension o f time is

entirely in the discretion o f the Court to grant or refuse it, and that extension o f time may only be granted where it has been sufficiently established that the delay was with sufficient cause." In the land mark case of Mbogo Vs. Shah [1968] EA 93, the court highlighted factors to be taken into account by the court in deciding to either grant or refuse to grant extension of time. It was held: - "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length o f the delay, the reason for the delay/whether there is an arguable case on the appeal and the degree o f prejudice to the defendant if time is extended". Page 6 of 12 In the case of Lyamuya Construction Company Limited Vs. Board of Registered Trustees of Young women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported), the Court of Appeal of Tanzania formulated the guidelines to be considered in granting the extension of time as follows; "On the authorities however, the following guidelines may be formulated: a) The Applicant must account for all the period o f delay; b) The delay should not be inordinate; c) The Applicant must show diligence, not apathy, negligence or siopp iness in the prosecution o f the action that he intends to take; and d) I f the court feels that there are other reasons, such as the existence

o f a point o f law o f sufficient importance, such as the illegality o f the decision sought to be challenged. " Now the question is whether the Applicant's delay was not inordinate and whether the Applicant accounted for the days of delay as per the Court of Appeal holding in the case of Bushiri Hassan Vs Latifa Lukio Mashayo, Civil Application No 3 of 2007, (Unreported). In that case it was held that a delay of even a single day, has to be accounted for, otherwise, there would be no need of having rules prescribing periods within which certain steps have to be taken. Page 7 of 12 The law under Order 7 (1) of the Advocates Remuneration Order, GN No. 263 of 2015 requires anyone who intends to challenge the decision made by the taxing officer to file Reference before this court within 21 days from the date of the ruling. The records show that the decision of taxing officer before the tribunal which the Applicant intends to challenge was delivered on 04/04/2023 and Reference No. 1 of 2023 before this court was filed on 19/05/2023. From that record, the reference to this court was supposed to be filed on 26/04/2023 but it was filed 21 days later as captured by this court in reference No. 1 of 2023. The Applicant alleged that the delay was technical for there was delay in being supplied with necessary documents from the tribunal. Going through Order 7 which governs reference from

the decision of the taxing officer, there is no requirement of attaching copy of ruling in filing reference to this court. The said provision reads: - 7. -(1) Any party aggrieved by a decision o f the Taxing officer, may file reference to a judge o f the High Court. (2) A reference under order (1), shall be instituted by way o f chamber summons supported by an affidavit and be filed within 21 days o f from the date o f the decision. (3) The Applicant shall within seven dear days o f filing reference save copies all parties entitled to appear on such taxation. Page 8 of 12 (4) For purpose o f service under sub order (3), it shall be sufficient if the chamber summons has been endorsed and stamped by the Registry Officer. In considering the above provision, the delay in being supplied copy of ruling cannot be considered as a good reason for the delay. Even if we assume that it was necessary to be supplied with the copy of the ruling, the Applicant was unable to demonstrate as to when he was supplied with the said copy. In his affidavit at paragraph 4 he claimed that he was supplied with copy of the ruling on 02/05/2023 and he annexed the copy of ruling which however does not indicate if it was supplied to the Applicant on that date. I therefore find that the Applicant was unable to account for 21 days delay from 04/04/2023 when the ruling was delivered to 19/05/2023 when Reference

No. 1 of 2023 was filed before this court. It is also on record that after the reference was struck out by this court for being time barred, the Applicant did not take immediate action. While the ruling of this court was delivered on 14/11/2023, the Applicant preferred this application on 06/03/2024 which is almost four months from the date of the ruling. The argument raised by the Applicant is that he had financial difficulties, he had marital problems and he was sick being treated by the native doctors. It is unfortunate that he was unable to demonstrate the so-called financial difficulties and how it contributed to Page 9 of 12 his failure to pursue his right on time. Likewise, he was unable to demonstrate how marital problems affected his intention to pursue his right. While I agree that sickness stands to be a good reason for extension of time, the Applicant herein was unable to prove that he was sick. It is only sickness which is verified by the proper authority which can be considered and not otherwise. If we accept that sickness which is referred to the native doctors and the witch doctors is sufficient to grant extension of time, we will be opening pandora box for fabrication of facts and evidence for any party who intends to pursue a matter out of the time prescribed by the law. It becomes important therefore for a party alleging sickness to prove with evidence from

hospital or authorised institution dealing with health issues he was prevented by sickness from pursuing his right. I therefore find that the Applicant was unable to account for delay from 14/11/2023 when the ruling in Reference No. 1 of 2023 was delivered to 06/03/2024 when this application was filed. Regarding the point of illegality, it is clear that illegality by itself constitutes a sufficient ground for an extension of time but it must be apparent on the face of record and must be of significant importance to deserve the attention of the court. In determining the illegality, it does not mean that the court must determine the facts establishing the alleged Page 10 of 12 illegality, rather it will have to determine as to whether the pointed illegalities are well established and are on the face of record. In the matter at hand the counsel for the Applicant pointed out that the ruling of the tribunal is tainted with illegalities for the tribunal entertained the matter beyond its scope and acted contrary to the law governing bill of costs. That, the taxation application was not maintainable for it was defective and the Applicant was also not accorded the right to be heard. Based on the decision in the case of Principal Secretary, Ministry of Defence, National Service Vs. Devram Valambia, (supra) which was cited by the Applicant's counsel, illegality if well demonstrated, it

can be a good reason for extension of time. However, the same must be on the face of the record. It was therefore expected for the Applicant to point out what is on record which contravened the rules governing taxation but that was not done. Apart from claiming that the award was beyond the scope and contrary to the law, the Applicant's counsel did not even state the proper scope and contravened provision of the law for the court to assess if there existed any illegality which could move this court to exercise its discretionary powers. Likewise, while there is a claim for denial of the right to be heard, nothing was pointed out which could convince Page 11 of 12 this court that such right was abrogated. In that regard, the claim for illegality cannot stand to be a good reason for the delay. In the upshot, this court finds that, the delay was inordinate and the Applicant was unable to demonstrate good reasons and account for the delay. I therefore find the application to have no merit and proceed to dismiss it with costs. DATED at BABATI this 16th Day of July, 2024 Page 12 of 12