prakseda SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. CIVIL APPLICATION No. 431 OF 2023 {Arising from Wise. Land Application No. 386 of2023) PRAKSEDA BARNABAS (legal representative of HARRISSON MANDALI).......................................... Ist APPLICANT MEKEFASON MANDALI........................................ ..2nd APPLICANT REHEMA R. KANGE................................................ 3rd APPLICANT MIRIAM MAGERO.................................................. 4th APPLICANT EZRA J MATOKE......................................................5th APPLICANT MARY KILIAN JOSEPH MCHAU (legal representative of KILIAN J MCHAU)................ 6™ APPLICANT ABDALLAH MVUNGI............................................... 7th APPLICANT ELIHURUMA MREMI.............................................. 8th APPLICANT RUKIA ATHUMANI............................................... ..9™ APPLICANT MAJUTO RAJABU MBISA (Administrator of the estate of ABUU M. BASAI)..................................... 10™ APPLICANT Versus THE REGISTERED TRUSTEES OF THE ARCHDIOCESE OF DAR ES SALAAM.................................................. RESPONDENT 1 RULING 29h February, 2024 &27hMarch 2024 L. HEMED, J This is an omnibus application made under section 14(1) of the , Law of Limitation Act [Cap.89 RE 2019], sections 2(1) and 3 of the Judicature and Application of Laws Act, [Cap.358 R.E 2019] and Order XXXIX Rule 5 of the Civil Procedure Code, [Cap.33 RE 2019], It was presented for filing on 30th August, 2023, containing the following prayers:- "1. Extension of time be granted for the applicant to apply for stay of execution of the decree dated 22nd July, 2016 in Land Case No. 181 of2009. 2. Subject to the court granting prayer (1) above this Hon. Court be pleased to stay execution of the decree in Land Case No. 181 of 2009, pending the determination of application for extension of time to file Notice of Appeal registered as Misc. Land Application No. 386 of2023 pending in this court. 3. Costs of this application be provided for" The application has been taken out at the instance of Mbamba & Co. Advocates and supported by the joint affidavit deponed by the applicants. The respondent did not file the counter affidavit. 2 The application was heard by way of written submissions. Mr. Samson Edward Mbamba, learned advocate acted for the applicants while the Respondent enjoyed the service of Mr. Michael J.T. Ngalo, learned advocate. Since the respondents could not file counter affidavit, their right to address the court was limited on matters of law only. Submissions were filed as per directed schedule. In disposing of this matter, I have to start determining the 1st prayer which is on the extension of time to apply for stay of execution of the decree in Land Case No. 181 of 2009. Is the prayer worth to be granted? This is the question that needs to be addressed. Section 14(1) of the Law of Limitation Act, [Cap.89 RE 2019] provides thus: ----- V'HV. "14.-(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an 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 ■ ■1 prescribed for such appeal or application." [Emphasis added] From the above provision, the Applicants who seeks to persuade the court to extend time is bound to demonstrate reasonable or 3 sufficient cause for the delay. The Law of Limitation Act (supra) does not go further to define as to what amounts to reasonable or sufficient cause. However, case law has it that extension of time being a matter within the court's discretion, cannot be laid down by any hard and fast rules rather, has to be determined by reference to the circumstances prevailing each particular case. The Court of Appeal of Tanzania in Osward Masatu Mwizarubi v Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010, had this to observe:- "What constitutes good cause cannot be laid down by any hard and fast rules. The term "good cause " is relative one and is dependent upon the party seeking extension of time to provide the relevant materia! in order to move the court to exercise its discretion. "[Emphasis added] In the instant case, the applicants have relied on the following grounds for extension i. Technical delay in prosecuting Misc. Land Application No.386 of 2023; and ii. The decree being tainted with illegalities. I have also noted that in his written submission in reply to the applicants' submissions in chief the counsel for the Respondent has 4 argued on the preliminary objections which were dismissed for want of prosecution on 15th December 2023 for want of prosecution. The learned counsel has opted to use the backdoor to argue them without the leave of this court to restore them back. Having been dismissed, they cannot be argued upon. In that regard the entire submission of the learned counsel for the Respondent is ignored. In the submissions in chief, the applicants' advocate has not presented arguments on technical delays. He has concentrated much on the ground of illegalities. However, since it has been stated in the affidavit that support the application, I have opted to address it in short. I am aware that technical delay that results from prosecuting another matter in court is among the grounds for extension of time. However, such matter must be proved to have prevented the applicant from instituting the matter that he/she ought to have pursued it timely. In the instant case, the applicants have asserted that they could not file the application for stay of execution because they were pursuing a revision in the Court of Appeal of Tanzania. The question that arises is whether the application for revision in the Court of Appeal of Tanzania was a bar for the applicants to present their application for stay of execution of the decree of this Court in Land Case No. 181 of 2009. 5 Application for stay of execution and that of revision are two distinct matters. One can file an application for revision and yet file the application for stay of execution in the executing court. In the instant case, the application for revision in the Court of Appeal of Tanzania could not in any way prevent the applicants from:-, lodging their application for stay of execution in this Court timely. In that regard, the applicants are considered sloppy and negligent in pursuing the stay of execution. The applicants in this matter therefore, ought to have accounted for each day of the delay as was insisted in Bushiri Hassan vs. Latifa Lukio Mashayo Civil Application No. 3 of 2007 (unreported) where the Court insisted that: "...Delay, of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken...." In that regard, I find the ground of technical delay to be worthless for the court to apply its discretion power to grant extension of time. With regard to illegalities, the learned counsel for the applicants contended that the impugned judgment/decree of this court is tainted with illegalities worth for this court to grant extension of time. The 6 said illegalities were listed in the affidavit and submission in support of the application as follows: - (1) On 2nd April, 2015 the new trial judge took over the trial from another judge without compiling with the provisions of Order 18 Rule ~„ o? 10 (1) of the Civil Procedure Code (Cap 33 R:E 2002) The proceeding were, therefore, a nullity. (2) On 2nd April, 2015 the successor trial judge nullified and quashed the proceedings of predecessor judge of the same grade, on the grounds of invalidity for having been commenced without the aid of assessors. (3) Parties were not afforded an opportunity to object on the names of appointed. (4) No opinion of assessors was recorded by the Hon. Judge when composing a judgement as mandatorily required by law. It is even no record of recordings. (5) Witness for the plaintiff's case (PW11) was recalled after closure of both plaintiffs and defence case and continued to testify and produce documentary evidence. (6) Pleading were amended pursuant to the order of 27th August, 2012 to remove the 1st plaintiff, one Martha C. Nyaulingo and the 11th plaintiff, 7 one Kwasmo O. Mushi which amendment left to the case 10 plaintiffs but the judgement was composed on the basis of the old pleadings with all the original plaintiffs. I am at one with the learned counsel for the Applicants that illegality has become one of the reasonable or sufficient causes for the court to exercise its discretionary power to grant an application for extension of time. However, for illegality to stand as sufficient cause, it should be apparent on the face of the impugned decision. This position was taken by the Court of Appeal of Tanzania in Lyamuya Construction Company Limited and Board of Registered Trustees of Young Woman Christian Association of Tanzania, that:- "The Court there emphasized that such point of law must be that of"sufficient importance"and I would add that it must also be apparent on the face of the record, such as the question of jurisdiction, not one that would be discovered by a long drawn argument or process...."[Emphasize is added] In respect to the instant matter, I managed to go through the records and read the judgment in Land case No. 181 of 2009 and the affidavit of the applicants. In fact, the illegalities deposed by the 8 applicants in their joint affidavit require long drawn argument or process as one has to go back to the proceedings to find out the alleged illegalities. I have also assessed the alleged illegalities and found the applicants are faulting the decision of this same court to be tainted with such illegalities. The question is, can this same court assess its own alleged illegalities? In my opinion, the same court cannot point fingers to itself on illegalities claimed to have been committed by it. Only the court above the court alleged to commit such illegalities can have such mandate to point fingers to that court. I am holding so based on the doctrine of functus officio, that once the court makes a decision and deliver it to parties, it cannot have jurisdiction to rectify it unless those errors are correctable by way of review. In my firm view, illegalities cannot be rectified by way of review. Among the applications for extension of time in which illegalities cannot be a useful ground are applications for extension of time to apply to set aside exparte order or judgment and application for extension of time to file application for stay of execution if such application is lodged in the same court that issued the decree subject for stay. \ ) 9 Therefore, illegality is a useful ground for extension of time only if the application is to be determined by the court other than the one which issued the impugned decision. Such court must be of higher rank than the court which delivered the impugned decision. In the final analysis, I find no merit in the prayer for extension of time to apply stay of execution out of time. Having found no merit in the 1st prayer, the 2nd prayer for stay of execution becomes redundant. In the upshot, the entire application is dismissed with no orders as to costs for want of merit. It is so ordered. DATED at DAR ES SALAAM this m March 2024 JUDGE io