PROSPER GRATIAN SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.20873 OF 2024 (\Originating from the Ruling and Drawn Order of the District Land and Housing Tribunal for I/aia in Misc. Application No.266 of2023 delivered on 19th March 2023) PROSPER GRATIAN........................................................... APPELLANT VERSUS THE REGISTERED TRUSTEES OF THE SEVENTH DAY ADVENTIST ASSOCIATION OF TANZANIA...... RESPONDENT JUDGMENT 19h December, 2024 & 10h January,2025 L.HEMED,J Briefly, in 2008 the Registered Trustees of the Seventh Day Adventist Association of Tanzania instituted at the District Land and Housing Tribunal for Ilala Application No.30 of 2008 against Prosper Gratian, the herein Appellant, suing for trespass into the suit landed property known as Plot No.798 Part II Block 'E'Tabata. At the end of determination of the said suit, the trial Tribunal made the following orders in favour of the Respondent herein, thus: - i '7. The respondent to accord vacant possession of Plot No.798 Block "e"Tabata. 2. The respondent's structure found in plot No.798 Block "E" Tabata be demolished. 3. The respondent is permanently restrained from entering in Plot No.798 Block "E" Tabata, harassing the applicants in whatsoever manner or doing any lawful act in the suit area. 4. Each to bear his/her own costs(sic)." The Appellant got aggrieved by the above verdict of the trial Tribunal he thus knocked the gates of this court vide Land Appeal No.41 of 2013 to challenge it. Having heard the appeal, this court on 26th February 2014 delivered judgment setting aside the judgment of the trial tribunal, struck out the claims of the herein Respondent before the lower Tribunal for failure to join necessary parties and ordered institution of fresh suit involving all necessary parties. On 26th September, 2023, the Appellant herein lodged before the trial Tribunal Misc. Application No.266 of 2023 under section 14(1) of the Law of Limitation Act [Cap.89 R.E 2019], seeking to be granted extension of time within which to apply for restitution of the property on Plot Number 716 2 Block 'E' Medium Density Area Tabata. On 03rd May 2024 the trial Tribunal delivered ruling dismissing the said application after having found the Appellant/Applicant to have failed to demonstrate good and sufficient cause. The Appellant got dissatisfied by the said decision hence the instant appeal on the following grounds: - "1. The learned chairman of the District Land and Housing Tribunal erred in law and on facts by holding that applicant Prosper Gratian did not account for a period of almost five years from July 2014 calculated from the date of the expiry of 60 days from the date of the notice of appeal to the court of appeal, lodged on 5h March 2014 to 2019, when CivilApplication No. 51/17 of 2019 seeking to strike out a notice of appeal lodged at the Court of Appeal, whereas the period was duty accounted for, as there was a notice of appeal in place and applicant could not have taken any step without removing the notice of appeal lodged by respondent against the judgment of the High Court. 2. That the learned chairman of the District Land and Housing Tribunal erred in law and on facts by holding that applicant was negligent by not filing the application for restitution and that there was no taw or order preventing him to do so whereas there was a specific 3 order as per the judgment of the High Court in Land Appeal No. 41 of 2013 delivered on 4h February 2014, directing respondent to file a fresh suit following the setting aside of the judgment and decree of the District Land and Housing Tribunal, delivered in favour of the current respondent then applicant, retied upon to access the suit premises. 3. That the learned chairman of the District Land and Housing Tribunal erred in law and on facts by holding that there was inordinate delay by applicant to take legal steps for restitution, whereas the delay was duty accounted for and the dismissal order has no justification and leave the rights of the parties unresolved in particular applicant who was disowned of his ownership of the land in dispute." The matter was argued by way of written submissions. MrJoseph Rutabingwa, learned advocate acted for the Appellant while the Respondent enjoyed the legal service of Mr. Samson Mbamba, learned advocate. I have read the rival submissions which I have opted not to reproduce them in the course of determining the appeal at hand. It should be noted that the impugned ruling of the trial Tribunal subject of this appeal comes from the exercise of discretional powers of the lower 4 Tribunal to grant extension of time to the Appellant/Applicant to apply for restitution of the disputed landed property under section 14(1) of the Law of Limitation Act(supra) which provides thus: - "Notwithstanding the provisions of this Act, the court may, for, any_ reasonable, or, sufficient, cause, extend the period of limitation for the institution of any appeal or an application... "/Emphasis added] The words 'for any reasonable or sufficient cause' imply the discretion power the court has in granting extension of time. But the discretion is judicial, that it must be exercised according to the rules of reason and justice. The three grounds aforesaid together with supporting submissions are basically faulting the ruling of the trial Tribunal for being injudicious. The Court of Appeal of Tanzania has tried in plethora of decision to provide guidelines under which courts can exercise descretionary powers in granting extension of time. In Lyamuya Construction Company Ltd vs Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010, the Court observed thus: - 5 '/4s a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules ofreason andjustice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that intends to take. (d) If the court feels that there are other sufficient reason, such as the existence ofa point oflaw of sufficient importance; such as the illegality of the decision sought to be challenged." In the light of the above guidelines, the question that needs to be addressed is whether the Appellant herein failed to demonstrate sufficient and good cause before the trial tribunal for the delay. From the records, it is unequivocally clear that the Applicant ought to have filed the application for restitution of the disputed landed property within 60 days from 26th February 2014 when the Judgment of this court in Land Appeal No.41 of 2013 was delivered. The application for extension of time was presented before the trial Tribunal on 26th September, 2023, that is after ten (10) years. In order to determine whether the trial Tribunal exercised its discretional powers judiciously, I am bound to go through the affidavit that was deponed to support the application before the trial tribunal in which the cause for the delay was to be stated. I have opted to reproduce some of the paragraphs of the affidavit of one Prosper Gratian to find out if sufficient and good cause was averred. The paragraphs reproduced hereunder are 5th up to 14th: - "5. That upon delivery of that judgment, I timely filed an appeal to the High Court of Tanzania Land Division as LandAppeal number 41 of 2013. 6. That while the appeal was pending and already served to the respondent, respondent forcefully demolished the building and took possession of the landed property in dispute. 7. That on 2&h February 2014, the High Court deliveredjudgment setting aside thejudgment of this Tribunal and ordered respondent to file a fresh suit.... 7 8. That respondent was aggrieved by that judgment and initiated the process of appealing to the court of appeal by filing a notice of appeal. 9. That despite of (sic)being supplied with all necessary documents, no appeal was filed and I took steps to strike out the notice of appeal, (sic) upon expiry ofthe statutory period within which the appeal would have been filed. 10. That pursuant to those steps, the court of Appeal on 27th September 2021 delivered an order striking out the notice of appeal... 11. That on 4h October 2021,1 wrote a letter to the respondent demanding compensation and vacant possession, but no reply was received and upon my inspection of the plot I found out that the respondent have alreadyput up a new building operating a nursery school... 12. That from the time of the judgment of the High Court Land Division ...the application for restitution would have been filed within sixty days by 2Sh April 2014. 13. That after my demand notice of October 2021, I could not take some steps believing 8 that respondent would heed to the order of the High Court Land Division by filing a fresh suit as no time frame was set by the High Court and by now it is dear that they are not in a position to do so, paving the way to me to seek restitution to my landed property. 14. That I can not proceed with the application for restitution without extension of time hence the application at hand." The question is whether the above facts constituted sufficient and good cause for the delay. From the facts stated hereinabove, the Appellant seemed to state that, he could not file the application for restitution of the suit landed property timely because, one, this Court had ordered the respondent herein to file a fresh case joining all necessary parties; and two, the respondent had filed the notice of appeal to the Court of Appeal of Tanzania against the decision of this court in Land Appeal No.41 of 2013. Let me begin with the ground of the order of this court for the respondent to file fresh case joining ail necessary parties. In my firm view, the order of this court could not in any way be a bar to the Appellant to apply for restitution of the suit property because the same was not dependent on the suit which ought to have instituted. The application for restitution would 9 have been filed within 60 days from 26th February, 2014 with or without the presence of the suit which this court had directed the respondent herein to refile joining all necessary parties. The fact that the application for restitution was not dependent on the compliance of the order of refiling fresh suit by respondent herein, then the ground that the Appellant was waiting for the respondent to comply with the order of this court to refile fresh suit, cannot be a good and sufficient cause for the delay. The next question is, was the notice of appeal a bar for the Appellant to file the application for restitution. The answer to the said question is straight forward that filing of a matter is governed by the Law of Limitation Act and the party who intends to pursue a certain matter in court is obliged to comply with the time limitation set out for the particular action by filing it timely. The notice of appeal has never been a bar for one to file a matter in court. My understanding is that, the notice of appeal may probably cause the matter to be stayed pending determination of the appeal if any. I have examined the judgment of this court in Appeal No.41 of 2013 subject of the notice of appeal to the court of appeal of Tanzania and found that the orders made thereto have no connection whatsoever to the intended application for restitution. My take is based on the fact that the orders were io three, one, setting aside the judgment of the trial Tribunal in Application No.30 of 2008; two, striking out the respondent's claims; and three, ordering the respondent to refile fresh suit joining necessary parties. In my view, the pendency of the notice of appeal or appeal in the court of appeal against the above decision was not a bar to the application for restitution of the property. In other words, the Appellant was at liberty to file the said application for restitution notwithstanding the pendency of notice of appeal against the judgment of this court in Land Appeal No.41 of 2013 as the application for restitution would not be executing any order in the said judgment. In that regard, I find the ground of pendency of the notice of appeal to be not good and sufficient cause for the delay. Additionally, assuming that the notice of appeal barred the Appellant from lodging timely the application for restitution of the suit landed property, but I have noted that the Court of Appeal of Tanzania made an order to strike out the same on 27th September, 2021. However, in the affidavit which the Appellant presented before the trial Tribunal to support the application for extension of time has no facts of what prevented the Appellant from lodging the application between 27th September, 2021 and 26th September, 2023. In Bushfire Hassan vs. Latina Lucia Masanya, Civil Application ii No. 3 of 2007 the Court of Appeal of Tanzania emphatically stated thus in respect of importance of accounting for the delay: - "Delay even of a single day has to be accounted for, otherwise, there wouid_ be no pointy of_ having prescribed periods within which certain steps have to be taken. "[Emphasis added] From the day the notice of appeal was struck out by the Court of Appeal (on 27th September,2021) up to the day the application for extension of time was filed at the District Land and Housing Tribunal for Ilala,(on 26th September, 2023), two(2) years had lapsed unaccounted for. The Appellant could not say what prevented him from taking steps in respect to the restitution of the said property for those two years. Having gone through the records of the trial tribunal, I find that the delay was so inordinate and un accounted for. This shows the extent of negligence on the part of the Appellant in taking the necessary steps towards institution and prosecution of the application for restitution. In that regard, I find that the trial chairperson was justified to dismiss the application for 12 extension of time. I uphold the said decision and proceed to dismiss the entire appeal with costs. Order accordingly. 13