MISC LAND APP 9929 SCANED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO.9929 OF 2024 RAFIKIHAWA MOHAMED SADIKI.......................................... APPLICANT VERSUS THE REGISTRAR OF TITLES.................................................................. 1stRESPONDENT THE COMMISSIONER FOR LANDS......................................................... 2ndRESPONDENT AHMED MABROUK................................................................................. 3rdRESPONDENT YUSUFALI KANJI (As an Administrator of The Estate of the late NAJMA HASSANALI KANJI)........ 4th RESPONDENT THE HON. ATTORNEY GENERAL.....................................5th RESPONDENT MOHAMED HASSANALI KANJI....................................... 6th RESPONDENT RULING 15/8/2024 & 10/10/2024 A.MSAFIRI, J. The applicant, Rafikihawa Mohamed Sadiki instituted this application under Section 14 (1) of the Law of Limitation Act [Cap 89 R.E 2019], Section 102 (1) of the Land Registration Act [Cap 334 R.E 2019] and Section 95 of the Civil Procedure Code, [Cap 33 R.E 2019] praying for the following orders inter-parties: - a) Extension of time order be granted to the applicant to give the notice of intention to appeal to the respondents and to the court against the decision of the Registrar of Titles dated 15th August, 1994 in the relation to deed of rectification of Certificate of Title No. 37566 Plot No. 3, Block 19 Uhuru Street, Kariakoo Area, Hala Municipality, Dar es Salaam. 1 b) Subject to the grant of extension of time to give notice of appeal as prayed in paragraph (a) above, an order to lodge the appeal in relation to deed of rectification of certificate of Title No. 37566 on Plot No. 3, Block 19 Uhuru Street, Kariakoo Area, Ilala Municipality, Dar es Salaam by the Registrar of Titles dated 15th August, 1994 be granted to the Applicant. c) Costs. d) Any other reHef(s) this Hon. Court deems fit andjust to grant. The application was supported by the affidavit of Rafikihawa Mohamed Sadiki, the applicant. The respondents vehemently opposed the application and filed counter affidavits through one Kajesa Minga, Land Officer for 1st, 2nd, and 5th respondents, Mr. Samson Edward Mbamba, counsel of the 4th respondent, Ahmed Mabrouk, the 3rd respondent and Mohamed Hassanali Kanji, the 6th respondent. Hearing of the application was done by way of written submissions whereby Mr. Paul Mtui, learned Advocate acted for the Applicant, while Ms Luciana Kikala, State Attorney represented the 1st, 2nd, and 5th respondents, Mr Samson Edward Mbamba, learned Advocate acted for 3rd and 4th respondents, and Mr Meswin Joseph Masinga, learned Advocate acted for 6th respondent. Parties complied with scheduling order of the court. Mr Mtui started his submission by pointing that the 1st,2nd,4th and 5th respondents have not filed their counter affidavits and serve the applicant. 2 However, I find this to be misleading because the 1st, 2nd and 5th respondents filed their joint counter affidavit contesting the application on 31/5/2024. The 4th respondent filed her counter affidavit on 13/9/2024. Hence it is not true that they are not contesting the application. About the service of the said counter affidavits, it is on court record that they were all served to the applicant. According to the proceedings of 19/9/2024, the applicant being represented by Ms Salha Mlilima, learned Advocate, informed the court that they have received the counter affidavits and pray for the leave to file reply which was granted. Hence the allegations of Mr Mtui that the 1st,2nd,4th and 5th respondents did not file counter affidavits are misconceived. Submitting in support of application, Mr Mtui commenced his submission by fully adopting the contents of the affidavit to form part of his submission. He stated that the applicant decided to institute an application for extension of time to lodge notice of intention to appeal to the Registrar of Titles and the appeal against the decision of Registrar dated 30th April, 1994 after the applicant received the notice from the Registrar of Titles for rectification of the land register in respect of Title No. 37566, Plot No.3 Block 19, Uhuru, Kariakoo, Ilala, Dar es Salaam. Mr Mtui said that the first reason for filing the application for extension of time is the issue of illegality in the manner in which the notice of 3 rectification of the applicant's Title was made as shown in paragraphs 10,11,12, 13,14 15, 16 and 17 of the applicant's affidavit. Mr Mtui said that the illegalities are thus; (a) The applicant was condemned unheard when the decision of rectification of title was done as the applicant was not part to the dispute on ownership of the suit property between one Ahmed Mabrouk and Amina Amri, (b) applicant was illegally deprived of her right to own property as the bonafide purchaser for value, (c) the Commissioner for Lands had no locus to rectify the title, (d) The applicant lawfully purchased shares from Amina Amri. To support his arguments, the counsel for the applicant referred this court to the case of Attorney General of Zanzibar vs Lawmthong Rice Company Limited & Another, Civil Application No. 729/15/2023. Mr Mtui submitted further that the second reason for extension of time is the applicant's sickness. The counsel stated that due to the applicant's age and sickness, she travelled to India for treatment thus she delayed to file the intended appeal on time. The counsel for the applicant added that this matter is extremely complicated as the applicant has been in court for more than 29 years, and she have not slept over her right. 4 In resisting the application, Mr Samson Mbamba for the 3rd and 4th respondents submitted that the applicant has failed to account for each day of delay and the reasons advanced by the applicant of illegalities, the alleged illegalities are not apparent on face of records as they require long arguments. To cement his argument, Mr Mbamba referred the decision of the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). On the ground of sickness and advanced age by the applicant, the counsel for the 3rd and 4th respondents said that, that was not a good cause for extension of time. He further argued that there is no complexity in the matter but the applicant is pursuing wrong remedies since 1995. Mr Masinga for the 6th respondent resisted the application and submitted that, the applicant failed to account for the days of delay, there is no good reasons advanced by the applicant for extension of time for 30 days. He was of view that the delay was inordinate, thus cannot warrant the extension of time. He argued that the illegalities advanced by the applicant are not reasons for extension of time as illegality must be on face of records. He added that the applicant was notified before the 5 Registrar of Titles changed the Land Register and the reasons for changes in Civil Case No. 95 of 1994. To cement his arguments, he cited the case of Hamza K.Sungura vs. The Registered Trustees of Joy in the Harvest, Civil Application No. 90/11 of 2022. Ms Kikala, State Attorney for the 1st, 2nd and 5th respondents prayed to adopt the contents of counter affidavit to form part of her submissions. She joined hands with the submissions of the counsels for the other respondents that the applicant failed to account for delay and there is no illegality apparent on the face of record. She also referred to the case of Lyamuya Construction Company Ltd versus Board of Registered Trustee of Young Women's Christian Association of Tanzania (supra). In regard to the ground of sickness of the applicant, Ms Kikala stated that sickness does not prevent the applicant to file the intended appeal as the applicant instituted eight (8) applications during the time she was alleged to be sick. On the complexity of the matter, she said that, that is not a good reason for extension of time. She prayed to the court to dismiss the application with costs. 6 Having dispassionately followed the rival submissions for and against the application advanced by the counsels for all parties to the application, the issue for determination is whether the applicant has managed to show good cause for the grant of an extension of time to lodge the notice of intention to appeal. The power of the Court to extend time for doing any act authorized or required by the laws is governed by Section 14 (1) of the Law of Limitation Act[ Cap 89 RE 2019] which provides:- 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 prescribed for such appeal or application.... " In this application, the grounds for extension of time advanced by the applicant is illegality of the decision of the Registrar of Titles dated 19th August 1994, in respect of the Title No. 37566, Plot No.3 Block 19, Uhuru Street, Kariakoo Area, Ilala , Dar es Salaam. The counsel for the applicant submitted on illegality that the applicant was condemned unheard when rectification was made of the said Title. This argument was strongly countered by the respondents' counsels whereby they submitted that, to constitute a good cause for extension of time, the 7 alleged illegality must be apparent on the face of the record of the impugned decision which was not the case in the instant matter. In the case Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, (supra);- "...Since every party intending to appeal seeks to challenge a decision either on point of law or fact, it cannot in my view, be said that in VALAMBHIA S case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points of law should as of right be granted extension of time if he applies for one. The Court there emphasized that such point of law must be that of sufficient importance and I would add that it must be apparent on the face of the record such as question not one that would of jurisdiction; discovered by long drawn argument or process..." [Emphasize is added] It follows then that an allegation of illegality must be apparent on face of the record in order to persuade the Court to exercise its discretionary power to extend the time. The applicant alleged that the illegality is based on the fact that she was condemned unheard by the Registrar of Titles. Revisiting paragraph 4 (iii), (iv),(v) of the affidavit in support of application, it is apparent that the O' 8 applicant was afforded the opportunity to be heard before rectification of the Title, the affidavit read as follows:- "(Hi) That based on the wrong interpretation of the High Court decision, the commissioner for lands filed an application for the rectification of the land register which was dated the 11th November, 1993...,. (iv) That acting on the said application the Registrar of Titles served me with a notice to show cause why rectification should not be granted and I instructed my Advocate then Mr. R.S. Kesaria to reply to the notice, which he accordingly did..... "Copies of the said Notice and the reply thereto are annexed herewith and marked collectively as annexture "A-5" and leave is craved that they form part of this affidavit". (v) That I also filed a caveat against any such proposed action which caveat was registered as file document No. 84499. 'Copies of the said Notice and reply thereto are annexed herewith and marked collectively as annexture A-6 and leave is craved that they form part of this affidavit". [Emphasize is mine] It is in the evidence through the paragraphs above that the applicant was served with the Notice from the Registrar of Titles (Annexture A-5) and she instructed her advocate to reply accordingly. Also the applicant instructed her advocate to file caveats (Annexture A-6) and Civil Case No 95 of 1994 (Annexture A-7) to challenge the notice. IL- 9 Therefore it is obvious that the applicant was accorded the right to be heard contrary to what was submitted by her counsel as one of the illegalities. The other grounds of illegalities as seen in paragraph 11 (b), (c), (d), and (e) of the applicant's affidavit, are not apparent on face of records and they require long, drawn arguments. On the ground of sickness, I agree with the learned counsel for the Applicant that sickness is one of the good cause for extension of time as it was stated in the case of Emmanuel Maira vs. The District Executive Director Bunda District Council, Civil Application No. 66 of 2010, thus:- . health matters, in most cases are not choice of human being, cannot be shelved and nor can anyone be held to blame when they strike..." However for the ground of sickness to be useful as a ground for extension of time, it has to be proved that such sickness prevented the applicant from acting promptly. The applicant in her affidavit has stated that she was sick for 10 years (in paragraph 14 of the affidavit), but I am of the view that this cannot be a good reason because the records shows that the applicant have filed several applications in the court throughout the years thus she has failed to show how the sickness has prevent her to file the intended appeal timely. Also, the applicant did not state when her, io sickness started even the Annexure attached did not state when the applicant's sickness began. The applicant also has failed to account for days of delay from 20/10/ 2023 when the Civil Application No. 250/01/of 2019 was struck out by the Court of Appeal of Tanzania, to the time when this application was filed i.e., on 03/5/2024. Counting from 20/10/2023 to 03/4/2024, it is almost six (6) months. It is the settled principle of the law that delay even of the single day should be accounted as it was held in the case of Bushiri Hassan vs. Latifa Mashayo, Civil Application No. 3 of 2007. Therefore the applicant's delay is inordinate. To that end, I must conclude that the applicant has not demonstrated any good cause that would entitle her the extension of time. In the result, this application fails and is, accordingly, dismissed with costs. It is so ordered A. MSAFIRI JUDGE 14/10/2024 li