16804 gwae scaneed

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 16804 OF 2024 [Arising from Land Case No. 316 of 2010] RASHIDI KITWANGA (As an administrator of the estate of the late Abdallah David Mushi)................................. APPLICANT VERSUS JANE DAVID MUSHI (As an administratix of the estate of the late David Mushi).................................................. RESPONDENT RULING 11/10/2024 & 25/11/2024 GNKE., J The court is moved under section 11 (1) of the Appellate Jurisdiction Act, Cap 141, Revised Edition, 2019 (hereinafter "AJA") by the applicant named herein for an enlargement of time within which to file a notice of Appeal out of time against the judgment and decree of this Court dated 28th October 2022. Initially, the applicant timely filed the requisite Notice of Appeal that was 15th November 2022. Subsequently to the filing of the notice, he filed an appeal to the Court of Appeal, which was registered as Civil Appeal No. i 57 of 2023. However, the applicant's advocate one Alex Balomi, prayed for a withdrawal of the same because the Deputy Registrar of this Court issued an invalid certificate of delay namely, exclusion of 40 days Applicant's delay. In its order dated 24th April 2024, the Court of Appeal of Tanzania withdrew the applicant's appeal as sought in terms of Rule 102 (1) of the Court of Appeal Rules, 2009. Subsequent to the withdrawal order of the appeal, on 15th July 2024, the applicant filed this application supported by a sworn affidavit of Mr. Alex Mwashamba Balomi. The advocate of the applicant's advocate is elaborate of the chronology of the event from 15th December 2010 when the applicant filed the suit to the date of withdrawal order of his appeal in the Court of Appeal. Thus, the applicant is found relying on the technical delay and an error committed by the Deputy Registrar of the Court. On the other hand, the respondent resisted this application through her sworn counter affidavit and seriously questioned the representation of the applicant by Mr. Balomi and other processes allegedly proceeded by him in pursuance of the previous Appeal before the Court of Appeal. The respondent also questioned the competence of the application on the context 2 that, no leave to re-file of his appeal was granted in his favour after his withdrawal prayer. According to the respondent, the applicant should be blamed for his negligence and not that, of the DR of the Court neither the Court of Appeal for its admission of the applicant's previous appeal. In addition to that, the respondent's advocate argued that, there is a delay of 80 days, which is left uncounted for and inordinate one since the withdrawal order (24th April 2024) to 15th July 2024 when this application was duly filed. Equally a delay of 19 days from 26th June 2024 when his affidavit was attested and on 15th July 2024 when this application was filed in the Court. When the application was placed before me for hearing Mr. Alex Balomi and Mr. Wilson Ogunde, both the learned advocates appeared for the same representing the applicant and respondent respectively. Nevertheless, the hearing proceeded by way of written submission. Essentially, the applicant's written submission is a reiteration of what is contained in the affidavit especially the sequences of the event from 2010 to date. Reasons for delay is mainly based on the technical delays including pendency of his appeal to the Court of Appeal and error allegedly committed 3 by the DR. He invited the court to the decision of the Court of Appeal in the case of Stanzia Stanley vs. the Republic Trustees of Agricultural Inputs Trust Fund and Others, Civil Application No. 46 of 2005 (unreported-CAT). Similarly, the respondent's written submission is mostly a repetition of the contents of the counter affidavit. He however added that, the applicant is precluded from re-instituting the appeal since the same was not struck out due to being incompetent and no leave to re-file was granted by the Court of Appeal. On the merit of the application, the respondent's counsel argued that, in order the Court to invoke its discretionary power when the reason is technical delay, the applicant ought to have shown that, he or she acted diligently and promptly after the order of the Court of Appeal striking out the applicant's appeal. In his rejoinder submission, the applicant's counsel stated that, the submission by the respondent is nothing but superfluous and devoid of merits since it has not successfully attacked tenability of the application. He also stated that, leave to re-file an appeal after withdrawal order is not the 4 requisite in this application for extension of time. Mr. Balomi stated that, if this application is not granted, the applicant will be denied of his substantive right as provided under Article 13 (6) of the Constitution, 1977. He poses and said the judgment and decree sought to be challenged before the Court has neither declared the applicant nor the respondent a lawful owner of the disputed piece of land. Having outline what the parties have submitted for and against the application, issues for determination are two:- One, whether the applicant is precluded from re-filing his appeal following the withdrawal order without leave and Two. Whether applicant has given sufficient reason for his delay to file Notice of Appeal. In the 1st issue, it is trite law under Civil Procedure Code, Cap 33, Revised Edition, 2019 if, a plaintiff or applicant wish to withdraw his suit or application or petition he has to apply and obtain leave to re-file under XXIII Rule 1 (2) of the Code. He or she shall be precluded from re-instituting the same after withdrawal if he has not sought and obtained leave to re-file as per Order XXXIII Rule 1 (3) of CPC. This position of the law has been stressed by our courts for example in Equity for Tanzania Limited (EFTA) vs. 5 Salimu Kasimu Msangi (Civil Appeal No. 21 of 2022) [2023] TZHC 18034 (12 June 2023) " Therefore, since the appellant never pleaded and granted leave to refile, she is precluded under Order xxiii Rule 1 (3) (supra) from bringing a fresh appeal. In addition, this Court in Jennings-Bramly vs. A and F Contractors Ltd and another [2003] 2 EA 452 held; 'Rule 1(3) puts it in very certain terms - where plaintiff so withdraws "without the permission referred to in sub-rule 2" (leave to institute a fresh suit), he shall among others, "be precluded from instituting any fresh suit in respect of such subject matter or suit or such part of a claim." Applying the above statutory provisions and case law, I am of the considered view that, where CPC is applicable, a party withdrawing his case must apply and obtain leave to refile as opposed to when such case is struck out for being incompetent. Nevertheless, it is quite clear that the provisions of the CPC are not applicable in the Court of Appeal except AJA and Court of Appeal Rules, 2009. Hence, the respondent's assertion that this application is not attainable is baseless. 6 Now coming to the merit or otherwise of the application, I am persuaded by the applicant's advocate that, technical delay is excusable in the eye of law. The technical delay connotes that, the exclusion of time due to pendency and prosecution of a case, which was instituted wit good faith in our court and the like. This position was emphasized in Geita Gold Mining vs. Antony Karangwa, (Civil Appeal No. 42 of 2020) T7A 28) (Tanzlii) held; " The above-cited provision takes us back to section 21 (2) of the same Act, which as opposed to Mr. Gi/ias argument requires the court automatically exclude the time spent by the applicant in prosecuting other proceedings against the same party for the same relief, other thing being equal. It goes without saying therefore, that the section 21 (2) of the Law of Limitation Act does not require a party who intends to rely on it to move the court by way of application for extension of time before he can have the time spent in prosecuting another proceeding against the same party excluded when computing the period of Limitation. That is the law, which though not fixed, is well settled. The above being the position of the law which we have no reason to disturb the same, since the first application lodged by the applicant lasted in court from 21st November 2018 to 22nd February 2019, a period which has to be excluded in terms of section 21 (2) of the LLA " 7 Being guided by the provision of the law and decision of the Court of Appeal, which binds upon the Court, I am therefore found persuaded by the chronological or series of the events from 2010 when the parties' dispute arose to 30th April 2024 when requesting for copies of the Order of the Court of Appeal pertaining with withdrawal order. However, I have failed to apprehend if the applicant has been able to account each and every day of delay since he has not accounted for the delay from 30th April 2024 to 15th July 2024 when this application was electronically filed through his affidavit. The applicant's affidavit is silent in that period when he applied for certified copies of the withdrawn order and when he was availed the same. I therefore find, an explanation from the applicant as to what caused him to fail to have his application filed in time after he had applied for the certified copy, was necessary. (See Sebastian Ndaula vs. Grace Rwamafa, Civil Application No. 4 of 2014, (unreported- CAT). I do not find the applicant's delay from May 20224 to 15th July 2024 to be inordinate. More so, omission by the applicant to even plead what made him to timely file this application does not justify this court to grant 8 this application. Granting this application will amount to not complying with the requirement of the law. I have also ascertained if there is illegality in the judgment to be appealed and found none since the applicant is found merely asserting that, the judgment of the Court (Mgeyekwa, J as she then was) did not give any right to both parties. Examining the said judgment and decree, I do not find any apparent error, which is of significant importance to justify this Court to grant extension of time. All said and done, I accordingly refuse the applicant an extension of time to file Notice of Appeal against the judgment and decree of this court dated 28th October 2022. Costs of this application shall be borne by the applicant. Ordered accordingly DATED and delivered at dar ES salaam this 25th November 2024 9