20170529 TZCA Dar es Salaam

i .

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM CIVIL APPLICATION NO. 59 OF 2017 SAID ABDALLAH DOGA .. . .. .. .. ......... ..... .. ...... ............ APPLICANT

VERSUS ROSE FIDOLIN MWAPINGA ................................... RESPONDENT {Application arising from PC Civil Appeal No. 28 of 2002· {Shaidi J.) In I land Appeal No. 78 of 2012

RULING 2 nd & 31.st May, 2017 I' ' MZIRAY, J.A. /" This is an application by notice of motion brought under Rules lb of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit of Said Abdallah Doga, the applicant. He is moving the Court to extend time within which to file an application for revision to revise the decisions made in respect of PC Civil Appeal No. 28 of 2002 and that of Land Application No. 135 of 2015. At the hearing of the application, the applicant was represented by Mr. Edwin Msigwa, learned advocate and the respondent had the services of Mr. Barnabas Luguwa, learned advocate. 1 Mr. Msigwa submitting in support of the application relied on the issue of illegality. He stated that the application is a result of conflicting decisions of the High Court interpreting who is the rightful owner of the 250 acres situated at Miwangani Village, Idete at Kilombero District. The decisions in which the learned counsel referred to is PC Civil Appeal No. 28 of 2002 decided by Shaidi, J and that of Mutungi, J in Land Application No. 135 of 2015 which arose from Land Appeal No. 78 of 2012 also by Mutungi, J. He pointed out that as there is conflict in those decisions then it is this Court which can harmonize those decisions and decide who is the rightful owner of the 250 acres in dispute. On his part, Mr. Luguwa submitting in reply argued that the

application is devoid of merit as the applicant has failed to show good cause for the delay. He stated that the decision by Shaidi, J. delivered on 30/10/2009 was between Said Abdallah Doga v. Ally Omari Sanga and that the respondent was not a party to those proceedings. Rule 10 of the Court of Appeal Rules provides as follows:- "10. The Court ma½ upon good cause shown extend time limited by these Rules or by any decision of the 2 High Court or tribunal for the doing of any act authorized or required by these Rules/ whether before or after the expiration of that time and whether before or after the doing of the ace· any reference in these Rules to any such time shall be construed as a reference to that time so extended'~ What constitutes good cause cannot be laid down by any hard and fast rules. The term good cause is a relative term and is dependent upon the circumstances of each individual case. It is upon the party seeking extension of time to provide the relevant material in order to move the Court to exercise its discretion. See Ratnam v. Cumarasamy and Another (1964)3 ALL ER 933 and Regional Manager Tan roads Kagera v. Ruaha concrete Company Limited, Civil Application No. 96 of 2007 CAT (unreported). In Ratnam's case (supra) Lord Guest stated thus:- "The rules of court muse prima facie be obeyed, and, in order to Justify a court extending the time during which some step

in procedure requires to be taken, 3 there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time-table for the conductofllagaaon~ The important issue for consideration in this application is whether or not the applicant has shown good cause for the delay to justify extension of time. I have carefully considered the written submissions both in support of and against the application. All the same, I have to be guided by the affidavit in support of the application. Upon carefully reviewing the said affidavit, the applicant in his entire affidavit is trying to show and explain the historical background of the case and not the reasons for delay in filing his application for revision. By any standard, the background of the case cannot form the basis of extending time sought. That said, I am of the view that the applicant has failed to show good cause for the delay in filing his application. 4 In the event therefore, the application is accordingly dismissed with costs. DATED at DAR ES SALAAM this 29 th day of May, 2017. R.E.S. MZIRAY

JUSTICE OF APPEAL I certify that this is a true copy of the original. A.H. M UMI

DEPUTY REGISTRAR

COURT OF APPEAL 5 _,