salum athuman jongo others vs halfan abdallah 2018 tzhclandd 6 28 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT PAR ES SALAAM MISC. LAND APPLICATION NO. 382 OF 2017 SALUM ATHUMAN JONGO & OTHERS..............................APPLICANTS

VERSUS HALFAN ABDALLAH............................................................ RESPONDENT

RULI NG P.M. Kente.J: In this application the applicants, Salum Athuman Jongo and Seventeen Others are praying for the following orders thus:- (a) That this Honourable Court m ay be pleased to grant an order for extension of time to the application for leave to ap p eal to the Court of Appeal against the Judgm ent and Decree of the Honourable Court delivered by (Per Hon. S.A.N Wambura) handed down on 11th November, 2016 in Land C ase No. 76 of 2012. (b) Costs of this application to be borne by respondent. (c) That, any other relief as the Honourable Court shall deem fit and just grant in the circum stances. The application has been m ade under section 11(1) of the Appellate Jurisdiction Act of 1979, [Cap 141 R.E. 2002] and is supported by the applicants’ affidavit. The main reason for the applicants' delay to take the necessary steps within the statutory timeline is captured in paragraph 5 of their affidavit where it was deponed thus:- “That this Honourable court was not in position to furnish them with a c o p y o f judgm ent and d e c re e as the sam e was not read y until the 8th D e ce m b e r,2 0 l6 .” By w a y of counter affidavit, the respondent raised a preliminary objections on points of law that:- 1. The application for extension of time has b e e n m a d e under wrong and non existing law. The a p p lica b le law in such application is the A ppellate Jurisdiction A c t C a p 141 R.E. 2002.

2. In the a b se n ce of e v id e n ce of a valid Notice of A p p ea l bearing the nam es of the in tended appellants or representatives and letter seeking for the record for a p p e a l purposes and duly served on the respondent and/ or his a d v o c a te , this application has no leg to stand on. 2 3. Applicants order sought to b e granted is confusing and not well constructed h e n ce d e fe ctiv e for purpose o f extension o f time.

4. The c o p y of the application served on the respondent does not h a ve the seal of the court a n d the signature of the Registrar. Pursuant to the order of this court dated on 18th October, 2017, the application and the preliminary objection were argued altogether, by w a y of written submissions. Starting with the preliminary objection, Mr. Ukwong'a learned counsel for the respondent submitted that, the applicants cited none existing law and their application is bad in law for having been filed under the wrong provision. It is submitted that the applicants in their Cham ber Summons cited the law under which the application was m ade as the Appellate Jurisdiction Act of 1979, [Cap 141 R.E.2002] whereas, the citation of the A ct in issue is Appellate Jurisdiction Act [Cap141 R.E.2002]. The inclusion of “A ct of 1979” according to Mr. Ukwong'a wrong makes the citation. In support of his submission counsel relied on the ca se of Fabian Akonaay Vs. Matias Dawite Civil Application No.111 of 2003 (Unreported). 3 Arguing on the second point of preliminary objection, Mr. Ukwong’a argued that the applicants have not filed and served on the respondent their Notice of Appeal and a letter seeking the record for ap p eal purposes. The law requires the appellant to file Notice of Appeal and to apply so as to be issued with the record for ap p eal purposes within 30 days from the date of

judgment. It is further submitted that the order sought is not plain enough to move the court to grant it. He ad ded that as a matter of fact the respondent has been served with an application that does not have the seal of the Court. In reply to the submission in respect of the preliminary objection, Mr. M uganga the applicants' counsel submitted that the preliminary objection raised by the respondent does not qualify to be a preliminary objection view of holding in the celebrated case of Mukisa Biscuits Manufacturer Company Vs. West End Distributors Ltd (1969) E.A. It is also argued and I think correctly so that the court should not be bound by technicalities b ecause the said irregularity does not go to 4 the root of the ca se . Mr. M uganga therefore, prays for the court to overrule the preliminary objection with costs. I have considered the submissions m ade by both counsel. I am settled in my mind and this is with due respect to the respondents counsel that the preliminary objection raised does not have any merit. As to the first point of preliminary objection regarding the contention that the applicant has cited wrong provisions of the law, upon going through the record, I have noted that the d efect noted is not such fatal as it ca n be cured by a simple am endm ent. Moreover, as correctly submitted by M uganga this court is bound by the provisions of Article 107 A of

the Constitution of United Republic of Tanzania, which requires, the Courts to dispense justice without undue regard to technicalities. In the circum stances, I agree with Mr. M uganga learned counsel for the applicants and I proceed to dismiss the preliminary objections. Moving to the submissions on the application itself, the applicants' counsel submitted that the reason for delay is found in paragraph 5 of the affidavit. It is submitted that the delay has not 5 been caused by dilatory attitude on the applicants’ part as shown in paragraphs 5. In reply, the respondent opposed this application saying that the applicants have not a d v a n ce d any good cause to acco u n t for the delay. I have followed the submissions m ade by both parties herein. Without hesitation, I subscribe to the settled position of the law as provided for under section of Section 11 (1) of the Appellate Jurisdiction Act [Cap 141 R.E. 2002], that an application for extension of time is entirely on the discretion of the court to grant or refuse it provided that the discretion is exercised judicially but there must be sufficient cause. The Court of Appeal of Tanzania in the ca se of MUUNGWANA THABIT V. REGISTERED TRUSTEES O F CCMCivil Appeal No. 19 of 2013 (unreported) touches on Section 11(1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2002] which confers powers to the High Court to grant extension

of time to file an application for leave to ap p eal to the Court of A ppeal. 6 The main question is whether the Applicants in the present case have ad d u ced sufficient reasons to acco u nt for the delay to file application for leave to ap p eal to the Court of A ppeal. According to the Applicant, the reason for delay was that this court was not in position to furnish them with a cop y of Judgment and Decree as the sam e was not ready until the 8th Decem ber, 2016. Looking at the facts and circum stances surrounding this ca se , I would say that, it is this court’s inaction or the delay to a c t that led to the situation that the applicants now find themselves. For my part, I subscribe to the view that a copy of judgment is essential for an intending appellant to m ake an informed decision to ap p eal. It follows in my judgment that, even where the law does not m ake it m andatory for a co p y of the impugned judgment and d ecree to be appended to the memorandum of ap p eal, the intending appellant is still entitled as of right, to a cop y of judgment to enable him m ake a meaningful decision to ap p eal or not to ap p eal. As a matter of p ractice or prudence, after delivery of judgment the court is required to issue the parties with a cop y thereto together with a d ecree irrespective of whether there is going to be an ap p eal or not. 7 To that end, where, as it is in the

present ca se , there is a delay by the court to issue a cop y of judgment and d ecree to an intending appellant, that is sufficient cause for the court to warrant the exercise of its discretionary powers under Section 11(1) of the Appellant Jurisdiction Act, [Cap. 114 R.E. 2002]. The ab o ve being the ca se , I find this application to have merit. I accordingly grant it. The applicants are given twenty one days from today to file their application for leave to ap p eal to the Court of Appeal of Tanzania. The costs of this application shall be in the cause. It is so ordered. Dated at Dar es salaam this 28th day of February, 2018. JUDGE. 8