shabani haji vs butiama lodge company 2021 tzhclandd 866 4 november 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 208 OF 2021 SHABANI HAJI .............................. APPLICANT VERSUS BUTIAMA LODGE COMPANY .............................. RESPONDENT (Originated from Land Application No. 04 of 2021 of the District Land and Housing Tribunal for Mafia) RULING Date of Last Order: 12/10/2021 & Date of Ruling: 04/11/2021 A. MSAFIRI, J: This Application is made under Section 14 (1) of the Law of Limitation Act (Cap. 89 R.E 2019), that the Court be pleased to grant leave for extension of time to file an appeal against the judgment and order delivered on 04th February 2021 by the District Land and Housing Tribunal for Mafia at Mafia in Land Application No. 04 of 2021. The Application is accompanied by the affidavit of Shabani Haji, the applicant. The same has been contested by the respondent through counter affidavit of one George Anyosisye, the learned counsel for the respondent. The hearing of this Application was conducted by way of written submissions. The applicant's submissions were drafted and filed in person, 1 while Advocate George Anyosisye filed submission in reply for the respondent. Submitting in support of the Application, the applicant argued that the reason for not filing the appeal on time was facilitated by failure of the Mafia District Tribunal to avail the applicant with certified copy of the impugned decision for appeal purpose within time. According to him, Order XXXIX Rule 1 (1) of the Civil Procedure Code Cap 33 insists on appeal being accompanied with the copy of judgment or decree, filing an appeal without it is prohibited by the law. According to him, on 04th February 2021 a day of delivery of judgment, the applicant wrote a letter to the District Tribunal requesting to be supplied with a copy of the said decision. However, the said copy of the impugned decision was supplied on 09th April 2021. Since he was already late to file an appeal he therefore preferred this Application. In reply to the above submissions, Advocate Anyosisye submitted that, the applicant has shown lack of commitment and negligence for this delay. In his opinion, counting from the date of receiving the said copy to the date of filing the Application, the applicant delayed for 27 days. He insisted that, this demonstrates lacks of commitment and the Application is the result of second thoughts which does not warrant the grant of extension of time. He therefore prayed the matter to be dismissed with costs. I have gone through the records of this Application and the parties' submissions for and against the grant of this Application. I need not be detained much in discussing this Application. The records of the District 2 I Tribunal shows that the judgment of the District Tribunal was delivered on 04/02/2021 and on the same date of the delivery of the same, the applicant wrote a letter to the District Tribunal seeking to be availed with the copy of the judgement and decree (annexure IC to the affidavit). The records further shows that it was not until 23/02/2021 when the said judgment was certified and was ready for collection. For the purpose of computation of time according to section 19 of the Law of Limitation Act (supra), time started to run when the ruling was certified and was ready for collection which was on 23/02/2021 to the date of filing this Application. Under Section 41 (2) of the Land Disputes Courts Act, time to appeal against the decision of the District Land and Housing Tribunal is forty five (45) days. The current Application was filed on 06/05/2021 which is about 73 days from the date of issuance of that decision. If I can minus 45 days of filing an appeal according to the law, the Applicant was delayed for 28 days. Since the applicant appeared in person, it is my opinion that he is a layman in law and therefore I am pursued to use my discretionary authority by invoking Article 14 and 107A (2) (e) the Constitution of the United Republic of Tanzania 1977 as amended from time to time that; 107A. (2) In delivering decisions in matters of civil and criminal nature in accordance with the laws, the court shall observe the following principles, that is to say; (ej to dispense justice without being tied up with technicalities provisions which may obstruct dispensation ofjustice." AUm- 3 Based on the cited authority above I feel no need to subject the applicant to a legal technical battle, upon which the same can be avoided by this court by applying the overriding objective principle. From the above reasons, I find this Application to be meritorious and I hereby grant it. Time is extended for the applicant to file his intended appeal to this court and it shall be filed within 30 days from the date of this Ruling. Costs shall follow the course. It is so ordered. Dated at Dar es Salaam this 04th day of November 2021. 4