shabani mohamed mwanambingu vs ally bwana ally 2021 tzhclandd 6730 12 march 2021

IN THE HIGH COURT OFCOURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 707 OF 2019 SHABANI MOHAMED MWANAMBIGU APPLICANT VERSUS ALLY BWANA ALLY m.:»^...RESliiNDENT U G Date oflast Order: 18/11/2020 Date ofRuling: 12/03/2021^ MANGO,J The applicant seeks extl^ld^^ time t© appeal against the decision of the District Land TRfenal^^^iiosa in Land Appeal No. 47 of 2014 Original Case^'^bk7MOf^20^^i9efore Mabwegele Ward Tribunal. The appllGaion^^^w^^^Chamber Summons made under section 14(1) of the Law ^Lmitation'^ct [%p. 89 R.E 2019], supported by the affidavit sworn by the ^llcant. The appiicant^^feuted the appiication in persona while the respondent was represented by Advocate Bahati I. Kashoza, learned advocate. On 6^*^ August 2020, the applicant prayed to have the application disposed by way of written submissions, the prayer which was not objected by the respondent. The Court granted the prayer and ordered the appiication be argued by way of written submissions. Aii parties compiied with the court order. In his affidavit and submission in chief the applicant advanced three reasons for his delay to file the appeal within time. The first reason for the delay was failure to obtain copies of judgement in time. He submitted that, the copy of judgement was served to him late, beyond the time limit to file his appeal. He argued that the District Land and Housing Tribunal delivered its Judgement on 14^^ July 2016 and that he only obtained copies of the judgement when he requested the same for the second time sometimes 26^tectober 2016. The second reason for the delay was servin^acust^&L sentence. He submitted that,he was convicted of anl|sent^ped to^^^onths imprisonment. He attached a copy of the ju^^nenS^^^mihai^ase No. 282 of 2016, Kimamba Primary Court ilM^^th^^ppltea and one Daudi Yahaya were convicted and sen%ncei^%^c^mliltfe imprisonment. The Judgement was delivered The applicant submijled fcher^^^^^^rving his sentence he filed an appeal before this co^^^th^^^e w^rejected for being filed out of time. He later fall sjc^ft^as aiMtMf^^ee days. Sickness was raised as the third reason ^^is dfe^^n fifii^the appeal. He is of the view that he has advan^^^|iie^^^^^^%iove the court to grant the prayers made in the cumber support his views he cited the case of SELINA CHIBA^^VERS^i FINIHAS CHIBAGO, Civil Application No. 182A of 2007, CouiSMpp® of Tanzania at Dar es Salaam. In his reply submission, learned counsel for the respondent argued that the applicant has not advanced sufficient reason to account for his delay in filing the appeal. In this he cited the case of RETNAN CUMARASAMY (1965)1 WLR 8 in which it was held that the applicant need to place some materials for the Court to assess whether there are sufficient reasons to warrant extension of time or not. He is of the view that the appiicant did not place any material to be considered by the court. He submitted further that, for extension of time to be granted the appiicant need to account for the entire period of delay and the appiicant failed to account for each day of delay. The learned counsel argued that the appellant was not diligent in following up the copy of Judgment. In this, he referred this court to the letter written by the appiicant requesting for copy of judgment fror^fc appellate tribunal. The letter indicates that the request was made^pj^S'^^ \Nher\ time for appeal had already lapsed. He th^^^^ter aHej^^vitten earlier to the attached letter is not afeched^thu^^^^existence is questionable. The learned advocate submitted 6i|the^^an^^^the criminal trial and sentence to this application. In this ^^arguetohat, the criminal case was instituted in Decemb^201§\whep^^^^^or appeal in respect of the land case had already iap^^fh^^f canno^p considered to be a reason for the applicants de^^ On theJ^jJi of%sto^^lae a^ed that hospital discharge certificate shows cieariMtTiat tf^^ppiTf|jj wa^dmitted from 9^*^ April 2018 to 13^*^ April 2018 which^^ot withStee iRe limit for appeal. He insisted that the appiicant has not demWstrated diiigence in pursuing his appeal thus, the application should not be grar^^^ro :ement his arguments he cited the case of LOSWAKI VILLAGE COUNCIL AND ANOTHER VERSUS SHIBESH ABEBE [2000] TLR 204. The Appiicant had no rejoinder. I have considered the submissions made by both parties and Court record. It is dear from the copy of judgement attached to this application that the said judgement was delivered on 14^^ day of July 2016 and was certified on 13*^^ October 2016. Certification date is presumed to be the date when the copy was ready for coiiection by the parties. The law, section 38 of the Land Disputes Courts Act requires appeai to this court for matters originating from the Ward Tribunai to be iodged within 60 days. Counting from 14^^ Juiy 2016 to 13^*^ October 2016 shows that the 60 days iapsed before the appiicant obtained a copy of judgement. As to the reievance of such deiay in obtaining a^lcp^y of jli|ment, the iaw, section 38(2) of the Land Disputes Courts^ct, Joi^^ftlicates that copies of judgment is not a mandato^%^me||^^^%||ached to the petition of appeai. The cited section ^^syipt^require applicant to attach any copy of judgement, the dut\^^rWlii^eeoiid&d feisions of the two tribunals is entrusted to thi^TOict Lap^^iM^^under section 38(3) of Cap 216. The appiicant was r&ired^^^ petition of appeai before the District Land and Ho^^ excuse of waiting for copies of iudaei^It^is noifiei^^^ti^to^tMPappiication. Even if it wiii^^^^^^red ne^sary for the appiicant to have the copy of his appeai, section 19(2) of the Law of Limitafons Act, |^p^8^R.E 2019] exciudes the time spent awaiting for necess^Mocumer^ for appeai in computing the prescribed time iimits. For that reaso^j^^time iimit in the matter at hand, started to run from 14 October 2016 to 14 December 2016. The appiicant did not account for the deiay from 14^^ December to l?^'^ January. Conviction in the criminai case was issued on 18^^ January 2017 and there is no evidence that he was attending sessions for the criminal case every day. On the issue of serving jaii sentence, the prisoner reiease certificate shows that the appiicant was reieased on 17^^^ May 2017. The first petition of appeai was fiied by the appiicant on 17th Juiy 2017, two months after the reiease of the appiicant. The appiicant again faiied to account for this period of deiay of two months from the date of his reiease to the date he fiied his first petition of appeai. The record is not dear as to when the appiicant's petition was rejected but from 2017 the appiicant fiied this appiical^ on 16^"^ December 2019 which aimost two years. With exciusion ofJhe threlays in the 2018 in which the appiicant was sick, the appiicant did no^^^yit rAaininq days. It is weii estabiished that the party se^l^^en^n Btfme to pursue iegai remedies he needs to account fo^^g^^^^^tela%\^it^a sufficient reason. In the case of FINCA (^^feMITE^^^^PONDOGORO AUCTION MART Versus BONIFAGl MWAIlUK]^.Ci\^ppiication No. 589/12 of % % % 2018 Court of Appeai^(^rahzania at IRli|igA, the Court of Appeai of Tanzania heid that; ^ "It is extension of time is sought, the demonstrating sufficient cause for Be de^^^o^^rseiy, it is aiso weii settied that sufficient cause dep^n^ ^^deiiberation of various factors, some of which aroun^the nature ofactions taken by the applicant imi^^iatel^before or after becoming aware that the deiayis^mminent or might occur."(Emphasis added) The appiicant in this appiication faiied to discharge this duty as evident from his actions before and after the expiry of the time iimit for appeai. The appiicant instead of pursuing his appeai he trespassed into the iand in dispute the action which made him to convicted and sentenced to six months imprisonment. When the appiicant became aware that appeai period has expired, it took him two years to file the application at hand and no reasons are advanced for such delay except sickness for only three days. This establishes that the applicant has not advanced sufficient reason for his delay. For that reason this application is here dis issed with costs. OBT op 60 o yf. Z. DrMANj z A JUDGE yj SI 12/03/2021 O