shafiki ally vs martha samwel mpulule 2020 tzhclandd 25 23 march 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO 436 OF 2018 SHAFIKI ALLY................................... ...................APPLICANT VERSUS MARTHA SAMWEL MPULULE (sued as the Adminstratix of the late HERONIMUS DAUD MAGUBIKA)................................. ...RESPONDENT Date of last Order: 27.01.2020 Date of Ruling: 23.03.2020 RULING V.L. MAKANL J. This is an application by SHAFIKI ALLY. He is applying for this court to grant him time within which to file petition of appeal out of time. The applicant is seeking to extend time against the decision of the District Land and Housing Tribunal for Ilala in Land Appeal No. 294 of 2015 (the Tribunal). The application has been made under section 41(2) of the Land Disputes Courts Act CAP 216 and it is supported by the affidavit of the applicant herein. The respondent has countered the application by filing her counter-affidavit. At the hearing of the application the parties appeared in person. The applicant submissions were to the affect that judgment of the Tribunal was delivered on 23/10/2017 and he wrote a letter to ask to be supplied with the copy of the proceedings and judgment, but these documents were supplied to him on 12/12/2017. He said the application was filed on 16/07/2018 and this was beyond the 45 days according to the law. He thus prayed for the application to be granted. In response the respondent opposed the application because she said on 12/12/2017 the applicant received the proceedings and copy of the judgment, so he was still within time to file the appeal, but he did not do so. She said when a matter is from a Ward Tribunal the time according to the law is 60 days. She cited the case of Paulo Rweyemamu vs. Akiba Commercial Bank & Eliya Nyato (HC- Land Division) (unreported). The respondent alleged that the applicant was negligent and the reasons given had no merit. She relied on the cases of Mumello vs. BOT, Civil Application No. 12 of 2002, Yusuf Seme & Another vs. Hadija Yusufu, Civil Appeal No. 1 of 2001 (CAT) and Bushiri Hassan vs. Latif Lukio Mashayo, Civil Application No. 3 of 2007 (CAT) (both unreported). The respondent further submitted that the applicant claimed amendment of the law, but ignorance of law is not a defence and he has failed to account for the delay in filing his appeal. She relied on the case of Sebastian Ndaula vs. Grace Rwamafa (CAT-Bukoba) (unreported). The respondent alleged that the reasons advanced had no merit and prayed for the application to be dismissed with costs. 2 The applicant reiterated his submissions in chief and prayed for the application to be granted. I would wish to state at the outset that, this application originated from the District Tribunal and not the Ward Tribunal as was the submissions by the respondent. According to section 41(2) of the Land Dispute Court's Act, the time limit for filing an appeal is 45 days. Before this section came into operation in 2016 by virtue of Written Laws (Miscellaneous Amendments)(No.2) Act of 2016, the proper provision for extension of time in respect of matters originating from the Tribunal was section 14(1) of the Law of Limitation Act CAP 89 RE 2002. That is why the first application by the applicant was struck out as the applicant moved the court under the wrong provision of the law. It is a settled principle of law that in determining an application for extension of time the court examines if the applicant has adduced sufficient reasons for the court to grant the application sought. The court has to exercise its discretion in granting such an application (see Mumello vs. BOT (supra). The main reason for the delay as advanced by the applicant was due to the fact that copies of the proceedings and judgment were not supplied in time. As per the records, the judgment was delivered on the 23/10/2017; and the applicant applied by a formal letter to be supplied with the copy of judgment and decree on 26/10/2017 and 3 the copies of the judgment and proceedings were supplied to him on the 12/12/2017. This application was filed on 16/07/2018. I have noted from the submissions by the respondent that she does not deny that there was a delay of supply of copies of the proceedings and judgment to the applicant; but her argument is that the applicant failed to explain the delay from when he was supplied with the copies of the proceedings and judgment, that is, on 12/12/2017 until when he filed this application on 16/07/2018. However, going through the affidavit by the applicant and as emphasized in his submissions, it is quite apparent as I have stated hereinabove that, the applicant had filed an application for extension of time to file an appeal, but the said application was struck out on 26/06/2018 for failure to cite the proper provision of the law. The applicant immediately filed this application after knowledge of the amendment, and in my view, this accounts for the delay of up until 16/07/2018 when this application was filed. In other words, the applicant was diligently prosecuting an application against the respondent which time has to be excluded. Though the respondent has argued that that ignorance of law is not a defence, but for ends of justice and considering that the parties were not represented by advocates, I am of the considered view that the applicant has given good reasons to this court to enable it to exercise its discretion to extend the time within which to file an appeal. 4 In the premise, leave is hereby granted to the applicant to file an application for extension of time to file an appeal out of time as prayed. The said appeal to be filed within thirty (30) days from the date of this ruling. There shall be no order as to costs. It is so ordered. V.L. MAKANI JUDGE 23/03/2020 5