MISC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB - REGISTRY AT MUSOMA MISC. LAND APPLICATION NO. 46 OF 2023 REFERENCE NO. 20230626000507810 {Arising from the decision of the High Court of Tanzania - Musoma Sub Registry in Land Appeal No. 140 of2020) BETWEEN SINDA MAHANGA............................................................ APPLICANT VERSUS PATRICE MAHANGA......................................................... RESPONDENT RULING 06th & 12th August, 2024 M. L. KOMBA, J, The applicant Sinda Mahanga, lodged the present application beseeching this Court to extend time of which he may file notice of intention to appeal from the decision of this Court (Mkasimongwa, J.) in Land Appeal No. 140 of 2020 pronounced on 28th July, 2021. The application was brought by way of chamber summons premised under Section 11(1) of the Appellate Jurisdiction Act, CAP 141 R.E 2019 and is accompanied by an affidavit deponed by the applicant. Page 1 of 7 The respondent did not file counter affidavit to challenge the applicant's application although he was aware of it. In order to get the flow right, background of this matter as depicted from the applicant's affidavit, can be summarized as follows; That the applicant herein filed a Land Application No. 12 of 2018 before Pemba Ward Tribunal against the respondent. Being dissatisfied by the decision delivered by the Ward Tribunal, he filed Land Appeal No. 46 of 2019 before the District Land and Housing Tribunal for Tarime and later he filed Misc. Land Appeal No. 140 of 2020 before the High Court of Tanzania, Musoma Sub-registry. In Misc. Land Appeal No. 140 of 2020 this Court (Mkasimongwa, J.) on 28th July, 2021 dismissed the whole decision of the 1st appellate court. The applicant was aggrieved by the said decision thereof and he filed Misc. Land Application No. 77 of 2021 on 05th October, 2021 praying for extension of time to file notice of appeal and certification of points of law. But, as bad luck would have it, the application was struck out for being omnibus application on 07th March, 2023. Page 2 of 7 The applicant was eager to file an application for extension of time immediately after the order of this Court in Misc. Land Application No. 77 of 2021 but he encountered a series of tragic events that led him to delay to do so. That's led to this application at hands. When the application was placed for hearing, the applicant was represented by Mr. Daud Mahemba, the learned advocate. On the other hand, despite of the fact that he didn't file a counter affidavit, the respondent did also fail to enter his appearance. Thus, the hearing proceeded in exparte against the respondent. Submitting in support of the application, Mr. Mahemba called upon this court to adopt the applicant's affidavit and prayed this court to allow the application so that the applicant can issue notice and proceed to appeal. He prayed so without costs. Taking into account the affidavit filed and submission made by the applicant's counsel, this court has one duty to determine whether the applicant registered sufficient reason (s) to warrant this court to extend the time as prayed. Page 3 of 7 Considering the fact that the respondent did not file counter affidavit to contest the application, it means that the averments in applicant's supporting affidavit are uncontroverted. See the case of Alhaji Abdallah Talib vs Eshakwe Ndoto Kiweni Mushi [1990] T.L.R 108 and Martin D. Kumalija & Others vs Iron & Steel Ltd (Civil Application No. 70 of 2018) [2019] TZCA 234 (5th March, 2019). However, failure by the respondent to file counter affidavit is not a guaranteed fact that the application will be granted. See Dominic Yohana vs Salma Mshite (Civil Application 120 of 2020) [2021] TZCA 216 (31st May, 2021). It is settled that in order a person to succeed in the application of this nature, he has to furnish the court with the good/sufficient reasons for his delay. And again, it is trite law that the factors to be considered in determining the good/sufficient reasons depends on the nature and circumstances of each case. See Jaliya Felix Rutaihwa vs Kalokora Bwesha & Another, Civil Application No. 392/01 of 2020, CAT at Dar es Salaam, Paradise Holiday Resort Limited vs Theodore N. Lyimo, Civil Application No. 435/01 of 2018, CAT at Dar Es Salaam and Ludger Bernard Nyoni vs National Housing Corporation, Civil Application No. 372/01/2018, CAT at Dar Es Salaam (Unreported). Page 4 of 7 Yet again, it has been ruled out that account for all days of delay is one of the paramount factors to consider in granting extension of time. See Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3rd October, 2011), Attorney General vs Emmanuel Marangakisi (Civil Application No. 138 of 2019) [2023] TZCA 63 (24th February, 2023) and Elius Mwakalinga vs Dimina Kagaruki & Others (Civil Application No 120/ 17 of 2018) [2019] TZCA 650 (22nd May, 2019). In the latter case, the Court of Appeal cited with approval its decision in the case of Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007 that; "... a delay of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken." In our case at hand, the applicant in his affidavit stated that his delay was caused by series of tragic accidents happened after delivery of the order dated 07th March, 2023 in Misc. Land Application No. 77 of 2021. He deponed that, his brother's son one Nyamale Lyesi died on accident and buried on 05th March, 2023 at Nyabisaga Village, Pemba Ward in Serengeti District. Page 5 of 7 Again, on 09th March, 2023 his uncle, Ryoba Masero passed away at Nyabisaga Village. He also averred that, his daughter in law, Ghati Sinda passed away on 09th April, 2023 and was buried on 11th April, 2023 at Nyabisaga Village. Although the said tragedy happened to applicant are not planned, it is the natural disasters, that can happen any time to anyone, but I did not believe that all the time since 07th March, 2023 the applicant was only dealing with incidents. The present application was filed on 12th June, 2023. 96 days has lapsed since the last order was issued on 07th March, 2023. In his affidavit the applicant mentioned four diversity dates spent on the tragedies that befell him. He didn't mention what he did in the other remaining dates. As I said before, it is hard to believe that the applicant spent all 96 days to deal with the incidents that happened to him. He should have explained the reason (s) for each day of delay. As it was held in Bushiri Hassan vs Latifa Lukio Mashayo (supra), that the delay of even a single day, has to be accounted for. The applicant has failed to do so. Page 6 of 7 In sum, I find the applicant has failed to show any good and sufficient cause for this court to exercise it discretion to extend time. Accordingly, I dismiss the application for want of merit. I do so without costs as the respondent didn't appear. It is so ordered. M. L. KOMBA JUDGE 12th August, 2024 Page 7 of 7