Misc

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM MISC. LAND APPLICATION NO. 22259 OF 2024 CASE REFERENCE NO. 202409071000022259 (Arising from Applications No. 175 of 2021 (Bill of costs) which arises from Application No. 175 of 2012 Ilala District Land and Housing Tribunal) SYMPHORIAN REVELIAN KITARE.................................................. APPLICANT VERSUS SYLIVIA NICO BALINDA.................................................................. RESPONDENT RULING 21/11/2024 & 13/12/2024 GWAE, J This is not the first time for the applicant, Symphorian Revelian Kitare to knock the doors of the Court as he initially filed an appeal against the decision of District Land and Housing Tribunal of Ilala at Ilala (DLHT) in Bills of Costs filed by the present respondents. His appeal registered as Land Appeal No. 12623 of 2024 was struck out by the Court (Luvanda, J) on 28th August 2024 on the basis that, it was wrongly preferred as appeal instead of reference. i Subsequent to the order of the court striking out the applicant's appeal, the applicant is now before the court seeking the extension of time within which to file a reference against the DLHT's decision dated 26th October 2022 in Misc. Land Application 175 of 2021. The application is brought under Order 8 (1) of the Advocate Remuneration Order, 2015 (G. N No. 263 of 2015). It is supported by an affidavit of advocate Joseph Mandela who essentially stated that, on 29th August 2024 after the order of the Court, he informed the applicant of the outcome of the appeal and that on 30th August 2024 he electronically filed this application to the Court but the same was admitted on 7th September 2024. The respondents who are spouses resisted the application through their joint sworn affidavit by stating that, the applicant is grossly negligent as he preferred to the filing of the appeal before the Court instead of reference as required by the law and that, the time when the appellant was wrongly filed the time for filing an application for reference had already lapsed. In his lengthy rejoinder, the applicant's counsel (Joseph Mandela) essentially reiterated what is contained in the affidavit. However, in addition he stated that 21 days from the date DLHT's decision within which to file 2 reference would not accrue since he was of the opinion that filing of appeal was an appropriate one. He further stated that, he could not file this application on 31st August 2024 or 1st September 2024 since those days were weekdays that is why he filed the same on 2nd September 2024 but it was duly admitted on 5th September 2024. Before the Court, Mr. Joseph Mandela represented the applicant who is also an advocate of the High Court (T) and the courts subordinate thereto whereas the respondents appeared in person, unrepresented. Nevertheless, by the parties' consensus, the application was disposed of by way of written submission. In his submission in support of the application, the advocate for the applicant stated that since the applicant believed that, the decision of the DLHT is appealable as per section 44 (2) of LDCA, 45 days are excludable. He went on arguing that, the days spent for prosecution of appeal with due diligence is also excluded under section 21 of Law of Limitation Act, R. E, 2019 (LLA). Hence, according to him, his delay is of only 8 days from when his appeal was struck out to when he filed this application. He further submitted that, the application in question meets all the requirements or thresholds in extending time. He invited the Court to make reference to Elius 3 Mwalinga vs. Domina Kagaruki and others, Civil Application No. 120 of 2018 (unreported-CAT). In their reply to the applicant's submission in chief, the respondents in their style prayed for expunging of Paragraph 2. 3 and 4 of the affidavit on the ground that the same were not known by the applicant's advocate on the grounds, they are facts known by the applicant himself. Bolstering his contentions, he cited Lalago Cotton Ginnery and Oil Mills Company Limited vs. The Loans and Advanced Realization Trust (LART), Civil Application No. 80 of 2002 (unreported) where it was stated that an advocate can swear and file an affidavit in proceedings in which he appears for his client and on matters which in advocate's personal knowledge. According to him if the said paragraphs are expunged, this application would not stand in the eye of the law Arguing the substance of the application, the respondents stated that the applicant's affidavit has no reason for his delay. They insisted that the applicant as a senior advocate should not be allowed to benefit from his negligence. To support their assertion, the respondent urged the Court to be guided by the decision in the case of Lyamuya Construction Co. Ltd vs. Board of Registered Trustees of Young Women's Christianity Association 4 of Tanzania (Civil Application No. 2 of 2010), (2011) 17CA 4 (3 October 2011). The respondents also submitted that, on the point of decree of prejudice, it is the respondents who will suffer more loss since the applicant has been negligent and the matter has been pending in courts' corridors for quite a long time. In his rejoinder, the applicant essentially reiterated his submission in chief and further stated that, the respondents' contention that he referred contents of the said paragraphs as the same are matters not known to the applicant's counsel and are not disputed that is why he clearly stated in the verification statement of the affidavit that he obtained the information from the applicant. According to him, the case of Lalago Cotton Ginnery (supra) which though is not attached, is distinguishable. Having summarized the parties' affidavits and their respective submissions for and against the application, it is now incumbent to determine the following two issues, one whether the applicant's paragraph 2, 3 and 4 of the affidavit are liable for being expunged and if answered in affirmative, whether the application remains unmaintainable and two, whether the 5 applicant has advanced sufficient cause for the sought extension of time to file an application for reference. Regarding the 1st issue, I am alive of the principle that submissions by the parties or their advocates are not evidence, therefore not worth for consideration. (See Salim Lakhani and Two Others vs. Ishfaque Shabir Yusufali (As an administrator of the Estate of the Late Shabir Yusufali), Civil Application No 23/17 of 2019 (unreported-CAT). Nevertheless, looking at the paragraphs 2, 3 and 4th paragraph, which are about decisions of the tribunal. Hence, judicial notice ought to have been taken in that respect. Similarly, according to the verification clause in the applicant's affidavit, the applicant's counsel has clearly stated that, he obtained such information from the applicant. Therefore, the respondents' contention in this regard, in my view is baseless. I am aware that, the applicant is a senior advocate who must be conversant with the procedural law including that, the way of challenging a decision of a taxing officer. However, I find it to be absurd, if it is considered that, a lawyer or an advocate cannot commit any error in drafting a plaint or written statement of defence or any other action including filing an appeal instead of a reference to the Court where an application challenging a 6 decision or order of a taxing officer is entertainable pursuant to Order 7 (1) and (2) of the Advocate Remuneration Order GN. No. 263 of 2015. Thus, the respondents7 objection is hereby overruled. On whether the applicant has given sufficient cause to enable the court exercise its discretion to grant the sought extension of time to enable him file a reference out of the prescribed period that is 21 days from the date of the decision intended to be challenged. As the days during pendency of a case or cases is automatically excludable as far as those facts are pleaded in the affidavit as the case in the present application. (See section 21 of the LLA and a judicial jurisprudence in Geita Gold Mining Limited vs Anthony Karangwa (Civil Appeal 42 of 2020) [2023] TZCA 28 (20 February 2023). Having found as herein above, I am now to ascertain whether a delay of 8-9 days from 29th August 2024 when the applicant was notified of the date his appeal before the Court was struck out to when this application was filed that is on 7th September 2024. As correctly submitted by the applicant's counsel, it is my view that, the delay of 8 days to file this application is inordinate as the applicant initially filed the appeal in time. He is thus seen to have needed more time to re-organize himself and finally to properly file 7 a matter before the Court to enable him file the intended application for reference. (See the judicial jurisprudence in Loshilu Karaine and three others vs. Abraham Melkizedeck Kaaya (Suing as a legal representative of Gladness Kaaya), Civil Appeal no. 534 of 2020) [2024] TZCA 93 (22 February 2024)). I have also considered the days of delay as well as the issue of network problem, which is currently not stable. Hence, we cannot be blind of the reality as far as e-filing is concern. In the light of the foregoing reasons, I unhesitatingly hold the view that, this application is grantable. I therefore grant the applicant extension of time and I grant him given fourteen (14) days within which to file his application for reference against the decision of taxing officer delivered on 26th October 2022 It is so ordered dated and delivered at dar ES salaam this 13th December 2024 JUDGE 8