the registered trustees of calvary assemblies of god cag vs tanzania steel pipes ltd 2 others 2022 tzhclandd 12619 14 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 579 OF 2022 (Arising from Land Case No.40 of 2020) THE REGISTERED TRUSTEES OF CALVARY ASSEMBLIES OF GOD(CAG) APPLICANT VERSUS TANZANIA STEEL PIPES LIMITED RESPONDENT TREASURER REGISTRAR 2"^" RESPONDENT THE ATTORNEY GENERAL 3^° RESPONDENT Date of Last Order: 19.10.2022 Date of Ruling 14.11.2022 RULING V.L. MAKANI. J. The applicant herein Is praying for the following orders: 1. That this honourable court may be pleased to extend the time within which the applicant may lodge a Notice of Intention to appeal to the Court ofAppeal of Tanzania against the dismissal order of this Honourable Court (Hon. F.H. Mahlmball, J) dated day ofJuly, 2022 In Land Case No. 40 of2020. 2. Any other orders this Tribunal(sic!) may deem just and tit to grant. The application Is made .under section 'll(l) of the Appellate j Jurisdiction Act CAP 141 RE 2019 and is supported by the affidavit of John James, advocate from Law Associates, who are representing the applicant herein. The application was argued orally and Mr. Hillai Hamza and John James, Advocates appeared for the applicant, while Mr. Mseke, Advocate appeared for the P' respondent and Mr. Webiro and Ms. Happiness Nyabunya, State Attorneys appeared for the 2"=" and 3'''' respondents. Mr. Hamza adopted the contents of the affidavit and the annexures to form part of his submissions. He said the applicant was the plaintiff in Land Case No. 40 of 2020 which case was scheduled for special sessions on 15/06/2022 and 16/06/2022. Counsel consented to file witness statements and hearing was set for 01/07/2022. He said Counsel for the applicant who by then was Mr. Deogratius Ogunde appeared on the said date without witnesses alleging that the intended witness was sick and supplied the court with medical certificates where it showed that Ms. Imeida Maboya had excused duty (ED). The prayer was objected to by Counsel for the defendants and ultimately the matter was dismissed for non-compliance of the scheduling order. Being aggrieved with this order the applicant attempted to set aside the dismissal order vide Misc. Land Application No. 410 of 2022. He said the application was met with an objection that the matter was res judicata and the ruling was delivered on 16/09/2022. He said the applicant still aggrieved engaged them (Law Associates) and they advised him that the right course which ought to have been taken was to file Notice of Appeal and not an application to set aside the dismissal order. However, the statutory time to do so had lapsed and hence this application for extension of time to file Notice of Appeal to the Court of Appeal which was filed on 19/09/2022. Mr. Hamza said in determining an application for extension of time the court is guided by the general principles in the case Lyamuya Construction Company Limited vs. Board of Trustees of Young Women Christian Association, Civil Application No.02 of 2010 (CAT-Arusha)(unreported). He said the first principle is for the applicant to account for all the time of delay. He said according to the affidavit the applicant has managed to account from when Land Case No. 40 of 2020 was filed up to the filing of the present application. Mr Hamza said the second principle is that the delay should not be inordinate. He submitted that the applicant's delay is not inordinate as the applicant invested and relied on the profession legal advice conveyed by her former Advocate Mr. Ogunde. He said the application to set aside the dismissal order was timely made but it was a wrong course. As for the applicant showing diligence and not apathy in prosecuting the action he intends to take, Mr. Hamza said the applicant is aggrieved by the dismissal order in Land Case No 40 of 2020 and she diligently attempted to set aside the order following the grievances. As for the last principle that there must be sufficient reasons for such delay, he said an existence of a point of law of sufficient importance such as illegality can be taken as a sufficient reason for grant of extension of time. Mr. Hamza said the reasons for the delay are well stipulated in the affidavit from paragraphs 8,9,12 and 13. He said the cause of the delay is the legal advice that the applicant believed to be true in challenging the dismissal order by filing an application to set aside the decision. He said this error in pursuing the matter is the negligence of the former advocate for the applicant. He relied on the case of Kambona Charles (Administrator of the Estate of Charles Panganl vs. Elizabeth Charies, Civii Application No. 529/17 of 2019(CAT-DSM)(unreported) where it acknowledged the case of Zuberi Mussa vs. Shinyanga Town Council, Civil Application No. 3 of 2007 whereas the court granted extension of time and that Advocate mistakes should not extend to punish a party in the case. He also cited the case of Glory Shifyaya Samson vs. Raphael James Mwinuka,Civil Application No. 506/17 of 2019 (CAT-DSM). He said the delay is "technical delay"as was in the case of Fortunatus Masha vs. William Shija & Another [1997] TLR 155 where according to Mr. Hamza the time spent in court pursuing an incompetent application is a "technical delay"and should not be used to penalise the applicant. He said following the decision in in Land Case No 40 of 2020 the applicant has been in court corridors trying to rectify the grievances that has been caused by the dismissal order. Mr. Hamza further pointed out that the decision that is sought to be challenged has a point of law in that there is an illegality. He said it is the position of the law that where there is illegality it suffices to be a reason for extension of time. He relied on the case of Principal Secretaey Ministry of Defence & National Service vs. Devram P. Valambia [1992]TLR 182. He said paragraphs 14 and 15 of the affidavit state that the decision sought to be challenged denied the applicant's right to be heard which is a fundamental right under Article 13(6)(a) of the Constitution of the United Republic of Tanzania. He said this point aione if strictly applied should amount to reasons to account to every day of delay. Mr. Hamza concluded by praying for the court to extend time to file Notice of Appeal against the dismissal order in Land Case No 40 of 2020. Mr. Mseke appeared for the 1=' respondent. He adopted the contents of the counter-affidavit that was sworn by Joash Sanga an officer of the 1=' respondent. Mr. Mseke started on the point on iiiegality on the order of this court in Land Case No 40 of 2020, in the sense that the applicant was denied the right to be heard. He said the court was referred to paragraphs 13 and 14 of the affidavit, and what is aileged to be illegality is the failure of this court to appreciate the substantive value of sickness from Kairuki Hospital. He said this point was deliberated upon by the parties and the court made a ruling on this point, specifically whether the certificate for excuse duty was sufficient ground for adjournment. He said the ruling of the court on this point cannot amount to illegality. He said the affidavit does not state anywhere that the applicant was denied the right to be heard. He said what was stated in by Counsel amounts to a statement from the bar. He said illegality has to raise a point of law and sufficient importance and must be apparent on the face and not that would be discovered by a long-drawn argument. He relied on the case of Lyamuya Construction Company Limited (supra) that quoted the case of Jubilee Insurance(Tanzania) Limited vs. Mohamed Samer Khan,Civil Application No.439/01 of 2020(CAT-DSM) (unreported). He said the Ruling of this court does not contain an apparent illegality. He said the case of Vaiambia is distinguishable and cannot apply in the present instance. On the point of advocate's negligence to file or take appropriate course of action, Mr. Mseke said the applicant has submitted as such in paragraphs 8 and 9 of the affidavit. He said there are two authorities which accommodate Advocate's negligence in initiating certain steps and those are Glory Shifwaya Samsom (supra) decided on 19/02/2021 and Kambona Charles (supra) decided on 12/05/2020. He said Jubilee Insurance (T) Company Limited (supra) was decided on 10/10/2022 and the Court of Appeal said advocate's negligence can never amount to a sufficient reason to warrant extension of time. He said were there are such situations of conflicting decisions of the Court of Appeal the most recent one should be followed (see Ardhi University vs. Kiundo Enterprises (T) Limited, Civii Appeai No. 58 of 2018 (CAT-DSM) (unreported). Mr. Mseke prayed that the court should be led by the recent case of Jubilee Insurance (T) Company Limited (supra) that negligence is not a ground for extension of time. He went on to pray for the application to be dismissed with costs. Mr. Webiro who represented the 2""^ and 3^'' respondents adopted the contents of the counter affidavit sworn by Mathew Mfuko. He also supported the submissions by his colleague Mr. Mseke. He said for an appiication for extension of time, the delay has to be accounted for. He said the appiication to set aside the dismissal order was struck out on 16/09/2022 and this appiication was filed on 20/09/2022 this is a period of 4 days delay which has not been accounted for. He said a delay of even a single day has to be accounted for according to the case of Wambeie Mtumwa Shahamo vs. Mohamed Hamis,Civii Reference No.8 of 2016(CAT-DSM)(unreported). He said failure by the applicant to account for the 4 days means he failed to comply with the law hence no sufficient reasons were given. He said Counsel for the applicants said if there is iilegality there is no need to account for the delay, but this is not backed by the law. As regards inordinate delay, Mr. Webiro said since the 4 days have not been accounted for then it is clear there is inordinate delay. He said in the case of Lyamuya Construction Company Limited (supra)a delay of even a single day has to be accounted for. As for the negligence of the Advocate, Mr. Webiro pointed out that ignorance of the law is not a ground for extension of time as stated in the case of A.A. Muhimbira & 2 Others vs. John K. Mwanguku, Civii Appiication No. 13 of 2005 (CAT-Mbeya) (unreported) whereat the Court of Appeal stated that filing improper/incompetent document in court cannot be used as a ground for extension of time (also see Caiico Textile Industrial Limited (1983) vs. Pyraiai Esmaii Premji(1983)TLR 28) he said since the applicant has conceded that the only reason for the delay is filing an application for restoration instead of appeal, then the said reason is not sufficient for the delay. He went on saying that the affidavit has not demonstrated a justifiable cause for the delay but there are mere statements from the bar/submissions by the advocate which are not evidence (see Rosemary Stella Chambe Jairo vs. David Kitundu Jairo, Civii Reference No. 6 of 2018 (CAT-DSM)(unreported) where it was stated that submissions are not evidence. He said all that has been submitted but not in the affidavit should be disregarded. With the reasons advanced Mr. Webiro concluded that the application lacks merit and prayed for its dismissal with costs. In rejoinder, Mr. John James reiterated the submissions in chief. On the accounting of each and every day, he said this has been well stated in paragraph 11 of the affidavit. As for negligence of the previous advocate he said, the case of Jubilee Insurance (T) Company Limited (supra) emphasizes that extension of time is the discretion of the court, and each case has to be dealt with according to its circumstances. He noted that in the case of Charles Kambona (supra) it was estabiished that negligence of an advocate was not sufficient reasons for extension of time, but the court added that on speciai circumstances the court may so grant. He observed that this is a fit case for grant of extension of time. Mr. James said the cases of Charles Kambona and Jubilee Insurance (T) Company Limited (supra) are not conflicting. He said in the case of Jubiiee Insurance (T) Company Limited (supra) the delay was for three months which is not the case in the present case, so the cases are distinguishable. Mr. James insisted that there was iilegality because the denial for adjournment by the trial judge for reasons of sickness, in his view, was denial of a right to be heard. He said the respondents 10 have not stated how they will be prejudiced If this application is granted. As correctly stated by Counsel for the parties, It Is well settled law that for the court to exercise Its discretionary power in extending time good cause for the delay must be shown by the applicant What amounts to good cause has not been defined but It all depends on the nature and circumstances of each case. The applicant must demonstrate by affidavit that he or she was prevented by sufficient cause from pursuing the Intended action within the time limit and Is obliged to account for every single day of the delay (see the case of Lyamuya Construction Company Limited (supra). In this present application Counsel for the applicant has demonstrated that the cause for the delay was the negligence of the previous advocate, failure to account for the delay and Illegality In the Impugned decision. As for the negligence of the advocate, according to the cases cited by Mr. Hamza of Glory Shifwaya Samsom (supra) and Kambona Charles (supra) the negligence of the advocate could be 11 accommodated. But in the recent case of Jubilee Insurance (T) Company Limited (supra) the Court of Appeal was very clear that negligence of an advocate cannot be taken as a sufficient cause for extension of time. In this case the Court of Appeal stated: "... it is therefore dear, not oniy that the appiicant has totaiiy faiied to account for the deiay but aiso that both the appiicant and her advocates exhibited negiigence and inaction. It shouid aiso be emphasized that the neaiiaence of an advocate or his ianorance of the procedure, is not an excuse and does not constitute a sufficient cause for extension oftime." Mr. Hamza admitted and aiso In paragraphs 8 and 9 of the affidavit, It was pleaded, that the previous advocate Mr. Ogunde filed an application to set aside the dismissal order Instead of Instituting an appeal. It Is clear from the cited case above that this omission cannot be entertained as a reason for extension of time. The same case quoted the case of Exim Bank (T) Limited vs. Jacquilene A. Kweka, Civil Application No. 348 of 2020 (CAT)(unreported) where It was emphasized that failure of the advocate to act within the dictates of law cannot constitute a good cause for enlargement of time. Mr. James relied on the case of Charles Kambona (supra) where It was held that on special circumstances negligence of an advocate can be a sufficient reason for grant of extension of time, but 12 he did not go further to elaborate the special circumstances in this case. Subsequently as established herelnabove, the reason of negligence of the previous advocate cannot stand as sufficient to warrant this court to grant extension of time. Another Issue that was raised was illegality of the impugned decision, that the applicant was not given an opportunity to be heard. But as pointed out by Mr. Mseke, and correctly In my view, the point of sickness was argued by the parties and the court gave its ruling. So, the applicant cannot be heard to say he was not heard. In that regard, the ruling of the court as regards this point cannot amount to illegality. I subscribe to the case of Jubilee Insurance (Tanzania) Limited (supra) on this Issue. Mr. Webiro, State Attorney argued that the applicant has failed to account for the delay. I agree. It is apparent from the affidavit and submissions that Counsel for the applicants has not accounted for the delay from ,the date when the application to set aside the dismissal order was struck out on 16/09/2022 to when this present application was filed on 20/09/2022. The period of 4 days delay has not been accounted for and for an application for extension of time to be 13 granted, a delay of even a single day has to be accounted. In the case of Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Appeal No.3 of 2007(unreported) the Court had this to say: "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 has to be taken" It is apparent from the affidavit and proceedings that there are 4 days which the applicant has not been able to account for which means he has failed to comply with the law Wambele Mtumwa Shahamo (supra). Mr. Hamza said the time spent in court pursuing an Incompetent application is a "technical delay'^ar\d should not be used to penalise the applicant. In my considered view, the decision by the applicant and his advocate to file an application to set aside the dismissal order believing it to be the proper application which resulted to being unsuccessful cannot be termed a "technical delay''. That is negligence. It would have been "technicaldelay"\ifhe. application for extension of time was filed within time, but due to problems a fresh application had to be Instituted necessitating the grant of the said extension of time. But in the present case the applicant filed an 14 application to set aside the dismissal order and after failing he has now decided to take the appeal route. The alleged technical delay'' cannot therefore stand where the Initial course of action taken was a mistake (see the case of Fortunatus Masha (supra). In any case, If the court allow mistakes In the procedure to be termed '"technical delay"\he{\ there would be no end to litigation. For the reasons I have endeavored to established, It is obvious that the applicant has failed to establish sufficient reasons to warrant the court to exercise Its discretionary powers to grant extension of time within which to file a Notice of Appeal to the Court of Appeal. Subsequently, the application Is hereby dismissed with costs. It is so ordered. ot3RT Op V.L. MAKANI C JUDGE o U 14/11/2022 S ★ o 15