MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA MISC. LAND APPLICATION NO. 138 OF 2023 (Land Case No. 21 of 2016 in the High Court of Tanzania at Arusha) TILIAS SIMEL LAIZER....................................................... 1st APPLICATION OLODI SIMEL LAIZER....................................................... 2nd APPLICATION EDWARD SIMEL LAIZER................................................... 3rd APPLICATION SAIDI SIMEL LAIZER........................................................ 4™ APPLICATION SAMWEL SIMEL LAIZER.................................................... 5™ APPLICATION SAIGILU SIMEL LAIZER.................................................... 6™ APPLICATION VERSUS JULIUS FANUAEL MOLLEL (Administrator of the Estate of the late FANUEL LOISHOOKI NOAH)....................... RESPONDENT RULING 1/07/2024 & 22/07/2024 NDUMBARO, 3 Before this court, is an application for an extension of time preferred by the applicant under section 11 (1) of the Appellate Jurisdiction Act, Cap 141 R.E 2019. The applicant is seeking for an order to extend time to enable him to file a notice of the intention to appeal to the Court of Appeal of Tanzania which was initially struck out by the Court of Appeal of Tanzania on 15th November 2023. The application is further supported by an affidavit, duly sworn by the applicant's counsel Mr. Lengai Nelson Merinyo. The application has, however, been resisted by the respondent through the counter affidavit duly sworn by the respondent's counsel Mr. Elvaison Erasmo Maro. The same was followed by a reply to the counter affidavit by the applicant. For better appreciation of this application, I find it apposite to explore the factual setting giving rise to the application which may briefly be recapitulated as follows: - Initially, the applicants unsuccessfully filed a suit in this court against the respondent on the claim of trespass on their land measuring 18 acres. Dissatisfied by the decision of this court, on 4th October 2021 the applicants lodged the notice of appeal to the Court of Appeal of Tanzania, however, no appeal was lodged by the applicants. Consequently, the respondent herein filed an application to the Court of Appeal of Tanzania seeking for an order to strike out the notice of appeal which was lodged by the applicants. Upon hearing of the parties' submissions, the Court of Appeal of Tanzania granted the application and the notice of appeal intending to challenge the decision of this court was struck out. The applicants have now come before this court seeking for extension of time to file a notice of intention to appeal to the Court of Appeal for the second time claiming it to be a technical delay. The respondent on the other hand strongly opposed the application and stated that the delay cannot be culminated by an order striking out the applicant's notice of appeal but the sloppiness and apathy of the applicants. The respondent further stated that it was the applicants who never followed up on appeal documents until after the lapse of two years and twenty-one days from the date of the judgment when the applicants reminded the Deputy Registrar to supply the appeal documents. When the application was called on for hearing, the applicants were represented by the learned counsel Mr. Lengai Nelson Merinyo, on the other hand, the respondent was represented by advocate Elvaison E. Maro. The application was argued orally. Submitting in support of the application, Mr Lengai argued that the applicant's delay is a technical delay on the reason that the previous notice was filed on time. Mr Lengai also argued that even the application at hand had been filed immediately just after the notice of appeal was struck out by the Court of Appeal of Tanzania. He urged this court to be guided by the decision of Fortunatus Masha vs Wiliam Shija & another [1997] TLR 154. The learned counsel went on to submit that, before the notice of appeal was struck out by the Court of Appeal of Tanzania, the Registrar had already informed them that the appeal documents were ready for collection. It was his further submission that despite the fact that the notice to appeal was struck out, but still the applicants are allowed to file a new notice of appeal. On the part of the respondent, Mr. Maro submitted that the applicants' delay cannot be termed as a technical delay on the reason that in a technical delay, the applicant takes steps towards pursuing his rights but the same is found to be incompetent therefore the time the applicant spent in pursuing his rights can be termed as a technical delay. However, in the matter at hand, Mr. Maro argued that the applicants never took steps in pursuing their rights because after they lodged the notice of appeal they never made further steps to prosecute their appeal. Thus it was his stand that when a party is not interested in pursuing his rights technical delay cannot be applicable. He further stated that even the cited case of Fortunatus Masha is distinguishable 4 from the circumstances of this case as the principle of technical delay is inapplicable in this application. Mr. Maro went further to state that, rule 90 of the Court of Appeal Rules requires the applicants after the lapse of 90 days to remind the Registrar that he did not get the necessary documents. But in the matter at hand even after the lapse of 90 days, the applicants did not take any move to remind the registrar until in the year 2023. He therefore contended that, in the circumstances of this case, the applicants do not need the mercy of this court, as it seems to be that the applicants decided to remind the registrar in the year 2023 after they discovered that the respondent had filed an application to strike out the notice of the appeal. In his rejoinder, Mr Merinyo insisted that this was a technical delay as the Court of Appeal of Tanzania struck out the previous notice. He further insisted that, since the notice was struck out and not dismissed then the applicants are at liberty to lodge another notice of appeal. Having summarized the submission of the parties, this court is called upon to determine whether the application at hand is meritorious. It was held in the case of Livingstone Silay Haru v. Co11ifred Temu [2002] TLR 268, that: - 5 "It is discretion on the part o f the court to grant the extension o f time depending on sufficient reason being given to explain the delay" From the records, the applicants have demonstrated that their delay is a technical delay taking into consideration that the previous notice of appeal was filed within time but the same was struck out following their failure to file their appeal within reasonable time. The respondent on the other hand refuted the grant of this application on the basis that the principle of technical delay cannot be applied in the circumstances of this case. Mr. Maro who bitterly opposed the application argued that the applicants cannot be salvaged by this principle on the reason that immediately when they lodged their notice of appeal to the Court of Appeal they relaxed without making a follow- up of the appeal documents until when they became aware of the existence of an application to strike out the notice of appeal. According to him, for one to be covered by the principle of technical delay he must have been pursuing his right and in one way or another, the same is struck out for being incompetent. Perhaps, I should start my discussion by defining what is a technical delay. The answer to this question is found in a very famous case of Fortunatus Masha cited by the applicants' counsel. For a better appreciation of the definition of a technical delay, part of the holding is reproduced hereunder; am satisfied that a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal has to be instituted. In the circumstances, the negligence if any refers to the Filing of an incompetent appeal, not the delay in filing it. The filing o f an incompetent appeal having been duly penalized by striking it out, the same cannot be used to determine the timeousness o f applying for filing the fresh appeal. "^Emphasize is mine). As already explained above, it is an undisputed fact by both sides that the previous notice of appeal was filed by the applicants on time but the same was struck out. I have taken into consideration the submission of Mr Maro that the delay, in this case, is not a technical delay due to the reasons that made the original notice of appeal to be struck out. With due respect, I find that the learned counsel is making a confusion of the reason that made the notice of appeal to be struck out and the fact that the notice of appeal was filed within time. From the above definition of what is a technical delay, the Court of Appeal of Tanzania clearly stated that the negligence if any, refers to the filing o f an incompetent appeal, not the delay in filing it What can be deduced from this holding is that whatever negligence the applicants had in filling their appeal within time, but the same does not affect the fact that the notice of appeal was filed within time. In the premises, I am satisfied that the applicants' delay is a technical delay and not an actual delay. I have also observed the time spent from when the notice of appeal was struck out to the time of filing this application. The notice of appeal was struck out on 15th November 2023 and this application was filed on 24th November 2024, I am justified that the applicants have explained away the delay in filling a fresh notice of appeal to the Court of Appeal of Tanzania. Accordingly, this application is hereby granted. The applicants shall file their notice of appeal to the Court of Appeal of Tanzania within fourteen (14) days from the pronouncement of this ruling. Costs shall abide by the outcome of the intended appeal. It is so ordered. D. D. 0 JUDGE 22/ 07/2024