yakae said uhaya vs amina kassimu chuma 2018 tzhclandd 479 20 august 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPLICATION NO. 527 OF 2015 Arising from Misc. Application No. 21/2008, originating from Morogoro District Land and Housing Tribunal in Land Appeal No. 111/2006) YAKAE SAID UHAYA................................................... APPLICANT VERSUS AMINA KASSIM CHUMA.......................................... RESPONDENT Date o f last order: 24/07/2018 Date o f ruling: 20/08/2018 RULING Makuru, J.: The Applicant, Yakae Said Uhaya, brought this application under section 14 of the Law of Limitation Act, Cap 89 RE 2002 and section 95 of the Civil Procedure Code, Cap 33 RE 2002. She is seeking for extension of time within which to file an application for revision. The application is supported by the Applicant's affidavit. When the matter was called on for hearing the Applicant and the Respondent's representative who appeared in person, unrepresented urged the court to adopt the contents of the affidavit and counter affidavit respectively. However, the Respondent decided to file written submission without leave of the court. With respect, I am not going to consider it because there was no order given by this court for any of the parties to file written i submissions. The written submission by the Respondent is hereby expunged from the record. Before embarking on the merits of this application, a brief background giving rise to this application is necessary. The Applicant was the unsuccessful litigant in Misc. Application No. 21 of 2008. She successfully made an application to this court for extension of time to file an application for revision. However, instead of filing an application for revision she filed an application for review. Having found that the application was improperly before the court, she withdrew the said application. She is now seeking for extension of time to file a proper application for revision. The reasons for the delay have been stated under paragraphs 8, 9 and 10 of her supporting affidavit. For the purpose of clarity, I will reproduce the said paragraphs as hereunder: "8. THAT due to the fact that I am a lay person, I decided to consult a lawyer who could help me to draft the application for revision whereby the said lawyer drafted the application which I have realized now it was a wrong application. 9. THAT the said lawyer drafted the application for review instead of application for revision hence the same being dismissed by this Honourable court on 17/08/2015. 10. THAT being discovered that the application was a wrong one and due to the fact that I am a lay person and that I could not discover early until the same was dismissed, I have decided to file a new application which is a proper one but due to the fact that I am already out o f time for filing the application for revision, I decided to seek first leave o f this Honourable Court to extend the time for filing that application hence this application". In the counter affidavit the Respondent disputed the Applicant's averments and contended that, ignorance of the law has never qualified to be a defense to be relied upon. In determining an application for extension of time the Applicant ought to convince the court that the delay was caused by sufficient reasons. This principle has been established by the Court of Appeal in a number of decisions including the case of Ambunda v Tanzania Harbours Authority, CAT Civil Application No. 164 of 2005 (Dar es Salaam Registry, unreported) whereby Munuo JA held that:- "The rules o f court must be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion. I f the law were otherwise, a party in breach would have an unqualified right to an extension o f time which would defeat the purpose o f the rules, which is to provide a time table for the conduct o f litigation. " In the instant case, the reasons stated in the affidavit are due to the fact the applicant is a lay person and the person who helped her to draft the application filed a wrong application. I agree with the Respondent that ignorance of law is not a defense. However, there are some exceptions to this general rule. In the instant case the Applicant sought assistance and 3 the person who assisted her misled her by drafting a wrong application. It is trite law that, courts of law should not be bound by technicalities. This principle has been imposed under Article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977. Also in the case of National Housing Corporation v Etienes Hotel, CAT Civil Application No. 10 of 2005, ( Dar es Salaam Registry, unreported) whereby Munuo JA cited with approval the case of General Marketing Co. Ltd. versus A.A. Shariff f 19801TLR 61 at Page 65 wherein Biron, J. held that: Rules o f procedure are handmaids ofjustice and should not be used to defeatjustice. Under the circumstance, I find that the reasons adduced by the Applicant to be sufficient. I accordingly grant this application without costs. u■ v i ■ r ia iv u i u JUDGE 20/08/2018 Court: Ruling delivered in court this 20th day of August, 2018 in the presence of the Applicant in person and Iddi Mapunda as administrator of the estate of the late Respondent, Amina Kassim Chuma. C JUDGE 20/08/2018