yuda teni vs askofu anthony mwaigombe another 2015 tzhc 2272 20 may 2015

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT MBEYA MISC. LAND CASE APPLICATION NO. 29 OF 2013 YUDA T E N I..................................................................... APPLICANT VERSUS 1. ASKOFU ANTHONY MWAIGOMBE 2. RESGISTERED TRUSTEES OF NEW RESPONDENTS APOSTOLIC RULING Date of last Order: 12/05/2015 Date of Judgment: 20/05/2015 A.F. NGWALA, J. This Application is made under Section 14 (1) of the Law of Limitation Act, CAP 89 R. E. 2002, and Section 95 of the Civil Procedure Code, CAP. 33 R. E. 2002, and it is supported by an affidavit of the applicant, Yuda Ten. The applicant intents to move this Court to grant him an extension of time, to appeal out of time, on the grounds that (a) This Honourable Court may be pleased to grant an Order for extension of time within which to file an appeal out of time. (b) That costs be in the course (c) Any other order this Honourable Court may deem fit to grant. The Application is strongly resisted by the Respondents. The applicant, a lay person, submitted that, he has filed an application to appeal out of time which up to this moment, he intends to proceed with his intended appeal against that decision of the courts so that, he can get his right. He also prays that the Respondents should remove whatever is theirs on his land. In reply, Miss Mwakolo the learned Counsel for the respondents submitted that, the applicant has not given reasons why he failed to appeal in time. For this reason she prayed that the application be dismissed. In rejoinder, the applicant submitted further that, he had failed to appeal because it is the advocates who could not write the Application in time. This is the reason why he got late. In view of the aforesaid submission, it is obvious that, the applicant in the present application has filed an Application to appeal out of prescribed time. The crucial question before this court is whether the applicant has established sufficient cause or reason to grant the applicant the extension of time to appeal out of time. It is crystal clear in law that, for extension of time to be granted, there should to be sufficient reason or cause for the delay. The reasons have to be shown in the affidavit in support of the Application. In this present application, it is not in dispute that no reasons for the failure to appeal within the prescribed time have been disclosed in the affidavit in support of the Application. As a general rule, reasons for failure to appeal within the prescribed time must be given in the affidavit, not on submission as the applicant does. This is because submission is not evidence. The applicant has submitted that, the reason for failure to appeal in time is because of the advocates who did not write in time as he said in Kiswahili “Ni Mawakili tualionichelewesha kuandika”. This could be a sufficient reason for the delay to appeal within time, because the appellant seems to be a layman, as the same view was emphasized in the Case of REGIONAL MANAGER, TANROADS KAGERA V. RUAHA CONCRETE COMPANY LIMITED. CIVIL APPLICATION NO.96 OF 2007 (Unreported), the Court of Appeal of Tanzania, inter alia held that:- “What constitute “sufficient reason” cannot be laid down by any hard and fa s t rule. This must be determined by reference to all circum stances o f each particular case. This means that the applicant must place before the court material which will move the court to exercise its judicial discretion in order to extend the time limited by the rules”. In the light of the above case, though it is clear that, the applicant in the case at hand has failed to show the sufficient reason, so as to meet the above, principle. It is my findings, therefore that, the court is not properly moved, given the facts that, there was no any sufficient reason, shown by the applicant to justify the failure in appealing within the prescribed time as emphasized by Karua J. in his Application Misc. Land Application No. 26 of 2012 involving the same parties in which his Application was struck out for failure to comply with the legal requirements in Applications of this nature. The applicant had an opportunity to file this second Application properly, but he did not do so. This in line with the holding in the case of DAPHNE PARRY V. MURRAY ALEXANDER CARSON, (1963) EA 546, that was quoted with approval by the Court of Appeal of Tanzania in the case of REGISTERED TRUSTEES OF THE ARCHDIOCESE OF DAR ES SALAAM V. THE CHAIRMAN BUNJU VILLAGE GOVERNMENT AND 4 OTHERS CIVIL APP. NO. 147 OF 2006, when it had the following to say:- "Though the court should no doubt give a liberal interpretation to the word “sufficient cause”, its interpretation must be in accordance with judicial principles. If the appellant has a good case on the merits but is out o f time and has no valid excuse for the delay, the court must guard, itself against the danger o f being led away by sympathy, and the appeal should be dismissed as time - barred, even at the risk o f in justice and hardship to the appellant As already observed, earlier, in this application at hand, the applicant though had sufficient reasons to warrant the court to grant the extension of time, to file an appeal out of time did not comply with the Orders of this court. The appellant has to blame himself for his action, and not attempt to shift the blame either to the respondents or to the Court for his failure to comply with the orders of this court by Karua, J. on 11th March, 2013 who observed that:- “It is settled principle o f law that citing inapplicable provisions o f law, records the Application incompetent. I need not cite authorities for this because that position has well been established, and there are a number o f authorities to that effect. Well, if insisted, just to mention, a few, Almasi Iddie Mwinyi versus National Bank o f Commerce; Abdulhaman avoid versus Ali Salim; and so on and so on. That was not all. The way the applicant's affidavit was drafted, left a lot to be desired. The affidavit contains prayers. Therefore it must be rejected; consequently, this Application is truck out with costs”. Again, the applicant has failed to establish the sufficient reason in his affidavit to warrant the extension of time in accordance with the law. In upshot, I do herebystruck the application with costs. A.F.NGW ALA JUDGE 20/05/2015. Date: 09/06/2015 Coram: A.F. Ngwala - J. Applicant: Present For the Applicant: Unrepresented Respondent: Present For the Respondent: Absent Court: Ruling delivered in court. Right of Appeal to Court of Appeal of Tanzania explained.