zera tuza vs kigoma ujiji municipal council 2022 tzhc 14365 27 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA MISC. LAND APPLICATION NO. 19 OF 2022 (Arising from Land Application No. 129/2016 of the District Land and Housing Tribunal for Kigoma) ZERA TUZA APPLICANT VERSUS KIGOMA UJIJI MUNICIPAL COUNCIL RESPONDENT 1 RULING 19/9/2022 & 27/10/2022 L.M. Mlacha,J. i ! \ The applicant, Zera Tuza filed an application against the respondent, KIgoma - Ujiji Municipal Council seeking extension of time within which to appeal against the decision of the District Land and Housing Tribunal for Kigoma (the DLHT) made In Land Application No. 129 of 2016 (F. Chinuku Chairperson). The application is made under section 14 (1) of the Law of Limitation Act cap 89 R.E. 2019 and section 41 (2) of the Land Disputes Courts Act Cap 216 R.E. 2019 and Is supported by the affidavit of the applicant, Zera Ruza stating the grounds upon which the application is based. It was stated in para 2 of the affidavit that the Impugned judgment of the I 1 DLHT was made on 10/12/2019 but a copy of the decision was supplied on 21/9/2021 as per a copy of the judgment and payment receipts attached. A special form from the DLHT was also attached showing that the delay was not caused by undue diligence or negligence on the part of the applicant. It was stated in para 3 that she wrote a letter to the DLHT on 29/9/2021 seeking supply of a copy of decree. It was supplied to her on 1/10/2021. Reference was made to the letter, payment receipt and special form which were also attached at the affidavit. Para 4 and 5 stated that the applicant filed Land Appeal No. 26/2021 on 8/10/2021 but it was found to be time barred and struck out on 31/5/2022. She could not get a copy of the ruling and drawn order in time. He got it on 15/6/2022. Para 6 stated that the period from 8/10/2021 up to 31/5/2022 was spent in the court corridors fighting in the appeal which was struck out. Para 7 and 8 stated that the delay in filing the appeal was not caused by undue diligence or negligence on the part of the applicant. The respondent resists the application. They filed a counter affidavit sworn by Beatrice Mongi, a solicitor of the respondent to oppose the application. Para 4 encountered the delay caused by failure to supply a copy of the judgment and Decree of DLHT. It was stated that the applicant failed to 2 attach a copy of a letter she wrote requesting for a copy of the judgment making the defence baseless. Para 5 challenged the special form. It was stated that the form did not support the applicant because it showed that she had failed to collect the copy of the decree in time. Para 6 stressed that it was important to show when the copy of the judgment was applied. Other 1 paragraphs put the applicant to strict proof to what she stated in her affidavit. After the exchange of facts in the affidavits, the parties were invited to make submissions to expand their respective positions. It was the submission of Mr. Silvester Damas Sogomba that they have attached documents showing that copies of the decision could not be released due to typing problems. The letter requesting for copies of the decision was also attached. He went on to submit that from 8/10/2021 up to 31/5/2022 the applicant was in court fighting for her right in the appeal which was struck out. They also spent 15 days to get a copy of the decision and a further period of 9 days waiting for assignment and issue of summons. He concluded that the delay is technical not real. He argued the court to grant the application. I Ms. Beatrice Mongi submitted in reply that the applicant did not say when she applied for a copy of the decision. She never attached any letter. She 3 concluded that the applicant had no intension to appeal. She could not see the technical delay. She argued the court to dismiss the application. In principle courts have discretion in deciding whether or not to grant extension of time. However, such discretion must be exercised judiciously, meaning that sufficient reasons must be given before extension of time is granted. The most persuasive reason that the applicant can show is that such delay has not been caused or contributed to by dilatory conduct or negligence on his part. He has to assign reasons for the delay on daily basis. He can also point out an illegality on the face of the record if any. See Mohamed Hamisi Mawa (the Administrator of the estate of the late Hamisi Hassan Mawa) v. Selemani Omari Kikwala, another Miscellaneous Land Application No. 51 of 2013(Kibela J. rtd), Shanti v. Hindiche & Others [1973] E.A.207 and Mtabazi Adamu kalukula v. Bodi ya Wadhamini Jimbo Katoliki la Kigoma, Miscellaneous Land Application No. 18 of 2022 (High Court Kigoma). In this case the decision of the DLHT was made on 10/12/2019 and the t application was lodged on 24/6/2022. There is gap of 2 years and 6 months or 822 days. Reasons assigned were as follows; i) 10/12/2019 - 21/9/2021 seeking supply of copy of the decision of DLHT. ii) 21/9/2021 - 1/10/2021 4 % I' J seeking for the supply of decree of DLHT. iii) 1/10/2021 - 31/5/2022 engaging a lawyer and prosecuting Land Appeal No. 26/2021 which was 4 struck out. iv) 31/5/2021 - 15/6/2022 seeking a copy of the decision of this I court, v) 15/6/2022 - 24/6/2022 for assignment and issue of summons. She attached a copy of the decision of DLHT made on 10/12/2019 and its decree, Stakabadhi ya Malipo ya Serikali issued on 21/9/2021 for Tshs 6,000/=, i FORM MAALUM KWA AJILI YA UTOAII NAKALA ZA HUKUMU dated 21/9/2021 written SABABU YA KUTOLEWA NAKALA YA HUKUMU NJE YA SIKU 21 - ILICHELEWA KUCHAPWA, a letter written by Zera Tuza on I 29/9/2021 addressed the DLHT entitled MAOMBI YA KUOMBA DECREE, Stakabadhi ya Malipo ya Serikali dated 1/10/2021 for Tshs 4,000/=, FORM MAALUM KWA AJILI YA UTOAJI NAKALA ZA HUKUMU dated 1/10/2021 I I giving reasons for the delay of supply of decree as " ALICHELEWA KUIFUATTA" and Stakabadhi ya Malipo ya Serikali dated 24/6/2022 for Tshs 130,000/=. Much as there is no evidence that the applicant applied for a copy of the judgment but there is an endorsement showing that it could not be supplied at an early stage due to typing problems. This is a good excuse for the applicant for a period from 10/12/2019 when the judgment was pronounced 5 to 21/9/2021 when she got a copy of the decision. But the record shows that she could not pick a copy of the decree on her own fault. So the delay from 21/9/2021 to 1/10/2021, 9 days lacked good course. But the delay from 8/10//2021 - 31/5/2022 had justification because she was in court fighting for his right in the appeal which was struck out. Equally, the period which followed may also be attributed to the supply of the copy of the decision. lodging the application and assignment. Reading from the above, one can see that much as there is a very long delay but the applicant have managed to account for the delay for whole period save for the period of 9 days which were used to purchase the decree. I think here is where the discretion of court should come in. On my close examination of the matter, guided by the overriding objective principle I I contained under section 3A of the Civil Procedure Code Act and the inherent powers of this court contained under section 95 of the Civil Procedure Code Act, I think the interests of justice demands that the 9 days delay should be disregarded. It is a small period of time compared to what has been accounted for. The circumstance calls for the exercise of the discretion of this court in favour of the applicant. I 6 1 I Further, the continuous persistence of the applicant in the matter shows that there is something burning on her. This court being a court of justice must extend a welcoming hand to such people. That said, the application is granted. The applicant is given 14 days within which to lodge the appeal. It is ordered so. No order :ha 27/10/20 ► Court; Ruling d^Bvered. Right of Appeal Explained. <1 Judge 27/10/2022 7