IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 21804 OF 2024 (Arising from Judgment and Decree of the High Court of Tanzania at Dares Salaam delivered by Hon. P.M Mwvenegoha, J, Land Appeal No. 406. of 2023, Originated from Land Application No, 81 of 2022 of the District Land and Housing Tribune fer Ubungo) LUCAS MATHIAS VERSUS MATHIAS PAUL CHIDUNGANTI.... RULING 19/09/2024 & 25/09/2024 N.E MANDIA, J This is an application for extension of time to file notice of appeal and memorandum of appeal brought under section 11(1) of the Appellate Jurisdiction Act [Cap. 141 R.E 2019] against the decision of the High Court (Land division) before Hon. Mwenegoha, J in Land Appeal No.406 of 2023. The ground canvased by the applicant in the chamber summons are as follows: 1. That this Court be pleased to extend time for the applicant to file notice of appeal against the decision of the High Court of Tanzania at Dar es Salaam delivered by Hon, Mwenegoha, J in Land Appeal No. 406 out of time. 2. That an order for the cost of and incidental to this application abide by the result of the sald appeal, 1The Applicant enjoys legal service of Mr. Simon Emmanuel learned Advocate, while the Respondent is represented by Mr. Pascal Mugisha learned Advocate. Hearing proceeded orally. To understand the background of this application, it is imperative to give brief account of underlying facts as gathered from the applicant's affidavit and accompanying documents as follows: the applicant was successfully sued by the respondent in Land Application No. 81 of 2022 in the District Land and Housing Tribunal for Ubungo at Ubungo for a claim of ownership of a disputed land. The applicant appealed to the High Court (Land Division) in Land Appeal No. 406 of 2023 which was decided in favour of the respondent, On 13/03/2024 the applicant wrote a letter through his advocate requesting for the proceedings and records of the court to enable him file notice of appeal. The applicant lost communication with his advocate, but later realized that no notice was filed in court. At the hearing of the application, Mr. Simon Emmanuel learned Counsel for the Applicant adopted applicants’ deposition in his affidavit to form part of his submission. Further he submitted that, the impugned decision was delivered on the 31/01/2024 and the Applicant was supposed to file notice of appeal within 30 days and to lodge the memorandum of appeal and records within 60 days. The counsel 2 eScontended that applicant filed his notice of intention to appeal through the firm of Rutasingwa & Associates Attorneys, and he was informed by his counsel that on 13/03/2024 they have filed a letter to request for the court records. Later, the applicant lost communication with his counsel, He tried his best to establish communication but it ended in vain. Upon such realization, the applicant decided to engage another advocate. On 28/03/2024, he wrote another letter requesting for the court records. ‘The counsel contended that, apart from losing communication with his counsel, the applicant was suffering from chronic surgical decease and he was attending treatment at Ulanga District Hospital. As a result, he was unable to pursue his case timely. That, his delay to file his appeal on time was neither due to negligence nor lack of diligence. He supported his argument with the case of Hamis Macha Sancho v. Joyce Bachubila, Civil Application No. 487 of 2017, TanzIL, in which the CA held at p.4 that: “ines constitutes valid explanation and sufficient cause for delay to do any act authorized or required under Rules. In this regard, in my considered view, the applicant has sufficiently accounted for the delay to apply for stay of execution, taking ‘into account his efforts in pursuing an appeal whereby he filed notice of appeal, sought and obtained requisite leave’,‘The learned counsel also referred the court in the case of Alasai Josiah suing by his Attorney Oscar Sawuka v. Lotus Valley Ltd Civil Application No. 498/12 of 2019, in which the CAT held that: - "Sickness is beyond human control and therefore nobody will faulty the applicant for being sick. His attorney has explained Why he failed to attend to the respondent's intended appeal” On the other hand, Mr. Paschal Mugisha, learned Counsel for the Respondent challenged the application. He contended that the application has been delayed for almost 8 months and the applicant has failed to account for each day of delay. He supported his argument with the case of Lyamuya Construction Company Ltd. V. Board of Trustee of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 reported in TanzLII. On the issue of sickness, Mr. Paschal Mugisha, learned counsel agreed that when it comes to sickness, human being have no choice but to attend to it. He supported the argument with the case of Emmanuel Maira v. The District Executive Director, Bunda District Counsel, Civil Application No. 66 of 2010 [2010] TZCA 87 (13 August 2010).However, he disputed the applicant's illness as good cause for the delay. He contended that the impugned judgment was delivered on 31/01/2024 and, if the applicant had to utilized the 30 days permitted by law, the time would have literally ended on 05/02/2024. During the said time, the applicant has not adduced any proof of what transpired/happened than a letter requesting for court records which was also filed after expiry of the statutory time. He referred the court to the case of Juto Ally v. Lucas Komba & Another, Civil Application No. 484 of 2019 [2020] TZCA 354 (15 July 2020). He submitted further that if the applicant cause of delay is illness, he must show that illness contributed to the delay as opposed to the general statement. In rejoinder, Counsel for the applicant reiterated his earlier submission and invited the court to look at Paragraph 5 of the applicant's affidavit together with copies of medical report from Ulanga District Hospital dated 24/03/2020, 01/06/2024 and 18/06/2024 which show that the applicant was suffering from hernia and chronical surgical decease which incapacitated him from discharging and performing other activities. He was also of the view that, time to file notice of appeal did not lapse on 05/02/2024 as submitted by the counsel for the respondent because the impugned judgement was delivered on 31/01/2024 and the 30 days was supposed to lapse on 01/03/2024. 5From the respective contention of the parties, the pertinent issue for determination is whether the applicant has shown sufficient cause to warrant the court to exercise its discretion under section 11(1) of the Appellate Jurisdiction Act [Cap 144 R.E 2019] which states: "Subject to subsection (2), the High Court or, where an appeal ies from a subordinate court exercising extended powers, the subordinate court concemed, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired”. [Emphasize added) At the outset, I find it necessary to begin with what constitutes sufficient cause. Unfortunately, the term is not defined in the law. In the case of Regional Manager, TANROADS Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007, CAT at Dar es Salaam (unreported), the CAT stated that: - “What constitute "sufficient reason ‘cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that the applicant must put before the court material which will move the court to exercise its discretion in order to extend the time limited by the rules." (Emphasize added]Two issues were argued by the counsel for the applicant to wit: lack of communication with his first advocates and his illness, Staring with the issue of lack of communication. After delivery of the impugned judgment on 31/01/2024, the applicant communicated with his advocate and was informed that on 13/03/2024 he filed a letter requesting for the court records. Later, he lost communication with his counsel. He tried his best to establish communication but it ended in vain. On 28/03/2024 the applicant upon realizing that he cannot reach his advocate, wrote another letter in court to request for said court records and later engaged another advocate. Literally the applicant is Pointing finger to his former advocate that he was negligent. The question now is whether negligence of an advocate can be a good cause for delay. In Abdalla Juma Kambale v Noradi Tiliko Mongelwa, Civil Appeal No. 231 of 2018 it was held that: "To answer the third issue, we wish to start by reiterating that as 2 general rule inaction, negligence, or omission on the part of the advocate does not constitute sufficient cause for extension of time. This has been held in numerous decisions of the Court, However, this is not a foregone conclusion. It depends on the circumstances surrounding the case, an application for extension of time may be granted even where there are some elements of negligence by the applicant's advocate’. [Emphasize added]I view of the submissions of both learned counsels on the issue of lack of communication, I am convinced that the applicant had never slept since the delivery of the impugned decision. His former advocate however, has been negligent is Pursuing the intended appeal as he was aware of decision and he ought to know the requirement of the law for lodging an appeal. The impugned decision was delivered on 31/01/2024 and the 30 days required by Rule 83(2) of the Tanzania Court of Appeal Rules ended on 03/02/2024. The advocate letter of 13/03/2024 was also outside the required time. This is clear negligence on the part of the advocate and applicant should not be punished for that. Coming to the issue of illness. It is a settled Position of law that illness can be good cause for extension of time. However, the applicant must show how such illness prevented him from filing a notice of appeal within time. Under paragraph 5 of the affidavit, the applicant deposed that since 2017 he has been suffering from bilateral inguinal hernia which incapacitated him from daily activities. He attached two medical reports signed on behalf of the District Medical Officer for Ulanga/Mahenge District dated 24/03/2020 and 18/06/2024 showing that the applicant had undergone two surgeries for inguinal hernia and that he is a patient of chronic surgical decease. That on the date of the last medical report, the applicant was still attending treatments. The 8 esquestion now is whether the said illness amount to a sufficient cause. In my view, the illness of the applicant amounts to a sufficient cause to warrant enlargement of time. In view of the aforesaid, I am satisfied that the applicant has demonstrated good cause warranting extension of time to file a notice and petition of appeal. The applicant is granted an extension of 14 days to file a notice and petition of appeal. ‘The application is granted. I make no order as to costs. It is so ordered. DATED at DAR.ES.SALAAM this 25" day of September, 2024 VGTLIEN Sp . {= V7) \~ N.EMANDIA, * a © JUDGE Ss ~~ 25/09/2024 ae