Madore v Mbelekeni and Another (Ruling) (Civil Application No. 13 of 2016) [2016] TZCA 10; (25 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA

CIVIL APPLICATION NO. 13 OF 2016

KELOI MADORE………………………………………………..APPLICANT

VERSUS

1. MEPUKORI MBELEKENI………………………………….1ST RESPONDENT

2. MTI MMOJA VILLAGE COUNCIL………………………..2ND RESPONDENT

(Application from the ruling and order of the High Court of Tanzania at Arusha)

(Opiyo, J.)

dated 26th day of February, 2016

in

Mise. Land Application No. 37 of 2014

RULING

17th & 28th October, 2016

MUSSA, J.A.:

This is an application for extension of time within which to file a Notice of appeal to this Court against the decision of the High Court in Land Case No. 15 of 2004. The application is by way of Notice of Motion which has been taken out under Rules 10, 47, 48 (1) and (2) and 49 (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit duly sworn by Mr. John Faustin Materu, who happens to be the learned Advocate for the applicant.

The application has been countered by the first respondent in a duly sworn affidavit in reply. Incidentally, the second respondent did not give any response. For a better appreciation of the issues of contention in the application it will be opposite if Iwere to preface my deliberations with a brief factual background of the legal basis for the application and, it is as follows:-

In the High Court of Tanzania (Land Division), at Arusha, the applicant instituted a suit against the respondents over ownership of 63 acres of land. At the height of the proceedings, the trial court (Mziray, J., as he then was,) dismissed the suit in favour of the respondents in a judgment which was pronounced on the 2nd July, 2012. The applicant was aggrieved, whereupon he duly lodged a Notice of Appeal on the 19th July, 2012 and, subsequently, he instituted Civil Appeal No. 64 of 2013 before the Court. Nonetheless, the appeal was struck out by the Court for incompetence on the 3rd March, 2014 on account of not obtaining the prior leave of the High Court in terms of section 47 (1) of the Land Disputes Courts Act, Chapter 216 of the Revised Laws (the LDC).

Still discontented with the decision of the trial court, the applicant instituted High Court Miscellaneous Application No. 37 of 2014 through which he unsuccessfully sought enlargement of time within which to file a fresh Notice of Appeal. Undaunted, the applicant preferred the application at hand, apparently, by way of a second bite.

At the hearing before me, the applicant entered appearance through the referred Mr. Materu, learned Advocate, whereas the first respondent was fending for himself, unrepresented. The second respondent entered appearance through its Chairman, namely, Mr. Mayaseki Mosteti. As it turned out, Mr. Materu, fully adopted the Notice of Motion as well as the affidavit in support of the application. The learned counsel for the applicant then referred me to a host of authorities and rested his quest with an urge that the time be enlarged as requested. The first respondent just as well adopted the affidavit in reply without more. He, however, pleaded that this matter has been dragging on the corridors of the courts for quite a while and prayed that the quest for extension of time should be refused with costs. For his part, the Village Chairman had nothing to say but only wished the matter to be resolved by the Court in the interests of justice. As already intimated, the application is, inter alia, gauged under the provisions of Rule 10 of the Rules which stipulates:-

"The Court may upon good cause shown extend the time limited by the Rules or by any decision of the High Court or tribunal" for the doing of any act authorized or required by these Rules/ whether before or after the doing of the act/ and any reference in these Rules to any such time shall be construed as a reference to that time so extended. "[Emphasis supplied].

I have supplied emphasis on a portion of the provision so as to make reference to Rule 83 (2) of the Rules which specifically requires a Notice of Appeal to be so lodged within thirty days of the date of the decision against which it is desired to appeal. Thus, reading section 11 (1) of the Appellate Jurisdiction Act (AJA) in conjunction with Rule 10 and 83 (2) of the Rules, it is noteworthy that both the High Court and the Court of Appeal have concurrent jurisdiction to grant extension of time to lodge a Notice of Appeal. Nevertheless, upon the requirement comprised in Rule 47, the application for such extension ought to be made to the High Court, in the first instance (see William Shija Vs. Fortunatus Masha [1997] TLR 213 and; AR Civil Application No. 5 of 2006 - Tanzania Revenue Authority Vs. Tango Transport Co. Ltd (unreported). As to what entails a refusal by the High Court the requested extension, the referred case of TRA Vs. Tango Transport Co. Ltd (supra) is instructive:-

''If a party fails in his or her bid to obtain an extension of time, then that party can try a second bite in this court under Rule 8 (now Rule 10) and thereafter can proceed by way of a reference under Rule 57 {1} (now Rule 62)." [Bolded addition supplied].

I should however, caution, even though by way of obiter, that different considerations may entail an application for extension of time within which to apply for leave to appeal with respect to land matters, the more so as, in terms of section 47 (1) of the LDC an appeal to this Court lies only with leave of the High Court. Since, however, the quest at hand is only confined to enlargement of time within which to lodge a Notice of Appeal, the same is, so to speak, home and dry.

Coming now to the merits of the application, as a matter of general principle, it is entirely in the discretion of the court whether to grant or refuse an application for extension of time. That discretion is, however, judicial and so, it must be exercised according to the rules of reason and justice, the deciding factor being the showing of "good cause" by the applicant. As to what constitutes "good cause" is dependent upon a variety of factors which may include the length to the delay, the reasons for the delay, the chances of the appeal succeeding if the application is granted and; the degree of prejudice to the respondent if the application is granted (See Mbogo Vs. Shah [1968] EA 93.

One of the reason given by the applicant to explain his delay was that, as a lay person, he is ignorant of the procedural law pertaining to instituting appeals before the Court. With respect, I will reject the account straight away inasmuch as ignorance of law has never featured as good cause for extension of time. But, evidently, the applicant filed the Notice of Motion promptly in the wake of the refusal by the High Court and, in any event I do not think that the respondents will be prejudiced any how if the application is granted. All said, the application is granted and, accordingly, the applicant should lodge the requisite Notice of Appeal within twenty one (21) days from the date of the delivery of this Ruling. No order as to costs.

DATED at ARUSHA this 26th day of October, 2016

K. M. MUSSA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

J. R. KAHYOZA

REGISTRAR

COURT OF APPEAL