Eliatirisha E. Akyoo & Another vs Julius Azael (Civil Application No. 382/02 of 2022) [2023] TZCA 17651 (25 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 382/02 OF 2022 ELIATIRISHA E. AKYOO........................................................1 st APPLICANT JOHNSON S. M BAGA................ .......... ............... .............. ..2 nd APPLICANT VERSUS JULIUS AZAEL ................................ . ....................................... RESPONDENT (Application for Extension of time to file Notice of Appeal against the decision of the High Court of Tanzania, at Arusha) (Massenqi, J.) dated the 23rd day of September, 2016 in Misc. Land Application No. 37 of 2016 RULING 19th & 25th September, 2023 MAKUNGU. J.A.: This is a second bite application for extension of time premised under rules 10 and 45 A (1) (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicants have lodged this application seeking an order for extension of time for them to file a notice of appeal to the Court in Misc. Land Application No. 37 of 2016 (Hon. Massengi, J.). The application is supported by an affidavit of the 2n d applicant, one Johnson S. Mbaga while on the adverse party, Mr. Julius Azael, the respondent resisted the application by filing an affidavit in reply.

In a nutshell, the facts leading to this application are such that the applicants lost in the application No. 122 of 2008 before the District Land and Housing Tribunal (DLHT) for Arusha. Aggrieved, the applicants preferred an appeal to the High Court of Tanzania vide Land Appeal No. 17 of 2012 which was also decided in favour of the respondent as the same was also dismissed with costs. Still aggrieved, the applicants sought to challenge the same before the Court. On 26/05/2014 the applicants filed an application for extension of time vide Misc. Civil Application No. 99/2014 within which to apply for leave to appeal to the Court, the same was granted (Hon. Maghimbi, J.) on 24/3/2015. The 2n d applicant avers further that, on 08/04/2015 they filed an application for leave to appeal to the Court but due to some anomalies, the said application was withdrawn on 03/06/2015 with leave to refile. On 16/06/2015 the applicants filed another application for leave to appeal vide Misc. Land Appeal No. 92 of 2015, but again, the same was struck out for non-citation of section 47 (1) (2) of the DLHT. Still fighting for their destinies, the applicants on 16/03/2016 filed another application for leave to appeal vide Misc. Land Application No.

37 of 2016, fatefully, the same was barren of fruits as it was dismissed for being filed out of time. Dissatisfied, on 13/12/2016 the applicants filed a second bite application for leave to appeal to the Court vide Application No. 325/17/2017, but the same was withdrawn for being misconceived by the applicants that instead of filing a second bite application for leave to appeal to the Court, they were required to lodge an appeal against the decision in Misc. Land Application No. 37 of 2016. That having found themselves out of time to lodge their appeal against the said decision in Misc. Land Application No. 37 of 2016, the applicants opted to file an application for extension of time to file a notice of appeal which was made vide Misc. Land Application No. 10 of 2021. Unfortunately, the same was dismissed for want of merits, hence the present application. When the application was called on for hearing before me, the applicants were represented by Mr. Stephano P. James, learned counsel whereas the respondent appeared in person, unrepresented. Mr. James adopted the affidavit of the 2n d applicant and prayed to be part of his oral submission. Submitting in support of the application,

he told the Court that the High Court was wrong to deny the applicants extension of time to file a notice of appeal to appeal to the Court. He argued that the application was dismissed by the High Court for failure to account the delay of 7 days which was reasonable due to the circumstances of the case. He prayed the application be granted with costs. When asked by the Court why the application was supported by the 2n d applicant's affidavit only. He replied that the 1s t applicant was seriously sick and he was not in position to file an affidavit. He admitted that the 2n d applicant's affidavit did not cover the 1s t applicant. The respondent strongly opposed the application. He told the Court that this application was filed out of time. He submitted further that the applicants have filed many applications before the High Court and this Court and all were dismissed. He prayed this application be dismissed with cost because it is wasting of time. There was no rejoinder on the part of the applicants' counsel. The issue for my determination is whether the instant application is properly before the Court. As observed by the Court and confirmed by Mr. James that in this application only the 2n d applicant swore his own 4

affidavit in support of the application. He did not state whether the same including the 1s t applicant. The question that lingers is whether the application is worthy before the Court. In answering this pertinent question, I wish to begin by stating the obvious that an application of this nature is governed by rule 48 (1) of the Rules, which states thus: "Subject to the provisions of sub-rule (3) and to any other rule allowing informal application, every application to the Court shall be by way o f notice of motion supported by affidavit and shall cite the specific rule under which it is brought and state the grounds for the relief sought. "[Emphasis added] Likewise, rule 49 (1) thereof provides that: "Every formal application to the Court shall be supported by one or more affidavits of the applicant or of some other person or persons having knowledge o f the facts." [Emphasis added] Now, having perused the present application, it is dear that the same has been made by way of a notice of motion supported by the affidavit of the 2n d applicant only. Unfortunately, there is no affidavit by or on behalf of the 1s t applicant and the application is therefore not supported by affidavit of the 1s t applicant contrary to rule 49 (1) of the 5

Rules. The same situation faced the Court in the case of LRM Investment Company Limited & Five others v. Diamond Trust Bank Tanzania Limited & Another, Civil Application No. 418/18 of 2019 (unreported). In that application, there was no affidavits by the 5th and 6th applicants and the Court observed thus; "The instant application was Hied by the counsel for the applicants, that is Mr. Kessy, on behalf o f all the six applicants. This is therefore, a joint application o f six applicants which generally, ought to have been supported by affidavit o f each o f the six applicants or if not by each o f them then by one or more o f them on behalf o f others. In the application at hand, the two affidavits filed in support o f the application have been filed by the third and fourth applicants on their own behalf and also on behalf o f only the first and second applicants. There are no affidavits by or on behaif of the fifth and sixth applicants and the application is therefore not supported by affidavits of those two applicants contrary to rule 49 (1) of the Rules . " [Emphasis added]. 6

In my respectful view, failure by the applicants to file an affidavit or affidavits to cover all of them is fatal to the application. Therefore, this application is incompetent for being supported by an affidavit of only one applicant attracting only an order striking it out. For reasons stated, the application being deplorably incompetent, is struck out with costs. Order accordingly. DATED at ARUSHA this 21s t day of September, 2023. 0. 0. MAKUNGU JUSTICE OF APPEAL The ruling delivered this 25th day of September, 2023 in the absence of the applicants who were dully served, and in the presence of the respondent in person is hereby certified as a true copy of the original. 7