Ndorosi Siatoi vs Veredian John (Civil Application No. 161/02 of 2024) [2024] TZCA 1080 (8 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA CIVIL APPLICATION NO. 161/02 OF 2024 NDOROSI SIATOI................................................................ APPLICANT VERSUS VE RE DIANA JOHN.......................................................... RESPONDENT (Application for extension of time to serve the respondent with notice of appeal arising from the judgment and decree of the High Court of Tanzania at Arusha) (Kamuzora, 3 .^ Dated the 12th day of June, 2023 in Land Appeal No. 82 of 2022 RULING 5th & 8th November, 2024 MGONYA. J.A.: This is an application for extension of time within which the applicant can serve the respondent with a copy of a Notice of Appeal and a letter which was submitted to the Deputy Registrar, requesting for the certified copies of the requisite documents for appeal purposes. The application is by way of a notice of motion made under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) and it is supported by an affidavit duly sworn by the applicant. The respondent,

Verediana John, opposed the applicant's application through an affidavit in reply which was filed on 27th November, 2023. Briefly, the background of the matter as can be gathered from the record of this application goes as thus: the applicant has unsuccessful appealed to the High Court of Tanzania at Arusha, in Land Appeal No. 82 of 2022. The said appeal emanated from the decision of the District Land and Housing Tribunal for Ngorongoro at Loliondo in Application No. 01 of 2016. That, after the judgment of the High Court, the applicant lodged a Notice of Appeal and a Letter requesting for documents that constitute a record of appeal. As the law requires, he was supposed to serve a Notice of Appeal and a letter requesting for the documents to the respondent who lives in Mto wa Mbu Baraka Village in Monduli District. It is on record of this application that, due to the reasons to be apparent soon, the applicant delayed to serve the respondent with the said documents, hence he filed the instant application. When the application was called on for hearing, the applicant was represented by Messrs Ipanga Kimaay and Ngeeyan Laizer, learned advocates whereas, the respondent appeared herself, unrepresented.

When invited, Mr. Kimaay adopted the affidavits sworn by the applicant and the affidavit deponed by the Village Executive Officer (the VEO) of Baraka Village in Monduli, and he went on to submit that, the applicant used to serve the respondent through the Village Executive Officer (the VEO) of Baraka Village in Monduli. That, on 19/07/2023, the applicant handed a Notice of Appeal and a letter to the VEO for the purpose of serving the same to the respondent. However, the VEO told him that, he could not find the respondent at her home and her where about was not known. Therefore, on 21/7/2023, the VEO returned the said documents to the applicant. Mr. Kimaay went on to submit that, after he received those documents from the VEO, the applicant misplaced it at his home and was unable to trace till 18th October, 2023. That on 19th October, 2023 when the time to serve the respondent was lapsed, hence they have to institute the instant application seeking extension of time. Basing on the two reasons above, the applicant's counsel urged me to grant the application. In reply, the respondent opposed the applicant's application. It was her submission that, the applicant's allegations that, she was not at her home is not true. She further stated that, her mobile number is

reachable any time and every time the VEO called her to pick some documents brought by the applicant, she is always available. On the second reason, that the applicant lost the documents, it was the respondent's argument that, a Notice of Appeal and a letter written to the Registrar are serious documents hence the applicant was supposed to handle with care. According to her, this is not a good reason for the court to grant the application. Having considered rival arguments from both sides, the issue to be considered is whether the applicant has been able to show good cause for me to grant the sought order. As alluded to above, this application is pegged under rule 10 of the Rules which requires the applicant to show good cause for the Court to exercise its discretionary powers to extend time. It is obvious that, what constitute good cause is defined according to the circumstances of each case. See- Granitech T. Company Limited v. Diamond Trust Bank Tanzania Limited & Others (Civil Application No. 447/16 of 2021) [2023] TZCA 17470 (1 August 2023, TANZLII), Benjamin H. Ndesario t/a Harambee Bus Services / Ub40 Bus Services v. M/S Rahisi General Marchant Ltd & Another, Civil Application No. 265/05 of 2020 and Benedict Mumello

v. Bank of Tanzania (Civil Appeal No. 12 of 2002) [2006] TZCA 12 (12 October 2006, TANZLII). It was said by the East African Court in Mbogo v. Shah [1968] EA which was quoted in Ngao Godwin Losero v. Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 302 (18 October 2016, TanzLII), that: "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length o f the delay, the reason for the delay,, whether there is an arguable case on the appeal and degree o fprejudice to the defendant if the time is extended". Moreover, it was established that, for a good cause to be shown, the applicant must account for each day of the delayed days and express whether he was diligently in conducting the matter. See- Bushiri Hassan v. Latifa Mashayo, Civil Application No. 2 of 2007 and Vodacom Foundation v. Commissioner General (TRA), Civil Application No. 107/20 of 2017(both unreported). According to Rule 84(1) and 90(3) of the Rules, it is mandatory that the intended appellant to serve the respondent with a Notice of

Appeal and a letter requesting for requisite documents. According to the requirement to rule 84(1) of the Rules, the service of a Notice of Appeal must be within 14 days. In the application at hand, it is on record that, the applicant lodged a notice of appeal on 10th July, 2023. That being the fact, he was supposed to serve the respondent on or before 24th July, 2023. Being aware that he was out of time, on 24th October, 2023 the applicant lodged the instant application seeking for enlargement of time to serve the respondent. Counting from 24th July,2023 to 24th October,2023, the appellant delayed for more than 80 days. The reason for the delay advanced by the applicant is a failure to trace the respondent from 19/7/2023 to 21/7/2023. Counting from 10th July, 2023 when the applicant lodged a Notice of Appeal to 21s t July, 2023, the applicant was within time, hence, I found no qualms on that. As the time to save the respondent lapsed on 24th July, 2023, the applicant must account from that period to 23r d October, 2023. It is the applicant's averment that within that period he lost the documents hence failed to serve the respondent within the prescribed time. I reject this ground be considered as a good cause for me to exercise my discretion to extend the time. As rightly argued by the respondent, that

is negligence which in my considered view, do not suffice to constitute sufficient cause to warrant the extension of time. Having said so, I find the application is devoid of merit and I dismiss it with costs. DATED at ARUSHA this 8th of November, 2024. L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 8th day of November, 2024 in the presence Mr. Ngeeyan Llaizer, learned counsel for the applicant and in the presence of the respondent in person, is hereby certified as a true copy of the original.