Court name
Court of Appeal of Tanzania
Case number
Civil Application 26 of 2015

Ng'ohomango vs Ufundi (Civil Application 26 of 2015) [2016] TZCA 26 (26 October 2016);

Media neutral citation
[2016] TZCA 26

IN THE COURT OF APPEAL OF TANZANIAAT MWANZACIVIL APPLICATION NO. 26 OF 2015SAMWELI MUSSA NG’OHOMANGO(A legal representative of the Estateof the late Masumbuko Mussa)………………………………………..APPLICANTVERSUSA.I.C. (T) UFUNDI…………………………………………….………..RESPONDENT(Application arising from the decision of the High Court of Tanzania at Mwanza)(Ngwala, J.)dated the 27th day of February, 2012 inMisc. Land Appeal No. 14 of 2007--------RULING25th & 27th October, 2016MUGASHA, J.A.:This is an application for extension of time to file the Memorandum of Appeal and record of appeal brought under rule 10 of the Court of Appeal Rules, 2009 (the Rules). The grounds stated in the Notice of Motion are as follows:“(a). There is good cause.(b). The applicant after being dissatisfied with the High Court decision lodged the intended notice of appeal.(c). Subsequently the applicant filed an application for certificate on point of law as essential step before appealing to this Court.(d). Failure to lodge the appeal in time was beyond the applicant’s control who was waiting to be granted the certificate on point of law which was obtained on 2nd November, 2015.”The affidavit of SAMWEL MUSSA NG’HOMANGO, the applicant is in support of the application. To buttress, the notice of motion, the applicant has filed written submissions according to rule 106(1) of the Rules.At the hearing of the application, the applicant appeared in person and adopted the contents of his affidavit and the submission earlier on filed. The respondent who was served with notice of hearing on 23/9/2015, neither entered appearance nor availed reason for absence. As such, the hearing proceeded in the absence of the respondent in terms of rule 63(2) of the Rules.A brief background to the present application is to the effect that, the applicant being aggrieved with the decision dated 27/2/2007 of the High Court in Misc. Land Appeal No. 14 of 2007, originating from the Ward Tribunal, filed a notice of appeal on 9th March, 2012. He also filed in the High Court Misc. Civil Application No. 25 of 2012 seeking a Certificate on point of law (the certificate) which was obtained on 2/11/2015 and on 17/11/2015, he filed the present application.In his affidavit and the submissions, the applicant contends that, the delay to obtain the Certificate, made him to delay to file the Memorandum of Appeal and record of appeal pursuant to the filing on the notice of appeal on 9th March, 2012. He has also deposed to have obtained the Certificate on 2/11/2015 and filed the present application on 17/11/2015. He added that, since the Certificate on point of law is a prerequisite in appeals originating from Ward Tribunals, as it was not yet obtained, he could not file the intended appeal within 60 days from the date of filing notice of appeal. He urged the Court to grant the application.The point for determination is whether the applicant has demonstrated sufficient cause to warrant the grant of extension of time to file the Memorandum of Appeal and the record of appeal.In an application for extension of time, where the applicant has shown good cause, the Court is warranted to exercise judicial discretion under rule 10 of the rules which states:“The court may, upon good cause shown, extend time limited by these 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 expiration of that time and 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.”What amounts to good cause includes whether the application has been brought promptly, absence of any invalid explanation for delay and diligence on the part of the applicant. (See: TANGA CEMENT COMPANY LIMITED VS JUMANNE D. MASSANGA AND AMOS MWALWANDA, Civil Application No. 6 of 2001). Moreover, in ROYAL INSURANCE LIMITED VS KIWENGWA STRAND HOTEL LIMITED, Civil Application No. 116 of 2008(unreported) in considering what constitutes sufficient cause for delay, the Court said:“It is trite law that an applicant before the Court must satisfy the Court that since becoming aware of the fact that he is out of time, acted very expeditiously and that the application has been brought in good faith.”Since the applicant intends to appeal to the Court in a matter originating from the Ward Tribunal, section 47 (2) of the Land Disputes Courts Act [CAP 216 RE.2002] categorically states:“ Where and appeal to the Court of Appeal originates from the Ward Tribunal the appellant shall be required to seek for the Certificate from the High Court (Land Division) certifying that there is a point of law involved in the appeal.”In terms of the cited provision, and as rightly stated by the applicant, a Certificate on a point of law involved in the appeal to the Court is a prerequisite document which must accompany the intended appeal.In the present matter, it took three years for the High Court to determine the application seeking the Certificate. The applicant cannot be blamed for such delay because it was beyond his convenience and not a cause of his own making. Besides, without the Certificate, he could not have filed an appeal to the Court or else he would have risked having the appeal struck out for being rendered incompetent.In my firm considered view, the applicant acted promptly and diligently having filed the present application in less than 20 days since when he obtained the Certificate.In view of the aforesaid, I am satisfied that, the applicant has demonstrated sufficient cause that without the Certificate, he could not file the Memorandum of Appeal and the record of Appeal within prescribed time which constitutes good cause.I hereby grant extension of time to file the Memorandum of Appeal and the record of Appeal out of time. The Memorandum of appeal and the record of appeal must be filed not later than sixty (60) days from the date of this Order. I make no order as to costs.DATED at MWANZA this 27th day of October, 2016.S.E.A. MUGASHAJUSTICE OF APPEALI certify that this is a true copy of the original.P.W. BAMPIKYASENIOR DEPUTY REGISTRARCOURT OF APPEAL