Court name
High Court of Tanzania

Saida Said vs Saidi Mohamedi () [1989] TZHC 43 (30 October 1989);

Law report citations
1989 TLR 206 (TZHC)
Media neutral citation
[1989] TZHC 43
Coram
Maina, J.

Maina, J.: This is an application for extension of time within which to appeal to the H Court of Appeal and for leave to appeal to the Court of Appeal.
The judgment of this court was delivered on 14 November 1988 at Songea in the presence of both parties. The applicant gave notice of intention to appeal to the Court of I Appeal on the same day, and she paid the relevant fees. The applicant was required to

seek leave of the High Court within fourteen days of appeal, as required by Rule 43(a) A of the Tanzania Court of Appeal Rules. But she did not do so within the period prescribed. Her reason for delay is that she could not obtain the copy of the judgment until 26 January 1989 and she had to send it to her advocate at Dar es Salaam. She had to travel to the High Court Registry at Mtwara for the purpose of obtaining the copy of B judgment. She says in her affidavit that the clerks at the High Court Registry were not cooperative and they kept telling her that only her advocate could obtain the copy of the judgment. How she eventually obtained it is not known. Mr. Haule, for the respondent, has strongly opposed the application saying that the applicant is indolent and a liar. C
There is no dispute that the appeal was heard by this Court at Songea where the judgment was delivered. It is common knowledge that the High Court Registry for Mtwara Zone is at Mtwara, and whatever judgments are pronounced at Songea, the D copies of those judgments cannot be ready for distribution to the parties until after the files are returned to Mtwara. There is no record to show when the copy of judgment in this case was ready. In my view, it could not be possible to have the judgment ready for distribution immediately. The applicant had to travel to Mtwara for her copy of the E judgment. It is alleged that she did not receive it until 26 January 1989, just over two months after the judgment was delivered. Mr. Haule demanded a receipt as proof of the date the applicant received the copy of judgment. This, Mr. Mwajasho, counsel for the applicant, could not produce because the matter was heard at Songea while the F applicant was residing in Dar es Salaam and Tanga.
In the circumstances of this case, as I have said, it was not possible for the applicant who was then resident at Songea where the appeal was heard, to have obtained the copy of the judgment at Mtwara immediately, or within a short period. The problems of G communication between Songea, Mtwara and Dar es Salaam are well known.
It was also said that the delay in filing the application was due to unavoidable circumstances. The application was filed in August 1989. This, as Mr. Haule said, the H applicant obtained the copy of the judgment on or about 26 January, 1989. She had to take it from Mtwara to Dar es Salaam where her advocate is based. She sought legal opinion and the affidavit was signed in March 1989. It is evident from the annextures to the affidavit that the application was sent to the High Court Registry at Mtwara in March I 1989, and not February 1989 as stated in the supplementary affidavit. The

letter from the District Registrar dated 6 March 1989 returning the application to the A advocate for the applicant is proof that the application was submitted at the High Court in late February 1989 or early march 1989. There was an exchange of correspondence between the District Registrar and Mr. Mwajasho for certain corrections to be made in B the application and for fees payable, until the application was eventually accepted by the High Court Registry and filed on 21 August 1989. So, between March 1989 and August 1989, there was a chain of correspondence between the High Court Registry and the advocate for the applicant about the application. It cannot be said that the C applicant had delayed until August 1989 when the application was filed.
The application was presented for filing before March 1989, but the District Registrar refused to register the application due to certain matters which the District Registrar D pointed out that they needed corrections. The question is whether the applicant has shown sufficient or reasonable cause of the delay so that she may get an extension as provided in section 14(1) of the Law of Limitation Act, 1971. On the whole, the applicant was diligent and not indolent. She gave notice to appeal on the same day the E judgment was delivered by the High Court at Songea. She had to travel to Mtwara to get a copy of the judgment. I believe her that she did not get the copy she needed at the time she wanted it. There was no reason for her to travel to Mtwara and then sit back. When she eventually got the copy of judgment she had to take it to Dar es Salaam to her F advocate. The papers which were eventually filed at the High Court Registry at Mtwara were not immediately accepted, and the applicant cannot be held responsible for the ensuing delay. In the circumstances, I find that there is reasonable and sufficient cause for the delay. G
Mr. Haule had submitted that the affidavit in support of the application was defective for non-disclosure of the source of information. I do not agree with him. The affidavit clearly stated the source of information on the matters stated thereon. It was not necessary of the applicant to give names of the clerks of the High Court Registry. She said that the H clerks did not cooperate in giving her the copy of judgment. That was sufficient disclosure.
For the reasons which I have given, I find that reasonable and sufficient cause for the delay has been shown and the extension applied for is granted.
As regards the points of law, Mr. Mwajasho submitted that there are several, while Mr. I Haule said that no points of law are

involved. The parties were husband and wife. Their marriage was dissolved by a decree A of divorce issued by this court of appeal. The dispute is over a house on Plot 15 Mbamba Bay road in Songea Township. Both the District Court and the High Court found that the respondent is the lawful owner of the house. The applicant wife claims that it is her house, and that it is not matrimonial property but personal property. The B certificate of Right of Occupancy is in the name of the Applicant. The Respondent alleged that he wanted to register the house in the name of his son, Saidi Saidi, and the applicant, by fraud, had the house registered in her name. C
There is another house, No. 11 Block C in Songea Township which the applicant had claimed she bought by paying shs.50,000/=. That evidence appears, according to Mr. Mwajasho, to have been confused as referring to the purchase of the house now in dispute. D
In my view, there are points of law involved in this case. They are as follows:
1. Whether a mere prior visit by contender to the Land Office is sufficient proof to rebut legal and registered ownership of an immovable property, to wit Plot E 15 C Mbamba Bay Road Songea Township, registered in the name of the Applicant.
2. Whether the fact of marriage per se rebuts the legal ownership of a granted Right of Occupancy. F
3. Whether in law a minor can hold or apply for a Right of Occupancy.
4. Whether the finding by the Appellate Judge as to ownership of the house on Plot 15 C Mbamba Bay Road in Songea Township is maintainable in law G when it seems the judge was addressing his mind to the evidence of DW9 Mrs. Hamza, the fact of shs.50,000/= which was in respect to another house No. 11 Block C Songea, property bought by the Applicant in the name of the respondent's son. H
Those are the points of law involved in this matter, and some may be of mixed law and facts.
I Application granted.

A
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