Amon Shaga Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY

AT MUSOMA LAND APPEAL NO. 5579 OF 2024

BETWEEN AMON SHAGA………………..………….….……………….………………..APPELLANT AND SHEGENO MUGENDI………..….…….…………………………..………RESPONDENT

JUDGEMENT OF THE COURT 23/05/2024 & 02/07/2024 Kafanabo, J.: This is a judgment arising from a decision of the District Land and Housing Tribunal for Mara at Musoma, in Misc. Land Application No. 193 of 2019, which also originated from Land Case No. 06 of 2014 from the Ward Tribunal of Butiama. A brief background of the matter, as may be stitched from the record comprising of several files, is that the Appellant herein instituted Land Case No. 06 of 2014 in the Ward Tribunal of Butiama (hereinafter the ‘Ward Tribunal’). The matter was heard and its decision was pronounced on 02/06/2015. It followed that one Anthony Shaga (not Amon Shaga), being aggrieved by the said decision, on 20/07/2015, through Land Appeal No. 124 of 2015, appealed to the District Land and Housing Tribunal for Mara at Musoma (hereinafter the ‘DLHT’). 1 The said appeal was dismissed on 08/04/16 because the appeal was lodged by the person called Anthony Shaga who was not a party in the case before the Ward Tribunal, instead of being preferred by Amon Shaga who was a party in the original case filed in the Ward Tribunal. Moreover, the said Anthony Shaga, vide Miscellaneous Application No. 197 of 2016 preferred an application for review of the decision of the DLHT dated 08/04/2016. The application was dismissed for want of merits on 30/08/2016 because the Appellant sought to rely on an affidavit which

was neither part of the Ward Tribunal proceedings, nor part of the Appeal in Land Appeal No. 124 of 2015. Generally, the application was dismissed for want of merits. It is also on record that on 07/12/2016 the Appellant herein filed a Miscellaneous Land Application No. 460 of 2016 for extension of time within which to appeal out of time. On 14th January 2019, the said application was struck for being improperly filed. Furthermore, on 19th January 2019 the Appellant, via Miscellaneous Land Application No. 193 of 2019, applied for an extension of time within which to lodge an appeal out of time against the decision of the Ward Tribunal of Butiama in Land Case No. 06 of 2014. On 16/02/2024 the application was also dismissed for want of merits as the Appellant failed to demonstrate sufficient cause for the delay. The Appellant being aggrieved by the decision of the DLHT, dated 16/02/2024 preferred an appeal to this court against the decision declining to extend the time that would allow him to challenge a decision of the Ward 2 Tribunal dated 02/06/2015. This court was moved by a petition of appeal containing three grounds as follows: 1. The Chairman failed to go through records in regards(sic) to the issue of names i.e. the Appellant prosecuted his case in the name of ANTONY SHAGA instead of AMON SHAGA; the Appellant has been all the time insisting that his delayment(sic) was due to that reason.

2. That, the chairman failed to consider ground advanced by Advocate Thomas Manyama Makongo in Misc. Land Application No.197 of 2016 that the Applicant sworn(sic) an Affidavit showing that ANTONY SHAGA and AMON SHAGA are the same, the same was never challenged.

3. That, the chairman failed to see illegality contained in the trial Tribunal’s proceeding and judgment. When the matter was called for hearing, Mr. Thomas Makongo, Advocate entered an appearance for the Appellant and the Respondent entered an appearance in person. The parties were given the opportunity to address the court on the aforementioned grounds of appeal. In support of the appeal, Mr. Makongo submitted that the application before the DLHT was for the extension of time within which to appeal to the DLHT from a decision of the Ward Tribunal of Butiama. When the matter commenced in the Ward Tribunal the Appellant was using the name Amon Shaga. Then when he appealed to the DLHT he introduced the name of Anthony Shaga. He submitted that there was an objection as regards the name, and the objection was allowed that the name Anthony Shaga could not be used in the appeal whilst it was not used in the original case as filed 3 in the Ward Tribunal. The learned counsel submitted that Amon Shaga submitted the affidavit of names in the DLHT that all names were his and that is why he was using them. However, the DLHT rejected his submission. Mr. Makongo further argued that the Appellant then applied for an extension of time so that he could appeal by using the name Amon Shaga as used in the Ward Tribunal. Therefore, the Appellant was pursuing his rights in courts under the name

Anthony Shaga, and that is why Amon Shaga did not Appeal within time. It was further submitted that Amon Shaga, the Appellant herein, appealed under the name Anthony Shaga within time. Thus the Appellant was in court under the name of Anthony Shaga challenging the decision of the Ward Tribunal issued under the name of Amon Shaga. It was argued that the Chairman of the DLHT did not consider that confusion. Since the DLHT did not consider the affidavit of names in determining the application for extension of time, the appeal be allowed as there was no other reason why the Appellant did not appeal on time, and there was no negligence on his part. As regards the second ground of appeal, it was submitted that the Chairman of the DLHT did not consider the Applicant’s affidavit of names filed in Application No. 197 of 2016 which is in the court’s record. If that affidavit would have been taken into account, then the application would have been allowed. In respect of the third ground of appeal, the Appellant’s counsel submitted that the DLHT was supposed to consider the illegality of the 4 decision of the Ward Tribunal. This was supposed to be critically considered by the DLHT which was wrong in turning a blind eye to the same. Responding to the Appellant’s submissions, the Respondent submitted that he opposes the appeal for three major reasons. One is that there was an appeal against

the decision of the Ward Tribunal by Anthony Shaga in 2015. In 2016 the appeal was filed and prosecuted by Anthony Shaga and the decision was delivered in August 2016 where the appeal was dismissed with costs. Then Anthony Shaga filed a review in the DLHT which was heard on 01/08/2016 and was dismissed on 30/08/2016 with costs. Second, it was submitted that Anthony Shaga and Amon Shaga are two different persons, the case had two claimants. Further, the decision sought to be appealed against was executed on 06/10/2016 and the Land in dispute was handed over to the Respondent. Moreover, from 2015 to 2019 when the appellant applied for an extension of time it was more than 1000 days, where was he, and what prevented him from appealing on time? After hearing the parties’ submissions this court shall, now, proceed to determine the appeal in the light of the court’s record, the parties’ submissions, and the law. In determining this appeal, grounds one and two of the appeal are knitted and thus will be determined together. It is noted that the said grounds one and two of the appeal are challenging the decision of the DLHT for failure to extend time on the ground that it failed to rule that the Appellant herein and one Anthony Shaga who appealed from the Ward Tribunal to the DLHT are one and the same person. 5 In an application for review (Miscellaneous Land Application No. 197

of 2016) the DLHT did not agree with the present Appellant (Amon Shaga), that the Appellant in Land Appeal No. 124 of 2016 (Anthony Shaga) and the claimant in Land Case No. 06 of 2015 were one and the same based on a sworn declaration of names introduced by way of an application of review of a decision on appeal. The Applicant challenges this finding and imputes the same on the decision of the DLHT subject matter of this appeal which is not the same as the said decision in the application for review referred herein above. In resolving this entanglement, timelines on parties’ actions are extremely important. A review of the parties’ actions in terms of time is as follows: 1. The decision of the original Land Case No. 06 of 2014 involving the parties herein, the Appellant (Amon Shaga) being the complainant therein, was made on 02/06/2015.

2. Then, one Anthony Shaga, not a party to the original Land Case No. 06 of 2014, purportedly being aggrieved by the said decision, appealed to the DLHT on 20/07/2015, vide Land Appeal No. 124 of 2015.

3. The said appeal was dismissed on 08/04/2016 because it was lodged by the person called Anthony Shaga who was not a party in the case before the Ward Tribunal.

4. Until the dismissal of the appeal above referred, there was nothing on the court’s record that suggested that Amoni Shaga and Anthony Shaga were the same person.

5. Then, the said Anthony Shaga through Miscellaneous Land Application No. 197 of 2016 preferred an application for review of the decision of 6 the DLHT dated 08/04/2016. It is in this application for review the Appellant averred that Amoni Shaga and Anthony Shaga referred to the same person and that the said names were being used interchangeably.

6. The said application for review was filed on 31st May 2016 attaching a sworn declaration of the Appellant about his names. The declaration was sworn and attested on 18th April 2016. That is well after the judgment on appeal was delivered by the DLHT. The application for review was dismissed for want of merits on 30/08/2016. In light of the above, there are two matters which now arise from the record: One, the Appellant by application for review sought to introduce an affidavit, or a sworn declaration of names declaring the Appellant and One Anthony Shaga as the same person, well after the determination of the appeal. This amounted to departure from pleadings and goes against the rule that parties are bound by their own pleadings. The Appellant was supposed to continue using the name featured in the case filed in the Ward Tribunal. If he wanted to use two or more names in the proceedings, that should have been indicated in the proceedings from the original land case in the Ward Tribunal. Otherwise, he should have applied for the amendment of pleadings to introduce a new name. Pressing the courts to the contrary, the Appellant is bound to fail. See the case of Salim Said Mtomekela vs Mohamed Abdallah Mohamed (Civil Appeal No. 149 of 2019) [2023] TZCA 15 (15 February 2023). 7 The second issue is that the first ground of appeal advances the argument that the Chairman of DLHT

failed to go through records regarding the issue of the Appellant’s name, that is the Appellant prosecuted his case in the name of Anthony Shaga instead of Amon Shaga. However, the facts regarding the Appellant’s name, as a ground for extension of time, did not feature in the Appellant’s affidavit in support of the application for extension of time filed as Misc. Land Application No. 193 of 2019 whose decision is the subject matter of this appeal. Moreover, the affidavits and pleadings, in general, of Miscellaneous. Land Application No. 197 of 2016 which is referred to in the second ground of appeal, faulting the decision of the DLHT for not considering them in its decision, were neither pleaded nor attached to the affidavit supporting the application for extension of time (Misc. Land Application No. 193 of 2019) whose decision is the subject matter of this appeal. For clarity purposes and avoidance of doubt, it is crucial at this juncture to revisit and reproduce the Appellant’s affidavit as filed in Misc. Land Application No. 193 of 2019. The said seven paragraphs affidavit reads:

AFFIDAVIT I, AMON SHAGA, adult Tanzanian, resident of Butasha village within Butiama District and Christian by faith, do hereby solemnly swear and states as hereunder:- 1. That, I am the applicant in this application well conversant with the facts of this case.

2. That, on 20th of July 2015 the applicant appealed against ward tribunal’s decision in Land Appeal No 124 of 2015. 8 3. That this tribunal dismissed the said appeal since the appellant was a stranger in the said appeal. Photocopy of the said judgment is attached herewith and marked “A” forming part of this affidavit.

4. That the applicant lodged an application for review against the said appellant tribunal’s decision and the same was dismissed on 30th of August 2016. Photocopy of the said ruling is attached herewith and marked “B” forming part of this application.

5. That the applicant delayed to lodge his appeal in time due to prosecuting his cases before this tribunal.

6. That the respondent is in process of executing the ward tribunal’s decision before this tribunal.

7. That the execution of the said judgment will render the applicant’s application nugatory since he depends on the disputed land for residential and agricultural activities. The contents of the affidavit above speak for itself, the said affidavit of names was not pleaded in the application for extension of time. Therefore, it is a finding of this court that the affidavit of names referred to by the Appellant through Miscellaneous Land Application No. 197 of 2016 and as referred to in the second ground of appeal, also amounted to departure from pleadings and was rightly disregarded by the DLHT in the said application. Likewise, the Appellant’s first and second grounds of appeal address matters of fact which were not pleaded in the application for an extension of time. It is trite law that parties are bound by their pleadings; the Court of Appeal in the case of Paulina Samson Ndawavya vs 9 Theresia Thomasi Madaha (Civil Appeal 45 of 2017) [2019] TZCA 453 (11 December 2019) the Court of Appeal held that: ‘The other remark which we find ourselves compelled to make relates to pleadings. In doing so we cannot do better than reiterate what we said in James Funke Gwagilo vs. Attorney General [2004] TLR 161 whereby we underscored the function of pleadings being to put notice of the case which the opponent has to make lest he is taken by surprise. From that same decision we reiterated

another equally important principle of law that parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded.’ In light of the above authority, in this appeal, the Appellant was bound to address only matters that were pleaded and addressed in Miscellaneous Land Application No. 193 of 2019. All matters that were not specifically pleaded cannot be stealthily introduced by way of appeal. Besides, substantiating the matter further, the Appellant applied for an extension of time (Misc. Land Application No. 193 of 2019) on 14 th January 2019, but his affidavit supporting the application ended up mentioning the decision of the DLHT dated 30th August 2016. This means that the time from 31st August 2016 to 14th January 2019 was not accounted for at all in the Appellant’s affidavit before the DLHT. This means that the Appellant failed 10 to satisfy the DLHT, as it so held, in accounting for each day of the delay. Accounting for each day of the delay is a key principle in applications for extension of time. There is a plethora of Court of Appeal decisions buttressing an obligation of the Applicant for an extension of time to account for each day delayed. The cases of the Board of Trustees of the Free Pentecostal Church of Tanzania vs Asha Selemani Chambada and Another

(Civil Application 63 of 2023) [2023] TZCA 147 (28 March 2023), Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014 (Unreported), Lyamuya Construction Company Ltd v. the Board of Registered Trustee of Young Women’s Christian Association of Tanzania, Civil Application No. 02 of 2010 (Unreported), Zuber Nassoro Mohd vs Mkurugenzi Mkuu Shirika La Bandari Zanzibar (Civil Application 93 of 2018) [2018] TZCA 337 (14 December 2018) are relevant. Therefore, this court finds that the first and second grounds of appeal lack merit and thus are hereby dismissed. The third ground of appeal states that the Chairman of the DLHT failed to see illegality contained in the trial Tribunal’s proceeding and judgment. Unfortunately, the Appellant did not even hint at what the illegality referred to on the ground of appeal was. The Appellant’s counsel in his submissions also did not lay bare the complained illegality(ies) for this court to consider. Under the circumstances, this ground of appeal is also dismissed for want of merits. 11