asseri eliya kisima vs loveness njilare kissima 2023 tzhc 23081 30 november 2023

IN THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

HIGH COURT OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI MISCELLANEOUS LAND APPLICATION NO.18 OF 2023 (C/F land Appeal No. 26 of 2021 at the District Land and Housing Tribunal for Moshi at Moshi) ASSERI ELIYA KISIMA…………………………………………… APPLICANT

VERSUS LOVENESS NJILARE KISIMA…………………………………..RESPONDENT

RULING Date of Last Order: 17.10.2023 Date of Ruling : 30.11.2023 MONGELLA, J. The applicant herein has preferred this application under section 38 (1) of the Land Disputes Courts Act [Cap 216 RE 2019] and section 14 (1) and (2) of the Law of Limitation Act [CAP 89 RE 2019]. He is seeking for this court to grant him extension of time to appeal against the decision of the District Land and Housing Tribunal for Moshi at Moshi in Land Appeal No. 26 of 2021 (the appellate Tribunal). The applicant’s chamber summons is supported by his duly sworn affidavit. The respondent opposed this application through her own sworn counter affidavit. The application was argued by written Page 1 of 11 submissions whereby the applicant was unrepresented and the respondent enjoyed legal services of Mr. Gabriel Shayo, learned advocate. In the facts deponed in his affidavit as well as in his submissions, the applicant narrated that this matter originates from the decision of Kahe Ward Tribunal (WT, hereinafter) delivered in his favour on 10th June 2021. The respondent challenged the decision of the trial Tribunal vide Land Appeal No. 26 of 2021. The appellate Tribunal found that the WT lacked jurisdiction to determine the matter on merits, hence nullified the proceedings of the WT, quashed its decision and set the same aside. Being unrepresented, the applicant only came to learn on May 2023 that the

decision was improper since the WT was then endowed with the power to determine disputes on merit as the amendment to section 13 of the Land Disputes Courts Act as introduced by section 45 of the Written Laws (Miscellaneous Amendments ) (No. 3 ), Act GN No. 5 of 2021 had not yet entered into force. Noting that he was out of time to file an appeal, he sought for this application seeking extension of time to file his appeal. The applicant’s ground for extension of time is the illegality on the decision of the appellate Tribunal. He argued that the appellate Tribunal retrospectively applied the amendment of the law which was wrong. Explaining his stance, he contended that the decision Page 2 of 11 of the WT had already been made by the time the amendment entered into force on 11.10.2021. Relying on the decision in the case of Mustafa Athumani Nyoni vs. Issa Issa Athumani Nyoni (Civil Application 322/10 of 2020) [2021] TZCA 182 TANZLII, he argued that procedural laws do not at all times operate retrospectively. He was of view that the illegality raised a point of law and is apparent of the face of the record. He thus believed he had demonstrated a good cause and sufficient reason. Further, he contended that the respondent had not disclosed how she would be prejudiced if the application was granted. He was convinced that he complied with necessary factors for granting extension

of time in line with the holding in Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 TANZLII. In his reply, Mr. Shayo raised three legal issues; one, that, the application was preferred under a wrong provision of the law; two, that the affidavit was defective and three, that the applicant did not comply with the scheduling order in filing his submissions. On the first issue, he averred that section 38 (1) of the Land Disputes Courts Act was applicable for appeals and not for extension of time to appeal. On the other hand, he contended that section 14 of the Law of Limitation Act was only applicable in seeking extension of time in courts with competent jurisdiction. That, “Section 14 (1) and Page 3 of 11 (2) of the Law of Limitation Act Chapter 89 of 1971 Revised Edition 2019”, cited in the chamber summons does not exist. On the 2nd issue, Mr. Shayo contended that the applicant’s affidavit is not dated and verified also that the applicant was not properly identified before the commissioner of oaths and was not admitted by the registry officer. As to the 3rd issue, he averred that the applicant filed his submission in chief contrary to the scheduling order. That the order was for the applicant to file the submission on 29.08.2023, but the same was not filed on the said date. That,

the respondent followed up on the submission several times and collected the same on 07.09.2023. As to the merit of this application, he averred that the contents of paragraphs 3 to 10 of the applicant’s affidavit are not in support of the chamber summons as to the request for extension of time to file an appeal. With regard to the point of law raised, Mr. Shayo merely summarized the arguments in the applicant’s application and averred that the applicant failed to state in his affidavit why he failed to file his appeal on time. That, the applicant ought to have accounted for all the period of delay, the delay ought to not be inordinate and must show diligence and not negligence or apathy in prosecuting the action he intends to take. He further cited the case of The Principal Secretary, Ministry of Defence and National Service vs. Page 4 of 11 Devram P. Valambhia [1992] T. L. R. 185 averring that the illegality raised must be on a point of law of sufficient importance. He prayed that the application be dismissed with costs. Rejoining, the applicant argued that section 38 (1) of the Land Disputes Courts Act and Section 14 of the Law of Limitation Act were both proper provisions. As to his affidavit, he contended that the same properly supports the application as it provides for the alleged illegality of which originated from jurisdiction of the WT. Concerning the argument that

the affidavit was not dated, he refuted such claims contending that even if it were so, the same would not be fatal as the application had been duly admitted and it is the reason why it stands before this court. With regard to the date of filing submissions, he contended that the same was filed as scheduled on 29.08.2023 as shown in court record. Rejoining on the point of illegality, he contended that since he was unrepresented, it was upon consultation that he found the decision of the appellate Tribunal being tainted with serious illegality and since he was out of time, he filed this application for extension of time. The appellant contended that as to the argument that procedural laws operate retrospectively, the same was on case-to-case basis and could not be applicable in this case since the application before the WT was already determined when the law came into Page 5 of 11 force. He maintained that he has demonstrated good cause for the application to be granted and the respondent failed to disclose how she would be prejudiced if the application was granted. After considering the submissions of both parties, I shall first address the legal issues raised by Mr. Shayo. Foremost, I wish to note that the practice of the court forbids such practice of raising new issues during submissions. See, Hadija Ally vs. George Masunga Msingi (Civil Appeal 384 of 2019) [2023] TZCA 17270

TANZLII. However, for a grave issue such as a question of jurisdiction, the same can be entertained by the court even if raised during submissions, so long as the parties have had the opportunity to address the court on the issue. Given that the respondent has raised legal issues that could affect the competency of this application, I will address the same. The first issue was that section 38 (1) of the Land Disputes Courts and Section 14 (1) and (2) of the Law of Limitation Act were inapplicable. I find this argument unmeritable. I suppose Mr. Shayo did not bother to read the entire provision of section 38 (1) as if he did, he would have noted that the provision provides for the power of the court to grant extension of time. I will reproduce the same hereunder for ease of reference: 38.-(1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction, may within sixty days after the date of Page 6 of 11 the decision or order, appeal to the High Court: Provided that, the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired.” As to Section 14 (1) and (2) of the Law of Limitation Act, the same also provides for application for extension of time. Clearly, the two provisions are proper provisions. As to

the citation appearing in the chamber summons as “Law of Limitation Act Chapter 89 of 1971 Revised Edition 2019,” the same is an error on the part of applicant. It ought to have at least read “the Law of limitation Act, 1971” since the same was created in 1971 or “Law of Limitation Act Chapter 89 Revised Edition 2019.” Nevertheless, the citation is not a grave error since indeed the law was created in 1971 as Act No. 10 of 1971, so such an error can well be cured under the overriding objective principle. On the issues pertaining the affidavit, I find all claims being unfounded. The affidavit on the court record is clearly verified and dated. It also discloses that the applicant was personally known to the Commissioner of Oaths. It appears maybe that the one served to the respondent has the defects. However, in the circumstances, the court considers the documents filed in court. As to the missing signature of the registry officer, I find that not being a fatal omission. The application was duly admitted on 04.05.2023 as per the stamp of this court. Page 7 of 11 Finally, as to the 3rd issue which relates to compliance with the court’s scheduling order, I shall not dwell much on the same. The stamp of the court indicates that the applicant’s submission was received on 29.08.2023 which was well within the time set on record. In the premises all the purported legal issues raised by

the respondent’s counsel are hereby overruled. Given my observations on the issues advanced by the respondent’s counsel, I now proceed to deliberate on the application for extension of time. Under the law, granting of extension of time is the discretion of the court. However, the same has to be exercised judiciously. In Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania (supra) the Court of Appeal presented a guideline to be observed in granting extension of time. The Court expounded: “As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. Page 8 of 11 (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. It is settled that illegality is a sufficient ground for granting extension of

time. Where the applicant raises a question of illegality, the court may grant the applicant extension of time for the same to be addressed. This was well provided in Mashaka Juma Shabani & Others vs. The Attorney General (Civil Reference No. 30 of 2019) [2023] TZCA 17615, whereby the Court of Appeal reasoned: “It is trite that, where the decision sought to be challenged is tainted with an illegality, extension of time may be granted so that such illegality may be addressed. See for instance, the case of The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T. L. R.

185. In that case, the Court held that: "Where...the point of law at issue is the illegality or otherwise of the decision challenged, that is of sufficient importance to constitute sufficient reason within the meaning of rule 8 [now rule 10] of the Rules for extending time.” Undoubtedly, the applicant herein seeks extension of time to appeal against the decision of the appellate Tribunal delivered on 20.07.2022. The applicant had filed an application before the Kahe WT, which was determined in his favour. However, the respondent filed her appeal in the appellate Tribunal which nullified the Page 9 of 11 proceedings before the WT, quashed and set aside its decision on reason that the WT lacked jurisdiction to determine the matter on merit. While the order of the appellate Tribunal did not state any specific provision under which the same was issued, the applicant’s submissions and affidavit disclose that the order was due to the amendments introduced to section 13 of the Land Disputes Courts Act vide section 45 of the Written Laws (Miscellaneous Amendments) (No. 3), Act GN No. 5 of 2021, an argument not opposed by the respondent. Formerly, the said provision allowed WTs to hear and determine land disputes on merit. The amendment, altered the said provision stripping the WTs such powers. The matter of concern is that the decision of Kahe WT was delivered on 10.06.2021 while the

said amendment entered into force on 11.10.2021. There are therefore questions as to whether the said law operated retrospectively in the circumstances or whether the appellate Tribunal was correct to quash the decision of the WT. As guided in the case of Ramadhani Bakari & Others vs. Aga Khan Hospital (Civil Application No.5/01 of 2022) [2023] TZCA 17552 TANZLII, I am not vested with the jurisdiction to determine on the issues of illegality raised as that would mean resolving the appeal. What I am empowered to do is to determine whether the illegality raised is apparent on face of record, is of sufficient importance and Page 10 of 11 shall not involve long process of argument. I am of the view that the illegality raised meets the criteria rendering it worthy of being entertained in an appeal. Further, apart from showing sufficient cause, the appellant has well demonstrated that he was unaware of the illegality in the decision of the appellate Tribunal due to being unrepresented and upon discovering the same, in May 2023, he rushed to this court to file this application. Upon observing the record of this court, the application was duly filed on 04.05.2023, an early date of the same month he claims to have made his discovery. This proves that he was not negligent, but diligent to act after he discovered the illegality. In the foregoing, I find that the applicant has demonstrated a sufficient reason warranting extension of time to file his appeal. I therefore grant the application as prayed. The applicant is hereby given 30 days from the date of this Ruling to file his appeal. Given the nature of the application, I make no orders as to costs. Dated and delivered at Moshi on this 30th day of November 2023. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 11 of 11