ATTORNEY GENERAL VS KATTY EXTENSION OF TIMEfinal final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SUB REGISTRY OF SHINYANGA

AT SHINYANGA MISC LAND APPLICATION No. 17855 OF 2024 (Arising from the Decision of District Land and Housing Tribunal for Shinyanga at Shinyanga in the Land Application No. 36 of 2019) ATTORNEY GENERAL.…………….………………………. APPLICANT

VERSUS LEMI KATTYS ………………………………………….1ST RESPONDENT TPB BANK PCL ……………………………………….2ND RESPONDENT

RULING 29th October 2024 & 31st January, 2025 Massam, J: - The applicant filed application for extension of time within which the applicant can file an application for Revision. The application was brought under certificate of urgency made by way of chamber summons under Section 14 (1) of the Law of Limitation Act Cap 89 RE 2019 and Section 95 of the Civil Procedure Code Cap 33 RE 2019 accompanied by an affidavit sworn Amina Mkuya State Attorney supporting the application and opposed by the counter affidavit dully sworn by the respondents. The applicant enjoyed legal service of Ms. Amina Mkuya and Mr. Mussa Mpogole State Attorneys, whilst the 1st respondent was 1 represented by Frank Samwel advocate and 2nd respondent was advocated by Maende Chacha. When the matter was called for hearing, by consensus parties agreed to argue this appeal by the way of written submission and the court granted the prayers and scheduled the file date as follows applicant submission 11/11/2024, reply on 25/11/2024 and rejoinder on 2/12/2024 and ruling on 20/12/2024 the court orders were complied with. Arguing in support of the application, the applicant’s counsel adopted the affidavit by the applicant to form part of her submission. Ms Amina said that it is in the discretionary of the court to grant extension of time. However, the discretionary must be exercised judiciously. In cementing her

submission she cited the case of Lyamuya Construction company Limited vs Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) at page 6 and 7 where The Court of Appeal of Tanzania held a) The applicant must account for all days of the delay b) The delay should not be in ordinate 2 c) The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. d) If the court feels that there are other reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged Additionally, Ms. Amina submitted that this application emanates from the decision of District Land and Housing Tribunal for Shinyanga after the 1st respondent instituted Land Application No. 36 of 2019 against the 2nd respondent claiming that 2nd respondent has sold her house which is located at Mwasele Plot No. 248 Block U and the said Land Application was struck out. Again the 1st respondent filed Application for execution No. 78 of 2023 for costs of the suit. Apparently, Ms Amina said that 2nd respondent is now known as Tanzania Commercial Bank is a Public Limited Company whereby the Government of United Republic of Tanzania is a majority shareholder among other shareholders in the company and it holds

23,223,304 shares. Ms. Amina elaborated that the term Government is defined under Section 16 of The Government Proceedings Act Cap 5 R:E 2019 A Government Ministry, Local Government authority, Independent 3 department, executive agency, public corporation, parastatal organization or a public company established under any written law to which the government is the majority shareholders. It was submission of Ms. Amina that the 1st respondent instituted Land Application No 36 of 2019 without joining the Attorney General as necessary party which is contrary to Section 6(3) and (4) of the Government Proceedings Act and the matter ought to be filed in High Court of Tanzania. Additionally, Ms. Amina argued that the act of the District Land and Housing Tribunal to hear and determine the Land Application No 36 of 2019 and without joining the Attorney General is illegal and vitiates the whole of the proceedings. Notably, Ms. Amina argued that it is trite law that illegality once pleaded and proved constitutes a ground for extension of time. She fortifies her argument by referring the case of Attorney General Vs Micco’s International (T) LTD, Civil Application No. 495/16 of 2022(Dar es salaam) (un reported) and The registered Trustees of Joy in the Harvest vs Hamza K. Sungura, Civil Application No. 149 of 2017 at Tabora. 4 Moreover, Ms. Amina argued that District Land and Housing Tribunal

had no jurisdiction to hear and determine the Land Application No 36 of 2019 which was instituted against the Government without Joining the Attorney General and failure to join the Attorney General denied him right to be heard which is contrary to Article 13 (6) (a) of the Constitution of United Republic of Tanzania and she cited the case of Danny Shasha vs Samson Masoro & Others (Civil Appeal No. 298 of 2020) 2021 TZCA 653(5 November 2021) to elucidate on the principle of right to be heard. Finally, she prayed the application be granted because she adduced sufficient /good cause for extension of time. Mr. Frank Samwel advocate for 1st respondent, argued that the deponent of the affidavit supporting the application verified at the verification clause that all facts in the affidavit from paragraph No 1 to 17 are true to the best of her knowledge. However, by looking at the contents of paragraph No 4,5,6,7,8 9 and 10 of affidavit, these paragraphs cannot come out of her knowledge because deponent and applicant were not parties to the application before the Shinyanga District Land and Housing Tribunal as per graph 11 and 12 of the affidavit. Since the source of this fact is not disclosed then the remedy is 5 expunging the said paragraphs. He cemented his argument by referring the case of Tanga Kadala and 6 others vs Abdul Hillal Ally, civil Application No 447/14 of 2023. On the

issue of illegality, Mr. Frank argued that since the source of the alleged illegality emanated from the expunged paragraphs, then the illegality cannot stand for the lack of expunged paragraphs and therefore there is no need of discussing the illegalities which have no supporting paragraphs. On the side of 2nd respondent concurred and supported the application and applicant’s submission and prayed this court revise the proceedings and decision of the District and Housing Tribunal of Shinyanga. Mr. Chacha argued that it is settled legal position that the court has discretion to grant extension of time where the applicant has adduced sufficient cause. He cemented his argument by citing the case of Mumello vs Bank of Tanzania [2006] E.A 227. Additionally, Mr. Chacha submitted that there is no legislative interpretation of what amounts to adequate or good cause however when a point illegality is at issue, it suffices as the good cause. He forties his argument by citing the case of The Principal Secretary, 6 Ministry of Defence and National Service vs. Devram Valambhia (1992) TLR 387. Also, Mr. Chacha said that there is serious illegality in the proceedings in respect of the Land Application No. 36 of 2019 had serious jurisdiction issue and wasn’t determined to its finality and when the 1st respondent realised an application was bad in law he decide to withdraw an

application. Apparently, Mr. Chacha argued that the District Land and Housing Tribunal for Shinyanga was wrongly moved to hear and determine the land application without having jurisdiction to adjudicate the matter. Moreover, Mr. Chacha addressed that the 2nd respondent was formulated after change of the name of Tanzania Post Bank PLC to the Tanzania Commercial Bank PLC where Government is the majority shareholder in the 2nd respondent bank as it owns 83.4 % of all shares. Finally, Mr. Chacha submitted that the Land Application was filed prematurely before the tribunal and in contravention of the requirement of Section 6(3) and (4) of the Government Proceedings Act Cap 5 as amended by the written law (Miscellaneous Amendment) Act 2020. There was legal requirement of issuing of ninety days notice of his intention to sue the Government, Attorney General was supposed to be 7 added as a necessary part to the suit after the amendment to the law and the matter was supposed to be instituted at the High Court of Tanzania. He supported his argument by referring the case of Glady Roga the Metili vs TPB Bank PCL& others, Land case No. 2 of 2020, HC at Arusha(unreported) where the suit was struck out after being found it was filed in the court without issuance of the ninety days notice and failure to add Attorney General in the suit as necessary party. In his rejoinder Mr. Mussa Mpogole

argued that 1st respondent has not contested the applicant’s application and he invited this court to proceed to grant the application as prayed. He added that the 1st respondent did not file counter affidavit in opposition of the application, instead the 1st respondent raised a preliminary objection in disguised in the submission while he was supposed to raise the same trough notice before scheduled of filing written submission so that P.O be determined first. He cited the case of Ludovick Michael Massawe vs Samson Herman, Civil Application No. 259/08 of 2021[2022] TZCA 41(21 February,2022 the court held that ‘’It is trite law that a party who has not filed affidavit in reply to contest what has been deposed in affidavit supporting application may 8 be entitled to an oral reply but only on matter of law, not on matter of facts’’ Mr. Mpogole said that under Paragraph 1 of the Affidavit in support of the application the deponent has identified herself that she works under the officer of the Solicitor General assigned to handle the matter in hand that conversant with the fact she deponed. The allegation that the deponent has not disclosed the source of facts pleaded under paragraphs 4,5,6,7,8,9 and 10 of the affidavit in support of the application is misconceived and is of no merit at all. Moreover, he added that paragraph 12 and 13 of the affidavit in support of the

application has not been disputed by the 1st respondent. Moreover, Mr. Mpogole submitted that there was no any need of disclosing the source of information as alleged by the 1st respondent as all the facts pleaded are within the personal knowledge and understanding of the deponent. Finally, argued that the case of Tanga Kadala and 6 others vs Abdul Hillal Ally, Civil Application No. 447/14 of 2023 cited by the 1st respondent is distinguishable and does not apply in the present case, as in the said case the respondent raised a preliminary objection which is different from the case at hand and invited the court to disregard the same. 9 Having heard and consider the submissions by both parties, the issue is whether the application discloses sufficient cause for extension of time. To commence with, it is clear in the case of Tanga Cement Company Limited Vs Masanga and Amos A. Mwalwanda, Civil Application No. 6 of 2001, for a person to apply for extension of time, has to disclose sufficient reasons, which was defined as follows; “What amounts to sufficient cause had not been defined. From decided cases a number of factors have to be taken into account, including whether or not the application has been brought promptly, the absence of any valid explanation for delay, lack of diligence on the part of the applicant." However, there are also other factors that are used to

determine whether the applicant has shown good and reasonable cause such as the length of the delay, whether or not the delay has been explained away, diligence on the part of the applicant. See the case of Lyamuya 10 Construction Company Limited vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). In our present case, Ms. Amina said that 2nd respondent now known as Tanzania Commercial Bank is a Public Limited Company whereby the Government of United Republic of Tanzania is a majority shareholder among other shareholders in the company and it holds 23,223,304 shares. Now, it was her submission that the 1st respondent instituted Land Application No 36 of 2019 without joining the Attorney General as necessary party which is contrary to Section 6(3) and (4) of the Government Proceedings Act and the matter ought to be filed in High Court of Tanzania. Additionally, Ms. Amina argued that District Land and Housing Tribunal had no jurisdiction to hear and determine the Land Application No. 36 of 2019 which was instituted against the Government without Joining the Attorney General and failure to join the Attorney General denied him right to be heard which is contrary to Article 13 (6) (a) of the Constitution of United Republic of Tanzania. 11 Mr. Frank Samwel advocate for 1st respondent, argued that

the deponent of the affidavit supporting the application verified at the verification clause that all facts in the affidavit from paragraph No 1 to 17 are true to the best of her knowledge. However, by looking at the contents of paragraph No. 4, 5, 6, 7, 8 9 and 10 of affidavit, these paragraphs cannot come out of her knowledge of the deponent because deponent and applicant were not parties to the application before the Shinyanga District Land and Housing Tribunal as per graph 11 and 12 of the affidavit. Since the source of this fact is not disclosed then the remedy is expunging the said paragraphs. On the issue of illegality, Mr. Frank argued that since the source of the alleged illegality emanated from the expunged paragraphs, then the illegality cannot stand for the lack of expunged paragraphs and therefore there is no need of discussing the illegalities which have no supporting paragraphs. On the side of 2nd respondent, Mr Chacha advocate concurred and supported the application and applicant’s submission. He added said that there is serious illegality in the proceedings in respect of the Land Application No. 36 of 2019 because the District Land and Housing 12 Tribunal for Shinyanga was wrongly moved to hear and determine the land application without having jurisdiction to adjudicate the matter. Moreover, Mr. Chacha addressed that the 2nd respondent is Government entity with

majority shareholder and therefore land application was filed premature before the tribunal and in contravention of the requirement of Section 6(3) and (4) of the Government Proceedings Act Cap 5 as amended by the written law (Miscellaneous Amendment) Act 2020. In rejoinder Mr. Mussa Mpogole argued that 1st respondent did not file counter affidavit in opposition of the application, instead the 1st respondent raised a preliminary objection in disguised in the submission while he was supposed to raise the same trough notice before scheduled of filing written submission so that P.O be determined first. Mr. Mpogole added that under paragraph 1 of the Affidavit in support of the application the deponent has identified herself that she works under the officer of the Solicitor General assigned to handle the matter in hand that conversant with the fact she deponed. The allegation that the deponent has not disclosed the source of facts pleaded under paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the application is misconceived and is of no merit at all. Also, 13 he added that paragraph 12 and 13 of the affidavit in support of the application has not been disputed by the 1st respondent. Finally, Mr. Mpogole submitted that there was no any need of disclosing the source of information as alleged by the 1st respondent as all the fact pleaded are within the personal

knowledge and understanding of the deponent. He added that the cases of Tanga Kadala and 6 others vs Abdul Hillal Ally, Civil Application No. 447/14 of 2023 cited by the 1st respondent is distinguishable and does not apply in the present case, as in the said case the respondent raised a preliminary objection which is different from the case at hand and invited the court to disregard the same. I am aware that extension of time is discretionary power of the court upon the good cause being shown. In the case of Republic vs. Yona Kaponda and 9 others [1985] TLR 84 where the court of appeal held that ‘’In deciding whether or not to allow an application to appeal out of time, the court has to consider whether or not there is sufficient reasons not only for the delay, but also sufficient reasons for extending the time during which to entertain the appeal’’. Similar situation was stated in the case of Tanzania Revenue Authority vs. Tango Transport 14 Company Limited, Civil Application No 5 of 2006, Addallah Salanga & 63 others vs Tanzania Habours Authority, Civil application No. 4 of 2001, Wankira Benteel vs. Kaiku Foya, Civil Reference No. 4 of 2000. I have scanned submission from both parties and going through the records. It is undisputed that the 2nd respondent is Government entity as per section 16 of The Government Proceedings Act Cap 5 RE 2019 and 1st respondent instituted the

matter without joining the Attorney General as necessary party which is contrary to Section 6(3) and (4) of the Government Proceedings Act and the matter ought to be filed in High Court of Tanzania and failure to join the Attorney General denied him right to be heard, contrary to Article 13 (6) (a) of the Constitution of United Republic of Tanzania. See the case of Abbas Sherally and Another v. Rabdul Sultan H.M. Fazalboy, Civil Application No.33 of 2002 and I. P.T.L. vs. Standard Chartered Bank (Hong Kong) LTD, Civil Revision No. 1 of 2009 (unreported) Likewise, Mr. Chacha advocate for 2nd respondent concurred that there was illegality in instituting the matter because Attorney General was not joined as necessary party and even the procedure of instituting the case against the Government was not adhered. Despite the fact that 15 Mr Frank did not filed counter affidavit but he argued that the applicant failed to disclose the source of facts pleaded under paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the application. It is undisputed that an illegality is good cause for extension of time however the applicant must point out illegality of the decision being challenged and the court has duty to ascertain it. See the case of Attorney General of Zanzibar vs. Laemthong Rice Company Limited and Another (supra). From the records, I agree with the submission of Ms.

Amina and Chacha learned counsels that the 1st respondent instituted the case against the Government entity without joining Attorney General as necessary party and the procedure of instituting the case against the same was not followed. Thus I disagree with Mr. Frank advocate that the deponent has not disclosed the source of facts pleaded under paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the application while she disclosed under paragraph 1 of her affidavit but he did not dispute paragraph 12 and 13 of the affidavit. Even the case of Tanga Kadala and 6 others vs. Abdul Hillal Ally (supra) Civil Application No. 447/14 of 2023 cited by the 1st respondent is distinguishable and does not apply in the present case, as in the said the 16 deponent had no personal knowledge with what deponed which is different from the case at hand. From above analysis, this court does not see the reason as to why this application should not be granted. That being said this court is fully satisfied that the applicant has demonstrated good cause to have the order sought granted. Subsequently, this application is allowed and the applicant is granted time for lodging revision from the decision of Land Application No. 36 of 2019 and shall be lodged within 7 days from the date of delivery of this ruling. In regard of the nature of the case and parties I make no orders for costs. It is so ordered. DATED at SHINYANGA this 31st day of January, 2025. R. B. Massam Judge \ 17