Ruling Board of Trustees of ANGLICAN CHURCH v WILBROAD KALIMANJUMA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. LAND APPLICATION NO 5711 OF 2023 (Arising from Application No 20 of 2019 before the District Land and Housing Tribunal for Mwanza at Mwanza) BOARD OF REGISTERED TRUSTEES OF ANGLICAN CHURCH OF TANZANIA, DIOCESE OF VICTORIA NYANZA….…….…APPLICANT VERSUS WILBARD G. KALINJUMA……………………….………………..….… RESPONDENT RULING 3rd June & 5th July 2024. ITEMBA, J. The applicant stands dissatisfied by the decision of the District Land and Housing Tribunal for Mwanza (the DLHT) in Application No. 20 of 2019 dated 27/11/2023. Being out of time to file the intended appeal to this court, he is now applying for an extension of time. The application is made under section 42 (1) of the Land Dispute Court Act Cap 216 R.E 2019 (hereinafter the Act). It is supported by affidavits of Rev. Can. Kepha Mlungu and Lukas Joachim Bundala while it is contested by counter affidavit of the respondent. According to the affidavit, the ground for this application are based on two limbs that the applicant was not aware of the outcome of the case as he had no notice of the date of delivery of judgement and illegality, in that, the trial tribunal lacked jurisdiction. 1 When the matter came for hearing, both parties were represented by learned counsels; Messrs. Amos Gondo and Ditrick Ishabairu were for the applicant and respondent respectively. In support of the application, Mr. Gondo mentioned n that in the impugned decision there is illegality. He then told the court that the trial court did not have jurisdiction and it did not comply with the Order XX rule 1 of the Civil Procedure Code, Cap 33 R.E 2019 (hereinafter the Code) because parties were not notified on the date of judgment or on when the judgment was issued. That, the date which was scheduled for hearing the assessors’ opinion was 12/6/2023 and nothing transpired, instead, it was called on 15/6/2023 for assessor’s opinion. That, parties were not told of those changes and the judgment was read when the applicant was unaware of the date. He submitted that, illegality is a good ground for extension of time and he referred the court to the case of Hamisi Ali v. Judicial Officers Ethics Committee and 3 others, Civil Application No. 130/01 of 2020 and Exim Bank TZ LTD v. Jihan Harad and another, Civil Reference case no. 11 of 2018 (both unreported). He prayed for the application to be allowed. In reply, it was submitted that, the counsel for the applicant neither in his affidavit nor in his submission has specified how the DLHT lacked 2 jurisdiction. That, Illegality is not a cure in all circumstances and in support of this argument, I was referred to the case of Seleman Seif v Hafidh Said, Misc. Civil Application No 33 of 2018 (unreported). On the ground that parties were not notified on the day of delivery of judgement, he submitted that, when the matter was scheduled for assessors’ opinion, the applicant’s counsel was present and on the following days parties appeared although the case was being adjourned. Therefore, according to him, between that date of assessors’ opinion and judgement, parties were notified. That, according to paragraph 7 of the applicant’s affidavit he states that they were told that they will be notified as to when the judgment will be delivered but there is no affidavit of the DLHT officer who told them so and the supplementary affidavit of Lucas Joachim Bundala does not have this information. He insisted that, the applicant has failed to account for 112 days of delay. That, even by counting from 23/2/2024 which they allege to have been served with execution, still the applicant has failed to account for 24 days from that date. He prayed for the application to be dismissed. In rejoinder, it was submitted that, paragraph 11 of the affidavit specifies the that the DLHT lacked pecuniary jurisdiction. That, according to the case of Hamisi Babu Ally, illegality is a valid ground regardless of 3 whether reasonable explanation has been given and there is no need of accounting every day of delay. Having considered the submissions of both parties. I will now determine whether the applicant has sufficient reasons for extension of time. The law mandates the applicant to advance sufficient reason(s) for extension of time which prevented him to act within time. See Regional Manager Tanroads Kagera v Ruaha Concrete Company Ltd, Civil Application No. 96 of 2007 Court of Appeal. Further, as correctly submitted for the respondent, the applicant is required to account for every day of delay as stated in the case of Hassan Bushiri v Latifa Mashayo, Civil Application No. 3 of 2007 (unreported). In this matter at hand, the applicant alleged to have been aware of the outcome of the case when he was served with an application for execution on 23/2/2024. That, their advocates perused the file of the DLHT on 29/2/2024, however this application was filed online on 11/3/2024 that means the applicant have failed to account for 10 days of delay after becoming aware of the judgement of the DLHT. Nevertheless, it is a settled principle of law that, where illegality on the face of record, is raised as a ground for seeking an extension of time; such 4 ground amounts to sufficient cause. See for instance the case of Principal Secretary, Ministry of Defence and National Service v Devram Valambia [1991] T.L.R. 387; Sabena Technics Dar Limited v Michael J. Luwunzu, Civil Application No. 451/18 of 2021; and Lyamuya Construction Company Limited vs Board of Registered Trustee of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 (both unreported). In this matter at hand, the applicant is alleging that, the trial DLHT lacked pecuniary jurisdiction to entertain the matter before it. I had time to read the pleadings filed at the DLHT. According to paragraph 4 of the application, the estimated value of the suit premise was stated by the respondent to be Tshs. 100,000,000/=. By the Written Statement of Defence filed on 11/2/2019 the applicant herein noted paragraph 4 of the application. I find that, raising the issue of pecuniary jurisdiction at this stage is an afterthought. The applicant also contended that they were not notified on the date of delivery of judgement. I have read the DLHT proceedings, as correctly submitted by parties, the applicants (Respondent at the DLHT) was closed on 2/6/2023. Then matter was fixed on 12/6/2023 for assessor’s opinion. There is no record of what transpired on that next date instead the matter 5 was tabled before Hon. Mayeye Chairman on 15/6/2023 who adjourned the case for the opinion to be read on 12/6/2023. The said opinion of assessors was read on 20/6/2023 in presence of the respondent herein while the applicant was absent. After the opinion so read, Hon. Mayeye Charman fixed the date of delivery of judgement before presiding Chairman (Hon. Masao Chairman) on 7/8/2023. Again, the records are silent on whether anything happened on that date. It was until on 27/11/2023 when the judgement was delivered in the presence of the respondent herein and in the absent of the applicant. As correctly submitted for the applicant, parties were not notified on the date of delivery of judgement. I have careful read the counter affidavit of the respondent, it tells nothing on how he became aware of the change of dates from 12/6/2023 to 15/6/2023 for the assessor’s opinion, it also tells nothing on how he became aware that the judgment will be delivered on 27/11/2023 instead of 7/8/2023. While I agree that the applicant slept on his right to make follow-up of the outcome of his case, I also emphasize that the records of the tribunal/court should be self explanatory as regards to everything that transpired before it. When the records are silent, the higher court is left with no proof as to how and why the matter was adjourned for next date. If the applicant did not know the date of delivery of judgment, 6 he won’t have been able to file an appeal within time. It is cardinal principle that, justice must not only be done, it must be seen to have been done. It is also cardinal law that court’s records are sanctity. I make reference to the cases of Selemani Juma Masala v Sylivester Paul Mosha and another, Civil Reference No. 13 of 2018; and Alex Ndendya vs the Republic; Criminal Appeal No. 207 of 2018 (both Unreported). Therefore, according to the DLHT records, parties were not notified on the date of delivery of judgment. Order XX rule 1 of the Code provides that; “The court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their advocates.” Further, under Regulation 16 (1) of the Land Disputes Courts (The District Land and Housing Tribunal), Regulations of 2003, prohibits the judgement of the DLHT to be reserved under any circumstances for a period exceeding three months from the date of conclusion of proceedings. In this matter at hand the assessor’s opinion was read on 20/6/2023 therefore up to 27/11/2023 it was more than 3 months and no explanations were given in the proceedings regarding such delay. Worse enough, no notice was given to the parties. In the case of Omary Shabani Nyambu vs. Dodoma Urban 7 Water Supply and Sewerage Authority (DUWASA), Civil Appeal No. 303 of 2020 (unreported) the Court of Appeal said; “According to the above excerpt, it is crystal clear that the so-called judgment was pronounced in the absence of the parties. There is nothing to show that the notice for the judgment was issued to the parties as it was ordered earlier on. In the case of Awadhi Iddi Kajass v. Mayfair Investment Limited, Civil Application No. 281/17 of 2017 (unreported), while discussing the competence of the judgment that was delivered in the absence of parties who had no notice of the date of its delivery, like in the case at hand, the Court held that there was no operative, valid and effective judgment delivered in the absence of the parties who had no notice of the date of its delivery. As regards the effect of a judgment not delivered in accordance with the law, the Court, in the same case of Awadhi Idd Kajass (supra), relied on the case of Gilian's Modern Bakary v. F. J. Kuntner (1954) 21 EACA 123 and held that the judgment which is not delivered in accordance with the law, could not be taken to have come into existence as to be capable of being appealed against. Applying the principle in judgment delivered in the absence of the parties was not an effective, operative or a valid judgment which could have been appealed against. It was a nullity.” (emphasis supplied). Being guided, it is my considered view that, failure to notify the parties on the date of delivery of judgement suffices to stand as illegality. Therefore, the application has merit basing on the ground of illegality. This application 8 is allowed. The applicant is extended with time to file his appeal to this court against the decision of the DLHT in application No. 20 of 2018 within 21 days from the date of delivery of this ruling. It is so ordered. Dated at MWANZA This 5th day of July, 2024. L. J. ITEMBA JUDGE Ruling delivered in chambers in the presence of both parties and their counsels Mr. Amos Gondo and Ditrick Ishabayo for the applicant and respondent respectively and Ms. G. Mnjari RMA. L. J. ITEMBA JUDGE 9