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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION NO. 24483 OF 2024 (Arising from Land Application No. 171 of 2012 at the District Land and Housing Tribunal for Kinondoni District at Mwananyamala) JITIHADI SHOMVI.............................................................. APPLICANT VERSUS SELEMANI ATHUMANI................................................... RESPONDENT MAKO AUCTION MART.................................................. 2nd RESPONDENT RULING Date of order: 26/11/2024 Date of Ruling:29/11/2024 A, MSAFIRI. J, The herein above applicant have brought this Application under Section 14 (1) of the Law of Limitation Act, Cap 89 RE 2019. He is seeking for the following orders: - 1. That this Honourable Court be pleased to extend time to the Applicant within which to appeal to this Honourable Court against the exparte Judgment and Decree dated 12th day of June 2015 in Land Application No 171 of 2012 between Seleman Athumani vs Jitihadi Shomvi & Mako Auction Mart, which gave exparte judgment in favour of the 1st respondent as against the Applicant and the 2nd Respondent; 2. Costs of the application be provided for; JU/ I i 3. Any other order or relief(s) the court may deem proper and fair to grant. The affidavit in support of the application was affirmed by the applicant Jitihadi Shomvi. The application was opposed by the counter affidavit deposed by Selemani Athumani, the 1st respondent. The 2nd respondent was exparte as she was served but failed to appear in court. Hearing of the application was orally and it was between the applicant who was represented by Mr Octavian Mushukuma, learned advocate while the 1st respondent was represented by Ms. Subira Kitambi, learned advocate. Mr Mushukuma for the applicant was the first to submit whereby he prayed to adopt the contents of the applicants affidavit. He submitted that the applicant was unaware of the hearing of the case Application No. 171/ 2012 and the exparte judgment and that this is shown at paragraphs 1,2,3 of the applicants affidavit. The counsel said that the affidavit at paragraphs 4 and 5 shows that the applicant became aware of the exparte judgment on March 2022. After becoming aware, in April 2022, the applicant filed an application for extension of time to set aside the exparte judgment, the application was made before the District Land and Housing Tribunal of Kinondoni at 2 Mwananyamala (herein is referred as the DLHT). The Application was dismissed on 26/02/2024. That the applicant was dissatisfied and appealed to this court in Misc. Civil Appeal No. 4895/2024 and in the appeal, it was found that the applicant has appealed against the 1st respondent only. The appeal was determined and decided on 14/ 8/ 2024 where this court struck out the appeal for reason that the applicant did not join the 2nd respondent who was a party to the proceedings in the main case. The applicant was still not satisfied hence he filed this application seeking for extension of time for reasons of illegalities shown at paragraph 7 of the affidavit. The reasons are; first, the applicant was not served with summons and this was against the provisions of Regulation 6 of the Land Tribunals Regulations,2003. Second reason is that the applicant was not notified of the date of the delivery of the exparte judgment. To bolster his submissions the counsel for the applicant cited the cases of Exim Bank T Ltd vs Joseph Barnaba Danga, Civil Appeal No. 03 of 2023, HC at page 10 and the case of Lyamuya Construction Co. Ltd. at page 6,7, where it was observed that the court may grant extension of time if there is illegality. A-/ j - 3 For those reasons, the counsel for the applicant prayed to the court to grant the sought extension of time with costs. In reply, Ms Kitambi, for the 1st respondent started her submission by praying to adopt the counter affidavit of the 1st applicant as part of her submission. The counsel stated that the exparte decision was delivered by the DLHT. The applicant was served by publication in a newspaper namely Nipashe. The Applicant filed an application to set aside the exparte decision in Misc. Application No 585/2022 but the application was dismissed for lack of merit on 26/0 2/2024 before Hon. Silas, Chairman. That the applicant filed an appeal against the said decision in this court whereby it was heard by Hon. Gwae,J whereby it was struck out for non­ joinder of Mako Auction Mart, the now 2nd respondent. This court ordered the applicant to file a fresh application before the DLHT but surprisingly the applicant has filed this instant application. Ms Kitambi submitted further that in the application for extension of time, the applicant has to account for each day of delay. That in the instant matter, the dispute was decided since 2015, and the applicant has not counted for delay and has not given sufficient cause for the delay. She prayed for the dismissal of the application. M 4 On rejoinder, Mr Mushukuma, reiterated his submissions in chief. He added that the applicant was unaware of the Land Application No. 171/ 2012 where the decision was delivered on 2015, until he came to know later about the existence of it on March,2022 (refer paragraphs 3,4 of the affidavit). That the applicant filed an application, not to set aside the decision, but for extension of time to set aside exparte judgment. He said that the applicant has managed to account for the days of delay. On the order of this court that the applicant was to institute a fresh application before the District Tribunal, Mr Mushukuma argued that the applicant was at liberty to refile his application properly before the DLHT but has opted to come directly before this court to appeal instead of filing a new fresh application at the DLHT. He pointed that under Section 41 of the Land Dispute Courts Act, Cap 216 read together with Section 70(2) of the Civil Procedure Code Cap 33 R.E. 2019, an aggrieved party may appeal against the decision and the exparte decree. To bolster his point, the counsel cited the case of The Registered Trustees of Pentecostal Church in Tanzania vs. Magreth Mkama, Civil Appeal No 45 of 2015 at page 6-7. He reiterated his prayers. Having carefully gone through the rival submissions, the question for determination is whether this Application has merits. This Application is 5 brought under Section 14 (1) of the Law of Limitation Act which states that;- ”..14.-(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period oflimitation for the institution ofan appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application..." As to what amounts to a sufficient cause, the Court of Appeal of Tanzania in the case of Jumanne Hassan Bilingi vs The Republic, Criminal Appeal No. 23 of 2013 stated that; - "..In essence, what amount to good cause Is upon the discretion of the Court and it differs from case to case. But, basically various judicial pronouncements defined good cause to mean reasonable cause which prevented the applicant from pursuing his action within the prescribed time.." It follows then that the issue for determination in the Application at hand is whether the applicant has demonstrated good cause for this Court to exercise its discretion and grant the sought orders. According to the contents of the affidavit and the submissions by the counsel for the applicant, the reasons for the delay in filing the intended appeal within time are two, first; that there is a technical delay 6 the applicant control whereby after his application to set aside the exparte judgment and decree was dismissed before the DLHT, he appealed before this court against the decision but the appeal was struck out. The second reason advanced by the applicant is illegalities based on two grounds; first, that the applicant was not served with summons to defend his case in Land Case No. 171 of 2012 hence was denied with the right to be heard and second, that he was not notified of the delivery date of exparte judgment. The reason of technical delay is based on the fact that, aggrieved by the exparte judgment and decree in Land Application No 171 of 2012 before the DLHT, which was delivered on 12/6/2015, the applicant (who was the 1st respondent) instituted Misc. Application No. 589 of 2022 before the same DLHT seeking to set aside the said exparte judgment out of time. The DLHT dismissed the application. The applicant was aggrieved by the DLHT decision and lodged an Appeal No. 4895 of 2024 before this court. In determination of the appeal, Hon. Gwae,J found that the proceedings in Misc. Application No.589 of 2022 were vitiated for non-joinder of Mako Auction Mart who was the 2nd respondent in the main Application No. 171 of 2012. Hon. Judge Gwae 7 quashed and set aside the proceedings, judgment and any orders in Misc. Application No. 589 of 2022 and struck out the appeal. The applicant was at liberty to file a fresh application before the DLHT seeking to set aside the exparte judgment and decree but he did not do so. According to Mr Mushukuma, the applicant has decided to appeal directly from this court against the exparte decision of Application No. 171 of 2012 but since he is already out of time, he has to seek for extension of time. In the applications for the extension of time, the applicant has to first show a good and sufficient cause for failure to file the intended appeal within time and second has to account for each day of delay. The applicant has advanced the reason of technical delay as a reason for delay to file the intended appeal within time. However, it is my view that the reason that the applicant has initially filed an appeal in this court i.e., Land Appeal No. 4895 of 2024 and it was struck out, cannot be regarded as a technical delay. This is because the Land Appeal No.4895 of 2024 was an appeal against the decision of DLHT in an application to set aside an exparte order and not an appeal against the exparte judgment. The Application No. 171 of 2012 is completely different from Misc. Application No.589 of 2022. The former is the main case whereby the 8 DLHT entered an exparte order while in the latter, the DLHT dismissed the application to set aside the exparte order. The Appeal No.4895 of 2024 before this court was an appeal against the decision of the DLHT f to dismiss the prayers of setting aside exparte order. Therefore, in the circumstances, the applicant cannot claim that the striking out the appeal against the decision of refusal of setting aside the exparte order is a technical delay in filing the extension of time of the exparte judgment. In further explanation, the applicant could have directly filed the appeal before this court against the exparte judgment instead of seeking to set aside the said exparte judgment before DLHT. Therefore, the applicant cannot say there was a technical delay in filing the appeal against the exparte judgment as there was nothing barring the applicant to appeal directly as he wants now to do under the provisions of Section 70(2) of the CPC. I find the reason of technical delay was not established. On the reasons of illegalities, I have read them at paragraph 7 of the affidavit and I am inclined to agree that they are not apparent on face of record but they draw arguments and they need to be ascertained. In the case Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (Unreported) it was held thus;^ 9 "...Since every party intending to appeal seeks to challenge a decision either on point of law or fact, it cannot in my view, be said that in VALAMBHIA S case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points of law should as of right be granted extension of time if he applies for one. The Court there emphasized that such point oflaw must be that of sufficient importance and I would add that it must be apparent on the face ofthe record such as question ofjurisdiction; not one that would be discovered by long drawn argument or process..." [Emphasize is added] This position has been reiterated in numerous cases among them the case of Ngao Godwin Losero vs. Julius Mwarabu, Civil Application No. 10 of 2015, CAT at Arusha (Unreported) where it was held that the illegality of the impugned decision has to be clearly visible on the face of record. It is my finding that the illegalities which has been advanced by the applicants are not apparent on the face of record but they invite a long, drawn and searching arguments and ascertainment which disqualifies them as the illegalities are to be apparent/ visible on the face of record. The applicant through his counsel has submitted that he has a right to appeal against the exparte judgment and decree. Indeed, the applicant 10 has a right to appeal directly against the exparte decree without having to seek first to set aside the exparte order. This was clearly elaborated by my Learned Brother Hon. Maige,J (as he then was) in the case of The Registered Trustees of Pentecostal Church in Tanzania vs. Magreth Mkama,(supra) which has been referred to me by the counsel for the applicant. In the case, the right of direct appeal against the exparte decree as provided under Section 70 of the CPC was clearly elaborated. In that this court at page 7 of the cited judgment it observed thus; "... since an exparte decree can be challenged on appeal or by way ofan application to have it set it aside, the aggrieved party may appeal without a prior attempt to have it set aside provided that the appeal does not seek to challenge the order allowing the decree holder to proceed exparte." (emphasis added) By the above principle, the aggrieved party who is seeking to appeal against the exparte decree, he cannot challenge the order allowing the decree holder to proceed exparte. In the instant application, looking at the illegalities raised by the applicant, it is clearly that they intend to challenge the exparte order not the merit of the appeal. The reasons for illegalities as already stated are that the applicant was not served with the summons hence, he was denied the right to be heard. The 11 other reason is that he was not notified of the date of delivery of the exparte judgment. It is my view that these are illegalities challenges the exparte order which allowed the matter to proceed in absence of the current applicant. The illegalities are not on the exparte judgment and decree. I am of the firm belief that these illegalities would have been correctly placed before the DLHT as grounds for setting aside the exparte order. The applicant had a chance to file a fresh application before the DLHT after the previous one was quashed and set aside by this court. By this analysis, I find that the applicant has failed to advance the good/ sufficient reasons for this court to exercise its discretion and extend the time for the applicant to appeal against the exparte judgment and decree in Land Application No. 171 of 2012. It follows then that this application fails and it is dismissed with costs. It is so ordered. A. MSAFIRI JUDGE 29/11/2024 12