LAND APPEAL NO 8422 OF 2024 clean

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA LAND APPEAL NO. 8422 OF 2024 (C/f Misc. Application No. 172 of2023 arising from Land Appeal No. 28 of 2011, District Land and Housing Tribunal for Arusha at Arusha) CHRISTINA JOHN KORDUNI {As Administratrix of the estate of the late JOHN KORDUNI)............................................ APPELLANT Versus ASNATH EMMANUEL {As Administratrix of the estate of the late EMMANUEL KORDUNI)................................ RESPONDENT JUDGMENT 11th December 2024 & 14h February 2025 MasaraJ At the District Land and Housing Tribunal for Arusha at Arusha (''the trial tribunal") the Appellant instituted an application for extension of time to set aside the dismissal order issued by it in Land Appeal No. 28 of 2011. The Trial tribunal dismissed the application on the ground that it lacked the requisite jurisdiction to entertain the said application as there is a pending appeal before the Court of Appeal of Tanzania. Dissatisfied by the said decision, the Appellant appealed to this Court armed with seven grounds of appeal as hereunder reproduced verbatim'. 1) That, the trial chairman erred in fact and in law by dismissing the application on the ground that the appeal No. 28 of2011 which was dismissed for want ofprosecution is connected to the appeal before the Court of Appeal while the application before the tribunal and appeal before the Court ofAppeal are two different aspects of law. 2) That, the trial tribunal's chairman erred in law and in fact when it ouster the jurisdiction of the tribunal vested to it by the law on the matter dismissed by the tribunal. 3) That, the tribunal chairman erred in law and in fact in dismissing the application basing his reason on speculation on what might or might not happen to Court of Appeal on the appeal which is yet to be heard. 4) That, the trial chairman erred in law and in fact by comparing the appeal before the Court ofAppeal and appeal No. 28 of 2011 while appeal No. 28 of 2011 is not subject to the appeal before the Court ofAppeal. 5) That, the tribunal's chairman erred in law in dismissing the application while alleging to have no jurisdiction. 6) That, the tribunal's chairman erred in law and fact for dismissing the application for want of jurisdiction by comparing the grounds of appeal which are quite different from the one before the Court of Appeal. 7) That, the tribunals chairman erred in law and in fact for not deciding the merit of application which is his legal duty under the law. 2 At the hearing, Mr Ombeni Kimaro, learned advocate, appeared for the Appellant, while Ms Sara Lawena, learned advocate, appeared for the Respondent. Hearing proceeded byway of filing written submissions. Both Counsel filed their respective submissions as per the schedule given to him. After receiving the Applicants submissions, Ms Lawena readily conceded and supported the Appellants appeal. I will, therefore not, as is the common norm of summarising submissions made by both parties, detail what was submitted by Mr Kimaro in his extensive and well detailed submissions. Instead, I will deliberate on Ms Lawena's concession in order to ascertain whether what she stated disposes of this appeal. In her reply submission, Ms Lawena submitted that what was before the trial tribunal was an application for extension of time to file an application for the restoration of Land Appeal No. 28 of 2011. She argued that, in an application for extension of time, the court or tribunal, is limited to only those facts which would move it to exercise its discretionary powers to grant or reject the order sought; it is not mandated to go to the root of the case or the intended appeal. In her view, the trial tribunal was wrong to dismiss the application before it based on the merit of the appeal placed before the Court of Appeal. 3 Further, Ms Lawena submitted that the notice filed at the Court of Appeal is with respect to Misc, Land Appeal No. 23 of 2022 which challenges the decision of the trial tribunal in its execution decision, hence, the Appellant could not challenge the decision of the ward tribunal before the Court of Appeal before first appealing the same to the trial tribunal and the High Court. In her view, therefore, the ruling issued by the trial tribunal that the Court of Appeal is seized with jurisdiction to hear the merit of the decision of the trial tribunal was misconceived. Basing on that submission, Ms Lawen prayed that the Appeal be allowed and each party to bear its own costs. Admittedly, going through the ruling issued by the trial tribunal, it is equally my finding that the learned chairman misdirected himself on the law and principles governing applications for extension of time. It is important to reemphasize that, an application for extension of time is quite different from other applications which courts are mandated to deal with. In an application for extension of time, the tribunal or court is not invited to consider the chances of success in an intended appeal to which the extension of time is sought, rather to ascertain the governing law and reasons advanced by the applicant if they are sufficient enough for it to exercise its discretion to grant the order sought. Recent development in 4 law discourages any decision which is based solely on the fact that an appeal stands a chance to succeed. In determining whether an application for extension of time succeeds or not, a court or tribunal is only obliged to look into whether the applicant shows sufficient cause for such delay. The Court of Appeal of Tanzania in the case of 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 guided on what should be taken into consideration while considering whether or not to grant an application for extension of time. It said: "(9/7 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; and (d) If the court feels that there are other sufficient reasons, such as the existence ofa point of law ofsufficient importance; such as the illegality of the decision sought to be challenged." Subscribing to the reasoning in the above cited case, and applying the same principle in the current Appeal, it is the finding of this Court that the trial tribunal erred when it based its decision on the outcome of the Appeal 5 pending before the Court of Appeal. The trial tribunal had a duty of determining if the Applicant had adduced sufficient reasons for the grant of extension of time. Owing to the circumstance of this appeal and, particularly, the shortcoming discussed above, this Court is of the view that the trial tribunal improperly denied itself of the jurisdiction that it had and waived it on ground that the notice before the Court of Appeal barred it from adjudicating the application of extension of time that was before it. In the process, it issued a bad decision in law which should outrightly be vacated, quashed and set aside. I would have ended here but the dictates of justice militate against delayed determination of disputes. I feel obliged to determine as to whether the grounds advanced by the Appellant at the trial tribunal amounted to sufficient reasons to grant an order of extension of time sought. I have revisited the trial tribunal records; it is not in dispute that the Applicant was late to bring the application for restoration of Land Appeal No. 28 of 2011. Among the reasons deposes in the affidavit filed in support of the application before the trial tribunal were that, the late John Korduni had an accident that caused him to sustain several injuries in his body that prevented him from appearing and prosecuting the matter before the 6 trial tribunal as he was undergoing treatment at Mount Meru hospital. The said John Korduni eventually died from the said injuries. The other reason advanced by the Appellant was the death of Emmanuel Korduni, and the late appointment of his administrator. Also, that after the death of John Korduni, an administrator had to be appointed and follow up on cases which were ongoing before various courts. He went on to state that it was not until on 22nd February 2021 when the administrator became aware of the dismissal order issued in respect of Land Appeal No. 28 of 2011 which prompted her to make an application for extension of time. On the Other hand, the Respondent, in her counter affidavit filed before the trial tribunal, did not contest some of the facts stated by the Appellant from paragraph 1 to 14 of the Appellant's affidavit. Those paragraphs advanced and set forth reasons for the delay. The only part that was contested by the Respondent was the time when the Applicant was made aware of the dismissal order, an interval of eight months, and steps taken by the Applicant therein. From the explanation advanced by the Appellant and bearing in mind that the Appellant was an administrator of the deceased estate, it is my considered view that the Appellant had justifiable reasons for the delay to 7 warrant extension of time sought before the trial tribunal. In exercise of revisionary powers bestowed on me by law, I condone the delay. In the upshot and considering all what has been stated above, I hereby quash and set aside the ruling issued by the trial tribunal on 5th March 2024. The file is remitted back to the trial tribunal for it to hear the Appellant's application for restoration of Land Appeal No. 28 of 2011 on merit. As the predicaments necessitating this appeal cannot be attributed to any of the parties herein, and considering the readiness to concede exhibited by the Respondent herein, I direct that each of the parties bears their own cost. DATED and DELIVERED at Arusha this 14th day of February 2025 Y.B. Masara JUDGE 8