RULING DAIMON ADAM VS MAGRETH MWAISAKA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISC. LAND APPLICATION NO. 71 OF 2023 (Originating from the District Land and Housing Tribunal for Rungwe at Tukuyu in Land Appeal No.40 of 2018, Original Land Case No. 51 of 2018 of Kyimo Ward Tribunal) DAIMON ADAM ………………………………………….………………… APPLICANT VERSUS MAGRETH MWAISAKA ……………………………………..……….... RESPONDENT RULING Date of last Order: 11th July, 2024 Date of Ruling: 14th August, 2024 KAWISHE, J.: In this application, the applicant, one Daimon Adam, has moved this court by way of chamber summons under section 38(1) of the Land Disputes Courts Act [Cap. 216, R.E 2019]. The chamber summons is supported by an affidavit sworn by the applicant. He implored the court for the following prayers: i. That this court be pleased to grant an extension of time within which the applicant can lodge an appeal out of time. 1 ii. Any other order this honourable court may deem fit and just to grant. The application was resisted through a counter affidavit sworn by the respondent. The facts of the case drawn from the affidavit sworn by the applicant unfold as follows: the applicant was the appellant in Land Appeal No. 40 of 2018, which was filed before the District Land and Housing Tribunal for Rungwe. Judgment was delivered on 4th June, 2021 in favour of the respondent. Aggrieved by the tribunal’s decision, the applicant filed an appeal before this court via Miscellaneous Land Appeal No. 29 of 2021 in which the judgment and order made by the District Land and Housing Tribunal for Rungwe was nullified and the Tribunal Chairman was ordered by the High Court to compose a proper judgment which would reflect the opinion of assessors within 90 days from the date of the judgment. The proper judgment was composed by the Tribunal and was delivered on 8th November 2022, in favour of the respondent. The applicant was availed with the uncertified copies of that judgment on 12th April, 2023. The applicant, still aggrieved with that decision, he filed this application seeking for extension of time within which he can file an appeal out of time before this court. From the applicant’s affidavit, the 2 reasons for delay are: One, that the applicant has a persistent hearing problem which has also affected his mind and he is unable to read and write properly, beside putting his signature. Two, that he was given a photocopy of judgment which bears a normal Tribunal’s stamp but it does not bear a stamp which shows the date when it was certified. The application was argued by a way of a written submission upon agreement made by the parties and be blessed by the court. The applicant appeared in person unrepresented while, the respondent appeared under the service of Mr. Simon Mwakolo, learned counsel. The parties complied to the schedule ordered by this court on filing the written submission. In his submission the applicant stated that, he is asking this court to condone his application as contained in his affidavit under paragraph 3, 4, 5 and 6(a) and (b). He went further stating that, it is a trite law that, in any application for enlargement of time the applicant is required to show good cause which prevented him or her to take a step within time and it is the court’s discretion to grant or refuse the application. He contended that, in this application, the main reason which prevented the applicant from filing his appeal within the prescribed time is poor mental health which caused him hardship from focusing on many things 3 including following court proceedings and making a perfect decision at the right time. He averred that, sickness is beyond human control therefore, it is a good cause for this court to use its discretion to grant an order for extension of time. Fortifying his argument, he cited the cases of Joyce George Mapunda vs. The Republic, Misc. Criminal Application No. 8 of 2023, High Court at Songea and Emmanuel R. Maira vs. The District Executive Director of Bunda District Counsel, Civil Application No. 66 of 2010, Court of Appeal (both unreported). He added that, even when he appeared before this court, the court noticed that, he is mentally retarded due to persistent hearing problem. Finally, he prayed for the prayers sought in this application to be granted. Replying to the applicant’s submission, the respondent’s learned counsel submitted that, the impugned judgment was made contrary to the orders made by this court. That, it was to be composed within 90 days from 25th May, 2022 but the said judgment was delivered after the expiry of the time ordered. The trial tribunal composed and delivered the judgment on 8th November, 2022. It was after the lapse of 39 days which was beyond the time given by this court. He went on stating that, the applicant is seeking for an order of extension of time to file an 4 appeal against the decision of the trial Tribunal while, the same decision was composed contrary to the order of this court. He argued that, this court has no discretion to entertain this application on the ground that, the impugned judgment is tainted with illegality and granting the prayers sought in this application will make this court to be blessing an illegal judgment which is an abuse of court process. To reinforce his contention, he invited this court to be guided by the decision of the Court of Appeal of Tanzania made in the case of Karori Chogoro vs. Waitihache Merengo, Civil Appeal No. 164 of 2018, where it was persuaded by the decision of this court made in the case of TBL vs. Edson Dhobe, Misc. Civil Application No. 96 of 2006. He insisted that, since the order issued by this court was not complied with by the trial Tribunal, this court should not condone such act because it will set a precedent and invite chaos in the legal fraternity. Lastly, he prayed for this application to be dismissed with costs. The applicant preferred not to file a rejoinder submission in this application. Therefore, having gone through the submissions made by both parties, there is one issue to be determined in this application which is, 5 whether the applicant has adduced sufficient reasons for this court to use its discretionary powers to grant an order for extension of time. It is trite law that, an application for extension of time is entirely in the discretion of the court to grant or refuse it. Any extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. This principle was reiterated by the Court of Appeal in the case of Benedict Mumelo vs. Bank of Tanzania [2006] 1 EA 227 (unreported), in which the Court decisively held that: “It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause”. However, the discretionary powers of the court have to be exercised judiciously according to the rules of reason and justice and not according to private opinion or arbitrarily. This was so stated by the Court of Appeal in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010, which was quoted with approval in the case of Ngao Godwin Losera vs. Julious Mwarabu, Civil Application No. 10 of 2015 Court of Appeal 6 sitting at Arusha (unreported). In the above cited cases, four guidelines were formulated to guide the courts and other decision-making bodies when determining whether there are sufficient reasons or not. The formulated guidelines are: One, the applicant must account for all the period of delay. Two, the delay should not be inordinate. Three, the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and Four, 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. In the instant application, the applicant’s reasons for the delay to file his appeal within time are only two. The first reason is that the applicant has got a persistent hearing problem which has also affected his mind and he is even unable to read and write properly beside putting his signature. The second reason is that he was given a photocopy of judgment which bears a normal Tribunal stamp but it does not bear a stamp which shows the date of certification. His first reason that he is sick is backed up by annexture DE-4 which is a medical certificate and it states that: 7 ‘The above-named person attended at our hospital with complaint of difficulty in hearing for 4 years ago upon examination there were no significant findings patient started on medication and advised to be seen with otolaryngologist for further investigations’. This was the findings of the doctor in respect to the applicant’s health status. In my view, this does not mean that the applicant is having a serious illness. The said letter was written on 28th July, 2023. It was issued after expiry of almost three months from the date he was availed with the copies of judgment that is on 12th April, 2023, as stated in his affidavit. Thus, he has failed to state what happened and what was his diligence in those three months. Basing on the trial tribunal proceedings and the argument by the applicant, the reason established by the applicant that he was sick but he has failed even to state when he became sick and what kind of disease attacked him. The kind of illness was to be properly explained in the medical report. It is trite law that, where sickness is a reason for the delay there must be elaborate explanation on what was the sickness which prevented the litigant from taking a step-in court. This was the stance in the case of Shembiku Shilfaya vs. Omary Ally [1992] T.L.R 8 245. From the above posture, I find the first reason for the delay has failed. In the second ground the applicant has averred that, he was given the photocopy of judgment which was not certified by the trial Tribunal which has only the normal Tribunal’s stamp which does not show the date of certification. On his party, the respondent’s learned counsel has the view that, granting the prayers sought in this, will be blessing the illegality made by the trial Tribunal in the impugned decision. He argued that, the impugned judgment was made contrary to the orders made by this court that, it was to be composed within 90 days but the said judgment was delivered thirty-nine days after the expiry of the time ordered without seeking for the leave of the court. He was on the stance that, since the impugned judgment is tainted with illegality, granting the prayers sought in this application will not be proper. The applicant being a layman and unrepresented, he never argued on that germane legal issue. I am alive that, this court while exercising its appellate jurisdiction conferred to it under section 42 of the Land Disputes Courts Act (Cap 2016, R. E. 2019) it has powers to make in respect to the decision made by the District Land and Housing Tribunal. This was the case in the 9 present application in which the District Land and Housing Tribunal for Rungwe was ordered to compose another judgment within 90 days from 26th May, 2022. But, the Tribunal composed its judgment and delivered on 11th November, 2022 long after the expiry of the 90 days. In a simple calculation the 90 days expired 25th August, 2022. This has been challenged by the respondent’s advocate for the reason that, the said judgment was composed contrary to the orders of this court hence making it to be illegal. The respondent’s counsel cited the case of Karori Chogoro vs. Waitihache Merengo, (supra), which cited with approval the decision of this court made in the case of TBL vs. Edson Dhobe, Misc. Civil Application No. 96 of 2006 (unreported). He based his argument on this case and urge this court to dismiss the application. With due respect this case is distinguishable. The case was remitted to the ward tribunal following the pending order of the district tribunal and the illegality of the district tribunal’s chairman acting illegally. I concur with the learned counsel to the extent of the illegality occasioned by the trial chairman. The court in Karori Chogoro vs. Waitihache Merengo, (supra), had this to state: 10 “Court orders should be respected and complied with. Courts should not condone such failures. To do so is to set bad precedent and invite chaos. This should not be allowed to occur...." From the above decision, I find there is an illegality in the decision made by the trial Tribunal which led to this application. This Court and the Court of Appeal in several decisions have stated that, illegality is among the reasons which can be used by the Court in exercising its discretionary power in granting extension of time. See the decisions made in the case of the Principal Secretary, Ministry of Defence and National Service vs. Devram Valambhia (1992) TLR 182, VIP Engineering and Marketing Limited and Three Others vs Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006, Court of Appeal (unreported) and Hassan Sariko vs. Shakira Hashim, Misc. Civil Application No. 11 of 2023, High Court at Temeke (unreported). Also, it is a settled legal principle that, where a point on illegality is apparently shown on the face of the record, by itself suffices for an extension of time regardless on the number of days for the delay. See the decision in Hamisi Mohamed (as the Administrator of the Estates of the late Risasi Ngawe) vs. Mtumwa Moshi (as the 11 Administratrix of the Estates of the late Moshi Abdallah), Civil Application No. 407 of 17 Of 2019, Court of Appeal (unreported). Apart from the authorities cited above, the respondent’s learned counsel conceded that the trial tribunal occasioned illegality. That it did not adhere to the orders of this court. To him, allowing this application is squarely blessing illegality. I have a two limbs opinion on his submission. First limb, that the illegality occasioned should not be let to live. Certainly, this is a court of record. Its decisions bind subordinate courts and tribunals. This court has to discharge its correcting role. By so doing it has to allow the application so that the illegality can be dealt with and put the record proper. It is a settled law that, once the illegality is raised, even if not well explained the court has to grant extension of time. There is a plethora of case law on that position. See VIP Engineering and Marketing Ltd and 2 Others vs. CitiBank Tanzania Ltd (Consolidated Civil Reference 6 of 2006) [2007] TZCA 165 (26 September 2007) where the Court of Appeal cited with approval the case of Principal Secretary Ministry of Defence and National Service vs. Devram Valambia (1992) TLR 185, it held that: "It is settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under Rule 8 12 (now Rule 10) of the Court of Appeal Rules regardless of whether or not a reasonable explanation has been given by the applicant under the Rules to account for the delay.” The applicant being a layperson did not have much explanation on the claim of illegality. However, the learned counsel for the respondent hammered it very well but with a differing opinion on the granting of extension of time as sought by the applicant. It is a settled principle that, even where the applicant failed to account for the delay, extension of time may be granted basing on the ground of illegality. This was extensively articulated in the case of TANESCO vs. Mufungo Leonard Majura & Others (Civil Application No. 94 of 2016) [2017] TZCA 239 (5 June 2017) where the Court of Appeal held that: “Notwithstanding the fact that, the applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fact that, there is a complaint of illegality in the decision intended to be impugned, in line with what was held in the above quoted decisions, it suffices to move the Court to grant the extension of time so that, the alleged illegality can be addressed by this Court.” 13 Second limb, I am not convinced by the submission of the respondent’s learned counsel that, due to the illegality occasioned by the trial tribunal this application should be dismissed. Thinking out of the box, the applicant first came to this court and an order was made to the trial tribunal with a time limit which even the respondent’s learned counsel concurs that, the tribunal did not respect hence occasioning illegality. By dismissing the application what gain will be achieved. Doing so in my view, the applicant will equally be punished for the mistake of the trial tribunal. The court is determined to dispense justice equally. Dismissing the matter will cause delay to the parties in enjoying the end results of the matter. Thus, the maxim: Justice delayed is justice denied comes into reality. In order to rectify the illegality and parties to get their rights, the proper order of this court for the interest of justice is to grant the application so that the illegality can be rectified by way of appeal and not dismissing the application. Therefore, for the foregoing reasons I am satisfied that, this court can use its discretionary power to grant an extension of time as I proceed to do. The application is granted and the applicant is hereby ordered to file his appeal within thirty (30) days from the date of the delivery of this ruling. I make no orders as to costs because the trial 14 tribunal contributed to the challenge before this court. For that reason, I will not punish the parties for an issue occasioned by the tribunal. It is so ordered. Right of appeal explained. DATED and DELIVERED MBEYA this 14th day of August, 2024. E. L. KAWISHE JUDGE 15