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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISC. CIVIL APPLICATION NO. 41 OF 2024 (From DC Civil Appeal No. 16 of 1998 originating from Civil Case No. 27 of 1996 of Resident Magistrate Court at Mbeya) ESTHER CHAKUPEWA…………….....……………..………APPLICANT

VERSUS AMASHA MPENZI.……..……..………………………..1ST RESPONDENT JOHN CHAKUPEWA…………………………….…….2ND RESPONDENT

RULING Date: 2 May 2024 & 15 July 2024 SINDA, J.: The applicant brought this application under Section 14 (1) of the Law of Limitation Act, Cap 89 R.E 2019 (the LLA) and Order XLII Rule 1 of the Civil Procedure Code, Cap 33 R.E 2019 (the CPC). The brief facts of the case are that the applicant and the second respondent were husband and wife. They rented their house situated at Plot No. 7, Block 1 A, Mkwajuni Urban Area, Chunya District (the Disputed Property) to the first respondent. The second respondent sold the Disputed Property to the first respondent without the consent of the applicant. The applicant challenged the sale in a civil suit before the Resident Magistrate’s Court at Mbeya. That court found that the Disputed Property was not a matrimonial house and it dismissed the suit. The applicant appealed to the High Court which allowed the appeal and directed that the first respondent was entitled to unexhausted improvements on the Disputed Property. On 19 February 2009, the Deputy Registrar of the High Court (the Deputy Registrar) wrote to the District Executive Director (DED), Chunya District Council to appoint a valuer to conduct a valuation of the Disputed Property (the Letter). The valuation was conducted showing the replacement value of the Disputed Property to be TZ 20,400,000/= (the Valuation Report). The amount was to be paid to the first respondent by the

applicant and the second respondent. The applicant alleged that unexhausted improvements made by the first respondent was of the value of TZS 4,500,000/=. The Deputy Registrar’s letter for the valuation of the house became a subject of another litigation in Misc. Civil Application No. 10 of 2013 seeking for extension of time to apply for review and review itself. Ngwala, J granted 2 the extension of time for review. Makaramba, J dismissed the application for review. Aggrieved, the applicant successful filed the application for revision at the Court of Appeal of Tanzania (the CAT) in Civil Application No. 523/06 of 2019. The CAT dismissed Misc. Civil Application No. 10 of 2013. The applicant, then filed this application for extension of time to apply for review and review itself. The applicant, in her application, prays for the following orders: (a) This Honourable Court may be pleased to extend the time for the applicant to file an application for Review before this Court. (b) This Honourable Court be pleased and review an order of this Honourable Court dated 19 February 2019 delivered by the Honourable District Registrar (DR) as it is inconsistent with the Decree of your Honourable Court dated 27 October 2000. (c) Any other relief(s) this Honourable Court may deem fit to grant. The hearing was by way of written submissions. The applicant was represented by Mr. Boniface

Mwabukusi, learned counsel while the first respondent enjoyed the services of Mr. James Berdon Kyando, learned counsel. 3 The chamber application is duly supported by an affidavit sworn by the applicant. Mr. Mwabukusi adopted the chamber summons and applicant's affidavit as part of his submission. In his submission in chief, Mr. Mwabukusi submitted that this is an omnibus application. The first application is for the extension of time for the applicant to file an application for review before this court pursuant to section 14 (1) of the LLA. The second application is for review of the order of this honourable court dated 19 February 2009 as per Order XLII Rule I of the CPC. Mr. Mwabukusi argued that after the prayer for an extension of time has been accepted, this honourable court should review its decision and subsequent orders. He cited the case of Justine F. Bufure versus Haji R. Mwikalo, Civil Appeal No. 292 of 2023 to support his argument. In relation to the first prayer for extension of time to file an application for review, Mr. Mwabukusi relied on the ground of illegality. The counsel argued that in the judgement of this court in DC Civil Appeal No. 16 of 1998 originating from DC Civil Case No. 27/1996 (Annexure ET-1) (the Judgment) the valuation was supposed to be done on the unexhausted 4 improvements made on the Disputed Property. However, the Letter by the Deputy

Registrar directed otherwise. Instead of conducting a valuation on the unexhausted improvement made to the Disputed Property, the valuer conducted a valuation of the entire Disputed Property. He additionally submitted that this is a serious illegality as the Letter by the Deputy Registrar was not in accordance with the court’s Judgment. As a result, it denied the applicant the right to enjoy the fruits of the judgment. He further stated that the illegality suffices to warrant the extension of time for the applicant to file an application for review. He cited the cases of Nassoro Abubakar Khamis & Another versus Wakf and Trust Commission Zanzibar and Another, Civil Appeal 245 of 2020 [2021] TZCA 736 and Principal Secretary Ministry of Defense and National Service vs. Devram Valambia (1992) T. L.R 185 to support his argument. Mr. Mwabukusi further contended that in Civil Application No. 523/06 of 2019, the CAT quashed the decision of this court in Misc. Application No. 10 of 2013. He argued that the ruling was served to the applicant on the afternoon of 15 December 2023. Saturday and Sunday were not working days. They prepared the application on Monday, 18 December 2023. That is 5 where the two-day delay resulted from. To support his argument, he cited the case Lyamuya Construction Company Ltd versus Board of Registered Trustees of Young Women’s Christian Association of Tanzania,

Civil Application No. 2 of 2010 (Unreported). The counsel maintained that since there is sufficient ground to extend time, this honourable court should proceed to review the Letter by the Deputy Registrar as it is inconsistent with the decree of this Court dated 27 October 2000 in DC Civil Appeal No. 16 of 1998 (the Decree). To support his argument, he cited the case of Mary Rwabizi T/A Amufa Enterprises versus National Microfinance Bank PLC, Civil Appeal No. 378/01 of 2019. In his reply, Mr. Kyando claimed that the first prayer on the extension of time that is inconsistent with the requirement of section 14 (1) of the LLA. He submitted that according to Lyamuya Construction Company Ltd (supra), the applicant should account for each day of delay. The applicant alleges to have been served with a copy of the ruling of the CAT in Civil Application No. 523 of 2019 in the afternoon of 15 December 2023. He further argued that the applicant stated that it took only two days to prepare 6 the application but in the applicant affidavit and submission did not disclose the exact date that this application was filed in court. He added that non-disclosure of the exact date of filling of the application is equal to non-accounting of each day of delay. He thus pleaded the court to ascertain when the application was filed and to assess whether the number of days have been accounted for from the

date of preparing and signing the documents that is 18 December 2023 as laid in Lyamuya Construction Company Ltd (supra) and Bushiri Hassan versus Latifa Lukio Mashao, Civil Application No. 3 of 2007 cited by the Court of Appeal in Henry Jalison Mwamlima versus Robert Jalison Mwamlima and 2 Others, Civil Reference No. 1004/06 of 2023. Furthermore, Mr. Kyando reasoned that under Section 14 (1) of the LLA, the law provides that an extension of time may be granted upon reasonable or sufficient cause being shown. This duty was failed by the applicant as she did not account for each day of delay. Submitting on the second prayer, Mr. Kyando stated that the applicant prayed for review of the Letter by the Deputy Registrar for being inconsistence with the Decree. He argued that what is prayed in the chamber 7 summons is not supported by any of the paragraphs in the applicant’s affidavit. He added that as per the applicant affidavit on paragraphs 3, 4 and 5 the Letter by the Deputy Registrar was in line with the Judgment and the Decree and section 2 of the Land Act Cap 113, R.E.

2019. He stated that the applicant should have challenged the Judgment instead of challenging the Letter by the Deputy Registrar and the Valuation Report. Moreover, Mr. Kyando was of the view that the instant application is not in line with the requirements set in Order XLIII Rule I of the CPC on the powers of registrars which does not involve correspondence letters that play an administrative role and does not play an adjudicative role to warrant review. He added that the cases of Mary Rwabizi T/A Amufa Enterprises (supra), Nassoro Abubakar Khamis (supra) and Principal Secretary Ministry of Defense and National Service (supra) are all distinguishable from the matter at hand. In his rejoinder, Mr. Mwabukusi submitted that the counsel for the first respondent did not address the issue of illegality. He added that failure to counter on the same equals to admission. He stated that both the applicant’s submission and affidavit have accounted for each and every day of delay in accordance to the case of Lyamuya Construction Company Limited 8 (supra). Thus, the submission made by the first respondent that the applicant failed to account for all days delayed is misconceived. On the second prayer, Mr. Mwabukusi reiterated what was submitted in the examination in chief and his affidavit. He stated that there was a contradiction between what the court ordered and the Letter from

the Deputy Registrar to the DED. He added that the applicant has tried different means to challenge the Letter but in vain. I have considered the submissions of the learned counsels for both parties. On the first prayer, the applicant pleaded with this court to extend the time to file an application for review. The applicant’s affidavit contains two reasons for the extension of time i.e. illegality and technical delay. The first issue for my deliberation is whether the applicant advanced good cause for the court to exercise its discretionary power to extend the time within which to file an application for review. It is settled law that the court can only grant an extension of time if the applicant shows sufficient cause. Section 14 (1) of the LLA states that: “14 (1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application 9 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.” The court has in a number of cases expressed factors to be considered in assessing whether the reasons given are sufficient. See: Lyamuya Construction Company Limited (supra). The question is whether the applicant’s grounds

are sufficient for this court to exercise its jurisdiction to extend time. The applicant raised claim of illegality that there is serious illegality that the Letter by the Deputy Registrar contradicted the Decree. The applicant further stated that the illegality suffices to warrant the extension of time for the applicant to file an application for review. It is settled that, the presence of illegality on the face of the decision sought to be challenged constitutes a sufficient reason for the extension of time even where a delay was not accounted for. In the case of Principal Secretary Ministry of Defense and National Service (supra), it was 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 (now 10 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”. In this instance the claim of illegality is on the Letter by the office of the Deputy Registrar and not on the decision of this court. It is evident that the applicant is challenging the Letter by the Deputy Registrar and not the Judgment or Decree of this court. In my view, the claim of illegality does not suffice in this application to grant an extension of time because the illegality is on the Letter by the

Deputy Registrar and not the decision of this court. In addition, Order XLII clearly states that review lies from (i) by a decree or order which an appeal is allowed, but no appeal has been preferred and (ii) by a decree or order from which no appeal is allowed. Therefore, in my opinion, the Letter by the Deputy Registrar is an administrative action to effect the Decree of the court. The Letter it not an order, judgment or decree of this court to warrant a review. As such there is no order that can be reviewed under Order XLII Rule 1 of the CPC. Order XLII Rule 1 of the CPC states that: 1.-(1) Any person considering himself aggrieved- 11 (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which passed the decree or made the order. Further, Order XLVII defines review as a court reconsidering its own judgment to

prevent miscarriage of justice. The applicant is not challenging any mistakes apparent from the record on the Judgment. Instead is challenging mistakes or illegalities on the Letter. In my opinion the Letter does not warrant a review by this court. Therefore, in this matter, even if time is extended, the applicant will go nowhere for reasons advanced above. In the case of Reuben Lubanga vs Moza Gilbert and 2 Others, Civil Application No. 533 of 2021 the CAT observed that: 12 It is equally the law that, in deciding whether or not to grant an extension of time, the Court should not limit itself to the delay. Instead, it has to consider as well the weight and implications of the issues involved in the intended action and whether the same is prima facie maintainable. This is because, the order being equitable, it cannot be granted where it will serve no purpose or where it is a mere abuse of the court process. Thus, even if the application is granted will serve no purpose because this court has no mandate to review a Letter by the Deputy Registrar under Order XLII of the CPC. It is clear that the applicant has no issue with the Decree and Judgment of the court but the Letter by the Deputy Registrar. In my opinion, if there is any error in the Letter of the Deputy Registrar, that can be corrected administratively by the Deputy Registrar and not through adjudicative processes. For

the above reasons, I will not proceed to discuss on the second ground for extension of time that is technical delay. Consequently, the application for extension of time to file an application for review is hereby dismiss. The applicant, if wishes to pursue the matter further, could do so by following the procedure as provided by the law and liaise with the Deputy Registrar to rectify the Letter. 13 In conclusion, this court is not persuaded by the arguments of the applicant in the first prayer herein. Thus, I will not proceed to deliberate on the second prayer of review. No order as to costs. Dated at Mbeya on this 15 day of July 2024. A. A. SINDA

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