CIVIL APPLICATION NO 38 17 OF 2023 FELIX CHANGWE BRUDER 4 OTHERS VS SAMIA SELENDA BIHENDO 3 OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 38/17 OF 2023 FELIX CHANGWE BRUDER (Administratrix of the Estate of the late Emmanuel Pala Pala Bruder) ................. 1st APPLICANT MAMA MFINANGA ....................................................................2nd APPLICANT MWAJUMA N DEGE.................................................................... 3rd APPLICANT EMMANUEL MSHANA................................................................ 4th APPLICANT MR. THOMAS ..............................................................................5th APPLICANT VERSUS SAMIA SELENDA BIHENDO................................................... 1st RESPONDENT SHABANI SELENDA M SUYA..................................................2nd RESPONDENT LONGI BISWADI M SUYA......................................................3 rd RESPONDENT OMARI BISWADI MSUYA (Administratrix and Administrator of the Estate of the late Biswadi Sefenda Msuya).............. 4th RESPONDENT (Application for Stay of Execution from the decision of the High Court of Tanzania (Land Division) at Dar es salaam) fChuaulu. DR.I Dated the 31st day of October, 2014 in Land Case No. 343 of 2009 RULING 6 hJune & 1st August, 2024 MAKUNGU, J.A.: On 31st January, 2023 the applicants took out a notice of motion made under Rule 10 of the Tanzania Court of Appeal Rules, (the Rules) praying for extension of time within which to file application for stay of i execution pending the intended appeal. In support of the application, the first applicant one Felix Changwe Bruder deposed and lodged an affidavit on behalf of the applicants. The application was strongly opposed by the respondents on their behalf an affidavit in reply made by Shabani Selenda Msuya, the second respondent. The factual background to this application and the justification for it are contained in the notice of motion and the supporting affidavit. Briefly, the applicants were defendants in the Land Case No. 282 of 2010 which was instituted by the late Bisward Salenda Msuya over the pieces of land which he bought from the 1st applicant and the case was determined on 29th August, 2014 and the late Biswadi was declared by the High Court to be the winner of the disputed land. Immediately after the judgment the applicants hires a new advocate who decided to file leave to appeal to the Court of Appeal via Misc. Land Application No. 20 of 2017 which was dismissed due to the negligence of their advocate who failed to take appropriate action by filing documents contrary to the law. Having had their application dismissed, the applicants on 22nd June 2021 decided to file application for extension of time so that they could apply for review of judgment of Land Case No. 282 of 2010, Misc. Land Application No. 299 of 2021. That application came to naught as the court struck it out because the affidavit of the applicants was not properly drawn and filed. Afterwards, the applicants re-approached the High Court yet again applying for extension of time (Misc. Land Application No. 455 of 2022) to file review of judgment of Land Case No. 282 of 2010 which was dismissed on 20th December, 2022. The applicants aggrieved by the decision of Land Case No. 282 of 2010 and they intended to lodge an appeal to this Court therefore they have already lodged a notice of appeal and now waiting to be supplied with the necessary documents so that they can prepare and file records of appeal. While they are waiting that process, the applicants were served with 14 days Demand Notice and Eviction Order requiring them to vacate from the disputed land. By this application, the applicants are seeking that eviction order to be stayed. At the hearing of the application, Mr. Sindilo G. Lyimo, learned advocate appeared for the applicants whereas Ms. Rita Odunga Chihoma, also learned advocate entered appearance for the 1st, 2nd. 3rd and 4th respondents. The 5th respondent who was duly served with notice of hearing did not appear. Having adopted the notice of motion and the affidavit in support of the application, Mr. Lyimo urged me to grant the application on the grounds that there was technical delay in this case which was good cause for condonation of the delay and that the Execution Case No. 22 of 2020 was determined exparte and the applicants were not given chance to be heard. He gave two reasons for this application to be granted, one is technical delay and second is illegality. On technical delay, he submitted that after the judgment of original case which is Land Case No. 282 of 2010 the applicants filed various applications but some of them struck out and some were dismissed for various reasons, which attributed to the delay. He requested me to make distinction between the technical delay caused by the process of the court and actual delay caused by the applicants. He cited the decisions of this Court in the cases of Fortunatus Masha v. William Shija [1997] TLR 154, Gabriel Mathias Michael and Another v. Halima Feruzi & 2 Others, Civil Application No. 588/17/2019 and Bank M (Tanzania) Ltd v. Enock Mwakyusa, Civil Application No. 520/18 of 2017 (both unreported). On the issue of illegality, Mr. Lyimo submitted that the applicants were robed their right because they were not summoned to appear before the court to defend themselves, therefore their right to be heard was rejected and the order was given ex-parte. For this reason the applicants have good cause to be enlarged time to file their application for stay of execution. He cited the case of Constantine Victor John v. Muhimbili National Hospital, Civil Application No. 214/18 of 2020 (unreported). He prayed the application be granted. On the other hand, Ms. Chihoma having adopted the affidavit in reply, argued that the application failed to disclose any good cause for the delay and that it ought to be dismissed with costs. She pointed out that the applicants failed to account the delay from 3rd August 2018 when application No. 20 of 2017 for extension of time was dismissed for lack of merit until 31st January 2023 when this application was filed. She submitted that the authorities cited above by the applicants' counsel do not support the application. On the issue of procedural illegality, she submitted that there was no such illegalities in this case. The applicants refused to receive summons to appear before the court and they came out after the broker notified them to evict from the premises. She prayed the application to be dismissed with costs. Before dealing with the substance of this application in the light of the competing submissions, it bears restating that although the Court's power for extending time under rule 10 of the Rules is both broad and discretionary, it can only be exercised if good cause is shown. Even though it may not be possible to lay down an invariable definition of the phrase "good cause" so as to guide the exercise of the Court's discretion under rule 10, the Court invariably considers factors such as the length of the delay, the reason for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether the applicant was diligent, whether there is point of law of sufficient importance such as the illegality of the decision sought to be challenged: (See, for instance, this Court's unreported decisions in Dar es salaam City Council v. Jayantilal P. Rajani, Civil Application No. 27 of 1987; Jangu Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001; Eliya Anderson v. Republic, Criminal Application No. 2 of 2013; and William Ndingu @ Ngoso v. Republic, Criminal Appeal No. 3 of 2014). I have given due consideration to all the material on the record in the light of the submission of the parties. The question that I have to determine is whether there is good cause for condonation of the delay. It is common ground that the applicants duly lodged their joint Notice of Appeal on 1st September, 2014 following the plaintiff - Biswadi Selenda Msuya winning his case in the High Court on 29th August, 2014. Subsequently, they duly applied to the Court for a stay order vide Civil Application No. 169 of 2017 but that application was struck out on the reason that the affidavit in support of the notice of motion was problematic. Afterwards, the applicants re-approached the High Court yet again applying for leave to appeal (Misc. Land Application No. 20 of 2017) but that effort proved futile as it was dismissed on 3rd August, 2018. On 22nd June, 2021 the applicants decided to file an application for extension of time so that they could apply for review of Judgment of Land Case No. 282 of 2010 via Misc. Land Application No. 299 of 2021, but that application was struck out on 27th July, 2021 because the affidavit of the applicants was not properly drawn and fifed. Thereafter, the applicants filed Misc. Land Application No. 352 of 2021 to be granted extension of time to lodge an application for review against the decision of the High Court in Land Case No. 282 of 2010. That application was dismissed on 20th December, 2022. The applicants have now come to the Court seeking for extension of time to fiie application for stay of execution in Execution No. 22 of 2020 which originated from Land Case No. 282 of 2020. The application was filed on 31st January, 2023. Admittedly, the delay between the date when the High Court's decision sought to be appealed against was handed down (that is, 29th August, 2014) and the termination of the application for extension of time by the High Court on 3rd August, 2018 could be hold to constitute an excusable delay. For that delay arose from the time the applicants spent in the corridors of the High Court and this Court in a pursuit of justice in good faith. Nonetheless, I find justification in the respondents' criticism of the applicants' explanation of the delay in respect of the period after 3rd August, 2018. My opinion is that, while the applicants filed other applications, they could file the second bite before this Court within 14 days but they took no action from that time until 31st January, 2023 when they lodged this application waited for over four (4) years to come to this Court. The explanation offered for the delay in this period is plainly hollow and unexceptable. I would add also the period when the last application No. 350 of 2021 was dismissed on 20th December, 2022 it took them 40 days until 31st January 2023 when they lodged this matter. On the whole, the period between 3rd August, 2018 and 31st January, 2023 is, in my view, not fully accounted for. There is no denying that the delay involved was so inordinate. It is settled that in an application for enlargement of time, the applicant has to account for every day of the delay: see, for example, the unreported decisions of this Court in Bushiri Hassan v. Latifa Mashayo, Civil Application No. 2 of 2007; Bariki Israel v. Republic, Criminal Application No. 4 of 2011; and Sebastian Ndaula v. Grace Rwamafa (Legal Representative of Joshwa Rwamafa), Civil Application No. 4 of 2014. In the circumstances, I reject the applicants' explanation of the delay involved as technical delay and hold them to have failed to account for each and everyday of the delay. The above finding takes me to the second aspect of the justification for the application that have time be extended on the ground that the Execution Case No. 22 of 2020 was determined ex-parte and the applicants were not given a chance to be heard, thus is vitiated by illegalities. This is stated in paragraph 10 of the affidavit of the applicants. I wish to remark, at this point, that it is settled jurisprudence of the Court that where a point of law involved in the intended appeal is a claim of the illegality of the impugned decision, that in and of itself constitutes a good cause for the Court to extend the limitation period involved. The earliest decision of the Court on this point was Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] TLR 185. It held, at page 189, as follows: 9 "We think that, as here, the point o f iaw a t issue is the illegality or otherwise o f the decision being challenged, that is o f sufficient importance to constitute '!sufficient reason' within the meaning o f rule 8 o f the Rules [now rule 10 o f the New Rules] for extending time. To hold otherwise would amount to allowing the garnishee order to rem ain on record and to be enforced even though it m ight very w ell turn out that order is, in fact a n ullity and does not exist in iaw. That would not be in keeping with the roie o f this Court whose prim ary duty is to uphold the rule o f law ." More recently, in Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), a single Justice of the Court elaborated that: "Since every party intending to appeal seeks to challenge a decision either on point o f iaw or fact, it cannot in my view, be said that VALAMBHIA's case, the Court meant to draw a genera! rule that every applicant who demonstrates that his intended appeal raises points o f iaw should as o f right be granted extension o f time if he applies for one. The Court there emphasized that su ch p o in t of la w m u st be th a t "o f s u ffic ie n t 10 im p o rta n ce " and, I w o u ld a d d th a t it m u st b e a p p a re n t on th e fa ce o f th e re co rd , su ch a s th e q u e stio n o f ju ris d ic tio n , n o t one th a t w o u ld be d isco v e re d by lo n g d raw n a rg u m e n t o r p ro c e s s " [Em phasis added] Subscribe, unreservedly, to the above position. Applying the above settled position to the instant application, I have no difficult in holding that the applicants' claim that they were not given chance to be heard is nothing but an unsubstantiated complaint, As argued by the respondents' counsel that the applicants were accordingly served by way of publication via Mwananchi Newspaper of 16th July, 2020 upon the applicants' refusal to appear in court even after being served by attaching summons on the suit premise. The argument is supported by the statement of Deputy Registrar Chugulu in her ruling of the said Execution No. 22 of 2020 at page 2 when she said: "Despite o f employment o f various efforts to procure the attendance o f the Judgm ent debtors include by way o f publication via Mwananchi gazette dated on 16/07/2020 a t page 25 the judgm ent debtors could not be procured attendance a t all. A s a result, the application was proceeded in the absence o f the judgm ent debtors." ii In the upshot, it is my finding that this matter discloses no good cause for the Court to exercise its powers to enlarge time. Accordingly, I dismiss this application in its entirety with costs. DATED at DAR ES SALAAM this 30th day of July, 2024. 0. 0. MAKUNGU JUSTICE OF APPEAL The Ruling delivered this 1st day of August, 2024 in the presence of Ms. Denetria Daniel, learned counsel for the 1st to 4th Respondents also holding brief of Mr. Sindilo Lyimo, learned counsel for the Applicants, in the absence of the 5th respondent, is hereby certified as a true copy of t 12