Misc land appl 22344 of 2024 scanned

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC.LAND APPLICATION NO. 22344 OF 2024 (Arising from the decision of the District Land and housing Tribunal of Kibaha in Land Application No. 206 of 2017 by Hon. H.E.Mwihava, Chairperson) GEOFFSON'S INVESTMENT LIMITED............................ 1st APPLICANT GEOFREY KAHWILI.......................................................... 2nd APPLICANT VERSUS LUSUNGU JAPHET MALEKELA (the Administrator of Estate Of the late TWILUMBA JAPHET MALEKELA)...... 1st RESPONDENT ALLY LOWELA............................................................... 2nd RESPONDENT RAJABU MAGANYIGE................................................... 3rd RESPONDENT SIJAONA PAZI.............................................................. 4th RESPONDENT RULING Date of order: 10/10/2024 Date of Ruting: 25/10/2024 A, MSAFIRI. J, The herein above applicants have brought this application under Section 41(2) of the Land Disputes Courts Act, Cap 216 R.E 2019 and Section 14 (1) of the Law of Limitation Act, Cap 89 RE 2019. They are seeking for the following orders: - 1. That this Honourable Court be pleased to extend time for the Applicants to file an appeal against the decision and orders of the District Land and Housing Tribunal for Kibaha i in Land Application No. 206 of 2017 delivered on 23/01/2024 by Hon. H.E.Mwihava. 2. That upon extending time, the Honourable Court be pleased to grant leave for the applicants to file appropriate appeal to the Honourable Court. 3. Any other relief this Honourable court may deem fit to grant. The affidavit in support of the application was sworn by Geofrey Godfrey Kahwili, the 2nd applicant who also stated that he is the Director of the 1st applicant herein. The application was opposed by the counter affidavit deposed by Lusungu Japhet Malekela, the 1st respondent. The 2nd and 3rd respondents did not file their counter affidavit as they were not contesting the application. The 4th respondent was exparte as he was served but was not traced. Hearing of the application was orally and it was between the applicants who were represented by Mr Tito Lwila, learned advocate while the 1st respondent was represented by Mr. Mbuga Emmanuel, learned advocate. Mr Lwila for the applicants was the first to submit whereby he prayed to adopt the contents of the applicant's affidavit. He said that the reasons for extension of time are in paragraph 4 of the affidavit. He said that the first reason for extension of time is that the delay was technical. That the applicants being aggrieved by the decision of the trial Tribunal, they 2 immediately filed an appeal which was Appeal No. 76 of 2023 in the High Court. That the appeal was assigned to Hon. Lyamuya ,PRM with extended jurisdiction. That the appeal was struck out after the preliminary objections which was raised by the respondents was sustained. The ruling on preliminary objection was delivered on 08/4/2024. The affidavit shows that the applicant made a follow up on getting copies of the ruling but it was on 19/4/2024 when the advocate for the applicant managed to collect the impugned ruling. That, since the time to file an appeal has already lapsed, the applicant filed an application for extension of time which was lodged online and received on 02/5/2024 and filed as Land Application No. 9671 and was assigned to Hon. Gwae,J. That following the technical error, the said application was withdrawn on 30/8/2024 with leave to refile. The advocate for the applicants submitted further that the second reason for extension of time is illegalities which are contained in the challenged decision of the trial Tribunal. That the illegalities are seen at paragraph 9 of the applicants' affidavit. The illegalities are that the decision contains evidence of witnesses who do not exists in the proceedings, the Chairperson of the trial Tribunal nullified Survey Plan No. E 354-370 and E 354/370 Block J Zegereni without ascertaining the legal powers to do 3 so and that the trial Tribunal proceeded with the matter without joining the administrator of the estate of the late Twilumba Japhet Malekela as a party. The advocate for the applicants stated that the two reasons are sufficient and prayed for the grant of extension of time. The Advocate for the 1st respondent Mr Mbuga vehemently opposed the application and in doing so, he prayed to adopt the contents of the counter affidavit. He submitted that the applicants have failed to show sufficient reasons for extension of time. He said that on the reason that the delay was caused by the late supply of the impugned ruling, there is no any letter which could have shown that the applicants wrote a letter seeking for requisite copy. Mr Mbuga argued that the allegations that the applicants were informed about picking the impugned ruling by the court clerk are not supported by the affidavit of the said clerk. That the clerk was not even named. He said further that the law requires the applicant to account for each day of delay which the applicants have failed to do so. That there is no any information from 04/9/2024 - 09/9/2024 before filing the application. On the reason of illegalities, Mr Mbuga argued that it is trite law that illegalities must be on the face of record not the one which entails long 4 drawn arguments. That the illegalities by the applicants does not pass this test as it calls for the court to go through the entire proceedings to see whether there are illegalities or not. He cited numerous cases to support his stance among them being the case of Salma Ally Mpalamsi vs Awadh Ally, Misc. Application No. 321 of 2020 and Kessynuru Mohamed Litam vs Said Urembo Mawamba, Misc. Application No. 27446 of 2023. He prayed for the dismissal of the application with costs. Mr Lwila reiterated his submission in chief and added that the applicants have accounted for each day of delay since the matter was struck out before Hon. Lyamuya. That the intention to appeal was prompt and within time. That the issue of the late supply of the requisite documents from Hon. Lyamuya's decision is made clear at paragraph 6 of the affidavit and the dispatch shows that the ruling was collected on 19/4/2024. He said that the cited cases by the advocate for the respondent are all persuasive and each is distinguishable from the instant matter. Having carefully gone through the rival submissions, the question for determination is whether the Application has merits. This Application is brought under Section 14 (1) of the Law of Limitation Act which states 5 ",.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 Advocate for the applicants, the reasons for the delay in fling the intended appeal within time are two, first; that they were delayed in getting requisite copy of the impugned ruling from the trial Tribunal and second, the illegalities. Af I t 6 It was submitted by the Advocate for the applicants that at the beginning, the appeal was filed on time but it was struck out by Hon. Lyamuya with extended Jurisdiction on the reason of nonjoinder of the parties. The applicants then intended to re file an appeal but since they were out of time, they had to seek for extension of time. The applicants said they were delayed by the court in getting the copy of the impugned ruling. Indeed, technical delay has always been sufficient reason for extension of time. Section 19 of the Law of Limitation of Time, Cap 89 R.E provides that the time used in getting the requisite copies necessary for the appeal shall be excluded in counting the time for delay. The Court of Appeal in the case of Alex Senkoro&3 others vs. Eliambuya Lyimo (as administrator of the estate of Frederick Lyimo, deceased), Civil Appeal No. 16 of 2017, CAT at DSM (unreported), elaborated more on this provision and held that for the provision of Section 19 of the Law of Limitation Act to apply, the applicant has to show the date on which the impugned judgment/ ruling was delivered, the date on which a copy of decree or judgment was requested and the date of the supply of the requested document. In the instant matter, the applicants stated at paragraph 6 of the affidavit that the impugned ruling was delivered on 08/04/2024 but the ruling was not ready for collection. That they were ordered to make follow up on the 7 ruling from 15/4/2024 and they were informed by the court clerk to go and collect the ruling on 19/4/2024 which the advocate for the applicants did. I have seen a photocopy of a part of dispatch book which shows that the advocate collected the ruling on 19/4/2024 but according to the principle set under the case of Alex Senkoro&3 others vs. Eliambuya Lyimo (as administrator of the estate of Frederick Lyimo,deceased) (supra), by the Court of Appeal, the applicant ought to have shown whether he requested for the requisite copies and the date on which he requested them. In the instant matter the applicants did not show whether they wrote a letter requesting for the copy and when was the letter written. A copy of dispatch showing that the ruling was collected is not enough to show that the applicants requested for the same. In addition, the claims that the court clerk informed the Advocate of the applicants that the ruling was ready is just hearsay since the court clerk is unknown and did not depone an affidavit to confirm the applicants7 claim. Therefore, I find that the reason of technical delay was not established. On the second reason of illegalities, I have read them at paragraphs 9 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. /L I 8 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; "...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 ofiaw 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 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. 1 9 By this analysis, I find that the applicants have failed to advance the good/ sufficient reasons for this court to exercise its discretion. It follows then that this application fails and it is dismissed with costs. 25/10/2024 10