Godfrey

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA MISCELLANEOUS LAND APPLICATION NO.5137 OF 2024 (Arising from Land Application No.30 of 2019District Land and Housing Tribunal for Kagera) GEOFREY GRATIAN WINCHILAUS........................................ APPLICANT VERSUS YASINTA CLEMENCE (Administratrix of the Estate of the late CLEMENCE KALUKAMISA)............................................... RESPONDENT RULING 19.08.2024 & 20.09.2024 KIWONDE, J.: The applicant, one Geofrey Gratian Winchilaus filed an application by way of chamber summons supported by his affidavit praying for the court orders below: i. That this court extend time for the applicant to file appeal out of time in order to challenge the judgment issued on 17th January 2020 in Land Application No.3o of 2019 of the District Land and Housing Tribunal for Kagera for there are reasonable grounds for extension of time. i ii. Cost be provided. iii. Any other orders this honourable court will deem fit and just to grant. On due service on the respondent, she filed a counter affidavit refuting some facts deponed by the applicant and the matter became ripe for hearing. During hearing, Mr. Derick Zephurine, counsel for the applicant submitted that the application filed under section 41 (2) of the Land Disputes Courts' Act, Cap 216 (R. E 2019) and section 95 of the Civil Procedure Code, Cap 33 (R. E 2019) where the applicant seeks for grant of an order for extension of time to appeal out of time against the decision of 17/01/2020 in Land Application No. 30 of 2019 from the District Land and Housing Tribunal for Kagera. According to the learned counsel, the reasons for extension of time included technical delay. He argued that after the decision, the applicant on 24/05/2021 filed a Land Case Appeal No. 102 of 2020 in this court but it was accompanied by the defective decree. So, it was ordered that the decree be rectified and the appeal be refiled. The counsel went further to say the applicant's advocate informed him that he made followed up, the decree was rectified and the appeal was filed online and the same was in progress. 2 The counsel said the applicant was served with an application for execution, Application No. 30/2019, is when he knew that his advocate did not file any appeal in court. For all that time, the applicant was trying to make follow up, but due to difficulty with the electronic filing, he failed. Apart from that the counsel alleged illegality on reason is that the tribunal had no jurisdiction to entertain the matter. He said the respondent said the property belonged to the deceased, Clemence, so, the probate court was the one to determine if it was a deceased property or not. He referred this court to the decision in Maria Gabriel Mzaura and another Versus Magdalena Gabriel Mzaura, Land Appeal No. 62 of 2022 which referred to the case of Mgeni Seif. Therefore, it is not the land court to decide whether the property belonged to the deceased. He said the issue of jurisdiction touches the root of the case. Besides that, the counsel for the applicant submitted that the tribunal determined the suit which was time barred. He argued that the dispute arose from mortgage agreement of 1986. The applicant started living on the land since 2003 and Clemence Alukamisa was alive. The tribunal judgment decided that the loan was not shown to have been repaid. The applicant's grandfather died while owning the land and left it to the applicant. He cited the case of Verediana Ntale Versus Claudia Peter 3 Lwakabwa, Land Appeal No. 60 of 2Q23, High Court of Tanzania at Bukoba, in which it was held that the time available to sue is within six (6) years. So, this has to be determined in the appeal. Also, the counsel said the third reason was that the decision handed down while the evidence was not properly analysed. The tribunal decided that there was mortgage agreement between the deceased and the mortgagor. Furthermore, the learned counsel argued that there was irregularity in the proceedings. It is said that the acquisition of the property was by inheritance. So, illegality or point of law is a sufficient ground to grant extension of time, referring to the cases of Zainul Naushad Fazal Versus Zulfikal Pyall Shamj and another, Civil Application No.582 /04/2022 and Attorney General Z'bar Versus Laemthong Rice Co. Ltd and another, Civil Application No.729/15 of 2023. The counsel submitted that there are sufficient reasons for extension of time and so, the application be granted. In reply, Mr. Zeddy Ally, counsel for the respondent resisted the application and prayed the same be dismissed for failure to give sufficient cause. He argued that the applicant did not state where he was since 4 04/06/2021 when the decree was rectified, he has not said anything till 06/03/2024 when he sworn an affidavit. He said if the applicant instructed his counsel to make follow up, the said counsel would have been mentioned or his affidavit should have been filed in court. Short of that is a complete lie and under para 9 of the applicants affidavit, the applicant was served with the application for execution in 2023, but this fact differs with the fact in para 3, where he cited Land Revision No. 4339/2024 before Ngigwana, J. and that it is pending. The fact that these facts differ shows that this is lie. In law, the false affidavit should not be relied upon but strike it out. He cited the case of Ignation Masina Versus Willow Investment, Civil Application No. 21 of 2001, Court of Appeal of Tanzania at Mbeya, which sought approval in Bashir Ally's case. As to the jurisdiction of trial tribunal, time limitation and evidential weakness, the counsel argued that all of these are not on the face of record. The court must go in-depth, read the evidence and analyse to find them. In law, in Zainul case, illegality must be on the face of record. He cited for reference the case of Bashir Ally Versus Anyegile Andendekisye Mwamaluka and Zothers, Civil Appeal No. 49 of 2021. 5 The counsel for the applicant said there is an issue of the probate or deceased estates but the respondent was the administrator. This was not the issue and not determined by the tribunal. Also, the issue of mortgage entered in 1986, it is not so. This is a matter of evidence. The respondent complained of trespass by the applicant in 2016. Therefore, the dispute was on trespass. So, there is no issue of time barred. The counsel for the respondent was of the view that there are no reasons given for delay. It is more than two years of delay from the date the decree was rectified. He insisted the application be dismissed with cost. In his rejoinder submissions, Mr. Derick Zephurine, said the fact that the counsel made follow up is not deponed in the applicant's affidavit but not all matters can be deponed, others are to be argued in the course of hearing. He submitted that this application is different from that for revision since that one is challenging execution while this one is for extension of time to appeal out of time. The applicant knew that there was no appeal when he was served with application for execution. The cited case of Bashir Ally is distinguishable. Leave that alone, the counsel said the judgment of the trial tribunal is on mortgage and that the deceased owned the property. Thus, the probate 6 court is the one which is vested with jurisdiction to determine deceased property and if he paid the loan or not. These are on the face of records. He said the issue of jurisdiction will be determined in appeal since it was not determined by the trial tribunal. From the pleadings and the oral submissions, the main issue for determination is whether there is sufficient cause shown for the court to grant an order extending time for the applicant to lodge an appeal out of time. In law, the court can extend time for the applicant to appeal out of time if sufficient cause is shown. The court of record has held that what amounts to good or sufficient reason will depend on the circumstances of each case. However, the factors which the court takes into consideration before granting order extending time include; one, length of time of delay, two, reasons for delay, three, if the applicant was not diligent to pursue his rights, four, whether grant of the order extending period will prejudice the respondent and five, if the applicant can account for each day of delay, six, whether there is arguable case such as a point of law or illegality apparent on the face of record. These factors were enunciated in Lyamuya Constructions Company Ltd Versus Board of 7 Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010 [2011] TZCA 4 (3rd October 2011), Mohamed Salum Nahdi Versus Elizabeth Jeremiah, Civil Application No. 474/01 of 2016 [2017] TZCA 338 (8th June 2017) and Wambele Mtumwa Shahame Versus Mohamed Hamis, Civil Reference No.8 of 2016 [2016] TZCA 898 (12th October 2016). In this application, the applicant alleged illegality on reason that the trial tribunal had no jurisdiction to entertain the suit before it, rather, the probate court. I concur with the counsel for the respondent that the matter before the tribunal was on trespass onto the suit land and the respondent sued in the capacity of the administratrix of the deceased estates. The cause of action being trespass into land, the trial tribunal had jurisdiction to try the matter. In law, the administrator can sue or be sued on behalf of the deceased. This was stated in Beatrice Brighton Kamanga and another Versus Ziada William Kamanga, Civil Revision No. 13 of 2020 [2020] TZHC1428 (10th July 2020)- TanzLII therefore, had the issue of ownership arose in probate cause, then the same probate court hearing petition for letters of administration could determine if such properties belonged to the deceased or not. So, the case cited by the counsel for the applicant is distinguishable. 8 Besides that, on the issue of time limit, just as I have said that the cause of action before the tribunal did not arise from mortgage of the landed property, but it was on the trespass to land, thus, the limitation period is twelve (12) under item 22 of the Schedule to the Law of Limitation Act, Cap 89 (R. E 2019). Therefore, the matter was not time barred. This is not an error apparent on the face of record. Also, to argue that the evidence was not properly analysed, this is a matter of evidence which this court need to go deep down the evidence, which act renders the alleged illegality not apparent on the face of records. So, this argument does not hold water. As to the alleged technical delay, it is not in dispute that the Land Case Appeal No. 102/2020 was found defective and the decree was to be rectified. The period spent in court corridors prosecuting incompetent appeal is excluded when computing limitation period. This was a position in Geita Gold Mining Limited Versus Anthony Karangwa, Civil Appeal No.42 of 20 [2023] TZCA 14 (20th February 2023) TanzLII. However, the applicant must account for each day of delay from the time the decree was rectified to the filing of this application. The decree is said to have been rectified right from 04/06/2021. The application is of 6th March 2024. 9 In the affidavit in support of the application, the applicant blames the advocate, though not mentioned, that he lied him to have filed the appeal online while not. The applicant tried to show that he delayed to file the appeal due to difficulty in electronic filing in the then Judicial Statistical Dashboard System (JSDS2). Even a prudent ordinary person could not believe in this fact because that cannot persist for such long time without getting assistance. For that matter, the applicant was not diligent enough to pursue his rights and has not accounted for each day of delay. As a result, I find and hold that there is no sufficient cause shown for extension of time to appeal out of time. The application lacks merits and it is hereby dismissed with cost. Dated at Bukoba this 20th September 2024. 1 F. H. KIWONDE JUDGE 20/09/2024 Court: Ruling is delivered in chamber in the presence of Mr. Derick Zephurine counsel for the applicant, also holding brief of Mr. Zeddy Ally io for the respondent, the applicant and Grace Mutoka (RMA) this 20th September 2024 and the right of appeal is explained. 20/09/2024 ii