Ruling 1

1|Page IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB REGISTRY AT GEITA MISC. LAND APPLICATION NO. 7743 OF 2024 (From Land Appeal No. 44 of 2019 of the District Land and Housing Tribunal for Geita, Originating from Land Case No. 02 of 2019 from Bung’wangoko Ward Tribunal) GEORGE LUFULWALUNJA AND 6 OTHERS…………………………. APPLICANTS VERSUS AMOS LUZARI (Administrator of the estate of Luzari Kasoso) ………RESPONDENT RULING Date of last order: 30/04/2024 Date of Judgment 10/05/2024 MWAKAPEJE, J.: The Applicants herein have approached this Court to request an extension of time within which to file an appeal out of time. The application is made under section 14(1) of the Law of Limitation Act, Cap. 89 R.E. 2019 through a chamber summons supported by the Applicants’ affidavit. This application pertains to a land ownership dispute between the parties, which both claim to have purchased in 1964 over seven heads of cow. In 2019, the Bung’wangoko Ward Tribunal decided the dispute in favour of the Applicants. However, the Respondent appealed to the Geita 2|Page District Land and Housing Tribunal, leading to a decision in his favour. The Applicants were dissatisfied with the outcome and sought to appeal, only to realise they were out of time, hence the current application. The reasons for the delay in filing their appeal within the stipulated timeframe, as articulated in their affidavit, were primarily attributed to several factors. Among these, some of the appellants tended to their ailing relatives, who unfortunately passed away during that period. Additionally, they assert that they were not afforded an opportunity to be heard in the Ward Tribunal. During the oral hearing of the application, the Applicants were in the care of Mr Shija Jeremia, a learned advocate, while Mr Paul John Hombo, a learned advocate, represented the Respondent. Mr Shija contended that the Applicants' rights to a fair hearing, as delineated in Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, were breached. To fortify his argument, he cited the case of David Mushi v. Abdallah Msham Kitwanga (Civil Appeal 286 of 2016) [2022] TZCA. Furthermore, he asserted that the remaining six Applicants were deprived of a hearing, as substantiated by the Ward Tribunal's decision on page 3. He maintained that any allegation of such a denial necessitates scrutiny by the higher court, echoing what was articulated in the case of Laurent Simon Asenga v. Joseph Maboso and Others, 3|Page Civil Application No 50 of 2016. Additionally, Mr Shija highlighted the controversy surrounding the District Land and Housing Tribunal's ruling, which nullified the Ward Tribunal's proceedings, rendering the evidence therein void, despite its crucial role in favouring the Respondent's case. Moreover, Mr Shija contended that the Applicants lacked locus standi to represent the deceased's estate, given their non-administrator status, in accordance with section 16 of the Probate and Administration of Estates Act, Cap 352. He supported his assertion by the case of Swalehe Juma Sangawe & Another v. Halima Swalehe Sangawe (Civil Appeal 82 of 2021) [2022] TZCA 595. Conversely, Mr. Paulo John, representing the Respondent, contested the assertion that the Applicants were denied a hearing. He argued that the Applicants designated Saa Kumi Buswelo (the Second Applicant) as their representative, thereby suggesting that no illegalities or irregularities occurred in the proceedings before the Geita District Land and Housing Tribunal. Regarding locus standi, Mr John asserted that the Applicants were regarded as encroachers on Luzeri Kasoso's property, justifying the Respondent's legal action against them. He emphasised, nonetheless, that any contentions regarding their status as administrators should be raised 4|Page in due course. Additionally, he argued that the case of Juma Sangawe (supra), invoked by the Applicants, does not pertain to the circumstances of this case. Concerning the claim of illness causing their delay, Mr Paul asserted that no evidence had been submitted to substantiate the Applicants' purported ailments or the reported loss of one applicant's husband, given the absence of medical documentation or death certificates. He criticised the Applicants for opting to involve themselves with politicians rather than pursuing an appeal, especially considering the execution of the Geita District Land and Housing Tribunal's ruling by the Respondent, during which they had ample opportunity to do so. He additionally stated that 417 days have transpired since the initiation of the application before this court up to the present moment. Yet, the Applicants have failed to provide an account for each day of delay. In support of his stance, he cited the cases of Senoil Limited vs Mwanza City Council & Another, Misc. Application No. 220 of 2015, TZHC (Unreported) and Geita Gold Mine Limited vs Eliudy Gichaine (Misc. Labour Application 36 of 2021) [2021] TZHC 6440 (27 September 2021). Consequently, he prayed for the dismissal of the application on grounds of insufficient justification for the delay. 5|Page In his rejoinder, Mr. Shija contested the assertion that the Applicants collectively appointed a representative, underscoring that only the second applicant was afforded a hearing. He also rebuffed the claim that they had been heard in the District Land and Housing Tribunal (DLHT), contending that the DLHT's focus was solely on determining grounds for appeal, disregarding the raised issue. Furthermore, he underscored the validity of assertions pertaining to illness and the demise of a spouse, substantiated by available evidence. Mr. Shija argued that raising a jurisdictional point of law could be undertaken at any juncture of the proceedings. He stressed that the presence of illegality on record is pivotal in considering extending the time. From the contrasting arguments presented by the counsels for the parties herein, I am entrusted with assessing and determining whether the Applicants have satisfactorily demonstrated sufficient cause warranting an extension of time, as outlined within the confines of section 14 of the Law of Limitation Act. Section 14 explicitly stipulates that: “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 for the execution of a decree, and an application for 6|Page such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application.” [Emphasis supplied] Derived from the verbiage of the aforementioned section, it falls upon an individual applying for an extension of time to present compelling and justifiable reasons for the court to invoke its discretionary powers. This stance has been reiterated consistently across an array of judicial decisions. For instance, in the case of Osward Masatu Mwizarubi vs Tanzania Fish Processing Ltd, Civil Application No 13 of 2010 (Unreported), while referring in approval to the case of Ratman vs Cumara Samy (1965) 1 WLR 10, it was articulated that: “The rules of court must be obeyed, and in order to justify a court extending the time during which some step in the procedure requires to be taken, there must be some material upon which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time, which would defeat the purpose of the rules, which is to provide a timetable for the conduct of litigation.” [Emphasis supplied]. Now sufficient cause was well articulated in the case of Yusufu Same & Another vs Hadija Yusufu (Civil Appeal No. 1 of 2002) [2006] TZCA 141 (20 October 2006), when it was observed that: “…………….it should be observed that sufficient cause should not be interpreted narrowly, but should be given a wider interpretation 7|Page to encompass all reasons or causes which are outside the applicant’s power to control or influence resulting in a delay in taking any necessary steps.” [Emphasis Supplied] In accordance with the stance above delineated, the District Land and Housing Tribunal for Geita pronounced its decision on 17th February 2023. Subsequent to the delivery of said decision until the filing of the present application before this court on 9th April 2024, a span of 416 days has transpired. The Applicants have asserted that their failure to appeal within the requisite time was attributable to the exigency of caring for one of their number's ailing spouses, whose demise ensued. Regrettably, notwithstanding this assertion, no corroborative evidence has been tendered in substantiation thereof, disregarding the obligation for such evidence to be provided in court as far as section 110(1) and (2) of the Evidence Act, Cap 6 R.E. 2019 is concerned. The said section provides that: “110. (1) Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 8|Page I do not agree with Mr Shija in this application that there is any evidence provided to that effect. Furthermore, it remains undisclosed whether each and every one of the Applicants assumed the responsibility of caregiving for the aforementioned ailing individual who subsequently died. It is a trite law that reasons for delay, even a single day, must be accounted for. In the case of Bushiri Hassan vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported), it was articulated that: "Delay, of even a single day, has to be accounted for; otherwise, there would be no point of having rules prescribing periods within which certain steps have to be taken." [Emphasis supplied] In my considered opinion, in this application, no external factors beyond the petitioners' purview obstructed their ability to pursue an appeal, particularly given their collective status and potential access to legal services, inclusive of legal aid. In alignment with the stance articulated by the counsel for the Respondent, I concur that the Applicants failed to proffer a satisfactory account for the 416-day delay as required in granting an application to a person seeking an extension of time within which to appeal out of time. 9|Page However, as cogently advanced by the counsel for the Applicants, a point of law such as illegality may invoke the court's discretion to extend the period of limitation in order to put the matter and record right: See the case of the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185 and Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011). Furthermore, the said point of law is circumscribed to issues pertaining to jurisdiction, limitations, and the right to be heard, as illustrated in the case of Charles Richard Kombe vs Kinondoni Municipal Council (Civil Reference No. 13 of 2019) [2023] TZCA 137 (23 March 2023). Additionally, for illegality to constitute justifiable cause, it must be manifest on the face of the record, as illuminated in the case of Modestus Daudi Kangalawe vs Dominicus Utenga (Civil Application 139 of 2020) [2021] TZCA 560 (1 October 2021), while referring to the case of Lyamuya Construction Co. Ltd (supra), wherein it was held that: “…….every applicant who demonstrates that his intended appeal raises points of law should as of right be granted an extension of time if he applies for one. The Court there emphasised that such a point of law must be 'of sufficient importance' and, I would add that it must be apparent on the face of the record, such as the question of jurisdiction, 10 | P a g e not one that would be discovered by long drawn argument or process.” [ Emphasis supplied] In the present application, the Applicants asserted in paragraph 10 of their Affidavit that they were not accorded a fair hearing since their right to be heard was curtailed, apart from one, i.e. the second Applicant in the Ward Tribunal. Looking at the proceedings and decision of the Ward Tribunal, all the Applicants are named therein. However, on page 9 of the Ward’s proceedings, it is recorded thus: “Upande wa wadaiwa msemaji aliteuliwa Saa Kumi Buswegu naye alisema………” {Emphasis supplied] Based on the verbiage delineated herein, it is evident that Saa Kumi Buswegu assumed the role of a spokesperson rather than a legal representative in the litigation in the Ward Tribunal. Nowhere is it indicated that he was designated to act as their legal proxy. Had he been appointed as such, it would likely have been explicitly stated at the onset of the Ward Tribunal’s proceedings. Consequently, it is discernible that the Applicants were not accorded an audience in the Ward Tribunal. Therefore, I dissent from Mr. John's assertion that the Applicants were afforded a fair trial. Based on the preceding, I ascertain no necessity to explore accompanying concerns articulated by the counsels for parties. It is