IBRA GENERAL

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA DISTRICT REGISTRY AT DODMA MISC. LAND APPLICATION NO. 88 OF 2021 (Arising from the District Land and Housing Tribunal for Dodoma in Land Application No. 132 of 2014) IBRA GENERAL ENTERPRISES TANZANIA LTD.............. APPLICANT VERSUS ALFANI KWEKA....................................................................................FIRSTRESPON KILIAN MWANJEKA....................................................................... SECONDRESPON ELIA ATHUMAN...................................................................................THIRDRESPON CHARLES VALIRA............................................................................ FOURTHRESPON ADAM SELEMAN................................................................................... FIFTHRESPON ANNA MUHOKOLE............................................................................... SIXTHRESPON RULING Last order: 8th April, 2024 Ruling: 3rd May, 2024 MASABO, J.:- In this miscellaneous application, leave is sought for enlargement of time within which the applicant can file an appeal out of time challenging the judgment and decree in Land Application No. 132 of 2014 before the District Land and Housing Tribunal for Dodoma. The application has been preferred under section 41 (1) and (2) of the Land Dispute Courts Act, Cap 216. Bracing the chamber summons is an affidavit deponed by the applicant in which the grounds of the application are deponed. Page 1 of 9 The abbreviated deposition made in the affidavit is to the effect that the applicant bought a parcel of land identified as Institutional Plot No. 132 Block Medeli East, Dodoma Municipality (the suit land) in which the respondents claim to have an interest which entitles them to compensation. An assessment was done to ascertain the payable compensation but its outcome enraged the respondents. They instituted Application No. 132 of 2014 disputing the compensation. The tribunal ordered the applicant to pay the respondent the assessed compensation. The respondents were unhappy. They appealed to this court in Land Appeal No. 34 of 2020. The appeal was allowed on the reasons that the opinion of the assessors was not read to the parties. This was on 21st May 2022. The appeal was subsequently remitted back to the trial tribunal which was ordered to have the opinions read before the parties and to compose a fresh judgment. Thereafter, the applicant was never notified the date of reading of the opinion. After one year, she was summoned on 12th October 2023 for execution purposes. This alerted and prompted her to look for the judgment and decree. After obtaining them she filed this application for extension of time. The respondent objected the application by filing a counter affidavit. The application was disposed of by way of written submissions. The applicant's submission was drawn and filed by Ms. Josephine Mzava Paulo, learned Advocate whereas the submission by the respondent was drawn and filed by Mr. Victor Mwakimi, learned Advocate as well. Page 2 of 9 Submitting in support of the application, Ms. Mzava argued that the application has merit as the delay was not occasioned by the applicant's negligence. She argued that the applicant was never summoned to appear to the DLHT when the matter was scheduled for reading of the opinion of assessors and when the judgment was read despite his follow-ups for almost one year from the date this court ordered the reading of opinion of assessors and the date of composition and delivery of the fresh judgment. She added that the summons attached to the counter affidavit purporting to prove that the applicant was served shows that it was issued on 11th October 2022 whereas the judgment was delivered on 14th July 2023. Thus, they are not related. She argued further that the affidavit of service is also faulty as it shows that it was sworn by one Kulwa Mazengo Masimba, Street Chairman of Amani, Tambukareli before himself and not before the Commissioner for Oath as required by law. Also, the suit land is located at Medeli East Dodoma Municipality and not at Amani Street, Tambukaleli where the summons was purportedly served. Also, she submitted that the summons appended show that the process server did not serve the applicant. Rather, he phoned her and sent her messages through mobile phone but did not get a response meaning that the summons was not received and the applicant was never summoned. Thus, he was not aware of the date when the opinion was read. It was argued further that the opinions of assessors are supposed to be read out to the parties as it was stated in the case of Sikuzani Said Magambo and Another vs. Mohamed Roble, Civil Appeal No. 197 of 2018 [2019] TZCA 322 TanzLII and in the case of Tubone Mwambeta vs. Mbeya City Page 3 of 9 Council, Civil Appeal No. 287 of 2017 [2018] TZCA 392 TanzLII. As per these authorities, the omission to summon the applicant was a fatal irregularity amounting to a good cause for an extension of time to file an appeal. In fortification of this argument the counsel cited the case of Joflo Company Limited and Others vs. Bank of Africa Tanzania Limited, Miscellaneous Civil Application No. 562 of 2021 [2022] TZHC 1289 TanzLII. It was argued further that there were other irregularities in the decision of the trial tribunal and one of which was that, the trial tribunal determined a matter which was not plead by the parties. The dispute between the parties was compensation and not ownership as deliberated by the tribunal. Resting her submission, she prayed to the court to allow the application. Moreover, it was submitted that in an application for extension of time such as the one at hand, there is a requirement for accounting for the delay a requirement which has been duly complied by the applicant as he has demonstrated that she became aware of the decision on 12th October 2023. She immediately thereafter made a follow-up at the tribunal and after she obtained a the copy of the judgment she prepared and filed this application. In reply, Mr. Mwakimi submitted that much as irregularity constitutes a good cause for extension of time, it is not automatic. For it to constitute a good cause it must be apparent on the face of the record as it was stated in the case of The Principal Secretary Ministry of Defence and National Service vs. Devram Valambia [1992] TLR 182 and Lyamuya Construction Company Ltd vs. Board of Registered Trustee of Page 4 of 9 Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 TanzLII. In the present application, there is no such irregularity as the applicant had full knowledge of the proceedings before the trial tribunal because the same had arisen from the directives of this court. But, for the reasons best known to him he deliberately chose not to make any follow ups. Thus, he can blame neither the tribunal nor the respondent as they had no duty to notify him. He bolstered his submission with the case of Lim Han Yung and Another vs. Lucy Treseas Kristensen Civil Appeal No. 219 of 2019 [2022] TZCA 400 TanzLII and the case of Salome Kahamaba vs. Siril Augustine Malya Misc. Civil Application No. 557 of 2021 [2022] TZHC 985 TanzLII. With regard to irregularities in the judgment, he argued that the alleged irregularity does not exist as there is no proof that the respondent was fairly compensated. On the requirement for accounting for each day of delay, it was submitted that as per section 41(1) (2) of the Land Disputes Court's Act, Cap 216, the time limit for appealing against the decision of the district land and housing tribunal is 45 days from the date of the decision. In the present application, the decision was delivered on 14th July 2023. Thus, the time limit of 45 days lapsed on 28th August 2023 whereas this application was filed on 2nd November 2023 when approximately 112 days had lapsed. All these days have not been accounted for hence offending the principle in the case of Bushiri Hassan vs. Latifa Lukio Mashayo Civil Application No. 3 of 2002 (unreported) and the case of Jehangir Aziz Abdulrasul and 2 others vs. Balozi Ibrahim Abubakar and Another, Civil Application No. 265/01 of 2016 [2017] TZCA 177 TanzLII. Page 5 of 9 It was submitted further that much as the applicant claims that she was following up the matter, she did not attach evidence proving her due diligence and promptness in filing the application contrary to what was stated in the case of Kahungu Kibhabhi vs. Kabwindagi Kayugiro, Misc. Land Application No. 03 of 2022 [2022] TZHC 10246 TanzLII and Director of Public Prosecutions vs. Jamal Abdallah arid 3 others, Miscellaneous Application No. 77 Of 2022 [2022] TZHC 10246 TanzLII. Tuning to the cited cases, the respondent's counsel argued that the case of Tubone Mwambeta (supra) is irrelevant and distinguishable as in that case, the opinion of assessors was never read before the parties irrespective of their presence before the court whereas in the present application, the opinion was read to the respondents after the tribunal was satisfied that there was sufficient proof that the summons it issued was served to the applicant. Also, the case of Joflo Company Limited and Others vs. Bank of Africa Tanzania Limited, (supra) is distinguishable as the agrieved parties were not notified of the date for ex parte judgment. Hence, none of these two cases is applicable to the instant case. In conclusion he prayed that the application be dismissed with costs. He further complained that the applicant is maliciously employing delaying tactics to inhibit the execution of the judgment and decree in Land Application No. 132 of 2014. I have carefully considered the learned counsels' submissions alongside the chamber summons and its accompanying affidavit and the counter affidavit. As stated earlier, the leave for extension of time is sought in respect of a Page 6 of 9 judgment of the trial tribunal dated 14th July 2023 which remained unchallenged until on 6th November 2023 when the applicant filed the present application for extension of time. As held in other applications of this nature, the enlargement of time is within the discretion of the court but it need be exercised judiciously upon a good cause been demonstrated by the applicant. Accordingly, the sole question for determination by this court is whether a good cause for enlargement of time has been demonstrated. The term good cause has no universal definition. What amounts to a good cause depends on the peculiar circumstances of the case as held by the Court of Appeal in Osward Masatu Mwizarubi v, Tanzania Fish Processing Ltd, Civil Application No. 13 of 2010, CAT (unreported) where it was stated that:- " What constitutes good cause cannot be laid down by any hard and fast rules. The term 'good cause 1 is a relative one and is dependent upon the party seeking extension of time to provide the relevant material in order to move the Court to exercise its discretion." In view of this and other precedents on this issue, it is now settled that when determining whether or not a good cause has been demonstrated, the court should consider certain factors as succinctly demonstrated by the Court of Appeal in the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010 (Unreported) where it was stated that, the factors to be considered are: - "(a) The applicant must account for all the period for delay; Page 7 of 9 (b) The delay should not be inordinate; . (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged". In the present application, the decision sought to be challenged was pronounced on 14th July, 2023 whereas this application was filed on 06th November 2023. The delay is inordinate as 3 months and 20 days had already lapsed when the applicant brought this application From the applicant's affidavit, it is alleged that she was unaware of the decision. She became aware of the trial tribunal's decision on 12th October 2023 upon being served with the summons for execution. Thereafter, she started to look for a copy of judgment and decree and after obtaining them he filed this application. She has blamed the trial tribunal for not summoning him to appear on the date of the reading of opinion. She has also alleged that there are irregularities in the decision. Starting with the issue that she was not served with the summons to appear, in my perusal of the record, I have observed that there is a summons requiring the applicant to appear before the tribunal for execution of the decree by the respondent. The same is attached to the applicant's affidavit. On the other hand, the respondent has attached to his counter affidavit an affidavit of a street chairman dated 20th October 2022 showing that, the applicant was summoned to appear in Land Application No. 132 of 2014 but she declined service. The affidavit of service is challenged on the following Page 8 of 9 three grounds:- One, the affidavit of proof of service was not sworn before a commissioner for oath as required by the law. Two, the wording of the affidavit demonstrates that the applicant was never served as the process server stated that he tried to call the applicant but his response was not good. That, he even sent her text messages but received no response. Third, that the street at which it was delivered had no any connection with the suit land. All these complaints appear to be meritorious. I may also add here that the applicant is a cooperate body thus it was crucial for the affidavit to specify the name of the natural person who his declined service and his relation with the applicant. In the foregoing, I am of the firm view that, it is in the interest of justice that the application be allowed as it is crystal clear that the purported service did not comply with the law. Also, the applicant has ably accounted for the delay through paragraph 9 of the affidavit in which she provided a detailed account of what she did after being served with the summons for execution. Accordingly, I extend the time to allow the applicant to file his appeal within 14 days. Each party shall bear its costs. DATED at DODOMA this 3rd day of May, 2024. Page 9 of 9