557 OF 2023 JAMIL11111111111

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISCELLANEOUS LAND APPLICATION NO 557 OF 2023 JAMIL YAHYA MBONDE............................... 1st APPLICANT MAHAMUD MBWANA MGOMI......................2nd APPLICANT VERSUS MGAZA MAKUNGU (AS AN ADMINISTRATOR OF THE LATE MAKUNGU SWALEHE ZALALA.............. RESPONDENT RULING Date of last order; 20/03/2024 Date of Ruling; 22/03/2024 MWAIPOPO Jr This is an Application for extension of time within which the Applicants can file an appeal out of time against the decision of the DLHT for Mkuranga in land Application No. 13/2015. The Application is supported by the Affidavits of Jamil Yahya Mbonde and Mahamud Mbwana Mgomi, herein after to be reffered to as the Applicants and opposed by the Counter Affidavit of Mgaza Makungu as an Administrator of the late Makungu Swalehe Zalala as the Respondent. The same is made under section 41(2) i of the Land Dispute Courts Act Cap 216 and any other enabling provisions of the law. At the commencement of hearing the Applicants were represented by learned Advocate Jethrow Tuliyemwesigwa and the Respondent enjoyed the service s of learned Advocate Andrew Kanonyele. The matter proceeded by way of written submissions pursuant to the order of this Court dated 27th November 2023 and 30th January 2024. Arguing in support of the Application, the learned counsel for the Applicants submitted that the first Applicant in his Affidavit under paragraph has deponed that it took him time to obtain services of a lawyer because his former lawyer asked him for legal fees which he could not afford. In the same paragraph he has stated that finally he obtained the legal service of Mr. Jethro Tulyamwesigwa, Advocate on the 28th August 2023. The said Advocate filed this Application on 7th September 2023 hardly ten days after receiving instructions. The learned counsel has contended that the first Applicant is alleging illegalities in the decision of the lower Tribunal. These illegalities are stated under paragraph 6(a) and (b) of the first Applicant's Affidavit as follows; 2 a) That the first Respondent having shown that the disputed land was the property of the deceased person as per exhibit DI the lower Tribunal ought to have ordered for the joining of the personal legal representative of the deceased. b) That the lower Tribunal introduced a new issue during Judgement without affording the Applicant an opportunity to be heard on the same. In the case of RAZA SOMJI Vs Amina Salum (1993) TLR 208 the Court of Appeal held that it was wrong for a Judge to raise an issue suo motto without affording the affected party the right to be heard. The learned counsel argued that the allegation of illegalities under par 6(a) of the typewritten Judgement of R.L Chenya Chairperson (Annex C) to the Application. The second allegation of illegality under paragraph 6(b) is at page 9 of the typewritten Judgement where the Hon. Chairman introduced mandatory procedure for the Village council to obtain consent by consulting the original owners before re allocation of land. This was not an issue framed and agreed upon by the parties. The Chairman ought to have called upon the parties to address him on it before he made the decision. 3 As far as the second Applicant's Affidavit is concerned, the learned counsel contended that the second Applicant was not served with summons to appear and defend himself in the lower Tribunal. He stated under paragraph 2 of his Affidavit that on 14/08/2023, he discovered that the lower Tribunal entered judgement against him on 9/6/2023. The second Applicant states as well under para 6 and 7 of his Affidavit that it was an illegality for not notifying him of the date of Judegment Ltd 1992 TLR 127 where the Court of Appeal held that; A party who fails to enter appearance disables himself from participating when the proceedings are consequently exparte but has to be notified when the Judgement is delivered. The first Applicant knew of the existence of the impugned judgement on 14/8/2023 and this Application was filed on 7th September 2023. He contended further that the first and second Applicants have alleged illegality in the Judement of the lower Tribunal. The Court of Appeal of Tanzania in the case of Mathias Said Mfumya and 15 others versus Christopher M Nyirabu and 3 others Civil Application no. 4 520/17 of 2016 extended time on account that there was serious legal irregularity. The Court also cited the case of Principal Secretary Ministry of Defence and National Service Vs Devram Valambhia (1992) TLR 185 where it was held that the point of law in issue is illegality or otherwise of the decision being challenged that is of sufficient importance to constitute sufficient reasons. Even if the Applicant fails to account for the delay, it is enough for the court to exercise its discretion on account of illegality as it was held by the CAT in the case of tanesco vs mufungo Leonard majura &15 others application NO 94/2016 at page 14 and 15 of the typewritten judgement. That notwithstanding the fact that the Applicant has failed to sufficiently account for the delay in lodging the Application, the fact that there is a complaint of illegality in the decision intended, extension of time should granted so that the alleged illegality can be addressed. The learned counsel concluded under his submissions in chief that the raised issued in this Application are fit for this court to exercise its discretion to grant extension of time to 5 file an appeal and that having filed an appeal this court will fully address them. In rebuttal the learned counsel for the Respondent began by adopting the counter affidavit of the Respondent to form part of the written submissions. The learned counsel went to object that Application for being devoid of merit since the Applicants have failed to adduce sufficient reasons for the delay. With regard to the grounds advanced by the first Applicant in his Affidavit, the learned counsel argued that what has been advanced as the reason for the delay does not amount to sufficient ground of affording him an extension of time to file an appeal out of time since it requires the Applicant to account for everyday of delay of which the Applicant has failed to the elaborate on the alleged illegality if at all it is of the sufficient importance apparent on the face of the record and which one that would not be discovered by a long drawn argument or process as it was observed by his lordship Massati JA as he then was) in Lyamuya Construction Company Ltd Vs Board of Trustees of the Young Women 's Christian Association of 6 Tanzania Civil Appeal No. s of 2010, CAT at Arusha (Unreported). In conclusion, Massati JA as he then was in the case held that; ...not every party intending to appeal seeks to challenge a decision either on point of law or fact should either of right be granted an extension of time if he applies for one. The illegality must be of sufficient importance and must be apparent on the face of record not one that would be discovered by a long-drawn argument or process. The learned counsel also reffered the court to the case of Dar es salaam city counsil Vs Group Security Co. Ltd Civil Application No. 234 of 2015 the CAT at Dar es salaam held; ....as a matter of general principle it is always in the discretion of the court to grant extension of time under Rule 10 of the Rules but the stance which this court has consistently taken is that in application or extension of time the Applicant has to account for every day of the delay. In the circumstances the Applicants have not accounted for over 60 days of delay in filing the appeal and have not 7 elaborated on the alleged illegalities whether they are of sufficient importance apparent on the face of the record and which one that would not be discovered by a long-drawn process of argument. The learned counsel argued that this actually demonstrates in action and unqualified want of diligence on the part of the Application in taking essential steps towards pursuing the intended appeal. He argued that the Applicants have not adduced sufficient reasons for the delay. The learned counsel emphasized the point that he is aware that granting of extension of time is in the discretion of the court however the same has to be exercised judiciously. See the case of Lyamuya (supra). Citing further the case of Lyamuya the learned counsel stated that it has established criteria for granting extension of time which has to be followed by court, to wit; a) The Applicant must account for all the period of delay 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 8 d) If the court feels that the are other sufficient reasons such as the existence of a point of law of sufficient importance such as illegality of the decision sought to be challenged. With regard to the new issue introduced, the learned Advocate argued that there is no issue which was introduced in the judgement that would have required parties to address the court on it. In addressing the second Applicant's grounds of extension of time, the learned counsel contended further that the 2nd Applicant in his Affidavit has alleged that he became aware of the impugned exparte Judgement in land application no. 13/2015 on 9/6/2023 and that he was neither served with the summons to appear for hearing nor for the exparte judgement. The Respondent as per his deposed Counter Affidavit against the 2nd Applicant in para 4 and 5 demonstrates that he was duly notified and summoned to appear for the hearing and exparte judgement against him but negligently he chose to ignore the summonses issued by the tribunal both physically and by publication and the procedure for nonattendance was duly observed. He cited Order IX Rule 8 of the CPC Cap 33 Re 2019 which empowers the court to proceed with the suit whenever some of the defendants do not appear and pronounce 9 judgements and make orders as it thinks fit with respect to the defendants who don't appear. The learned counsel contended that it was the duty of the Applicant to make follow up of the proceedings once he had been served with summons and file his defence otherwise the court under order VIII Rule 14(1) of the CPC Cap 33 Re of 2019 is empowered to proceed with exparte hearing. The learned counsel concluded by praying to the court to find the Application devoid of merit. In rejoinder the learned counsel for the Applicants reiterated his submissions in chief in particular on the point of illegalities he emphasized that the same are obvious on the face of the record. With regard to the cases cited by the Respondents he asserted that those were decided earlier in time that the ones he cited. I.e. Lyamuya Case(supra) and the Dar es salaam city council (supra) which were decided in 2011 and 2016 respectively compared to the case of TANESCO which was decided in 2017. He contended that thruought the submissions of the Respondent there is nowhere the cases cited by the Applicants are not discussed hence stand unchallenged. He thus implored the court io to follow the stance in RAZA SOMJI (supra) and Cosmas Construction Co. Ltd(supra) Having gone through the rival submissions of the parties, my duty is now to determine whether the Application for enlargement of time within which the Applicants can file their Appeal out of time against the decision of the Tribunal in Land Application no. 13/2015 has merit. Section 41(2) of the Land Disputes Courts Act empowers the High Court to extend time for filing Appeals after the expiration of the statutory period of 45 days. It follows that extension of time is within the Court's discretion. However, the said discretion has to be exercised judiciously. The cited Section 41(2) above, does not provide for reasons for extension of time. However, through case law various reasons and guidelines have been expounded. The case of Lyamuya Construction (supra) cited by the Respondent is indeed one of the guiding stars. In the said case the court enumerated the following guidelines/criteria to be considered; a) The Applicant must account for all the period of delay b)The delay should not be inordinate ii c) The Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take d) If the court feels that the are other sufficient reasons such as the existence of a point of law of sufficient importance such as illegality of the decision sought to be challenged In the present Application, the learned counsel for the Applicants has raised two grounds for extension of time. The first ground is on the delay caused by failure to engage an Advocate on time and in the second ground, the Applicants have pleaded points of law of sufficient importance to be argued in the appeal, which are contained in the impugned judgement. I will begin with the second ground of extension of time, which has focused on the points of law of sufficient importance to be argued in the appeal since in their submissions the Applicants have stated that constitute irregularities and illegalities. In this regard I have gone through the Affidavits filed by the Applicants and the Respondent's Counter Affidavit as well the submissions of both parties and observed that the Applicants have raised the following points of law for consideration arising from the impugned Judgement; a) That the first Respondent having shown that the disputed land was the property of the deceased person as per exhibit 12 DI, the lower Tribunal ought to have ordered for the joining of the personal legal representative of the deceased. b) That the lower Tribunal introduced a new issue during Judgement without affording the Applicant an opportunity to be heard on the same. c) The second Applicant was not served with summons to appear and defend himself in the lower Tribunal. a) The second Applicant was not notified of the date of Judgment. He only discovered that the lower Tribunal entered judgement against him on 9/6/2023. It is settled law that whenever there is an allegation of illegality it is important for the court to grant the Applicant the extension of time so that the alleged illegality can be considered by the Court. This was held in the case of Tanzania Breweries ltd Vs. Herman Bildad Minja, civil Application no. 11/18 of 2019 CAT DSM which also cited with approval the case of the principal secretary, Ministry of Defence and National service (supra) that; In our view the point at issue is one alleging illegality of the decision being challenged, the court has a duty if means extending the time for the purpose to 13 ascertain the point and if alleged illegality be established, to take appropriate measures to put the matter and the record right. In the case of VIP Engineering and Marketing limited and three others Vs Citi bank Tanzania Ltd, consolidated Civil reference No. 6,7 and 8 of 2006 CA (unreported) the Court of appeal patently stated; It is therefore settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 regardless whether or not a reasonable explanation has been given by the Applicant under the rule to account for the delay. See also the case of Lyamuya Construction Ltd (supra) and TAN ESCO (Supra) cited by the Applicants. It follows then that an allegation of illegality by itself suffices for an extension of time to be granted and it does not matter whether the Applicant has accounted for each delay. In view of the fact that the Applicant has alleged that there are illegalities and irregularities, I am satisfied that the Applicants have sufficiently set out an arguable case for extension of time so as to allow the points of law raised to 14 be taken for appeal and be examined as to whether there are indeed irregularities or not and if established the Court will make its necessary orders. I thus find merit in the Application for extension of time. This ground alone is sufficient to dispose the Application. In upshot, I grant extension of time and order the Applicants to file their intended Appeal within a period of 30 days from the date of this ruling. Each party shall bear its own costs. It is so ordered. DATED at DAR ES SALAAM this 22nd day of March 2024. S.D MWAIPOPO JUDGE 22/03/2024 Ruling delivered this 22ndday of March, 2024 in the presence of Mr. Jethro Tulyemwesigwa, the learned counsel for the Applicants and Mr. Andrew Kanonyele,- Learned Counsel for the Respondent, is hereby certified as a: .original. ;S.D. MWAIPOPO JUDGE 22/03/2024 15