JOHN MICHAELE MGAWE V LONGINO T GANSHNGA RULING FINAL NEW

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPLICATION NO. 32 OF 2022 (Appeal from the decision of the High Court of Tanzania, Sumbawanga Registry by Hon. Justice D.B. Ndunguru, J. Dated on 31st day of October, 2022 in Misc. Land Appeal No. 23 of 2021, former Misc. Application No. 96 of 2021 Originated from Land Application No. 11 0f 2018) JOHN MICHAEL MGAWE …………………………………………………… APPLICANT VERSUS LONGINO TULYAHEBWA GANSHANGA ……………………………… RESPONDENT RULING 15th & 30th November, 2023 MRISHA, J The Applicant has brought the Application under Section 47(2) of the Land Dispute Court Act Cap 216 R.E. 2019 seeking for leave to appeal to the Court of Appeal of Tanzania against the decision of this court in Land Appeal No. 23 of 2021. The application is supported by an affidavit sworn by James Lubus, learned counsel for the applicant. The Respondent contested the application through a counter affidavit sworn by the Respondent himself. The brief facts as I can gather from the court record are that, before the District Land and Housing Tribunal for Mpanda at Mpanda (the trial tribunal) the Land Application No. 11 of 2018, the case was heard and the respondent was thereat and ex-pert judgment was delivered. Upon ex- parte judgment the respondent failed to file an application to set aside ex- parte judgment. He decided to file an application for extension of time within which to file an application for setting aside ex parte judgment. The application was granted and matter was rule in favour of the Respondent. Being aggrieved with the decision of Misc. Land Application No. 96 of 2021 dated on 30th August, 2021. The Applicant appealed before this court vides Land Appeal No. 23 of 2021 and the court dismiss the appeal as it is devoid of merit. Hence, this application seeking for leave to appeal to the Court of Appeal as required by the law. On the date the application come for hearing, Mr. James Lubus, learned Advocate represents the applicant and applicant appears in person, while the Respondent appeared in person with no any legal representation. In the Chamber summons filed by the Applicant in support of application, the following grounds were outlined as being intended to be challenged before the Court of Appeal of Tanzania: 1. That, I am Acting the Applicant in this Application hence conversant with what I am about to depone. 2. That, the Applicant was the Appellant in Land Appeal No. 23 of 2021 which was decided by this honourable court on 30.10.2022 in the Respondent’s favour. 3. That, the Appellant was aggrieved with the aforementioned decision therefore intend to Appeal to the Court of Appeal of Tanzania on point of law. 4. That, the point of law to which they intend to request the Court of Appeal to deal with is as follows: 4.1. Whether it was proper to decide in favour of the Respondent who failed to account for every day of delay. 4.2. Whether It was proper to decide in favour of the Respondent by virtual of allegation that he attended local treatment without any proof of calling the witch–doctor or medical certificates. 4.3. Whether it was proper by allowing Misc. Application No. 96 of 2022 while the respondent failed to state good and sufficient cause to justify his delay. Arguing in support of the application, Mr. James Lubus submitted that, he filed this application under section 47(2) of the Land Dispute Court Act Cap 216 R.E. 2019 for this court to grant leave to appeal to the Court of Appeal. The main reasons for this application based on paragraph 4 of the applicant’s affidavit. He argued that paragraph 4.1, 4.2, and 4.3 of the affidavit suffice this court to grant leave to appeal to the Court of Appeal. To buttress his argument he refer the case of Village Chairman Ninga v Sotel Kanyanya, Misc. Land Application No. 08 of 2021 (unreported) at page 7, the High Court held that: “The delay of even a single day has to be accounted for otherwise there would be no proof of having rules prescribing periods within which certain steps have to be taken”. He insisted that the respondent failed to account for each day and no sufficient good cause for a delay. The applicant refer the ruling of Land Appeal No. 23 of 2021 which is the subject of this application of leave to appeal, he argued that the respondent failed to account for each day of delay and no sufficient good cause for a delay was stated by the respondent and yet this court grant the order. That is contrary with the decided cases which required the applicant to account for each day of delay. To support his stance Mr. Lubus refer the case of Calven Mlasu v Republic, Misc. Criminal Application No. 45 of 2022,(unreported) High Court Sumbawanga. Basing on that submission, it is the Applicant’s prayer to this Court due to the authorities and precedent to grant leave to appeal to the Court of Appeal. Contesting the application, the Respondent adopts his counter affidavit to form part of his submission and opposing the application. He argued that the main reasons for him delay was sickness; he was not able to travel and appear in court due to his sickness. On the issue of absence of proof of medical certificate or witch doctor, the respondent argued that he was treated with local medical doctor, then he was not able to get/receive medical certificate. He added that, the local medical doctors does not issue medical certificate. He concluded by pray to this court to dismiss the application, the application have no merit. No re-joinder was made by the applicant. This application was made under section 47(2) of the Land Disputes Court Act [Cap 216 R.E. 2019] for ease of reference; I reproduce the said section hereunder: “A person who is aggrieved by the decision of the High Court in exercise of its revisional or appellate jurisdiction may, with leave of the High Court or Court of Appeal, appeal to the Court of Appeal.” The above provisions explicitly vested in the High Court exclusive jurisdiction to grant leave to appeal to the Court of Appeal from its decisions in the exercise of its original, revisional or appellate jurisdiction. The law imposes a requirement for the aggrieve part to seek leave of the High Court to Appeal to the Court of Appeal. Leave to appeal was not automatic, that it was within the discretion of the Court to grant or refuse, and that the said discretion must be exercised judiciously and not capriciously, based on the materials before the court. It is a settled principle that aggrieved party must specifically state the points of controversial or grounds intended to be appeal to the Court of Appeal and leave will only be granted where the grounds presented in court raises issue of general importance or novel of point of law or where the grounds show a prima facie case or arguable appeal. In British Broadcasting Corporation v Eric Sikujua Ng’amaryo, Civil Application No. 138 of 2004 (unreported) the Court of Appeal proffered some guideline for deciding whether or not grant leave thus: “As a matter of general principle, leave to appeal will be granted where the grounds of appeal raise issues of general importance or a novel point of law or where the grounds show a prima facie case or arguable appeal.”[Emphasis added] The law provided no explicit factors to be taken into account in deciding whether to grant leave, the Court of Appeal reiterated generally that leave would be granted if the intended appeal has some merits whether factual or legal, See Wambele Mtumwa Shamte v Asha Juma, Civil Application No. 45 of 1999. In Gaudensia Mzungu v IDM Mzumbe, Civil Application No. 94 of 1999 (unreported) it was underlined that: “Again, leave is not granted because there is an arguable appeal… what is crucially importance is whether there are prima facie, grounds meriting an appeal to this Court.” In this application the Applicant intends to appeal to the Court of Appeal of Tanzania challenging the decision of this court on the grounds of failure to account for every day of delay and failure state good and sufficient cause to justify his delay. The applicant in his submission insisted that the said issues mentioned on paragraph 4.1, 4.2 and 4.3 of the applicant affidavit suffice this court to grant leave to appeal to the Court of Appeal because it contravene laws and precedents. In a thorough reading of the grounds of appeal laid down by the Applicant in the affidavit filed in support of the application, I agree with the Respondent that the sickness is a good and sufficient cause for extension of time. This court is aware that sickness is a good ground for extension of time however; it has to be proved by evidence establishing not only that the applicant was sick but also that his sickness happened at a time when he is required by law to take action in respect of the matter he seeks extension of time. Again, the respondent in his counter affidavit at paragraph 7 which respond the paragraph 4.2 of the Applicant’s affidavit averred that he attended traditional treatment at his home Karagwe and those traditional treatment are done informal, no documents to prove the same and currently the said witch doctor is nowhere about. That apart, it is a trite law that, in an application for extension of time to do a certain act, the applicant is supposed to account for each day of delay (See The Attorney General v Emmanuel Marangakisi (As the Attorney of Anastansious Anagnostou) and 3 others, Civil Application No. 138 of 2019(unreported) This issue raises a novel point of law that needs determination by the Court of Appeal. Based on that ground, I find merit in this application. Based on the above reasons, leave is therefore granted to the Applicant to appeal to the Court of Appeal against the decision of this court in Land Appeal No. 23 of 2021. The appellant to file an appeal to the Court of Appeal within 14 days from the date of being issued with certified proceedings and other necessary documents. In the upshot, the application is granted with no order as to costs. DATED at SUMBAWANGA this 30th day of November, 2023 30.11.2023