julius john masanja vs said athumani shigilomo 2020 tzhclandd 3866 4 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT SUMBAWANGA LAND APPEAL NO. 23 OF 2020 {Originating from the Decision of the District Land and Housing Tribunal of Kata vi District at Mpanda in Miscellaneous Land Application No. 16 of2020) JULIUS JOHN MASANJA.................. APPELLANT VERSUS SAID ATHUMANI SHIGILOMO .......... RESPONDENT Date of last Order: 10/08/2020 Date of Judgment: 04/11/2020 JUDGMENT C.P. MKEHA, J Before the District Land and Housing Tribunal for Mpanda District at Katavi, the appellant preferred an application for extension of time so that he could appeal against the decision of Shanwe Ward Tribunal delivered on 24/09/2019. According to the appellant, it was until 28/1/2020 when he became aware of existence of the Ward Tribunal's decision. The application for extension of time by the appellant, was filed before the District Land Housing Tribunal on 10/03/2020. The main reasons put forward by the appellant as reasons for delay were such that, firstly, he delayed getting knowledge of existence of the decision i by Shanwe Ward Tribunal dated 24/09/2019 and secondly, that, there is illegality in the decision sought to be challenged. In its decision dated 11/05/2020 the District Land and Housing Tribunal for Mpanda District dismissed the appellant's application for reasons that, he failed to account for every single day of delay and that the illegality complained of was not made clear by the appellant/applicant before the District Land and Housing Tribunal. Aggrieved with the said decision, the appellant preferred the present appeal with the following grounds of appeal: 1. That, the trial tribunal erred in law by holding that there was no illegality which was sufficient reason to extend time for the appellant. 2. That, the trial tribunal erred in law by not considering technical delay which was apparent before it as a sufficient reason to extend time for the appellant. Whereas Mr. Laurence learned advocate appeared for the appellant, the respondent appeared in person. It was the learned advocate's submission in respect of the first ground of appeal that, the trial tribunal erred in holding that there was no illegality as there were two decisions whereby in a decision of the Ward Tribunal delivered on 14/09/2018, the appellant emerged the winner while in the second decision delivered on 24/09/2019, the respondent emerged the winner. In view of the learned advocate, presence of two distinct decisions in the same matter is sufficient evidence of illegality. Reference was made to the decision in Andrew Athuman Ntandu & 2 another vs. Dustan Peter Rima, Civil Application No 551 of 2019. The learned advocate went on to submit in respect of the second ground of appeal that, it was an error on part of the trial tribunal for not considering the technical delay and that, in the circumstances, the appellant would not have accounted for every single day of delay as the appellant concentrated on pursuing an application for execution believing himself to be the winner. The respondent replied that, there were no two decisions by Shanwe Ward Tribunal. The respondent insisted that, the case before the Ward Tribunal was decided once. The only issue for determination is whether the appellant sufficiently accounted for the delay before the trial tribunal. It is true that illegality, if apparent on the face of record, suffices in itself to be a reason for extension of time. The appellant alleged that there were two decisions over the same matter, both, delivered by Shanwe Ward Tribunal. The appellant however, appears to have later on discovered that in actual fact, there was only one genuine decision that being the reason, he later on opted to seek for extension of time so as to appeal against the real judgment of the Ward Tribunal. The story regarding existence of two decisions therefore ceased, when the appellant discovered that genuine decision of the Ward Tribunal was the one dated 24/09/2019. Thereafter, the appellant opted to make an application for extension of time to appeal against the said decision. 3 In paragraph 8 of the affidavit supporting the appellant's application before the trial tribunal, the appellant averred: "That, there is illegality in the decision procured by the respondent on 24/09/2019 which itself is a good reason for this Honourable tribunal to grant extension of time to me to appeal against the said decision". With respect, merely stating in the affidavit that there is illegality is not enough for purposes of granting extension of time for filing of an appeal out of time. In the case of MINISTRY OF DEFENCE Vs. VALAMBHIA (1992) TLR 185, the Court of Appeal held that, when the point at issue is one alleging illegality of the decision being challenged, the court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right. Nowhere is the appellant recorded stating that, he had managed to establish illegality in the decision sought to be challenged. As such, the trial tribunal was correct in holding that the appellant failed to make clear the kind of illegality complained of. The first ground of appeal is dismissed for want of merit. There is no denial that the appellant was already out of time to challenge the tribunal's decision on 28/1/2020 when he got knowledge of its existence. He however waited until on 10/03/2020 when he preferred his application for extension of time before the District Land and Housing Tribunal. Even assuming that he was diligent in making follow ups of his rights, one would expect him to take prompt action immediately after 28/01/2020. The delay in taking action between 4 28/01/2020 to 10/03/2020 went unexplained. For those reasons, the second ground of appeal is also held to be unmeritorious. The decision cited by the learned advocate for the appellant is in no way related to the present case. Having dismissed all the grounds of appeal, I proceed to dismiss the appeal for want of merit. Dated at SUMBAWANGA this 04th day of November, 2020. nOUf?/' JUDGE £// 04 -/11/2020 Court: Judgment is delivered in the presence of the respondent in person but in absence of the appellant. JUDGE 04/11/2020 5