KCU 1990 LTD vs Adolof Petro Rushenga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA MISC. LAND APPLICATION NO. 23235 OF 2024 (Arising From Land Appeal No. 4713 of2024; Originating from Application No. 67 of2023 of Muieba District Land and Housing Tribunal) KAGERA COOPERATIVE UNION (1990) LTD.........................APPLICANT VERSUS ADOLOF PETRO RUSHENGA................................................... RESPONDENT RULING 6th and 8th November, 2023 BANZI, J.: The applicant has filed this application seeking extension of time to file an appeal against the decision of the District Land and Housing Tribunal for Muieba which dismissed his application for being resjudicata. His first appeal to this Court was struck out for being incompetent. Thereafter, the applicant found himself out of statutory time to refile his appeal, hence this application. His application is supported by affidavit deponed by Hildebrandus Leo, the principal officer of the applicant. The respondent through the counter affidavit of Advocate Nathan Alex resisted the application. Page 1 of 8 When the matter was called for hearing, the applicant was represented by Mr. Al-Muswadiku Chamani, learned counsel whereas, the respondent enjoyed the services of Mr. Zedy Ally, learned counsel. In his submission, Mr. Chamani adopted the affidavit of the applicant and submitted that, through their affidavit, they have raised two grounds to wit; technical ground and illegality. Submitting in respect of the technical ground, Mr. Chamani contended that, the first appeal was struck out for being filed in the wrong registry. He further clarified that; counsel is a human who can make mistake. According to him, the mistake he made was not deliberate with the view of getting some advantages. He substantiated his submission with the case of Okech Boaz Othiambo and Another v. Salama Idi Kanyorota, (Civil Application 900/15 of 2021) [2024] TZCA 291 TanzLII. Thus, wrong citation of registry was an oversight considering that, the respondent in their counter affidavit did not state if it was done deliberately with the view of getting advantage. In respect of illegality, Mr. Chamani contended that, it was an error for the trial tribunal to determine the preliminary objection that the matter before it was res judicata by merely looking at the pleadings while in order to determine whether the matter was res judicata, it should have been dealt at the end of the trial and not in the beginning of the trial. In other words, Page 2 of 8 objection whose disposal requires proof or disproof of facts or evidence ceases to be a preliminary objection. In his view, the tribunal was bound to follow this principle which was established in the case of The Soitsambu Village Council v. Tanzania Breweries Limited and Another (Civil Appeal No. 105 of 2011) [2012] TZCA 255 TanzLII. Hence, by dealing with the objection of this nature at the beginning of the trial, it was illegal which warrant this court to extend the time. In reply, Mr. Ally from the outset resisted the application. He stated that, the applicant has failed to advance good and sufficient cause. He insisted that, the reasons advanced under paragraph 4 to 6 were caused by the negligence of the counsel for the applicant which cannot be used as an excuse to grant extension of time considering that, negligence does not amount to sufficient cause for granting extension of time. According to him, the negligence of the counsel goes to the client directly. He further contended that, the application was made under wrong citation of the law, hence, there were no oversight as contended by Mr. Chamani, thus they cannot fall under technical ground. In respect of illegality, Mr. Ally contended that, illegality must be on the face of record. However, in this matter, there was no illegality that was committed by the trial tribunal considering that, the tribunal relied on section Page 3 of 8 9 of the Civil Procedure Code and was satisfied that the suit before it was res judicata as it was already determined by the same tribunal. He prayed for the application to be dismissed. In his brief rejoinder, Mr. Chamani insisted that, their affidavit is self- explanatory and contains sufficient cause. He pressed for the application to be granted. Having considered the affidavits and the rival arguments of the counsel for both parties, the issue for determination is whether the applicant has advanced good or sufficient cause to be granted extension of time. It is worthwhile to underscore that, according to section 41 (2) of the Land Disputes Courts Act [Cap.216 R.E. 2019], this Court is vested with discretion to extend the period of limitation for the institution of appeal where it is established that, the delay was for good cause. It is common knowledge that, what amount to good or sufficient cause has not been defined but there are plenty of legal authorities which underline factors to be taken into account including the length of delay, the reasons for the delay, the degree of prejudice that the respondent may suffer if the application is granted, whether or not the application has been brought promptly, lack of diligence on the part of the applicant, illegality on the impugned decision just to mention a few. See the case of Tanzania Revenue Authority v. Tango Page 4 of 8 Transport Co. Ltd, Consolidated Civil Applications No. 4 of 2009 and 8 of 2008 CAT (unreported), The Registered Trustees of Kanisa la Pentekoste Mbeya v. Lamson Sikazwe and Others (Civil Application No. 191 of 2019) [2019] TZCA 516 TanzLII and Arunaben Chaggan Mistry v. Naushad Mohamed Hussein and 3 Others, Civil Application No. 6 of 2016 CAT (unreported). Moreover, there is another factor that is called technical delay i.e., the time lost by party when he was pursuing matters in court. This factor was also developed by case law through the cases of Fortunatus Masha v. William Shija and Another [1997] TLR 154 and Salvand K.A. Rwegasira v. China Henan International Group Co. Ltd, Civil Reference No. 18 of 2006 CAT (unreported). In the case at hand, the records reveal that, on 02/02/2024, the trial tribunal delivered the ruling on the preliminary objection that was raised by the respondent's counsel that, the application before it was res judicata, hence the tribunal had no jurisdiction to determine that matter. In its verdict, the trial tribunal sustained the objection and dismissed the application with costs. Aggrieved with that decision, the applicant timely appealed to this Court which on 3rd September, 2024, it was struck out for being incompetent. Following that, his first attempt to get extension of time was unsuccessful as the application was struck out for being incompetent. After that, the Page 5 of 8 applicant filed the instant application on 5th September, 2024. It is clear from the record that, the first appeal was filed within time and since it was struck out, the applicant was in the corridor of this Court in pursuit of his right. The period when he was in this Court is considered as technical delay which the applicant is excused for accounting for each day of the delay. Besides, even if the applicant was negligent through his advocate as contended by Mr. Ally, he was penalised by having the matters decided against him. Apart from that, Mr. Chamani contended that, there was illegality that was committed by the trial tribunal for dismissing the application on contention that, it was res judicata. It is an established principle of the law that, where there is allegation of illegality, such allegation is sufficient for extension of time regardless the applicant has failed to account for the delay. In the case of Arunaben Chaggan Mistry v. Naushad Mohamed Hussein and 3 Others {supra}, it was stated that: "The legal position is settled. When there is an allegation of illegality, it is important to give an opportunity to the party making such allegation to have the issue considered." In another case of VIP Engineering and Marketing Limited v. Citibank Tanzania Limited, Consolidated Civil References No. 6, 7 and 8 of 2016 CAT (unreported) it was held that: Page 6 of 8 We have already accepted it as established law in this country that where the point of law at issue is the illegality or otherwise of the decision being challenged, that by itself constitutes sufficient reasons within the meaning of Rule 8 of the Rules for extending time." That being the case, as the learned counsel has raised the issue of illegality that the trial tribunal erred to determine the issue of res judicata at the beginning instead of determining it at the end of the trial as it was stated in the case of The Soitsambu Village Council v. Tanzania Breweries Limited and Another {supra}, I am of the considered view that, the alleged illegality will be addressed, when the extension of time is granted. Under these premises, it is the finding of this Court that, the applicant has managed to establish good cause to warrant this Court to grant the extension. Having said so, I grant the application by giving the applicant thirty (30) days from the date of this ruling to file the appeal before this Court. Each party shall bear its own costs. It is accordingly ordered. I. K. BANZI JUDGE 08/11/2024 Page 7 of 8 Delivered this 8th day of November, 2024 in the presence of Mr. Al- Muswadiku Chamani, learned counsel for the applicant, the respondent in person and Ms. Elizabeth Kobelo, RMA. Page 8 of 8