JUDGMENR OF LEARNAD CHIPANDA final

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISCELLANEOUS LAND APPEAL NO. 22670 OF 2024 CASE REFERENCE NO. 202409111000022670 (Originating in Misc. Land Application No. 44 of 2019 of the District Land and Housing Tribunal for Mbeya) LEONARD CHIPANDA ............................................................. APPELLANT

VERSUS WILLIAM N. NDEZI ............................................................. RESPONDENT

JUDGMENT 21st February & 26th March 2025 NONGWA, J. In this appeal, the appellant seeks to question the decision of the District Land and Housing Tribunal for Mbeya at Mbeya in Misc. Land Application No. 44 of 20210 (the DLHT) for its refusal to grant an application for extension of time. Briefly, the respondent instituted the case in the ward tribunal of Mwakibeta (the Tribunal) against the appellant for eviction in the house and was registered as Land Dispute No. 4 of 2019. It is recorded that the appellant was the tenant of the respondent for long time but refused to vacate the rented house. Having heard the parties, in its judgment dated 2nd august 2019, the Tribunal held in favour of the respondent and the appellant was ordered to pay Tsh 120,000/- as rent arrears. 1 Through Application for execution No. 44 of 2019, the respondent applied for order to evict the appellant in the disputed house. Learning of the execution proceedings on 16th October 2019, the appellant filed two applications, Application for stay of execution and Application for extension of time (the said applications were not given numbers but originates in Application for execution No. 44 of 2019). The court dismissed application for extension of on ground that the appellant had failed to account each day of delay, hence this appeal. In the memorandum of appeal, the appellant has raised only one ground,

that the Trial Honourable Chairman erred both in points of law and facts when he failed to grant an application for extension of time on a ground of illegality of the involvement of the secretary in decision making of the Ward Tribunal. He prays for this appeal to be allowed with costs. When the appeal came up for hearing the appellant appeared in person, without legal representation whereas the respondent enjoyed the service of Mr. Samson Suwi, learned counsel. The appeal was argued by filing written submission. In his written submission, the appellant has submitted that the judgment of Tribunal has illegality for participation of the ward secretary one Edward Mwakibinga in the decision making. He argues that under 2 section 11 of the Land Disputes Courts Act, Cap 216 (the LDCA) requires the ward tribunal to consists of eight members and coram for each hearing be not less than four members. But the secretary is a civil servant by virtual of section 4(2) of the Ward Tribunal Act (the WTA). He argues that since the secretary was involved in the decision making of the Tribunal, that constitutes illegality for purpose of extension of time and the chairman ought to have granted. He supports the argument with the case of Kalunga and Company Advocates vs National Bank of Commerce Ltd [2006] TLR 325. From the above he prayed the appeal be allowed and extension of time be granted. In

reply submission, Mr. Suwi admitted that the function of the ward tribunal secretary is to record proceedings and not participate in decision making but has pointed that in the impugned judgment the secretary did not participate and involve in the decision making. He contends, in the unpaged judgment of the Tribunal, the name of the said secretary is not among the members whose names appears to be Julias M. Mwandambo, Danotolia Rwezaula, Martha Seme and Master Mwaitenga as chairman. He supports the reasoning of the chairman and argues that the alleged illegality is not on the face of record. He supports the argument with the case of Lyamuya Construction Co. 3 Limited vs Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 (3 October 2011; TanzLII) Further submission is that the secretary is only seen in the document dated 26/5/2019 as among the person who witnessed the promise of the appellant to vacate the house. That the said paper is not part of proceedings of the ward tribunal. He therefore prayed the appeal be dismissed. I have carefully followed rival submissions on the sole ground of appeal and record of appeal. The issue for my determination is whether the chairman exercised properly his discretion in refusing extension of time. Before doing so, is it the principle of law that courts have a

wide discretionary power of granting or denying an extension of time when sought. However, for the said decision to stand, the discretionary powers must be exercised judiciously, reasonably, and based on sound legal principles and not arbitrarily. See Lwitiko Mwamaso vs Ngavagila Teleka Ngogo Ngavanila Teleka Ngajiko, Civil Appeal No. 481 of 2021 [2024] TZCA 1260 (11 December 2024; TanzLII). It is also a settled principle that an appellate court would not interfere with the discretionary powers of the lower court in that aspect 4 unless the discretion exercised is in contravention of the above stated principles and that the contravention resulted into miscarriage of justice. In Mbogo & Another v Shah [1968] E.A 93, 94 in which Sir Clement de Lestang, VP stated; ‘I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that the decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should not have taken into consideration and in so doing arrived at a wrong conclusion.’ In this appeal it has been submitted that the secretary of the Tribunal participated in decision making. The governing provision is section 12 of LDCA and 4(2) of the WTA that each ward

Tribunal must have a secretary appointed by local government of the respective area. Function of the secretary of the ward tribunal is provided under section 5(3) of the WTA, it provides; ‘The secretary of the Tribunal shall attend all the sittings of the Tribunal and record all its proceedings but shall not participate in decision making.’ The appellant reason for extension of time was pegged on a single ground of illegality in that the secretary participated in the decision 5 making, the argument which is strongly refuted by the respondent, further that it is not on the face of record. I am aware that, a claim of illegality or irregularity of an impugned decision has, all along constituted a good cause for extension of time in many courts’ decision, one being Principal Secretary Ministry of Defence and National Service vs Devram Valambhia [1992] TLR 185. In the case of Lyamuya Construction Co. Limited (supra) the court stated; ‘Since every party intending to appeal seeks to challenge a decision either on points of law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrate that his intended appeal raises points of law should as of right, be granted extension of time if he applies for one. The Court there emphasized that such point of law, must be that "of sufficient importance" and I would

add that it must also be apparent on the face of the record, such as the question of jurisdiction not one that would be discovered by a long - drawn argument or process.’ Emphasize supplied.’ I have perused the record of appeal, particularly affidavit in support of the application for extension of time which was filed by the appellant as geared in paragraph 3 to 5, I reproduce; 6 ‘3. That after receiving a copy of proceedings and judgment in the trial ward tribunal has discovered that the secretary was involved in decision making.

4. That I have discovered that the involvement of the secretary in decision making occasioned miscarriage of justice.

5. That there is illegality on the record which is good reason for extension of time.’ In its ruling the chairman held that, stated the appellant had failed to account each day of delay. I appreciate that accounting each day of delay is one of the requirements in extension of time, however in this matter the appellant choose only to argue ground of illegality. Hence the chairman was supposed to discuss that ground alone but he did not do so. Failure to do so has not only denied the appellant and this court to know if the same was sufficiently established. Under the circumstances, this Court will step into the shoes of the DLHT and do what ought to have been done by it, the course that will expedite dispensation of justice. Similar stance has been taken in the case of Ngolo s/o Mgagaja vs Republic, Criminal Appeal No. 331 of 2017 [2021] TZCA 624 (1 November 2021; TanzLII) and the court stated; ‘Much as we appreciate that the power to grant extension of time, in the present case, is vested in the High Court, under 7 certain circumstances, this Court has stepped into the shoes of the High Court and done what ought to have been done by the High Court. We did so recently in the case of Ntiga Gwisu vs Republic, Criminal Appeal No. 428 of 2015 the facts of which are in all fours with the present case. We find it still good law hence we have no reason to depart from it. And, in

addition to the reasons stated therein that the course taken will expedite dispensation of justice, we are also inspired by the provisions of Rule 47 of the Rules which vests the Court with discretionary powers to extend time suo motu for doing an act.’ From what was deponed in paragraphs of affidavit already reproduced, the alleged illegality is not on the face of record of the judgment of the Tribunal as it calls for perusing the entire record of the Tribunal to discern it. Explaining how the principle of illegality work in extension of time in Joyce Joram Lemanya vs Patricia Patrick Lemanya and Another, Civil Application No. 430 of 2021 [2023] TZCA 235 (10 May 2023; TanzLII) Kente, J.A. stated; ‘I should also mention here that, where an application for extension of time is based on the allegation of illegality of the decision sought to be revised, the Court is not expected to laboriously scan through the entire record of the lower courts for the possible illegality.’ [Emphasize added.] 8 The law goes that the alleged illegality must be on the face of the impugned judgment or ruling or order and required not to be discovered by a long-drawn argument or process. The judgment of the tribunal dated 2/8/2019 shows names of four members who participated in the decision making to be Master Mwaitenga as chairman, Julias M. Mwandambo, Danotolia Rwezaula and Martha Seme. The name

of Edward Mwakibinga does not feature in the said judgment. This clearly shows the complaint by the appellant is unwarranted and not supported by record of the tribunal. In the premise, the appellant has failed to establish that there exists illegality in the judgment of the ward tribunal for the court to exercise discretion and extend time. The appeal is therefore accordingly dismissed with costs. V.M NONGWA

JUDGE 26/3/2025 9 Dated and Delivered at Mbeya this 26th March 2025, in presence of Appellant in person and Mr. Samsoni Suwi for Respondent through Virtual court. V.M NONGWA

JUDGE 10