Magdalena Isebo 2 Others Vs

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA CIVIL APPLICATION NO. 700/8 of 2024 MAGDALENA ISEBO ,1 st APPLICANT AMOS WANSAMA. ,2nd APPLICANT HAPINESS MOKEGORO 3rd APPLICANT VERSUS NYIGANA WAMBURA ,1CT RESPONDNET KYORA CHARLES 2nd RESPONDENT THE REGISTERED TRUSTEE OF THE DIOCESE OF MUSOMA, 3RDRESPONDENT (Application for extension of time to file revision of the decision of the Resident Magistrates' Court of Musoma at Musoma) fRuiwahuka, PRM. Ext. Jurs.^ dated the 18th day of October, 2023 in Land Appeal No. 18 of 2023 RULING 10th& 14th March, 2025 NANGELA, J.A.: This application is by way of a notice of motion filed under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The applicants are moving this Court to extend time within which they are to file an application for revision. The notice of motion is supported by an affidavit jointly deponed by the three applicants herein. The grounds supporting the applicants' motion are essentially two, and may be paraphrased as follows, that: 1. the applicants herein were not parties to the Land Appeal No. 18 o f2023 before the High Court, as the said appeal was between the first, second and third respondent; and Z there is an apparent error on the face o f record resulting in miscarriage o fjustice as the learned appellate magistrate (Hon. E G. Rwajuhuka SRM (Ext Jur.)) acted beyond herjurisdiction. For a proper understanding of this application and how it came about, I will set out a brief history. Sometime in 1989, Majimoto Village Council allocated land to Majimoto Sub-Parish for church building and other related community development projects. That tract of land was held under the trusteeship of the third respondent. In 2018, a dispute arose between the third respondent and the first and second respondents. It culminated in the filing of Land Application No. 184 of 2018 at the District Land and Housing Tribunal C 'D U T T ) for Musoma. The DLHT resolved it in favour of the third respondent. Aggrieved by that decision, the first and second respondents filed Land Appeal No. 18 of 2023 before the High Court of Tanzania at Musoma. Hon. Rujwahuka, Principal Resident Magistrate (PRM Ex. Jurisd.), presided over that appeal. She resolved it in favour of the first and second respondents herein, quashed the decision of the DLHT, and ordered a retrial of the matter before another tribunal chairperson. However, she also made other consequential orders, which I need not restate here for obvious reasons. The applicants are dissatisfied by those consequential orders alleging that those orders are illegal because they tend to determine the issue of ownership of the disputed land, a fact they consider was outside that appellate court's mandate. In a bid to rectify that alleged illegality, they wish to move this Court by way of revision to do so. But noting that time to act as they would wish was no longer in their favour and being members of the Finance Committee responsible with administration of the disputed land for use in Majimoto Sub-Parish, they have approached this Court, by way of this application, seeking an extension of time within which they can do what they consider necessary. When the parties appeared before this Court for the hearing of this application, the applicants enjoyed the legal services of Mr. Cosmas Tuthuru, a learned advocate, while Mr. Amos Wilson, also learned advocate, appeared for the first and second respondents. Mr. John Manyama, a learned advocate, appeared for the third respondent Submitting in support of the application, the applicants' learned advocate adopted both the notice of motion and its supporting affidavit as forming part of his submission. He urged this Court to grant the application, anchoring his arguments on the three main reasons. First, he argued that because the applicants were not parties to the case, they could only challenge the lower court's decision through revision as they had no right to appeal against it. For this reason, they are requesting an extension of time to exercise their right. Second, he argued that, as the applicants' affidavit illustrates in paragraphs 10-11, there is an illegality that is evident on the face of the record and could lead to a miscarriage of justice. He contended that such illegality constitutes sufficient ground to warrant the granting of this application. Reliance was placed on the case of Attorney General Zanzibar vs. Laemthong Rice Company Limited & Another, 2023 [TZCA] 729/15 (7 May 2024) TANZLII. Finally, Mr. Tuthuru argued that the affidavit in reply submitted by the first and second respondents should be rejected. He contended that it has addressed the merits of the case. He also noted that the third respondent does not object to this application because she filed no affidavit in reply. To support his submission, he relied on the case of Zahara Kitindi & Another vs. JumaSwalehe&Others, 2017 [TZCA] 4 (3 March 2017) TANZLII. For his part, Mr. Wilson opposed the application. Having adopted the joint affidavit in reply filed by the first and second respondents, he urged this Court to dismiss this application on the grounds, first, that the applicants have failed to account for each day of delay and, second, that their alleged illegality is not an illegality apparent on the face of the record but rather an error of law. To support his submission, he relied on the cases of Josephat Joseph Mushi and Another vs. Tanzania Postal Bank Pic and Another, 2022 [TZCA] 86 (3 December 2024) TANZUI and Tanzania Rent A Car vs. Peter Kimuhu, 2017ITZCA] 226 (7 April 2019) TANZUI. Concerning the first and second respondents' affidavit-in-reply, it was his submission that nothing was to be faulted about it. He, therefore, implored this Court to dismiss the application. He did not press for orders as to costs. Mr. Tuthuru made a very brief rejoinder. His view was that, as a matter of principle, an illegality may either be a jurisdiction question or a failure to accord a party an opportunity to be heard. He contended that the alleged illegality is on face of record and not one to be sought through drawn arguments because it touches on the issue of jurisdiction of the learned magistrate to decide on matters of ownership of land while rendering her further consequential orders. I have meticulously considered the rival submissions of the learned counsel for the parties. I have read the notice of motion, the affidavit that supports it, and the joint affidavit in reply that the first and second 5 respondents prepared. As Mr. Turuthu correctly noted, the third respondent did not dispute this application and did not submit an affidavit in response. The main issue for consideration, therefore, is whether the applicant has demonstrated good cause to warrant the grant of an extension of time to file the intended application for revision out of time. In essence, this Court has complete discretion over whether to approve or deny a request for a time extension. The Court's discretion, however, is to be exercised judiciously. As such, the granting or refusal will depend on whether the applicants have demonstrated sufficient or good cause for their delay. However, what constitutes good cause has no universal characterization. As such, in the case of Felix Tumbo Kisima vs. TTC Ltd. and another, CAT Civil Appl. No. 1 of 1997 (unreported), a Single Justice of this Court stressed, that concept should not be interpreted narrowly but should be given a wide interpretation. Based on that understanding, factors such as an outline of the satisfactory reasons for the delay, the length of the delay, the chances of success of the intended application or the existence of an alleged illegality apparent on the face of the decision sought to be challenged are part of what the Court may consider as constituting a sufficient cause. The list is in no way exhaustive. See the case of Lyamuya Construction Co. Ltd. vs. Board of Registered of Young Women's Christian Association of Tanzania, 2010 [TZCA] 2 (3 October 2011) TANZLII. In this instant application, the applicants have raised an issue of apparent illegality on the face of the decision of the Hon. Rwajuhuka (PRM Ext. Jurisd). The main point of the alleged illegality is that the appellate court exercised jurisdiction over issues the court was not authorized to handle. They consequently implored this Court to grant this application. I am aware of what this Court said in the case of The Principal Secretary, Ministry of Defence and National Service vs. Devram Valambhia [1992] TLR 185. There, a three-judge panel rendered the following decision on page 189: " when [a] point at issue is one aiieging iiiegaiity 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" In Lyamuya's case (supra), this Court added that where there is an alleged illegality, such 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. In the instant application, the applicants assert both in their notice of motion and paragraph 10 of their affidavit that the alleged illegality is anchored in the jurisdiction of the Principal Resident Magistrate (Ext. Jur.), who presided over their appeal, the issue being whether she was entitled to determine matters related to the ownership of land and make consequential orders thereto. As mentioned previously, this Court does not currently need to decide whether or not the learned magistrate had jurisdiction to do what she did. However, having examined what the applicants disclosed in their notice of motion and its supporting affidavit, as well as their counsel's submissions and what this Court stated in the cases of The Principal Secretary, Ministry of Defence and National Service (supra) and Lyamuya Construction Company Ltd., (supra), I find that there is a cogent reason why this Court should allow this application. But before I wind up, I wish to comment on the submission made by Mr. Tuthuru that, since the applicants were not parties to the case, they have no right to appeal against the lower court's decision but can only assail it by way of revision. In principle, that submission states the correct position of the law, which this Court settled in the case of Denis T. Mkasa vs. Farida Hamza & Another, 2018 [TZCA] 46 (18 June 2020)TANZLII. All said and done, I find merit in this application and grant it. The applicants should, within 30 days from the date of this ruling, file their intended application for revision of the decision of the Resident Magistrate Court of Musoma) (Rujwahuka, PRM. Ext. J.) dated the 18th day of October, 2023. I make no orders as to costs. Order accordingly. DATED at MUSOMA this 14thday of March, 2025. D. J. NANGELA JUSTICE OF APPEAL The Ruling delivered this 14th day of March, 2025 in the presence of the Mr. Cosmas Tuthuru learned Counsel for the Applicant and also holding brief for Mr. Amos Wilson, learned counsel for the 1st and 2nd Respondents and Mr. Archard Rwamunwa, learned counsel for the 3rd