MANGENI IBAGI NYAMBUSI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA MISC. LAND APPLICATION NO. 28153 OF 2024 (Arising from Land Application No. 176/2013 at the DLHT for Mwanza) MANG’ENI IBAGI NYAMBUSI ………….…………………………….. APPLLICANT VERSUS 1. YUSUPH RASHID KAZI 2. MAKIRE AUCTION MART ……………………………….. RESPONDENTS 3. MWANZA SACCOS LTD RULING 03/02/2025 & 7/03/2025 ROBERT, J. The applicant, Mang’eni Ibagi Nyambusi, has brought this application seeking an extension of time within which to file an appeal against the dismissal order issued by the District Land and Housing Tribunal for Mwanza in Land Application No. 176 of 2013. The application has been made by way of chamber summons and is supported by an affidavit sworn by the applicant, setting out the material facts relevant to the request. The hearing of this application proceeded through written submissions. The applicant was represented by Mr. Chiwalo Nchai Samwel, learned counsel, while the respondents were represented by Mr. Peter Mzuma Ndege, learned counsel. 1 In support of the application, Mr. Samwel submitted that the applicant seeks an extension of time to file an appeal against the dismissal order of the District Land and Housing Tribunal. He adopted the contents of the applicant's affidavit in their entirety and structured his submissions around three key points: (i) reasons for the delay and justification thereof, (ii) illegality in the drawn order and proceedings of the Tribunal, and (iii) other grounds supporting the application. Addressing the first point, learned counsel argued that the delay was neither due to negligence nor recklessness on the part of the applicant but was caused by the Tribunal's failure to timely furnish the applicant with the drawn order necessary for filing the appeal. He pointed out that the dismissal order was issued on 26th July 2023, and the applicant promptly requested copies of the drawn order and proceedings on 2nd August 2023, but to no avail. Between 26th August 2023 and 12th June 2024, the applicant persistently followed up on his request, making nearly daily visits to the Tribunal without success. Citing the decision of the Court of Appeal in Tanzania China Friendship Textile Co. Ltd v. Charles Kabweza & Others, Civil Application No. 62/2015 (TanzLII), he emphasized that it is the duty of the court to notify the applicant when copies are ready for collection. Eventually, on 12th June 2024, the 2 applicant issued a reminder letter, and it was only on 17th October 2024 that the order was availed to him. Within 20 days of receipt, the applicant engaged counsel and prepared the necessary documents, filing this application on 7th November 2024. Learned counsel further submitted that, in accordance with established legal principles, an applicant seeking an extension of time must account for each day of delay. He cited the case of Samson Kasubi v. Dala Kasubi, Misc. Land Appeal No. 31 of 2022 (TanzLII), which, in turn, relied on Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Christian of Tanzania, Civil Application No. 2 of 2010 (CAT). The Court of Appeal in Lyamuya outlined factors to be considered in such applications, namely: (i) the applicant must account for all the period of delay, (ii) the delay should not be inordinate, (iii) the applicant must demonstrate diligence and not apathy, negligence, or sloppiness, and (iv) the existence of a point of law of sufficient importance, such as illegality of the decision sought to be challenged, may justify the extension. On this basis, he urged the Court to grant the application under Section 41(2) of the Land Disputes Courts Act, Cap. 216 R.E. 2019. 3 Turning to the second point concerning illegality, Mr. Samwel contended that the drawn order and proceedings of the Tribunal were tainted with irregularities. First, he argued that the Tribunal erroneously dismissed the application despite the fact that it had already proceeded to the defence stage, with the applicant having completed the presentation of his evidence. He maintained that dismissing a case for want of prosecution at this stage was a misdirection since the prosecution had fulfilled its duty, and the case had moved to the defence phase. He further contended that, even in the absence of the applicant, the Tribunal ought to have proceeded to hear the respondents rather than dismissing the matter outright. Learned counsel highlighted another procedural irregularity: the Tribunal’s order of 31st October 2019 had scheduled the matter for mention on 11th December 2019, where parties duly appeared. However, no further orders were made, as the parties had agreed to pursue mediation outside the Tribunal, though this was not formally recorded. On 29th May 2023, when the case was mentioned before Hon. Murirya (Chairman), neither party was present. Nevertheless, a certain advocate, Happiness Mosha, purportedly appeared and requested permission to serve the respondents via newspaper publication—a request which was 4 granted. Subsequently, on 19th June 2023, the matter was mentioned again in the absence of the parties, and the same advocate sought dismissal for want of prosecution. This request was granted, despite the fact that the applicant had already closed his case and the matter was pending defence proceedings. Furthermore, counsel submitted that the Tribunal convened on 26th July 2023 without a prior scheduling order. This raised doubts about the propriety of the proceedings, particularly since the applicant had not been notified. More perplexingly, the advocate who had requested substituted service on behalf of the respondents later appeared to seek dismissal of the case, raising questions about her role and representation. Lastly, on the third point, learned counsel raised concerns over the fact that the application was presided over by four different Tribunal Chairpersons, yet no reasons were recorded for the changes. He argued that such irregular transitions prejudiced the applicant’s right to a fair hearing. He cited Kajoka Masanga v. The Attorney General & Another, Civil Appeal No. 153 of 2016 (CAT) (TanzLII), which reaffirmed the principle that once a judicial officer commences a trial, they should see it to completion unless circumstances prevent them from doing so. The Court in Ms. George Center Ltd v. The Hon. Attorney General 5 & Another, Civil Appeal No. 29 of 2016 (CAT) (TanzLII), emphasized that a succeeding judicial officer must provide reasons for taking over a partly- heard case. The rationale for this requirement, as stated in the judgment, is to uphold the integrity of proceedings and ensure transparency in the judicial process. Counsel further submitted that where an allegation of illegality is raised, the Court should grant an extension of time to allow the issue to be addressed. He referred to Arunaben Chaggan Mistry v. Naushad Mohamed Hussein & 3 Others, Civil Application No. 6 of 2016 (CAT) (TanzLII), where it was held that allegations of illegality warrant the exercise of the Court’s discretion in extending time. In conclusion, learned counsel reiterated that the applicant had diligently pursued the appeal, the delay was attributable to the Tribunal’s failure to furnish necessary documents, and the proceedings were marred by procedural irregularities. He thus prayed for the Court to grant the application for an extension of time to enable the applicant to lodge an appeal. Before proceeding with the reply submissions, counsel for the respondents informed this Court that, pursuant to the order of the Court dated 13th December 2024, the present application was to be argued by 6 way of written submissions. According to the said order, the applicant was required to file his submission in chief on or before 22nd December 2024, while the respondents were to file their reply submission by 29th December 2024, and any rejoinder submission by 2nd January 2025. However, contrary to the said order, the respondents received the applicant's submission on 24th December 2024, indicating that the applicant had filed his submission in chief belatedly on 23rd December 2024. Counsel for the respondents contended that it is a well-established principle of law that failure to comply with a court order regarding the filing of written submissions amounts to failure to prosecute the case, which is equivalent to non-appearance on the date fixed for hearing. To support this argument, counsel cited the case of Marian Boys High School v. Rugaimukamu Rwekego, High Court of Tanzania at Dar es Salaam (unreported), in which the Court held: "Since in the present application the respondent filed written submission out of the time framed by the Court without leave, he has failed to appear on the date fixed for hearing. That being the case, his submission is hereby disregarded..." 7 Based on this legal authority, counsel for the respondents prayed for the applicant’s submission to be disregarded in determining this application, as it was filed out of time contrary to the Court’s directive. Turning to the substantive matter, counsel for the respondents adopted the counter-affidavits filed before this Court. He then proceeded to submit that the extension of time to appeal is a discretionary power of the Court, as established in the case of Lyamuya Construction Company Ltd. v. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010, CAT-Arusha (reported on TanzLII). He highlighted the principles governing the grant of extension of time, which require that: (i) The applicant must account for all the period of delay; (ii) The delay should not be inordinate; (iii) The applicant must demonstrate diligence and not apathy, negligence, or sloppiness in pursuing the intended action; and (iv) There must be sufficient reasons, such as the existence of a point of law of sufficient importance. Counsel argued that the applicant had failed to meet these requirements and should not be granted an extension of time. He pointed out that the applicant had not accounted for each day of delay as required 8 by the law. Referring to paragraph 3 of the applicant’s affidavit, he noted that the applicant was present before the District Land and Housing Tribunal for Mwanza on 11th December 2019 when his application was mentioned, but the Tribunal did not make any direction regarding the application. Despite this, under paragraph 5 of his affidavit, the applicant stated that he only returned to the Tribunal on 31st July 2023, a period of three years and seven months later, without explaining why he failed to follow up on the status of his case during that time. One of the reasons advanced by the applicant for his delay was the alleged failure of the Tribunal to supply him with a copy of the drawn order and proceedings in a timely manner. However, counsel contended that a copy of the proceedings is not a mandatory document for lodging an appeal from the Tribunal to the High Court. He referred to paragraph 5 of the applicant’s affidavit, where the applicant admitted that upon following up on the status of his case on 31st July 2023, he was surprised to receive a copy of the dismissal order for Land Application No. 176/2013, which had been delivered on 26th July 2023 for want of prosecution. Counsel emphasized that the applicant, by his own admission, received the dismissal order on 31st July 2023 and not on 17th October 2024. To support this claim, he pointed out that the applicant annexed 9 the said dismissal order as Annexure MIN-1, which was received from the Tribunal. Notably, the applicant did not attach any document to support his assertion that he was supplied with the order on 17th October 2024. Further, counsel submitted that since the applicant received the dismissal order on 31st July 2023, he had only five days of delay at that point and could have filed his appeal. However, he chose not to do so for reasons best known to him. Moreover, even in paragraph 8 of the applicant’s affidavit, he only stated that he made payment for the supplied copy of the proceedings on 17th October 2024 and annexed Annexure MIN-4 collectively. However, he did not attach the copy of the dismissal order received on the said date, nor did he provide proof of payment for the drawn order. Counsel further submitted that the applicant had failed to account for the entire period of delay from 26th July 2023, when his application was dismissed, until 7th November 2024, when he filed the present application. He argued that a delay of one year and three months amounts to inordinate delay, caused by the applicant’s own negligence and apathy in prosecuting his case. He relied on the case of Bruno Wenceslaus Nyalifa v. The Permanent Secretary, Ministry of Home Affairs & Attorney General, Civil Appeal No. 82 of 2017, CAT-Arusha 10 (unreported), where it was held that “even a single day of delay must be accounted for; otherwise, there would be no justification for having rules prescribing the period within which certain steps have to be taken.” Regarding the applicant’s claim that the Tribunal failed to supply him with the drawn order and proceedings, counsel contended that the applicant failed to specify which Tribunal officer was responsible for this alleged delay. He argued that the assertion was therefore hearsay and devoid of evidentiary value. He cited the case of Yohana Maope Sudayi v. Nyembele Mkomochi, Misc. Land Application No. 13 of 2023, High Court of Tanzania at Dodoma (unreported), where it was held that “when an affidavit mentions another person, that person should also swear an affidavit in support of the averment; otherwise, the assertion remains hearsay and lacks evidentiary value.” Additionally, counsel submitted that even if the applicant were to be believed regarding the receipt of the drawn order on 17th October 2024, he still delayed in filing the present application, which was lodged on 7th November 2024, that is 20 days later. He argued that the applicant had not accounted for this period, relying on the case of Hadija Mrisho Nzwala v. Jumanne Gange, Misc. Civil Application No. 01 of 2022, High Court of Tanzania at Kigoma (unreported), where the Court dismissed an 11 application for extension of time due to the applicant’s failure to account for a 30-day delay after receiving the necessary documents. On the issue of illegality as a ground for extension of time, counsel submitted that the applicant could not use the principle of illegality to cover for his own negligence, apathy, and failure to comply with court procedures. He contended that there was no apparent illegality on the face of the record and cited Jonas Ntaliligwa v. Fedia Nyayagara, Misc. Land Application No. 20 of 2021, High Court of Tanzania at Kigoma (unreported), where the Court held that “a party who fails to exercise diligence in observing Court rules, such as filing an appeal in time, is not protected by the principle of illegality.” In conclusion, counsel submitted that, based on the foregoing arguments, supported by legal authorities and statutory provisions, the respondents prayed for the dismissal of this application with costs. In his rejoinder submissions, the applicant sought to address points of law and fact that, in his view, the respondent had misinterpreted, thereby misleading the court. The applicant’s rejoinder is structured around the following key issues extracted from the respondent’s reply: (i) the filing of submission in chief on 23rd December 2024, (ii) accounting 12 for each day of delay, (iii) the alleged hearsay in the applicant’s affidavit, and (iv) the existence of illegality on the face of the Tribunal’s record. Responding to the respondent’s contention that he filed his submission in chief on 23rd December 2024 contrary to the court order of 13th December 2024, the applicant clarified that his submission was lodged in the Judiciary Portal on 22nd December 2024, which was the deadline as per the court’s order. However, as that day fell on a Sunday when the court was closed, the control number (991401266515) for payment was generated on the next working day, Monday, 23rd December 2024, upon which the applicant promptly made the requisite payment. The applicant argued that the law is clear on this issue. He relied on section 19(6) of the Law of Limitation Act, Cap 89 R.E. 2019, which provides: “Where the period of limitation prescribed for any proceeding expires on a day when the Court in which such proceeding is to be instituted is closed, the proceeding is to be instituted on the day which the Court reopens.” He further cited section 60(1)(e) of the Interpretation of Laws Act, Cap 1 R.E. 2019, which stipulates that: 13 “Where the time limited for the doing of a thing expires or falls upon an excluded day, the thing may be done on the next day that is not an excluded day.” To reinforce his argument, he referred to the case of Yasinta Kambona vs. National Microfinance Bank (NMB-Ndanda Branch), Misc. Land Application No. 9 of 2022, HC-Mtwara (reported on TanzLII), where the court held: “In fact, this court does support the position taken by the applicant since section 19(6) of the Law of Limitation Act excludes the period of public holidays as it was in the present matter.” Based on these legal provisions and precedents, the applicant maintained that the preliminary objection raised by the respondent lacked merit, as the law is settled that when the last day for filing falls on a public holiday or a non-working day, the filing is permitted on the next working day. He further argued that the case of Marian Boys High School vs. Rugaimukamu Rwekego, Misc. Land Application No. 367 of 2020, relied upon by the respondent, is distinguishable from the present matter, as in the applicant’s case, the last filing day fell on an excluded day. On the issue of delay, the applicant contended that he had sufficiently accounted for each day of the delay, from 26th July 2023, when his application was dismissed by the Tribunal. He reiterated that, as 14 elaborated in his affidavit and submission in chief, he was awaiting the drawn order, which was necessary for lodging an appeal. Despite his diligent efforts, he was only supplied with the drawn order on 17th October 2024. The applicant acknowledged that his affidavit erroneously stated on page 8 that he was supplied with “proceeding and proceeding,” whereas he intended to refer to “proceeding and drawn order.” He clarified that, after receiving the drawn order, he took 20 days to engage an advocate and prepare the necessary documents. He dismissed the respondent’s assertion that he had acted negligently in following up on the status of his application. He argued that under the law, a person is entitled to file an appeal only after obtaining a copy of the judgment or order, and where time has elapsed, they may apply for an extension. The respondent’s contention that three years and seven months had elapsed was a misdirection, as it included periods when the application had not yet been dismissed. He emphasized that the relevant delay period began on 26th July 2023. The applicant relied on the principles enunciated in Lyamuya Construction Company Ltd vs. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application 15 No. 2 of 2010, CAT (reported on TanzLII), which sets out the requirements for extension of time. He argued that he had complied with these requirements and that the respondent’s claim that he received the drawn order on 31st July 2023 was erroneous, as what he received on that date was merely the dismissal order, which is insufficient for instituting an appeal. Addressing the respondent’s claim that the applicant’s affidavit contained hearsay, the applicant argued that his affidavit did not reference any individual but rather the Tribunal as an institution, which was responsible for supplying him with the drawn order. He distinguished the present case from Yohana Maope Sudayi vs. Nyembele Mkomochi, Misc. Land Application No. 13 of 2023 and Hadija Mrisho Nzwala vs. Jumanne Gange, Misc. Civil Application No. 01 of 2022, relied upon by the respondent, as in those cases, the applicants had relied on information allegedly given by specific individuals, whereas in the present matter, the delay was attributable to an institutional failure. The applicant maintained that there were glaring illegalities apparent on the face of the Tribunal’s record, as outlined in paragraph 9 of his affidavit. These included: The change of four (4) Chairpersons without 16 assigning any reasons; the dismissal of the applicant’s application after he had already closed his case; and the applicant being condemned unheard. He argued that these illegalities constituted sufficient grounds for the court to exercise its discretionary power to grant an extension of time, even if the applicant had failed to account for each day of the delay. In support of this position, he distinguished the case of Jonas Ntaliligwa vs. Fedia Nyayagara, Misc. Land Application No. 20 of 2021, cited by the respondent, noting that it was merely persuasive and not binding on the court. In light of the foregoing arguments, the applicant submitted that he had demonstrated good cause for the extension of time sought. He urged the court to exercise its discretionary powers in his favor and grant the application accordingly. Having thoroughly examined the submissions of both parties, the primary issue for determination remains whether the applicant has demonstrated sufficient cause to warrant an extension of time to file his appeal. However, before addressing this substantive issue, I find it appropriate to first resolve the objection raised by the counsel for the respondents regarding the alleged late filing of the applicant’s submission in chief. 17 The respondents contended that the applicant filed his submission in chief on the 23rd day of December 2024, one day after the prescribed deadline, and therefore urged this Court to disregard the submission. The applicant, on the other hand, firmly opposed this contention, asserting that he successfully lodged his submission in chief through the judiciary’s online portal on the 22nd of December 2024, which was the last permissible day per the Court’s order. However, as this date fell on a Sunday when the Court was not operational, the control number for payment was only generated on the following working day, the 23rd of December 2024, upon which he diligently proceeded with the payment. Upon careful scrutiny of the judicial online filing system records, it is evident that the applicant filed his submission on the 22nd of December 2024, which was within the prescribed timeline. However, due to the day being a Sunday—an excluded day—the control number could only be generated on the next working day. This scenario falls squarely within the legal framework governing time computation. The principle governing this matter is well settled. When the last day for filing falls on a weekend or public holiday, the due date is automatically extended to the next working day, as stipulated in the cases of Barclays Bank (T) Ltd v Jacob Muro, Civil Appeal No. 357 of 2019; Abraham 18 Abraham Simama v Bahati Sanga, Civil Application No. 462/17 of 2020 (both unreported); and Makomolwa Matepeli Shila v Mwanahamisi Ally Nongwa (supra). This principle is further codified under section 19(6) of the Law of Limitation Act, Cap. 89 R.E 2019, which states: “Where the period of limitation prescribed for any proceeding expires on a day when the court in which such proceeding is to be instituted is closed, the proceeding may be instituted on the day on which the court reopens.” (Emphasis added). Similarly, section 60(1)(h) and (2) of the Interpretation of Laws Act, Cap. 1 R.E 2020, reinforces this position: (h) Where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day. (2) For the purposes of this section, “excluded day” means Saturday, Sunday or public holiday throughout or in that part of which is relevant to the event, act, thing or proceeding concerned.” 19 In light of these statutory provisions and judicial precedents, it is evident that the applicant’s submission was timely filed. The Electronic Filing Rules further affirm this position, particularly Rule 21(1), which states that electronically filed documents are deemed to be filed on the date they are submitted online. This is further supported by Cata Mining Ltd v Obetho Joseph Werema (supra); Rose Ongara and 2 others v National Health Insurance Fund, Labour Revision No. 313 of 2022; and Mohamed Shashil v National Microfinance Bank Ltd, Labour Revision No. 106 of 2020 (all unreported). Having resolved this preliminary issue, I now proceed to determine whether the applicant has established sufficient cause for an extension of time. It is trite law that a claim of illegality in the impugned decision constitutes good cause for the grant of an extension of time, provided that such illegality is apparent on the face of the record. This principle was reaffirmed in Dimension Data Solutions Limited v WIA Group Limited & 2 Others, Civil Application No. 218 of 2015 (reported on TanzLII). In the present case, the applicant's claim of illegality revolves around the manner in which proceedings were conducted at the District Land and Housing Tribunal (DLHT). Specifically, the applicant highlights the fact 20 that four different Tribunal Chairpersons presided over the matter without assigning any reasons for such changes. While this Court is not sitting as an appellate forum to delve into the merits of the allegations at this stage, a prima facie review of the record suggests an apparent irregularity that warrants judicial scrutiny. Guided by the settled legal principles, it is evident that the applicant has established good cause for the extension of time. Given the nature of the alleged irregularity, without addressing the remaining reasons for extension of time, it is in the interest of justice that the applicant be afforded an opportunity to have the matter properly adjudicated upon appeal. Accordingly, the application is hereby granted. The applicant is given fourteen (14) days from the date of this ruling within which to file his appeal. It is so ordered. K.N. ROBERT JUDGE 7.3.2025 21