mariam magumbo vs athumani salum mbegu 2022 tzhclandd 773 31 march 2022

I

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND CASE NO.627 OF 2021

MARIAM MAGUMBO APPLICANT

VERSUS

ATHUMANI SALUM MBEGU RESPONDENT

RULING Date oflast Order:17/03/2022 Date ofRuling:31/03/2022 T. N. MWENEGOHA,J. The applicant filed the present application under Section 41(1) and (2) of the Land Disputes Courts Act, cap 216 R. E. 2019 praying for the following orders: - 1.That this Honorable Court be pleased to make an order granting the applicant an extension of time within which to appeal to the High Court against the decision of Ilala District Land and Housing Tribunal in Misc. Application No. 237 of 2016 dated 28"' March 2018. 2.Costs of this application be provided for. 3.Any other order(s)that the Honorable Court may deem fit. Application was supported by the affidavit of the applicant which was countered by the counter affidavit affirmed by the respondent. Hearing of the application was conducted by way of written submissions whereby the applicant's submissions were drawn by Roman Seiasini Lamwai while the respondent was represented by Robert Charles Oteyo, Advocate. Submitting in support of the appiication Mr. Lamwai referred to paragraph 5 of the applicant's affidavit and submitted that the decision of the Tribunal was based on illegality as the Chairman refused to exercise the jurisdiction vested upon him and the law based on the ground that the application for leave to file an application for Revision was out of time. Mr. Lamwai added that at page 6 of the ruling the Tribunal chairman hold that

the application has been overtaken by event. It is his submission that it was illegal for him to refuse to exercise the power vested upon him by the law. He cited different authorities to back up the position that the power to extend time is upon the court after being satisfied that there is sufficient or reasonable cause including the case of MZA RTC Trading Company Limited vs. Export Trading Company Limited,Civil Application No. 12 of 2015(Unreported). He submitted that under paragraph 6,7,8,9,10,11,12 and 13 of the affidavit in support of the application the applicant accounted for everyday of delay to the date when the present application was filed. He insisted that the decision of the Tribunal is bordered with illegality and need to be corrected by superior court. It is his submissions that it has never been settled that once execution effected will hinder the power for the Tribunal to exercise its discretion to extend time to file application for Revision. He submitted further that this ground of illegality is considered sufficient ground for the court to extend time as laid in a land mark case of Principal Secretary, Ministry of Defence and National Service vs. Divran P. Valambhia [1992] T. L. R 387. He concluded by praying that his application be granted with costs. In reply Mr. Oteyo submitted that this application for extension of time iacks merits and ought to be

ignored as the circumstances leading to the striking out of the Tribunai proves that both the applicant and the counsel for the applicant have ali aiong been negiigent and inactive as held in the case of Abdul Ramadhan vs. Said Baamary And Another, Civil Application No. 14 Of 1994, Cat(Unreported). He added that the Tribunai executed the Majohe Ward Tribunal Decree in Land Case No. BK/AR/MJ/MSP/K/153/2015 and has never been chaiienged by the appiicant herein. This being the case the Tribunal was functus officio to determine application No. 237 of 2016. Mr. Oteyo went further and discussed merit of the application that was subject to revision and I find it improper to highlight that discussion herein. Mr. Oteyo also replied on the reasons of delay submitted by the appiicant including the ground of illegaiity. He submitted that it wouid be chaos if courts were to automaticaliy grant extension of time to an appiicant who pieads illegality as a ground of extension of time without giving sufficient reasons for the deiay even if the deiay of 10 years. He therefore prayed for this application be dismissed with costs. Having gone through submissions of both counsels the issue for determination is whether the application has merit. The condition in granting appiication for extension of time is purely discretion of the court whereas this discretion should be exercised judiciousiy. This

position was weil sated in the case of Omary Shabani Nyambu vs. Dodoma Water and Sewerage Authority, Civil Application No. 146 Of 2016(Unreported) where it was heid that, "..../if is significant to emphasize that the court's discretion in deciding whether or not to extend time must be exercised judiciousiy and not arbitrariiy or capriciousiy, nor shouid it be exercised on the basis of sentiments or sympathy. Fundamentaiiy, the said discretion mustaim atavoiding injustice or hardships resuiting from accidentaiinadvertence or excusabie mistake or error, butshouid notbe designedatassisting a person who may have deiiberateiy sought it in order to evade or otherwise to obstruct the cause ofjustice- see Shah Vs. Mhogo and Another(1967)E.A 116" Applying the above authority in exercising my discretionary power I have considered the matter filed at the Majohe Ward Tribunal In case No. BK/AR/MJ/MSP/K/153/2015 where It was exparte against the applicant. Also, the allegation that the applicant was not aware of the proceedings until when his land was seized In the process of execution. I have noted the applicant's action of filing an application for extension of time to file revision of the said decision at the Tribunal. Further, when his application was not granted, he was busy making follow up for his copy of judgment and proceedings. When he was supplied with the same out of time, he

filed the current application for extension of time to file appeal against the decision of the Tribunal. This court Is of the view that the applicant did not sleep over his rights as he was active In Tribunal's corridors to seeking for those rights. Moreover, the applicant complained of the holding of the Tribunal that the Intended revision was over taken by event while an application tabled before the Tribunal was for extension of time. Whether the Tribunal was correct or not, this question will be well analyzed during appeal. Thus, this is iilegality and it is sufficient ground for granting application for extension of time as heid in the case of Grand Regency Hotel Limited vs. Pazi Ally & 5 Others, Civil Application No. 100/01 Of 2017 where it cited the case of Vip Engeneering & Markerting Limited and 2 Others vs. Citi Bank Tanzania Limited where the court stated that; "Itis therefore, settiediaw that a claim ofiiiegaiity ofthe chaiienged decision constitutes sufficient reason for extension of time under Ruie 8 regard less of whether or not a reasonable explanation has been given by the Applicant under the ruie to accountfor the delay". Principal Secretary, Ministry of Defence and National Service vs. Divran P. Valambhia [1992] T.L.R 387 where the Court of Appeal Is such as held, that; - "In our view when the point at issue is one alleging iiiegaiity ofthe decision being

chaiienged, the Court has a duty even if it means extending the time for the purpose to ascertain the point and if the alleged iiiegaiity be established, to take appropriate measures to put the matter and the record right"[Emphasis is mine]. Having said that I find the appiication to have merit. Appeal should be filed within 14 days from the date of this ruling. Costs shall follow the cause. It is so ordered. T.J^WENEGOHA

JUDGE rd 31/03/2022 fA rf. ir