MLEMEMBI CHARLES SIMBA VS MWANGALAMI CHOLOYA JUDGMENT

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA CIVIL APPEAL NO 13338 OF 2024 (Arising from the Ruling of the District Land and Housing Tribunal for Dodoma at Dodoma in Land Application Case No 22 of 2023 dated 28th May 2024)

BETWEEN MLEMAMBI CHARLES SIMBA…………………………………………. APPELLANT

VERSUS MWANGALIMI CHILOYA…………………………………..………..RESPONDENT

JUDGMENT Date of the last Order: 19/09/2024 Date of the Judgment: 12/ 11/ 2024 LONGOPA, J.: This is an appeal against the decision of the District Land and Housing Tribunal for Dodoma dated 28th May 2024 that denied extension of time to the appellant to file an application for revision against the decision of the Ward Tribunal that was made on 19th December 2012. The appellant intended to challenge the decision of Sagara Ward Tribunal in Land Case No 29 of 2012. It was the decision of the District Land and Housing Tribunal that the appellant herein failed to demonstrate sufficient reasons 1|Page for the trial Tribunal to exercise its discretion to extend time as per the requirement of the law thus, the application was dismissed for lack of merits. On 6th June 2024 the appellant institute this appeal having been dissatisfied with the whole of the decision emanating from Ruling of Dodoma District Land and Housing Tribunal delivered on 28th day of May, 2024 on Misc. Land Application no. 22 of 2023 before Hon. J.F Kanyerinyeri- Chairman on the following grounds, namely: - 1. That, the learned trial Chairman erred both in law and fact to decide without considering manifest illegality effected on the Ward Tribunal’s face of record to extend time from which appellant to file revision.

2. That, trial Tribunal erred in law and facts by pronouncing Ruling in favour of the Respondent herein by failing to consider the strong arguments adduced by the appellant, hence reached to unjust decision.

3. That, Trial tribunal erred in law and facts after pronouncing decision on 28/05/2024 erred to order 2|Page hearing on 31/05/2024 of Execution case no…. (sic) of 2023 without affording Appellant herein prescribed time to challenge the decision. It was the Plaintiff’s prayer that this Court be pleased to allow this appeal and set aside the decision of the Trial Tribunal dated on 28th day of May, 2024 with costs. On 19th September 2024, the parties agreed to dispose the matter by way of written submission and scheduling orders were made in presence of Ayub Mwakalonge counsel for respondent who appeared and held brief for counsel for appellant. However, up the time of composing the decision of this Court, the respondent had not filed the written submission in respect to the appeal. Having considered the position of the law, this Court was guided by Order XXXIX Rule 17 (2) of the Civil Procedure Code, Cap 33 R.E. 2019 which provides for modalities to proceed in case a party to an appeal fails to adhere to orders of the court. It is provided that: 3|Page (2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. This is also in line with the principle in the case of Anna Zakaria v Reniel Marthini (Land Appeal No. 48 of 2023) [2024] TZHC 531 (22 February 2024) (TANZLII), at page 3, the High Court stated that: It is settled law that

failure to file written submission in support of any matter, it tantamount to failure to appear on the date the matter is fixed for hearing. The remedy is to have the matter dismissed for want of prosecution. That being the position of the law as the party who defaulted from compliance to the court order is the respondent, the dismissal order is not the appropriate one except ex parte hearing of the appeal. In support of the appeal the appellant chose to argue only the 1st and 2nd grounds of appeal whereas the 3rd ground of appeal was abandoned. In respect of the 1st and 2nd grounds of appeal, it was submitted that the it is clear that the issue of illegality can be raised at any stage once it touch the jurisdiction of the Court or Tribunal as on the face of records is that 4|Page proceedings of the Ward Tribunal of 12th October,2012 and that of Judgement of 19th November, 2012 signed by both Chairman and Secretary of the Tribunal who is not the member of the Ward Tribunal as per section 4(2) read together with section 6(3) of the Ward Tribunal Act, Cap 206 R.E 2019 the Secretary is not the member of the Ward Tribunal. It was stated that the provision reads 6(3) Appointment to the office of Secretary shall be permanent in the service of the Local Government Authority within which the Tribunal to which he is appointed to be Secretary is situated. Section 24(2) of the Ward

Tribunal Act, stipulated the responsibilities of the Secretary of the Ward Tribunal the section states: “ The secretary of the Tribunal shall be responsible for recording all the evidence adduced and other matters formally transpiring during the proceedings before the Tribunal and all other matters in connection with’’. 5|Page According to the appellant, it falls therefore the Secretary of the Ward Tribunal is not a member of the Tribunal for the dispute resolution purposes. In this case copies of Ward Tribunal decision and proceedings availed to parties were signed by Chairman and Secretary of the Tribunal showing that he took part to the decision-making contrary to the law. In the case of Nada Qori vs Isaki Gilba, Miscellaneous Land Appeal No.2 of 2013 High Court of Tanzania Arusha (TANZLII) Hon. Mugasha (as she then was) held that: ‘’A secretary is not member of the Ward Tribunal but an employee of the Local Government Authority. In the circumstances as the decision is signed by the secretary the same is tantamount to the disputed being determined by the secretary who is not member of the Ward Tribunal and such decision is illegal.” So, the act of Chairman of the Tribunal failed to extend the time to file Revision to Appellant with regarding to the said illegality to challenge the ward Tribunal decision is not fair as the said illegality goes to the root of the case and it

touch the jurisdiction of the ward tribunal. 6|Page It was argued also that, the appellant was not afforded the right to be heard as fundamental right as stated under article 13(6)(a) of the Constitution of the United Republic of Tanzania of 1977 which states that “when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned’’. According to the appellant, the basis of this argument is that the proceedings of the Ward Tribunal of Sagara at page 8 of the proceeding, the statements of the appellant have no any name of the appellant which was written instead they wrote referring that ‘’ Maelezo ya Mdaiwa wa…. It was argued that because there is no name of the appellant which was written and after adduced of unknown evidence nowhere he signed once he finished to adduce the evidence and appellant was not summoned to adduced the evidence during the proceedings and no his name appeared during the proceedings so the appellant was not given the right to be heard. 7|Page The appellant argued that unfortunately the appellant was only supplied with copy of execution on 2023 something in which he was not aware with the existing case. Right to be heard is fundamental right as it touches the right

of party; failure to complied with it vitiate the whole proceedings of the Ward Tribunal and the whole decision of the Trial Tribunal is nullity so the right to be heard as illegality is good ground for extension of time for appellant to file revision. Also, the appellant complained that the Coram was not proper constituted as per section 4(1) (a) of the Ward Tribunal Act, Cap 206, R.E 2019 and section and section 11 of the Land Dispute Settlement Act, Cap 216 R.E.2019. In which in this case the proceedings of the Ward Tribunal show that the case was commenced on 12/10/2012 and concluded on 12/11/2012 in which the decision was made and, on that day, no any numbers of members of Ward Tribunal to form the Coram was indicated. The appellant reiterated that on page 19 of the trial Ward Tribunal proceedings shows that the case was heard on 12/10/2012 to 12/11/2012 but even on that date no any Coram was indicated to show that the matter was heard on that day. It was argued that absence of the Coram was in 8|Page contravention of the requirement under that provision that coram must be constituted. It was observed that on the proceedings there are two different dates on commencement and finalization namely 12/11/2012 and 12/11/2022 where there is no proper coram was indicated thus the said proceedings is nullity which amounted to good reasons of extension of revision in which the trial

chairman was supposed to observed on that of cases and how come the cases started on 12/10/2022 and up to 12/11/2012 so is from forward to back of years somethings which is not possible in eyes of law so the said proceedings having irregularity which amount to good cause for extension of time to file revision and it can be raised at any stage of the case. The appellant pointed out that there is a Latin Maxim-Nullus commodum capere potest de injuria propria which means that a person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. That means the appellant was not adduced the evidence in Ward Tribunal so the respondent cannot benefit from his own wrong by failure to summon the appellant to appear in proceedings. 9|Page The appellant reiterated that it was the appellant’s prayer that this honourable court be pleased to allow this appeal and set aside the decision of trial tribunal dated 28th May,2024 and allow this appeal with costs. In order to address this appeal, this Court shall be guided by the well settled principles of law. First, extension of time is among the discretionary powers of the court which must be exercised judiciously. Stephen Ngalambe vs Onesmo Ezekia Chaula & Another (Civil Appeal No. 27 of 2020) [2022] TZCA 130 (22 March 2022) (TANZLII), at pages 11-12, the Court observed

that: …we should begin our determination of the ground by restating that in an application for extension of time, an applicant has to show and the court has to be satisfied that there is good or sufficient cause warranting extension of time for doing an act authorised or required by the law. While there is no particular reason or reasons which are established as good or sufficient cause, the determination of what constitutes a good or sufficient cause involves an application of a judicial 10 | P a g e discretion and depends on the circumstances of each particular case. Each case has to be looked at its own circumstances. See Citibank (TZ) Ltd v. TTCL and Others, Civil Application No. 97 of 2003 (unreported). In determining what reason or reasons constitute a good or sufficient cause, courts are guided by certain principles which have been established for that purpose. The principles include, but are not limited to; the length of the delay, the reasons for the delay, the degree of prejudice to the respondent if the application is granted and whether it raises any point of public importance or illegality in the decision, that is to say, if there is an arguable case. It is on record that appellant couched his application on the illegality aspect to avoiding accounting for every day of delays. Indeed, the argument in this appeal is reiterated in the same manner. The illegality

is premised on: First, the appellant was not aware of the decision thus the 11 | P a g e right to be heard was not observed. Second, coram was not properly constituted. It is on record that these aspects of the appeal were subject of the submission before the trial Tribunal as arguments were on right to be heard, the matter being res judicata and that of illegality on question of coram. In the case of Mtengeti Mohamed vs Blandina Macha (Civil Application No.344 of 2022) [2023] TZCA 17328 (12 June 2023) (TANZLII), at page 7, the Court of Appeal stated that: In that connection as we held in the case of Tumsifu Kimaro (the Administrator of the Estate of the late Eliamini Kimaro) v. Mohamed Mshindo, Civil Application No. 28/17/2017 (unreported), where the Court is called upon to extend time on the ground of illegality of the decision sought to be appealed against or revised by a higher Court, the issues is whether the application for extension of time discloses, at least on a 12 | P a g e balance of probabilities some illegalities manifest on the record and whether the said illegalities raise any point or some points of law of sufficient importance. Coming to the present case, the crucial question for consideration that arises is whether or not the applicant has demonstrated, on a balance of probabilities the existence of some material illegalities on the record as to raise a point

or some important points of law. It is the law that applicant shall not only state the allegation of illegality on the impugned decision but also demonstrate that such error was manifest on the record. It is not enough to state about existence of the illegality but also the presence of such illegalities manifests on record. I have thoroughly perused both the proceedings of the District Land and Housing Tribunal, noted that pages 5-8 inclusive cater for the submission by the parties with regard to grounds in support of the application or in opposition of the same. 13 | P a g e It should be noted that right to be heard is among very fundamental rights that failure to adhere to it renders the decision illegal. This was the principle in the case of Anthony M. Masanga vs Penina (mama Mgesi) and Another (Civil Appeal 118 of 2014) [2015] TZCA 556 (18 March 2015) It appears therefore that the respondents were not afforded the right to be heard (audi alteram partem) on that aspect. In fact, nowadays, courts demand not only that a person should be given a right to be heard, but that he be given an "adequate opportunity" to be heard so as to achieve the quest for a fair trial. See the case of The Judge i/c High Court Arusha & Another v. N.I.N. Munuo Ng'uni [2006] T.L.R.

44. Moreover, in the case of Elias Augustine vs The Chief Secretary & Others (Civil Application No. 406/18 of 2022) [2023] TZCA 17708 (19 June 2023) (TANZLII), at page 7, the Court of Appeal stated that: 14 | P a g e My reference to the judgment of the High Court vindicates the applicant in that he raised the issue of denial of the right to be heard and violation of rules of natural justice. Before me the applicant need not to prove such allegations but whether it constitutes sufficient ground to grant the application so that he may be heard. In Charles Richard Kombe (supra) it was held that denial of a right to be heard is one of the instances of illegality, others being lack of jurisdiction and limitation period. So, with respect, I do not agree with Ms. Method that the applicant's complaints do not attack the process of the decision. This is because denial of the right to be heard is the process or procedure that may affect the decision. Even without the proceedings being part of the record, there is enough material for me to be satisfied that the issue of denial of the right to be heard was raised at the High Court and it is a point of sufficient importance. 15 | P a g e The complained aspects, it is on record in the Proceedings before the Ward Tribunal for Sagara that the appellant was not afforded opportunity to be heard is a far-fetched. First, the record is clear that

the applicant/Plaintiff was one Mwangalimi Chiloya and the Respondent/ Defendant was one Mlemambi Charles Simba. Second, the parties were heard and the appellant herein gave his testimony and called one other witness Mr. Maduhu. Third, regarding the Coram it is clear that there were five persons in attendance throughout include Chairman and three other members and the secretary. All the members opined that the disputed land in question belonged to Mwangalimi Chiloya and the Chairman pronounced judgment in favour of the respondent herein. It is nowhere, the Secretary of the Ward Tribunal participated in the decision making as the appellant tends to convince this Court. It is only three members of the Tribunal who opined before the Chairman of the Ward Tribunal for Sagara pronounced judgment in favour of the respondent herein. Fourth, the parties were full informed about the right of appeal within forty-five (45) days from the date of judgment i.e. 12/11/ 2012. 16 | P a g e It is on record that trial Tribunal had addressed this matter squarely at page 4 of the Judgment. The Tribunal found that the record of the Ward Tribunal of Sagara revealed that the appellant was informed and appeared before the Ward Tribunal. Second, the appellant made his statement and called a witness to support his case. Thus, in page 5 the trial Tribunal’s judgment it is stated categorically that the

right to be heard was not violated. In respect to the illegality, the trial Tribunal stated lucidly in pages 5- 6 of the judgment that there was nothing on record regarding the application where any kind of illegality was stated. It was the determination by the trial Tribunal that there was no any iota of illegality that would have affected the decision. Thus, the trial Tribunal was of the settled view that the statements were not reliable thus that ground failed. It my observation that all the arguments raised in this appeal were subject of the submission before the Tribunal on pages 5-8 inclusive of the trial Tribunal’s proceedings and the same were fully and squarely addressed by the trial Tribunal in pages 4-6 inclusively of the District Land and Housing Tribunal judgment dated 28th May 2024. There was nothing 17 | P a g e left unaddressed. Thus, I shall consider this appeal to lack any cogent merits. Indeed, the hearing of the land matter before the Ward Tribunal for Sagara in 2012 involved both parties to this appeal. The appellant herein cannot claim to have not been heard nor that he was not aware of the same as the record indicate to the contrary. What the appellant is trying to do is seeking this court’s intervention to entertain his sloppiness and lack of diligence to follow up of the outcome of the matter before the Ward Tribunal in pretext of illegalities which do

not exist. Such attempts should not be entertained as the same is against public policy. Before I pen off, it is important to reiterate another important principle which is settled in law namely that litigations must come to an end. This principle has been reiterated in several cases that have enumerated about this principle. For instance, in the case of Attorney General vs Mwahezi Mohamed & Others (Civil Application No. 314 of 2020) [2020] TZCA 1828 (22 October 2020) (TANZLII), at pages 28-29, the Court of Appeal of Tanzania lucidly stated that: 18 | P a g e …we find that the applicant has failed to show any manifest error on the face of record leading to miscarriage of justice and/ or that the said decision is a nullity. We respectfully observe that all the five grounds raised by the applicant intended to re-argue the appeal, which is not allowed under the law governing review. The power of the Court in exercising its review has to be used sparingly and only in the most deserving cases, bearing in mind the demands of public policy for finality of litigation and for certainty of the law as declared by the highest court of the land. In the case of Saul Henry Amon & Another vs Hamis Bushiri Pazi & Others (Civil Application No. 264) [2024] TZCA 275 (22 April 2024) (TANZLII), at pages 21-22, the Court of Appeal reiterated that: As already stated, we are convinced the applicants

just wanted to have a second view of our decision; an appeal in disguise, so to speak. We wish to remind litigants that seeking recourse in a court of law is a process that must 19 | P a g e have an end. The law imbedded in the Latin maxim interest republicae ut sit finis Utium (it concerns the State that there be an end of litigation), is still good law in our jurisdiction and part of our jurisprudence. There should be an end to litigation and the Court guards this principle…. Let the applicants be contented with some errors that might be in the impugned decision. We cannot somersault and turn a blind eye at well -established principle of law that litigation must come to an end to avail litigants an opportunity to indulge in other productive endeavours. Moreover, in the case of Twaha Michael Gujwile vs Kagera Farmers’ Cooperative Bank Ltd (Civil Application 156 of 2020) [2020] TZCA 1935 (26 August 2020) (TANZLII), at pages 13-14, the Court stated that: In addition, and discouraging litigants from resorting to review as disguised appeals, and underscoring the end to litigation, in Patrick Sanga v. Republic, Criminal Application No. 8 of 2011 we emphasized that: - "The review process 20 | P a g e should never be allowed to be used as an appeal in disguise. There must be an end to litigation, be it in civil or criminal proceedings. A call to re-assess the evidence, in our

respectful opinion, is an appeal through the back door. The applicant and those of his like who want to test the Court's legal ingenuity to the limit should understand that we have no jurisdiction to sit on appeal over our own judgements. In any properly functioning justice system, like ours, litigation must have finality and a judgment of the final court of the land is final and its review should be an exception. That is what sound public policy demands." As intimated above, the application before us does nothing less than inviting the Court to re-hear the application afresh which is contrary to the cherished public policy that litigation must come to an end. In the instant appeal the appellant was attempting to reverse a decision made in 19th December 2012 against him through revision by applying for extension of time so he can ably challenge such decision. In 21 | P a g e 2023, it was already eleven (11) years since that decision was made by the Ward Tribunal of Sagara Ward. Failure to act by the appellant for all eleven years since the decision was made should not be countenanced. Entertaining it needs careful scrutiny in order to find out if there is sufficient reason to disturb settled state of affairs as contained in the decision of the Sagara Ward Tribunal dated 19th December 2012. With the public policy that litigations must come to an end as demonstrated in cited

decisions of Court of Appeal of Tanzania, it would not be appropriate for Court or tribunal to interfere with the settled matters for flimsy reasons. Thus, I would have dismissed the application by the appellant on account of this principle. The appeal has nothing cogent with respect to the finding of the trial Tribunal which may warrant this Court to find faults in that decision. The trial Tribunal articulated all the aspects thoroughly. It is the settled view of this Court that trial Tribunal exercised the mandate properly as there was nothing to warrant it to exercise its 22 | P a g e discretionary powers to extend time to challenge a decision that was determined in past eleven (11) years. Save for failure by the respondent to file the written submission as required which makes this court find in the negative in respect to whether the respondent is entitled to costs of the appeal, I am satisfied that this second bite on part of the appellant has nothing tangible warranting this Court’s interference on the trial Tribunal’s decision to not dismiss the application for extension of time to file revision. The appeal is therefore dismissed for lack of merits. It is so ordered. DATED at DODOMA this 12th day of November 2024. E.E. LONGOPA

JUDGE 12/11/2024. 23 | P a g e