Misc

IN THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA

AT MTWARA MISC. LAND APPLICATION NO. 6621 OF 2024 (Originating from the decision of the District Land and Housing Tribunal of Mtwara at Mtwara in Land Appeal No. 67 of2022) MOHAMEDI RAHISI......................................................................... APPLICANT

VERSUS LUKIA CHIBWANA ALLY.............................................................. RESPONDENT

RULING 22nd May 2024 & 25/06/2024. DING'OHI, J. This matter has its originality from the decision of the trial ward tribunal as a land dispute. It was a Land dispute case No. 25 of 2022 of Mchemo Ward Tribunal by the applicant, Mohamedi Rahisi against the respondent herein, Lukia Chibwana Ally, and Kupela Rashidi Kundema, who is not party to this application. The dispute was over the ownership of land which each party claimed to have a right. At the end of the trial, the trial tribunal found for the respondent. It declared him the rightful owner of the disputed land. The outcome of the appeal in the first appellate tribunal (Land Appeal No. Page 1 of 9 67 of 2022) was also not happy for the appellant. It was decided against his wish that the Land Application Case No. 25 of 2022 was Res judicata to the Land Application Case No. 06 of 2015 of the same Mchemo ward tribunal which was decided against the Applicant, and which its decision had already been executed vide Application for execution No. 180 of 2019 of Mtwara District Land and Housing Tribunal. It would appear that the Applicant herein was aggrieved with the decision of the first appellate tribunal. He desires to appeal to this court but the time for doing so is not with him. He is attempting to persuade this court for an extension of time to file an appeal out of time to challenge the decision of the first appellate

tribunal of Mtwara in Land Appeal No. 67 of 2022. The application is made under section 14 (1) of the law of Limitation Act, CAP. 89 [R.E. 2002], and section 95 of the Civil Procedure Code, R.E.2002. It is supported by an affidavit that was affirmed by the applicant. At the hearing of the application, both parties were unrepresented and by their consent, it was argued orally. In support of the application, the applicant did not deny that he was out of time, within which to appeal, but that he had sufficient cause for the delay. According to him, he was sick from 20/05/2024, twenty-two days counting from the date of the judgment of the Page 2 of 9 trial tribunal. That, while sick, he was admitted at Kitangali Health Centre. The Applicant showed the court the patient card to that effect. The card was also attached to the affidavit accompanying this application. According to the Applicant, the cause for delay (sickness) is well shown in the affidavit. It is the Applicant's averments that he is a rightful owner of the disputed land per the "hatiya kimila" which was issued to him by the District Council. He contended therefore that if this application will not be granted, he will lose his right forever. In reply, the respondent, at the outset, prayed her counter-affidavit to be adopted as part of her submission. She submitted that the decision of the trial tribunal was delivered on

28/04/2023, which is more than a year now. According to her, the outpatient card attached to the Applicant's application does not clearly show that the applicant was admitted to the hospital. According to the respondent, she does not believe that the applicant was sick. In a brief rejoinder, the applicant almost reiterated what he submitted in chief. He humbly pleaded that sickness being a matter of humanity, every human being may one day turn to be sick. Page 3 of 9 I have carefully gone through the avouchment in the affidavit supporting this application. As I have cited herein above in this application the Applicant moves the court under section 14 (1) of the Law of Limitation Act, Cap 89 R.E 2002, and section 95 of the Civil Procedure Code. Is it proper? Fortunately, parties though laymen were given a chance to address the court on that issue. As expected, being laymen, they had nothing material to assist the court. Indisputably, per the records, and as I have shown at the very beginning of this ruling, this matter originated from the ward tribunal. The provisions of law cited by the applicant in his application do not cover appeals originating from Ward tribunals through the District Land and Housing Tribunal and to this court. The proper and specific provision of laws providing for appeals to the High Court against the decision of the District Land and Housing

Tribunal over the dispute originated from the Ward Tribunal is Section 38 (1) of the Land Disputes Courts Act. It provides as follows: v(l) -4/7/party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisionai jurisdiction, may within sixty days Page 4 of 9 after the date of the decision or order, appeal to the High Court: Provided that, the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired. There is no dispute therefore that the provisions of law cited by the applicant in his chamber summons for this application are wrong. I am also aware that section 43 (f) of the Law of the Limitation Act Cap 89 R.E 2002, provides that the Law of Limitation Act shall not apply to the proceedings for which a period of limitation is prescribed by other written laws. I am also in line with the Land Disputes Courts Act, which has specific provisions of law, as cited above, that deal with matters of appeals originating from the lower tribunals. That law is the one to be cited in the application of this nature. However, since the applicant in the chamber summons, and in his submissions before me specifically stated what he is applying for, and the respondent seems to have understood the intent, the only mistake in citing a proper

provision of law in the chamber summons will not make this application unworthy. Parties before me showed that they understood what this application was all Page 5 of 9 about that is why they were very specific in their respective submissions for and against the same. It is now a settled principle of the law that the wrong citation of the provisions of the law in the chamber summons will not render the application incompetent. The Court of Appeal of Tanzania in Director General Lapf Pension Fund vs Pascal Ngalo (Civil Application No. 76 of 2018) [2020] TZCA 289, cited the case of Amani Girls Home vs Isack Charles Kanela (Civil Application 325 of 2019) [2019] TZCA 458 where it was observed inter alia that; ........ provided that where an application omits to cite any specific provision of the law or cites a wrong provision, but the jurisdiction to grant the order sought exists, the irregularity or omission can be ignored and the Court may order that the correct law be inserted." From the foregoing outset, as this court has jurisdiction to grant an extension of time to file an appeal from the matter originated from the Ward Tribunal as per section 38 (1) of the Land Disputes Courts Act, for the interest of justice, I think, no injustice will be seen to have been committed if this application is taken to a level of considering merit. Page 6 of 9 Having said so, the next issue is

now whether the applicant in this application has shown a good and sufficient cause for delay. As to what constitutes a good or sufficient cause is not settled in the statutes. However different case laws have done veritably. There are different matters that courts may consider to be causes for delay in the exercise of discretionary powers to extend the time. It will depend on the circumstances of each particular case. The Court of Appeal of Tanzania in the case of Tanga Cement Co. Ltd vs Jumanne D. Masangwa & Another (Civil Application 6 of 2001) [2004] TZCA 45 made approval of the holding made in the case of C.M. Van Stillevoldt v. El Carriers Inc. (1983) 1 All ER 699 at page 703 where Griffiths, L J. had this to say; "The registrar, in my judgment, took into account all the relevant matters when approaching the determination of the application before him. He stated them in the following words: "In my judgment, all the relevant factors must be taken into account in deciding how to exercise the discretion to extend time. Those factors include the Page 7 of 9 length of the delay, the reasons for the delay, whether there is an arguable case on appeal, and the degree of prejudice to, the defendant if time is extended." After carefully revisiting the affidavit by the applicant in this application I will have no sufficient material to disagree with the applicant that after

the decision of the trial tribunal, he fell sick and was admitted to Kitangari Health Center. The in-patient card attached to this application indicates that the applicant had experienced a stroke and was admitted to the hospital. After he was discharged from the hospital he continued to attend the hospital until he became good. I think the applicant has shown diligence in pursuing the right because, within a short time after he was discharged from the illness, he made this application. He did show a "had ya kimila" in an attempt to show that he has the evidence over the ownership of the suit land. The trial tribunal had already determined the dispute in favor of the respondent. Since the appellant claims to be the owner of the same land which the trial tribunal declared the respondent to be the owner, that is a serious dispute that is to be fairly determined by the appellate court in the intended appeal. Page 8 of 9 In the upshot, the applicant has shown sufficient cause for delay. The application is therefore granted. The Applicant is given 30 days from today within which to file his intended appeal per the law. No order as to costs. DATED at MTWARA this 25th day of June 2024. Court: Ruling delivered this 25th day of June 2024 in the presence of Page 9 of 9