CIVIL APPLICATION NO 115 17 OF 2023 MONDAY KACHINGWE VS ATHUMANI SALUM KITAMBAZI

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM CIVIL APPLICATION NO. 115/17 OF 2023 MONDAY KACHINGWE........................................................................ APPLICANT

VERSUS ATHUMANI SALUM KITAMBAZI......................................................RESPONDENT (Application for extension of time within which to file a second bite application for extension of time to lodge a Notice of Appeal and apply for leave to appeal arising from the decision of the High Court of Tanzania/ Land Division, at Dar es Salaam) f Kaqomba^Jl dated the 30th day of June, 2021 in Land Appeal No. 98 of 2020-

RULING 17th & 20hJuly, 2024 MWAMPASHI. J.A.: This is an application for extension of time within which to file an application for extension of time to lodge a notice of appeal and application for leave to appeal, by way of a second bite. The application is brought by way of a notice of motion and is predicated upon rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit sworn by the applicant, Monday Kachingwe and in resistance, there is an affidavit in reply sworn by the respondent's advocate, one Mr. Jacobo Clisonguo Minja. i Briefly, the factual background from which this application arises, is as follows: the respondent herein, Athumani Salum Katambazi successfully sued the applicant for trespass to land before the Ruhembe Ward Tribunal in Land Case No. 34 of 2018. The decision by the Ward Tribunal was upset on appeal by the District Land and Housing Tribunal for Kilosa at Kiiosa (the DLHT) in Land Appeal No. 10 of 2019. On a second appeal to the High Court by the respondent herein, in Land Appeal No. 98 of 2020, the decision by the DLHT was on 30.6.2021, upset and that of the Ward Tribunal which was in the respondent's favour, was restored. The applicant was aggrieved by the decision of the High Court and was desirous of appealing against it to the Court but he delayed in lodging a notice of appeal and an application for leave to

appeal. That being the case, the applicant filed Miscellaneous Land Application No. 141 of 2022 before the High Court, for extension of time within which to lodge the notice of appeal and apply for leave to appeal. However, his application was dismissed with costs on 28.10.2022. The application having been dismissed by the High Court, the applicant had another chance to apply for the same before this Court by way of filing a second bite application under rule 45A (1) of the Rules, within fourteen (14) days from the date the High Court dismissed his application. In the instant case, the applicant 2 delayed in filing such an application within the prescribed period of time hence, the instant application for extension of time within which to do so. Apart from the ground of the application raised in the notice of motion which is to the effect that, the decision of the High Court in Land Appeal No. 98 of 2020 is tainted with illegality, the application is also based on another ground raised in the supporting affidavit that the delay was occasioned by the applicant's efforts to seek legal assistance. At the hearing of the appeal, the applicant appeared in person unrepresented whereas the respondent had the services of Mr. Jacobo Clisonguo Minja, learned advocate. Before the commencement of the hearing, Mr. Minja sought leave to withdraw the preliminary objection based on two points,

notices of which had earlier been filed on 23.03.2023 and 24.04.2024. Since there was no objection from the applicant, the preliminary objection was marked withdrawn as prayed by Mr. Minja. In support of his application, the applicant sought to adopt the notice of motion and the supporting affidavit. He then added that after the dismissal of his application by the High Court on 28.10.2022, he, being a peasant layperson with no means of raising money for hiring legal services from private advocates, started looking for legal aid assistance. 3 He further contended that, by the time he managed to find someone to assist him in preparing the application, he was already out of time hence, the instant application. In the supporting affidavit, it is explained that, just after the dismissal of his application by the High Court, the appellant approached the Legal and Human Rights Centre (LHRC) for legal assistance but after pondering his case for quite a number of days, the Centre offered him no assistance. Thereafter, he approached the University of Dar es Salaam Legal Aid Committee where he could also not get any assistance. He was told that there was nothing the Committee could do because his case was time barred. To that effect, a letter from the University of Dar es Salaam, School of Law, Legal Aid Committee, dated 18.01.2023 was annexed to the supporting affidavit as annexure

MK8. It is further averred in the supporting affidavit that, the applicant's request for legal assistance having been turned down by the Legal Aid Committee, the applicant went on looking for someone who would assist him until when he found one Mr. Fredy Julius Sanga, learned advocate, who assisted him in drawing and filing the instant application. Furthermore, it is deposed in the supporting affidavit that during all that material time the applicant was in ailing health and he had to make several trips between Kilombero Morogoro where he resides and Dar es Salaam. Furthermore, in the supporting affidavit, the ground of illegality raised in the notice of motion is amplified by an averment that the suit by the respondent was time barred. Having adopted the affidavit in reply, Mr. Minja, learned advocate, for the respondent, alerted the Court that, in this application, the applicant is also seeking extension of time within which to file an application for leave to appeal, which is no longer a mandatory requirement following the amendment of the relevant law. He urged me to disregard the application, in that respect, for the reason that the same has been overtaken by events. As on the application for extension of time within which to lodge the notice of appeal, it was argued by Mr. Minja that since the application before the High Court was dismissed on 28.10.2022 and as the

instant application was filed on 02.03.2023, then, there was a period of delay of more than four (4) months which has not been accounted for. Mr. Minja did also submit that even after the Legal Aid Committee had told the applicant that there was nothing they could do, on 18.01.2023, the applicant did not file the instant application until on 02.03.2023. Citing the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Association of Tanzania, Civil Application No. 02 of 2010 [2011] TZCA 4 (3 October 2011; TanzLII), Mr. Minja submitted that every day of delay has to be accounted for and that in the instant application the applicant has failed to account for the delay of the period of about four (4) months. He insisted that under rule 10 of the Rules, good cause for the delay must be shown to warrant extension of time. In resisting the application, Mr, Minja did also contend that the appellant's claim that he was sick has not been proved and further that the illegality ground has not been substantiated. Mr. Minja did therefore pray for the application to be dismissed with costs. In his brief rejoinder, the applicant submitted that the LHRC and the Legal Aid Committee to which he presented his request for legal assistance remained with his case and delayed in letting him know that they could not assist him. He maintained that he was never

dilatory but he diligently pursued his case, he thus implored me to grant the application. In consideration of the above submissions for and against the application and upon examination of the notice of motion and the affidavits filed by the parties, the issue for my determination is simply whether the application is meritorious and grantable. The power of the Court in granting extension of time is derived from rule 10 of the Rules, under which it is provides that: "The Court, may, upon good cause shown, extend time limited by these Rules or by any decision o f the High Court or Tribunal, for the doing o f any act authorized or required by these Rules, whether before or after expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended" It is clear that, in terms of rule 10 of the Rules, the powers in extension of time is entirely in the discretion of the Court. Such power has to be exercised judicially only when good cause is shown. See- Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd [2006] T.L.R. 235 and Abdallah Salanga & 63 Others v. Tanzania Harbours Authority, Civil Reference No. 08 of 2003 [2005] TZCA 19 (2 May 2005; TanzLII). It is also settled that, while it is not possible to define what constitutes "good cause", the Court

has, in a number of its decisions, listed down factors that have to be considered when determining whether or not "good cause" has been shown for the Court to exercise its discretion under rule 10 of the Rules. These factors include the length of the delay, the reasons for the delay, whether the applicant was diligent, the degree of prejudice the respondent stands to suffer if time is extended, whether there is a point of law of sufficient importance such as the illegality of the decision intended to be appealed against. See- The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R 387, Dar es Salaam City Council v. Jayantilal P. Rajan, Civil Application No. 27 of 1987 [1988] TZCA 26 (25 February 1988; TanzLII), Lyamuya Construction Company Limited (supra) and Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 06 of 2001, [2004] TZCA 45 (8 April 2004; TanzLII). In the instant application, one of the grounds raised in support of the application is that the impugned decision by the High Court is tainted with illegality. In as far as illegality, as a ground in extension of time, is concerned, it is now settled that illegality of the impugned decision constitutes good cause for purposes of extension of time. In VIP Engineering and Marketing Limited and 2 Others v. Citibank 8 Tanzania Limited,

Consolidated References Nos. 6, 7 and 8 of 2006, [2007] TZCA 165 (26 September 2007; TanzLII), the Court stated: "We have already accepted it as established law in this country that where the point o f law at issue is the illegality or otherwise o f the decision being challenged, that by itself constitutes ’'sufficient reason "within the meaning o frule 8 (now rule 10) o f the Rules for extending time". However, realizing that the principle on illegality as a ground for extension of time, appear to be so wide, the Court in Lyamuya Construction Company Limited (supra) restricted the principle by observing that: "Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points o f iaw should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point o f iaw must be that o f sufficient importance and, I would add that it must be apparent on the face o f the record, such as the question of jurisdiction; not one that would be discovered by long drawn argument or process". [Emphasis supplied] The above position on restriction of the principle on illegality that, where illegality is raised as a ground for extension of time, the

illegality must be apparent on the face of the decision intended to be challenged, has been emphasized by the Court in a number of cases including in Tumsifu Kimaro (The Administrator of the Estate of the Late Eliamini Kimaro) v. Mohamed Mshindo, Civil Application No. 28/17 of 2017, [2018] TZCA 40 (25 July 2018; TanzLII). Guided by the above stated principle, I am in agreement with Mr. Minja that, in the instant case, the ground of illegality, that is, that the lower courts had no jurisdiction to entertain the case because the same was time barred, is not apparent on the record. The ground of illegality, as raised in the instant application, requires a long-drawn process and argument to establish it. I am thus, satisfied that, for purposes of the instant application, the ground does not constitute good cause. Turning to the issue whether the period of delay has been accounted for, I firstly agree with Mr. Minja that for an application for extension of time to be granted, the applicant must, among other things, account for all the period of delay. Further, as pointed out above, the 10 delay should not be inordinate and the applicant must show diligence and not negligence or sloppiness in the prosecution of the action he intends to take. In the instant application the period of delay the applicant is required to account for, is from 28.10.2022 when the applicant's application for

extension of time within which to lodge a notice of appeal, was dismissed by the High Court to 02.03.2023 when the instant application was filed. By simple calculations there was a delay of about 120 days. The applicant's justification for the delay is that it was his efforts to seek legal assistance that delayed him and also that in the course of that period he fell sick and had to make several trips to and from Kilombero in Morogoro Region and Da es Salaam. Having considered the reasons for the delay as advanced by the applicant, I find that, while Mr. Minja is right in his argument that the claim by the applicant that he was sick lacks proof, the fact that the applicant had approached the LHRC and the Legal Aid Committee of the University of Dar es Salaam, for legal assistance, cannot be disputed. It is also in record that both the LHRC and the Legal Aid Committee, did not scrutinize the applicant's case in good time but they both stayed with the case for some considerable period of time before they, at the end of the ii day, turned down the applicant's request. The Legal Aid Committee, for instance, wrote to inform the appellant that there was nothing they can do, on 18.01.2023 when by that time, the applicant was already hopelessly out of time. From 18.01.2023, the applicant had to continue looking for legal assistance until when Mr. Fredy Julius Sanga, learned advocate,

agreed to assist him by drawing and filing the application on 02.03.2023. The above sequence of events indicate that the period of delay of 120 days might appear inordinate. However, considering the peculiar circumstances of this case where we have a peasant layperson who had been persistently seeking for legal aid assistance for the prosecution of his case, the delay of 120 days, to my considered view, is not inordinate. It should also be borne in mind that the applicant has shown that he was not negligent or sloppy but was diligent. Additionally, a considerable period of delay was caused by the LHRC and the Legal Aid Committee who initially accepted the appellant's request for legal aid assistance but having stayed with the case for a good number of days, they at the end, turned him down hence, occasioning further delay. All said and done, I am satisfied that, under the circumstances of this case, the applicant has shown good cause within the requirements of 12 rule 10 of the Rules, to warrant grant of extension of time as sought. Consequently, I grant the application and give the applicant fourteen (14) days from the date this ruling is delivered, within which he should file an application for extension of time to lodge a notice by way of a second bite application in terms of rule 45A (1) (a) of the Rules, Costs should be in the cause. Order accordingly. DATED at DAR ES SALAAM this 24th day of July, 2024. A. M. MWAMPASHI

JUSTICE OF APPEAL The Ruling delivered this 26th day of July, 2024 in the presence of Applicant in person, unrepresented and Mr. Jacob Minja, learned counsel for the Respondent is hereby certified as a true copy of the original. A 5 R. W. CHAUNGU j f In }) DEPUTY REGISTRAR V&JJ COURT OF APPEAL < * // 13