MISC LAND APPLICATION NO

,. © THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) MISCELLANEOUS LAND APPLICATION NO. 58 OF 2023 MOSHI CHUBW A SINDI COMPLAINANT I APPELLANT I APPLICANT I PLAINTIFF VERSUS SWAIBU ABDUL MPILIPILI RESPONDENT I DEFENDANT RULING Fly Notes Facts Ratio Decidendi 16th of July 2024 Hon. RWIZILE.: The applicant filed a land dispute against the respondent at the District Land and Housing Tribunal of Kigoma, it is application No. 50 of 2020. His allegation was that his land situated at Bugaga village near the village office, in Kasulu District, was trespassed into by the respondent. The trial was exparte, since the respondent default appearance. Despite being heard exparte, the applicant did not satisfy the tribunal that his case was merited. It was therefore dismissed. Aggrieved by the said decision, the applicant did not file his appeal in time. He is now asking for extension of time to file appeal out of time. He has advanced, among other reasons, illegality. At the hearing, the applicant was under the service of Mr. Masendeka Anania Ndayanse, while the respondent was under Mr. Antony Kigonga, learned advocates. Mr. Ndayanse, stated that, the applicant got the judgement late after time to appeal had elapsed. It was because, he said, the tribunal did not issue a notice of the judgement date to the patties. He said, it is contrary to Rule 1 of order XIV of the Civil Procedure Code. The respondent in his counter affidavit stated that, the applicant did not account for all days after receiving the judgement. It was his view that the application be granted because of the illegality of the procedure in the judgement delivery and failure to supply the judgement in time. And that the tribunal Page. l Hon. AUGUSTINE RWIZILE members' opinion was not read, as well the case was heard exparte For the respondent, it was argued that there is no sufficient reason to grant extension of time. The applicant, it was argued, did not account for each day of the delay. The learned counsel cited the case of Charles Yusuph Nyamgenda vs Ayubu Man yo ta (CAT), Criminal Appeal No. 582 of 2017, on page 8, to support this point. It was further submitted that the applicant was supplied with the copy of the judgment on 13th, June 2023 and filed this application on 23rd, October 2023, which is an elapse of 4 months, which went unexplained. On exparte hearing, the learned counsel admitted, it was heard exparte, but, he said, it is the respondent was absent. The other reason advanced according to the learned counsel, is the about not reading the opinion of members, he submitted that the same were read. He finally asked this court to dismiss this application with costs. Having heard parties' submissions, the issue for determination is whether the application has merit. It is trite that for the application of extension to be granted, the applicant must not only have sufficient cause for delay, but also must account for each day of delay. The above may be negated by the court, if the applicant successfully proves illegality in the decision to be impugned. The applicant, if I may be pardoned for saying this, did not have and therefore could not show, sufficient cause for delay, neither did he account for days delayed. Therefore, the only point that remains, is if he has sufficiently proved illegality, which may stand alone as a sole reason to grant an extension of time, see the decision of the Court, in the case of John Paulo Yusuph v. The Republic, (supra), on page 8; where it was stated that the law is settled that illegality alone may constitute a good cause for extension of time. There is no dispute that the applicant was heard exparte and yet lost the case. He has not shown what was the reason for his absence on the judgement date. The notice of the date of judgment should be served on the parties when they are not present when the date was fixed. The applicant did not show he was not there when that was done. Another illegality cited by the applicant that the dispute was heard exparte. It is in the record that, the applicant filed a dispute against the respondent. He appeared before the tribunal to give evidence with 5 witnesses. He was heard to the finality. However, it was decided against him. On the members' opinion, the record has it that their opinions were read as it is shown on the judgement, and it is only one member that opined. "kwa sababu mjumbe mmoja Joseph Mapengu ameacha kazi ya ujumbe hivyo aliyetoa maoni ni mjumbe mmoja Anastazia Petro" It is clear therefore that the applicant has not shown the members' opinion were not read. The extract above shows what the tribunal did due to the absence of one member. I find this in accordance with the law. There is no fault on part of the trial tribunal. In the end, I find no merit in the application. It is dismissed with costs. Dated at KIGOMA ZONE this 16th of July 2024. Page.2 Hon. AUGUSTINE RWIZILE AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE