Ruling Miscellaneous Land Application No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS LAND APPLICATION NO. 28575 of 2023 (C/F Civil Appeal No. 232 of 2020, Land Appeal case No. 36 of 2017 at the High Court of the United Republic of Tanzania and Originating from Application No. 54 of 2015 at The District Land and Housing Tribunal for Moshi at Moshi) NANCY MANASE KIDIN (As Administrator of Estate of the Late Manase Kidini Mushi) .……………………………........................................... APPLICANT VERSUS TUMAINI KISPANI………….……………………………… 1ST RESPONDENT DANIEL TUMAINI………….……………………………… 2ND RESPONDENT RULING 18th September 2024 to 29th October, 2024 MONGELLA, J. The applicant herein has preferred this application under Section 11(1) of the Appellate Jurisdiction Act [Cap 141 R.E 2019], Rule 47 Tanzania Court of Appeal Rules and Order XLIII Rule 2 of the Civil Procedure Code [Cap 33 R.E 2019]. She seeks for this Court to extend time so that she could file her notice of appeal to the Court of Appeal to challenge the Judgement of this Court in Land Appeal Case No. 36 of 2017. Her application is backed by her own sworn affidavit. Page 1 of 16 The respondents contested the application as duly expressed in the counter affidavit of Mr. Martin Kilasara, their learned counsel. The brief background of the matter is to the effect that: this Court, presided by Hon. F.A. Twalib J. (as he then was), pronounced a judgement on 22.05.2019 in respect of Land Appeal Case No. 36 of 2017. The applicant was aggrieved by the said decision. On 19.06.2019, the applicant filed a Notice of Appeal to the Court of Appeal. She as well sought for copies of necessary documents so that she could lodge her appeal. She received the said copies on 02.04.2020 and successfully lodged an appeal in the Court of Appeal on 27.05.2020 to wit, Civil Appeal No. 232 of 2020. However, on 25.08.2023, the appeal was struck out for being time barred. This was contributed by failure by the applicant to serve the respondents letters for requesting proceedings, which rendered the certificate of delay inapplicable in excluding time spent in acquiring necessary copies as per of Rule 90(3) of the Tanzania Court of Appeal Rules. Still wishing to pursue the appeal in the apex Court, she preferred the application at hand. The application was resolved by written submissions whereby the applicant was represented by Mr. Elikunda George Kipoko while the respondent was represented by Mr. Martin Kilasara, both learned advocates. Adopting the contents of the applicant’s affidavit, Mr. Kipoko begun with a brief history of the matter. He averred that following an objection by the respondents that they had not been served Page 2 of 16 with letters requesting necessary copies of proceedings, the Court of Appeal sustained the objection and struck out Civil Appeal No. 232 of 2020. Expounding on the reasons to move this Court to grant extension of time as sought, Mr. Kipoko alleged that there are serious illegalities, points of law of novel importance touching on the jurisdiction of this Court and the same would be exposed to the Court of Appeal. He explained the said illegalities to include: One, that the applicant’s right to be heard was infringed. He explained that this Court quashed and set aside the Judgement and Decree of the trial tribunal by considering the submissions of the respondents alone thereby condemning the applicant unheard. He alleged that the question as to whether there is denial of the right to be heard is for the Court of Appeal to determine. He fortified his stance with the case of Huruma Gideon Nyaupumbwe vs. NBC PLC (Misc Civil Application No. 186 of 2023) [2023] TZHC 20619 (25 August 2023) TANZLII. Two, that this Court acted ultra vires by upholding proceedings arising from a case which was a res sub judice to Application No. 37 of 2006 in the District Land and Housing Tribunal for Moshi at Moshi. He alleged that the said case was ordered to be tried de novo by Hon. Nyerere J. - in Appeal No. 27 of 2011. That, the said order for trial de novo was never vacated and poses a possibility of duplicate proceedings, judgement and decree over same subject Page 3 of 16 matter and by the same parties. He considered this a question of jurisdiction stressing that it can be raised at any time. Three, that this Court upheld an appeal arising from a case tainted with illegalities as the assessors did not give their opinion prior to pronouncement of judgement at the District Land and Housing Tribunal. He contended that this was a serious illegality as there are plethora of authorities showing that failure to involve assessors is a fatal irregularity which vitiates the proceedings. Four, that this Court quashed and set aside the judgement and decree of the trial tribunal without declaring who is the owner of the suit land. Stressing that the pleaded illegalities warrant the grant of extension of time so that the same could be determined, he cited the case of The Principal Secretary, Ministry of Defence and National Service vs. Devram P. Valambhia [1992] T. L. R. 185; Modestus Daudi Kangalawe vs. Dominicus Utenga (Civil Reference No. 1 of 2022) [2023] TZCA 17935 (11 December 2023) TANZLII and James Anthony Ifada vs. Hamis Alawi (Civil Application 482 of 2019) [2020] TZCA 1721 (13 August 2020) TANZLII. He finalized his submissions by praying for the application to be allowed. Adopting his counter affidavit, Mr. Kilasara commenced his submissions by averring that granting extension of time is within the discretion of the Court but upon good cause being demonstrated. He added that, however there are several preconditions which Page 4 of 16 have to be met as articulated in several decisions, including the case of Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 TANZLII. Referring to the grounds advanced in the applicant’s supporting affidavit seeking extension of time, to wit; one, that she was pursuing Civil Appeal No. 232 of 2020 and two, that there are illegalities in the impugned decision in Land Appeal No. 36 of 2017; he challenged that both grounds were frivolous, grossly misconceived and without substance. Expounding on his stance, Mr. Kilasara averred that the letter applying for necessary copies dated on 23.05.2019 was never served upon the respondent in terms of Rule 90(1) and 90(3) of the Tanzania Court of Appeal Rules, to date. He contended that the period between 19.05.2019 when the notice of appeal was filed and copies sought for to 25.08.2023 when Civil Appeal No. 232 of 2020 was struck out for being time barred could not be exempted or excluded from the period of limitation. In support of his stance, he referred the case of Leonard Rusumbanya Ngwanije vs. First International Bank of Tanzania Limited (Civil Appeal 54 of 2019) [2022] TZCA 89 (7 March 2022) TANZLII. He alleged that the period was wasted for noncompliance of the relevant provisions which is tantamount to inordinate delay. Mr. Kilasara further pointed out that the 67 days between 25.08.2023 when the appeal was struck out for being time barred to 01.11.2023 Page 5 of 16 when this application was filed, were also unaccounted for in the applicant’s affidavit. He contended that a delay of even a single day ought to be accounted for, a stance he supported with the case of Moto Matiko Mabanga vs. Ophir Energy Plc & Others (Civil Appeal No. 199 of 2021) [2021] TZCA 599 (22 October 2021) TANZLII which referred to other cases settling the same position, including that of Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 03 of 2007 CAT (unreported). Mr. Kilasara further alleged that over 1500 days were unnecessarily wasted by the applicant and should not be excluded from the period of limitation. He considered the delay being inordinate and the applicant ought to be condemned for being indolent in pursuing her appeal. He held the stance that this Court cannot properly compute the period of limitation or extent of delay to exclude the time wasted. That, the same renders this application bad in law, misconceived and devoid of merits. To further fortify his stance, he cited the case of Ibrahim Twahil Kusundwa & Another vs. Epimaki S. Mkoi & Another (Civil Application 437 of 2022) [2022] TZCA 625 (13 October 2022) TANZLII. Addressing the ground of illegality, Mr. Kilasara countered that the reason was frivolous, unfounded on face of the record and grossly misconceived. In his view, the cited case of Valambhia (supra) was distinguished and inapplicable in the matter at hand. Referring the case of Lyamuya Construction (supra), he alleged that the illegality alleged by the applicant was not apparent on the face of record. Page 6 of 16 That, the alleged illegality revolves around analysis and evaluation of evidence which is not an illegality per se. The learned counsel further alleged that it was clear in the 1st appellate court’s records that both parties filed their respective submissions and the Court did analyse and re-evaluate the evidence adduced at the tribunal. In the premises, he found none of the parties being prejudiced. He denied any party being condemned unheard at any stage of the case. Mr. Kilasara further alleged that the record of the tribunal shows that the remaining assessor was invited to give her opinion and gave her opinion in favour of the applicant herein. That, the opinion was also considered by the tribunal in its decision. In addition, the learned counsel pointed out that this issue was not a ground raised at the 1st appellate court. He alleged that in any case the omission did not prejudice the parties and could not be used to fault the 1st appellate court and become a subject of the 2nd appeal. Mr. Kilasara further pointed out that the other complaints pertain the evidence adduced at the tribunal, its analysis and re-valuation which is within the domain of the 1st appellate Court. In his view, these are not illegalities that would warrant this Court to invoke its discretionary power to grant the extension sought. He added that the alleged illegalities require scrutiny of the record to substantiate them. Page 7 of 16 Arguing further, he contended that the applicant clearly failed to prove ownership of the suit land which is why the 1st appellate Court ultimately quashed and set aside the erroneous findings of the tribunal. He insisted that there were no any points of law apparent on the face of record of novel importance to be determined by the Court of Appeal on a second appeal. Contending that the appeal has no overwhelming chances of success as insinuated by the applicant; he finalized his submissions by praying for the application to be found devoid of merit and be dismissed in entirety with costs. Rejoining, Mr. Kipoko alleged that the respondent did not refute that there were illegalities in the impugned judgement and they raise novel points of importance requiring the attention of the Court of Appeal. He alleged that the illegality touched on crucial aspects affecting the jurisdiction of the tribunal and this Court. That, the illegality is also apparent on the face of the record of Court proceedings and not one requiring a long-drawn process or argument, thus needing attention of the Court of Appeal to be rectified. He also pointed that where there is illegality in the impugned decision, the reason is sufficient enough for the Court to grant extension of time even if the applicant has not accounted for the delay. He supported his position with the case of Attorney General vs. Emmanuel Marangakisi (Civil Application No. 138 of 2019) [2023] TZCA 63 (24 February 2023) and Valambhia (supra) Page 8 of 16 Mr. Kipoko further averred that the applicant’s delay was occasioned by her reasonable pursuit of her appeal at the Court of Appeal and not sloppiness or negligence on her part. He finalised by reiterating his prayer for the application to be allowed for the applicant to be heard by the Court of Appeal. I have observed the rival submissions by the parties’ advocates and the parties’ affidavits as well as annexures thereto. The law is settled that grant of extension of time is within the discretion of the Court upon sufficient reason being displayed. Courts have set several guidelines to be observed so that such discretion is judicially exercised. One of plethora of authorities by the Court of Appeal where the guidelines were discussed in detail is the case of Lyamuya Construction (supra) whereby the Apex Court stated: “As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. Page 9 of 16 (d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged.” From their averments and annexures, it appears that the applicant is herein seeking a chance to again file his notice of appeal to the Court of Appeal. This application stems from the fact that, the applicant initially filed his notice of appeal in time and successfully filed Civil Appeal No. 232 of 2020 in the Court of Appeal. However, when the appeal came before the Court, it was found that the appeal was time barred and struck out. This is because, the applicant never served the respondents the letter requesting necessary copies per Rule 90(3) of the Court of Appeal Rules. It was due to this reason that the certificate of delay issued under Rule 90(2) of the Court of Appeal Rules could not be used to exclude the days she was awaiting necessary copies during which the 60 days for filing her appeal had lapsed. In his averments, Mr. Kipoko appears to allege that the period the applicant was prosecuting Civil Appeal No. 232 of 2020 should be excluded. What he pleads is termed as technical delay as well expounded in the case of Fortunatus Masha vs. William Shija and Another [1997] TLR154 whereby the Court stated: “A distinction has to be drawn between cases involving real or actual delays and those such as the present one in which clearly only involved technical delays in the sense that the original Page 10 of 16 appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after pronouncement of the ruling of the court striking out the first appeal. In these circumstances an extension of time ought to be granted.” See also; Philemon Mang'ehe t/a Bukine Raders vs. Gesso Herbon Bajuta (Misc. Civil Application No. 374/02 of 2022) [2023] TZCA 17672 (29 September 2023). There is no contest on the fact that the applicant had instituted the former notice in time. Although a copy of the annexed notice indicates it was filed on 17.06.2019 and not 19.06.2019 as alleged. The period from 17.06.2019 during which the applicant sought leave to appeal and eventually filed Civil Appeal No. 232 of 2020 to 25.08.2023 when the applicant was prosecuting her appeal, which was struck for being time barred is covered under technical delay. The period between 25.08.2023 and 29.12.2023 when this matter was filed as indicated in the eCMS was however, unaccounted for. There is nowhere in the applicant’s affidavit the delay on such period has been explained. The law is clear that a delay of even a single day must be accounted for. This was also emphasized in Rashid Said Kautipe vs. Zoeb F. Kadarbhai Another (Application No 1917 of 2022) 2024 TZCA 254 (8 April 2024), in which the Apex Court stated: “As regards such other legal requirement, it is trite law that, in order for an application for extension of Page 11 of 16 time to succeed, the applicant has to account for each day of the delay, however slight it may be.” The mentioned period covers about 126 days which were not accounted for. The period is so long to even qualify as a period in which the applicant was preparing to file this application. This delay was inordinate and a demonstration of negligence and sloppiness on the part of the applicant. To this point, I move on to the second ground on illegality. first of all, I wish to point out that the presence of an illegality in the impugned decision, serves as sufficient reason for the court to extend time. See, Valambhia (supra) where the Court held: "Where...the point of law at issue is the illegality or otherwise of the decision challenged, that is of sufficient importance to constitute sufficient reason within the meaning of rule 8 [now rule 10] of the Rules for extending time.” Courts are therefore inclined to grant extension of time where there are illegalities in impugned decision. This was emphasized in Salehe Omary Ititi vs. Nina Hassan Kimaro (Civil Application 583 of 2021) [2023] TZCA 232 TANZLII, where the Apex Court stated: “Again, it is a settled principle of law in our jurisdiction that where an illegality in the decision being challenged is raised, the Court is supposed to grant the application for extension of time so that the matter can be considered.” In the matter at hand, the applicant advanced nine (9) illegalities in his affidavit marked as item (a) to (i). However, Mr. Kipoko, only Page 12 of 16 submitted on items (a), (b), (c) and (h). The rest were neither addressed nor marked as abandoned. Prior to addressing each illegality, I wish to point out that where an illegality is pleaded, the party pleading the same must indicate that it is apparent on the face of the record and it must be one not requiring a long-drawn argument to locate. See, Power Network Backup Ltd vs. Olafsson Sequeira (Civil Application No 307 of 2021) 2023 TZCA 80 (1 March 2023), where the Court of Appeal stated: “However, it is also settled that where illegality is raised as a ground for extension of time, the illegality must not only be apparent on the face of the decision intended to be challenged but it should also be an illegality that would not be discovered by a longdrawn argument or process.” See also; Wilson Sirikwa vs. Mikael Mollel (Civil Application No. 54402 of 2021) 2023 TZCA 17583 (1 September 2023). On the first illegality under item (a); Mr Kipoko averred that this Court did not consider the applicant’s submissions, thus denying him the right to be heard. However, he did not demonstrate on which matters was such omission occasioned. He did not show how he came to arrive to the said assertion. It is the applicant’s duty to demonstrate where the illegality is found and not the Court. I thus, do not find the alleged illegality apparent on the face of record, but rather a point requiring a long-drawn argument and scrutiny of the impugned judgement. Page 13 of 16 The second alleged illegality is featured under item (b) in the applicant’s affidavit. Submitting on this illegality, Mr. Kipoko alleged that this Court acted ultra vires by upholding proceedings arising from a case which was a res sub judice to Application No. 37 of 2006 in the District Land and Housing Tribunal for Moshi at Moshi. That, the said case was ordered to be tried de novo by Hon. Nyerere J. in Appeal No. 27 of 2011, but a fresh case was filed. He believed that the filing of the new case brought the possibility of having multiple suits if the case is tried de novo. While Mr. Kipoko did not explain at which part the issue was discussed in the impugned judgement of this Court, I observed the judgement where I found that the issue on the matter being a res sub judice was in fact raised by Mr. Kilasara who stood for the respondent. The issue was resolved in the applicant’s favour owing submissions made by Mr. Kipoko himself. However, since it is a point of law regardless, it is only right that the Apex Court hears parties on the same. The third addressed illegality is found under paragraph (c) of the applicant’s affidavit. The same pertains the assessors’ opinion not being issued. I agree that the omission to take assessors’ opinion is an irregularity with effect of nullifying the Judgement by the District Land and Housing Tribunal. As argued by Mr. Kilasara this issue was never raised before this Court for it to address the same in the impugned Judgment. Nevertheless, even though it did not feature in the impugned judgement, since it is a matter of law, it can be addressed even in a second appeal. Page 14 of 16 Last is on the illegality addressed by Mr. Kipoko to the effect that the tribunal did not declare who was the owner of the suit land. Upon perusing the record, I found indeed that this Court did not declare who was the owner of the suit land, but only established that the applicant had not proved her ownership of the suit land. The Court of Appeal will thus have to consider the illegality or otherwise of this issue. With respect to the rest of the illegalities advanced in the applicant’s supporting affidavit, I am of the opinion that since the same were not explained by Mr. Kipoko in his submissions, this Court cannot step into the shoes of the parties and search for them to see whether they are apparent on face of the record. The duty to show where the alleged illegalities are in the impugned judgement lies on the applicant and not the Court. This position was well expounded in the case of Joyce Joram Lemanya vs. Patricia Patrick Lemanya and Another (Civil Application 430 of 2021) 2023 TZCA 235 (10 May 2023) whereby the Court of Appeal stated: “…in any application of the present nature, where illegality is raised regarding the judgment sought to be revised, the court is enjoined to grant the application for extension of time to pave the way for consideration of the matter, (vide the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185). It is however important to draw attention to the requirement that, it is always upon the applicant to demonstrate that the said illegality is apparent on the face of the record.” Page 15 of 16 In foregoing observations, I find the applicant has demonstrated sufficient cause in relation to the two illegalities, being, one, the matter being res sub judice and two, failure of this Court to declare who the lawful owner of the suit lad was. Based on laid out decisions, this Court is inclined to grant the applicant the extension of time sought for the alleged illegalities to be determined. I therefore hereby grant the applicant 21 days within which to lodge his notice of appeal to the Court of Appeal. Each party to bear its own costs. Dated and delivered in Moshi on this 29th day of October, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 16 of 16