Neema Hashim Ngajilo vs Agatha Charles Ambakisye

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SUMBAWANGA MISCELLANEOUS CIVIL APPLICATION NO. 000005302 OF 2026 NEEMA HASHIM NGAJILO .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS AGATHA CHARLES AMBAKISYE .............................. RESPONDENT / DEFENDANT RULING MANYANDA, J This is an ex-parte ruling in respect of application for enlargement of time within which the applicant is to file notice of appeal for appealing to the Court of Appeal of Tanzania. She filed this application on 24/02/2026 the decision she is seeking to challenge was delivered on 20/05/2020, meaning that she delayed for about five years and nine months. The reasons she gave in the affidavit are two-fold namely, sickness and illegalities in the decision sought to be challenged. I will revert to them in a later stage in this ruling. The application is by way of a Chamber Summons supported with an affidavit sworn by Neema Hashim Ngajilo. It is not opposed because, the respondent whereabouts proved untraceable, hence served by substituted service by publication of summons in a local newspaper known as Uhuru. Publication was ordered by this Court after due efforts to serve him in normal traditional way using hard copy summonses proved futile. The applicant is represented by Mr. Philip Shija, learned Advocate. Arguing in support of the application, he adopted the affidavit and pointed that this Court has power to extend the sought time, if Page. 1 sufficient cause is established. He submitted the reasons for delay as been sickness. That, the applicant fell sick immediately after delivery of the impugned judgement on 20/05/2020. She attached a medical chit which according to the counsel evidences the same. The Counsel relied on the decision in the case of Josephat Jomes Mwaipopo vs Sino Hydro Co Ltd, Misc. Land Application No. 32795 of 2025 where this Court Hon. Masabo J, as she then was, ruled that in order for sickness to stand as a good cause it must be proved that the applicant was in fact sick and that the sickness prevented him or her from pursuing his or her right. The reason for extending the time submitted by the Counsel are illegalities in the impugned decision as follows: - One, the applicant was denied of her right to cross examine a very important witness, an act which violated the principal of natural justice enshrined under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. He named that witness as Agatha Charles Ambakisye. He insisted that section 147(1), now 156(1) of the Evidence Act, [Cap. 6 R.E. 2023] mandates the right to cross examine. I think the Counsel wrongly cited this provision because it does not apply in Primary Courts proceedings; it is disapplied by section 2 of the Evidence Act, of which relevant part reads as follows: - “2. Except as otherwise provided in any other law, this Act shall apply to judicial proceedings in all courts, other than primary courts,” (emphasis added) In this matter, since the proceedings he is intending to challenge belong to a primary court, the Counsel ought to have cited Rule 47 of the Magistrate's Courts (Civil Procedure in Primary Courts) Rules, G.N. No. 310 of 1964 and G.N. No. 119 of 1983 which reads as follows: - “47. Examination and cross-examination (1) A witness shall first be questioned by the party who called him. (2) Each party shall be entitled to cross-examine the witnesses called by the other party. (3) The court may question any witness at any time.” Second, the Chairman of “Serikali ya Mtaa wa Majengo” in Mpanda Municipal, disqualified the applicant from applying for letters of administration. The Counsel argued that the said Chairman doesn’t have that mandate. Third, the Counsel submitted that the third objector to the petition lacked locus standi as she was not an interested party this is in accordance with the probate laws and rules in Page. 2 Tanzania. Fourth, the Counsel submitted that the assessors’ opinion was ignored by the trial Magistrate and proceeded on his own. He relied on the case of Tubone Mwambete vs Mbeya City Council, Civil Appeal No. 287 of 2017 it was insisted by the Court of Appeal that assessors’ opinion is mandatory, failure to consider the same often vitiates the proceedings. Then he concluded that the said illegalities need to be determined by the superior Court of our land. I have thoroughly considered the reasons for delay and the reasons for extension of time submitted by the applicant’s counsel. While I agree with the principle of law in the first ground as adumbrated in Josephat Jomes Mwaipopo’s case (supra) that sickness, if proved that the applicant was actually sick and that he or she was prevented from acting due to that sickness, the same becomes a good or sufficient cause for extending the time. In the matter at hand, though it is shown that the applicant was sick, the medical report do not show that she was prevent by the sickness from filing a notice of appeal to the Court of Appeal and subsequently apply for certification of point of law in her intended appeal to the Court of Appeal. Regarding the second limb of reasons for extension of time, I also agree with the Counsel on the position of the law that illegalities in the impugned decision do constitute good or sufficient cause for extension of time. I may add that the illegalities must not only be errors manifested on the face of the record but also resulting in injustice. The Court of Appeal of Tanzania discussed the term “manifest error on the face of record resulting in injustice” in the case of Chandrakant Joshubhai Patel v. Republic [2004] TLR 218 at 225, where it adopted with approval an excerpt from Mulla on the Code of Civil Procedure (14 Ed), pages 2335 – 2336 the following: - “An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions: State of Gujarat v. Consumer Education and Research Centre (1981) AIR GU] 223] ... Where the judgment did not effectively deal with or determine an important issue in the case, it can be reviewed on the ground of error apparent on the face of the record [Basselios v. Athanasius (1955) 1 Page. 3 SCR 520] In the application at hand, the applicant’s Counsel, has submitted a number of illegalities which I think, if I determine the same now, I will be pre-empting the intended application for certification on a point la law. The application would have deserved to be granted. However, one thing has detained me, the impugned decision was made in 2020, that is a decision of this Court delivered by Hon. Mrango, J. This matter started in Primary Court and was determined thereat in 2019. A question is what if the matter has been closed, meaning that the respondent, as administrator has already vacated her office after filing of Forms V and VI and heirs already enjoyed their bequeathed properties, which might have even changed hands. Will the move intended by the applicant not re-open an already closed matter and what will the consequences be? In my efforts to get answer to the questions above, I have inspected the record in this matter, it has become clear to me that the matter in the trial court appears to have been closed, Inventory Form, commonly in primary courts known as “Forms V” and Final Accounts Form, also commonly known as “Form No. VI” evidence this fact. However, there are a number of issues to be resolved. One, there are two Forms No. VI. While Form No. V dated 16/12/2021 lists three houses namely Plot No. 113 (CC) at Mpanda, Plot No. 133 (FF) at Mpanda and Plot No. 12 Block 39 at Majengo Mbeya. It has liability of Tsh. 500,000/= as burial costs, the properties distributed is money only, Tsh. 6,019,002.39. Form No. VI dated 16/12/2021 shows the property distributed to Agatha Charles Ambakisye as the only heir, therefore receiving 100% of the estate been Tsh. 6,019,002.39. Form No. VI dated 16/12/2021 means the probate was closed on the same 16/12/2021 This Form VI does not tell where the three houses listed in the said inventory form went to. Moreover, the record shows that Agatha Charles Ambakisye was paid the Tsh. 6,019,002.39 after applying to the trial court on 15/12/2022 and the same approving such payment to be effected. Further, the same record reveals another Form No. VI dated 15/12/2022 which was filed by the same Agatha Charles Ambakisye stating: - “Mimi Agatha Charles Ambakisye ambaye ni msimamizi wa Mirathi, nathibitisha kuwa nimegawa na kuwasilisha hesabu ya Mirathi kikamilifu na kwa uaminifu kwa kadri nijuavyo.” Page. 4 Literally means the said Agatha Charles Ambakisye confirmed distributing the estate and submitted the final accounts accordingly. The second Form No. VI is dated a year later on 15/12/2022 which means the probate was either reopened or was not closed on 16/12/2021 as indicated in Form No. VI dated 16/12/2021. Form the analysis above, it is clear to me that, to date, there are three houses depicted in the inventory form which are nowhere to be seen, they were neither distributed nor accounted for in the final accounts of the probate. Moreover, it is not clear where the Tsh. 6,019,002.39. bequeathed to the said single heir, Agatha Charles Ambakisye, as the same was not listed in the inventory form. Can in such a situation be said that the probate was dully finalised. In my view, the answer is in negative. It is on the reasons stated above that I find this application meritorious. I say so because, based on the authority in Chandrakant Joshubhai Patel (supra) failure by a court of law to effectively deal with or determine the issues raised by the applicant’s Counsel in the case, amounts to error apparent on the face of the record which, in this matter resulted into injustice. Consequently, I do hereby grant the application. The applicant, Neema Hashim Ngajilo, is given 30 days for her to file a notice of appeal and subsequently 30 days for her to file an application for certification on point of law, if any. Order accordingly Dated at SUMBAWANGA this 8th of September 2026 . F. K MANYANDA JUDGE OF THE HIGH COURT Page. 5