NYANDALO MTEBE

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA MISC. LAND APPLICATION NO. 13106 OF 2024 (Arising from Land Appeal No. 13 of 2023 in the District Land and Housing Tribunal for Ukerewe at Nansio) NYANDALO MTEBE …………………………………..……………………APPLICANT VERSUS MSIBA JANGULE EKWABI ……………………...……………………RESPONDENT RULING 23rd October & 29th November, 2024 KAMANA, J. In this application, Ms. Nyandalo Mtebe, the applicant, has moved this court to grant her an extension of time within which to file an appeal against the decision of the District Land and Housing Tribunal of Ukerewe, costs and any other reliefs that this court will deem fit to grant. The application is supported by an affidavit of the said applicant containing brief facts of the matter. The respondent on the other hand countered the application through his counter affidavit that was filed before this court. Following prayers by the respondent, an order was made by this court that the matter should proceed by way of written submissions. Just as required, parties filed their submissions both in support and against the application on time. In her submissions in support of the application, the applicant admitted that there was a 9-day delay in filing the appeal as the 1 same was to be filed within 60 days from the date of judgment, as per the provisions of section 38(1) of the Land Dispute Courts Act, Cap 216 [R.E 2019]. She added that since the judgment was delivered on 27th February, 2024, she was required to file his appeal on or before 25th May, 2024 but he filed on 5th June, 2024 which meant that she was late by 9 days. The applicant advanced three reasons that contributed to the delay in filing her appeal, one of them being failure to obtain the copy of the impugned judgment in time for her to able to prepare her appeal. She claimed that despite several follow-ups to obtain the judgment, it took her a month to finally receive the copy. She further averred that more delay was caused by sickness due to her age as she currently is 80 years old. Illegality was yet another reason advanced by the applicant to move this court to grant the application, claiming that in its judgment, the Ward Tribunal relied on a new issue regarding a map of the disputed premises that was introduced during its visit to the locus in quo without giving neither party a chance to be heard as regards the said map. This, she claimed, constitutes a serious illegality as it contravenes the principles of natural justice, and that her expectations that it would be cured by the appellate tribunal were shattered by its failure to do so. 2 Strengthening her argument, the applicant cited the case of Evodius Petro Majura v. Victor Gervas, Probate and Administration Appeal No. 10 of 2018 in which reference was made to the case of IPTL v. Standard Chartered Bank (Hong Kong) Ltd, Civil Revision No. 1 of 2009 where it was stated that: ‘No decision must be made by any court of justice, body, or authority entrusted with the power to determine rights and duties that adversely affect the interests of any person without first giving them a hearing, according to the principles of natural justice.’ Summing up her submission, the applicant made reference to this court’s decision in Misc. Land Application No. 02 of 2023 in which some disturbing features and illegalities were noted thus necessitating involvement by a higher tribunal, the DLHT, which failed to address the same hence this application. The respondent’s reply as regards the computation of the period of delay was to the effect that the delay was not nine days as alleged by the applicant but thirty-nine days in total. The respondent further expressed his strong disagreement with the applicant’s claim that her delay in filing the appeal was a result of failure to obtain the impugned judgment in time to enable her to prepare and file the appeal within the required time. As 3 the records show that the said copy of the judgment was received within a month after it was pronounced, it was the respondent’s view that the applicant had ample time to file the appeal. Regarding the allegations of sickness, it was the respondent’s opinion that the same lacks proof as the applicant has failed to attach either sick sheets or medical reports to prove her claim. He furthered his argument by stating that it is the stance of this court that in claims of sickness, the attachment of medical reports is important, more so, the reports must show the continuation of the ailment. He cited the cases of Geofrey Ndoshi Sosthenes v. Bank of Tanzania, Labour Application No. 15 of 2022; and Rosemary Katunzi v. Oscar Mhagama & Another, Civil Application No. 43/17 of 2022 to that effect. As for the issue regarding the map that was used by the trial tribunal without offering neither party the right to be heard concerning the same, the respondent replied that the claim was a new one that never featured as one of the grounds of appeal in the first appellate court, therefore, this court, being the second appellate court, cannot entertain the issue. To cement his argument, the respondent referred to the High Court case of Bujukano Lushesha v. Hakisimbila Kulwa, Misc. Criminal Application 4 No. 13259 of 2024 in which it was ruled that any matter not raised during the first appeal cannot be entertained in the second appeal. On the claim that there was a land dispute before the one at hand which involved the same piece of landed property but with different parties, it was the respondent’s reply that no proof of that has been attached to the affidavit by the applicant, and, that fact in itself cannot be said to constitute an irregularity. Moreover, it was his view that it is not up to this honourable court to crosscheck with the view to ascertaining whether or not the landed property currently in dispute was the subject of a previous land dispute though with different parties. He summed up his submission with a prayer to have this application dismissed for want of merit. In her short rejoinder, the applicant insisted that she was late by nine days only and not thirty days as argued by the respondent. Regarding the failure by the trial tribunal to afford parties their right to be heard on the new issue after it visited the locus in quo, the applicant maintained that the same amounts to illegality apparent on the face of the record, which, as stated in the referred case of Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia (1992) T.L.R 5 185, places upon this court a duty to extend the time to ascertain any illegality with the view to addressing the same. Having carefully gone through the submissions from both parties, the main issue to be determined here is whether the applicant has demonstrated reasonable grounds upon which to rely in granting the application. The applicant in this case prays for an extension of time to file an appeal. In our jurisdiction, the law regarding extension of time is that it is purely discretional and for the court to be able to exercise such discretion, good cause must be shown. It follows therefore that the applicant is required to show good cause before the court can grant an extension of time. In the case of Benedict Mumello v. Bank of Tanzania, Civil Appeal No. 12 of 2002 the Court of Appeal of Tanzania had this to say: ‘It is trite law that an application for extension of time is entirely in the discretion of the court to grant or refuse it, and that the extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause.’ In an attempt to justify and account for her delay in filing the appeal, the applicant raised two reasons namely sickness and failure to obtain the copy of the impugned judgment in time to enable timely preparation and 6 filing of the appeal. On the issue of sickness, the applicant claimed that she experienced both leg and back pain due to her old age and thus failed to meet the deadline. As regards the failure to obtain a copy of the impugned judgment in time to be able to file the appeal within the prescribed period, it was her argument that the said copy was made available to her one month after it was pronounced, that, combined with the sickness, made it impossible for her to meet the deadline. As far as the records go, the impugned decision was given on the 27th of February, 2024. The provisions of section 38(1) of the Land Disputes Courts Act, Cap 21 R.E 2019, specifically require that appeals from any decision or order of the DLHT in the exercise of its appellate or revisional jurisdiction be filed within 60 days from the date of judgment; therefore, the appellant was under an obligation to file the appeal on or before 27th April, 2024. However, since the copy of the decision was supplied after a month, that is on 28th March, 2024, 60 days started counting from there and would end on 27th May, 2024. Filing the appeal on 05th June, 2024, the applicant was nine days late thus legally bound to make a thorough account for all the delayed days. In her submission, the applicant made general arguments proof of which is lacking. This court is thus inclined to agree with the respondent 7 that a mere claim of sickness without medical proof thereof, more so, the claim that not being able to obtain a copy of the impugned decision until after a month cannot be considered good cause for extension of time, without there being proof and a thorough account for each day of delay. In matters of extension of time, the law places an obligation upon the applicant to make a full account for each day of delay as articulated in Bushiri Hassan v. Latifa Lukio Mashayo Civil Appeal No. 3 of 2007(unreported) where the court stated that: - ‘Delay of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken.’ It is for the above reasons that I find the applicant to have failed to establish a good cause for delays as she failed to account for each day of delay. On the second ground of illegality, as pleaded under paragraph 6 of the applicant's affidavit, it has been stated that there is an irregularity apparent on the face of the impugned judgment being challenged. In the reply submissions, the counsel for the respondent argued that the issue of illegality which stems from the denial of the right to be heard did not feature as one of the grounds of appeal in the appellate tribunal. He 8 argued that since it is a new ground, this court, being the second appellate court, cannot entertain it. Much as the respondent claims that a new ground not addressed by the first appellate court cannot be entertained by the second appellate court, when it comes to the claim of illegality, such an argument holds no water. This is because issues of illegality can be raised at any time. See: B. 9532 CPL Edward Malima Vs. The Republic, Criminal Appeal No. 15 of 1989 CAT (unreported); and Attorney General v. Tanzania Ports Authority & Another, Civil Application No. 87 of 2016, CAT (unreported). Following that, it is my finding that illegality alone is sufficient reason to grant the application. Following the above observation, it is my considered opinion that the applicant has successfully managed to establish that there is illegality on the face of the record which should be addressed by the appellate court. In the upshot, this application is hereby granted for the reason of illegality. The applicant is to file the intended appeal within 14 days from the date of this ruling. Based on the circumstances of this case there is no order as to costs. It is so ordered. 9 DATED at MWANZA this 29th of November, 2024. KS KAMANA 10