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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 29748 OF 2024 (Arising from the Ruling and Drawn Order of the District Land and Housing Tribunal for Kinondoni District at Mwananyamaia, Misc. Land Application No. 103 of2024 by Hon. Silas, Chairperson dated 23rd October, 2024) BETWEEN NZIAJOSE ELLY MLEMBA(administrator of the estate of ELLY MLEMBA)............................................................. APPELLANT VERSUS NEEMA WILLIAM MLUTU (administrator of the estate of IBAMBA MZAVA ELIFURAHA)............................................. RESPONDENT JUDGMENT 27/03/2025& 03/04/2025 N.E. MAN DI A, J The appellant, NZIAJOSE ELLY MLEMBA as the administrator of the estate of ELLY MLEMBA is appealing against the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamaia (the Tribunal), in Misc. Land Application No. 103 of 2024 delivered on 23.10.2024. He preferred the appeal on the following grounds: - 1. The trial Tribunal erred in law and fact in holding that the application before the Tribunal was for extensions of time to file an application for fresh hearing of Land Application No. 09 of2020 that was dismissed on 16.03.2023 whereas in facts the application was for enlargement of time upon which he can file an application to set aside the dismissal order of Land Application No. 09 of2020. fVT 1 2. The trial Tribunal erred in law and fact in holding that after passing through the file in land Application No. 09 of 2020 it was only the respondent who was appearing before the Tribunal more than the appellant 3. The trial Tribunal erred in taw and fact in holding that the appellant had no sufficient reason for extension of time in total disregard of the serious illegalities concerning the order dismissing Land Application No. 09 of2020. 4. The trial Tribunal erred in law and fact in holding that the appellant had Hed by alleging that the file lost truck in total disregard that Hon. Rugarabamu is on record in the proceeding dated 8th August, 2022 that indeed the case file had lost truck on the reason that Hon. Kamugisha who was presiding over the matter had returned back to his working station 5. The trial Tribunal erred in law and fact by failure to evaluate the evidence on record hence arrived at an erroneous decision that is deeply prejudicial to justice against the appellant herein since both parties herein dosed their testimonies concerning the contentious matter in that it is the husband of the respondent herein who finished last to dose his evidence on 29h November, 2021 when the matter was scheduled to come for assessor's opinion on 30th November, 2021 in advance to composing the judgment on the findings of the Tribunal something that has never materialized to date. A brief factual account underlying the appeal as obtained from the records is that: on 07.01.2020 the appellant filed Application No. 9 of 2020 at the Tribunal. Hearing of appellant's case started on 03.02.2021 before Hon. Wambili, chairperson and one witness namely Andrew Elisafi Kabora testified. To speed up the hearing, on 03.09.2021, Hon. Kamugisha whose working station was in 2 Morogoro, was appointed through "Big Result Now" (BRN) session and continued hearing the application until 29.11.2021 whereby both the appellant and the respondent case were closed. That Hon. Kamugisha then left back for his working station hence, the suit lost truck for lack of communication between the trial Chairman and the parties. That upon perusal of the case file by the appellant, it was discovered that the case was kept adjourned by Hon. Rugarabamu and lastly Hon. Silas without the appellant knowledge. That later, when Hon. Silas assumed the role of chairman in charge, he decided to dismiss the application on reason that the applicant has abandoned the application. The appeal was disposed by way of written submission. The appellant was represented by Mr. Frank Kilian, learned counsel whereas the respondent appeared in person and unrepresented. In support of the appeal, Mr. Killian combined the 1st and 2nd grounds of appeal and disputed the holding of the Tribunal that the respondent was appearing before the Tribunal more than the appellant. That the proceedings of the Tribunal are very clear that from 07.01.2020 when Application No. 9 of 2020 was filed until 29.11.2021 when hearing was closed, both parties attended and finalized hearing of their witnesses. That after close of the case, Hon. Kamugisha was not traced taking into consideration that he had no office in Dar es Salaam and no clerk hence, it was difficult to know the proceedings of the case. 3 Mr. Killian also combined the 3rd and 5th grounds of appeal and challenged the failure of the trial chairman to consider the affidavit in support of the application which stated the reasons for delay and instead he held that the appellant has not adduced sufficient reason for extension of time. That the ruling issued by the trial chairman contradicted Order XX Rule 4 of the Civil Procedure Code [Cap. 33 R.E 2019] (the CPC) which provides for the contents of a judgment. He was of the view that the appellant reasons for delay which were the time spend when the application was moving from one chairman to another and the illegality which is apparent on the impugned ruling were sufficient to grant extension of time. He submitted further that at paragraph 20 of his affidavit, the applicant stated that the application was at the stage of issuing judgment hence, the act of the trial chairman to reopen the proceedings in the absence of the parties and to dismiss the application amounted to illegality. That until 29.11.2021 when hearing of the application was closed, it was between the appellant and NTEKAMIWA IBAMBA E. MVATA as the respondent, and the Tribunal was not informed about the death of the said NTEKAMIWA but substituted him for NEEMA WILLIAM MLUTU as his administratix without following the procedures. That, these illegalities were sufficient reason for extension of time. 4 On the 4th ground of appeal, Mr. Killian submitted that the appellant is challenging the findings of the trial chairman that "...Hivyo basi, sababu yake ya kusema fail! la shauri hili HHpotea sio za kweli" while the proceedings in Land Application No. 9 of 2020 dated 08.08.2022 shows that Hon. Rugarabamu had acknowledged that the application has lost track after Hon. Kamugisha left back to his duty station. That there are several correspondent letters which shows how the appellant was communicating with the Tribunal to know the fate of his judgment. That, the appellant was not negligent since there was a reasons beyond his control. Finally, Mr. Killian prayed for the appeal to be allowed with costs. In reply, the respondent submitted that the applicant was seeking for extension of time to file an application for restoration of the dismissed land application. She replied further that the argument by the appellant that the main reason for his delay was the irregularities in handling Land Application No. 103 of 2024 is unfounded. That it is trite that for an application for extension of time to succeed, the applicant must adduce sufficient reasons for the delay and give an account for each day of delay and not the irregularities. She cited the case of ISAYA SWAI VS. GREVEN NGOMUO, Civil Appeal No. 53001 of 2021, CAT at Dar es Salaam (unreported) to bolster her argument. That it was the duty of the applicant to adduce sufficient 5 cause for failure to file an application for restoration of the dismissed application within time and accounting for each day of delay instead of complaining on the proceedings of the main application which was not the subject at hand. That Land Application No. 09 of 2020 was dismissed on 16.03.2023 while the application for extension of time was filed on 06.03.2024, which is almost a year after the dismissal. That the appellant failed to account for each day of delay and adduce sufficient cause for extension of time. In response to the 1st and 2nd ground of appeal, she contended that the argument made by the appellant that he was vigilant and appearing before the tribunal to prosecute his application at all time is a misconception. She was of the view that the tribunal was correct to issue its ruling basing on the non-appearance of the appellant and or his counsel. That the chairman could not leave the matter undecided while it was raised in the applicant affidavit as reason for extension of time. On the 3rd and 5th grounds of appeal, she replied that the Tribunal's decision focused on the issue whether the appellant did adduce sufficient cause for extension of time or not. That in his affidavit, the applicant complained on the proceedings of the application instead of adducing sufficient cause for extension of time. That the argument that the evidence submitted was not 6 considered is a misconception because those evidence were not supporting the point for determination. She contended that the CPC does not apply in the Tribunal rather the proceedings are regulated by the Land Disputes Courts (District Land and Housing Tribunal) Regulations of 2003 and the said ruling complied with Regulation 20(1) of the said Regulations. That Order XX Rule 4 of the CPC is not applicable in the circumstance of the application before the Tribunal. That the appellant was supposed to adduce sufficient reason as to why he failed to file his application for almost one year instead of complaining on the proceedings. That the argument that the application shifted from one chairman to another cannot be a reason for extension of time. That it is on record that she was appearing before the Tribunal all times but the appellant was not appearing which implied that he was not diligent in handling his application. That the alleged illegalities are not apparent on the face of records. In reply to the 4th ground of appeal, she contended the Tribunal had referred to the dates in which the appellant did not appear to justify that loss of track cannot stand as a ground for delay. That the appellant failed to adduce sufficient reason and account for each day of delay leading to dismissal of his application. Finally, she prayed for the appeal to be dismissed with costs. 7 In rejoinder, Mr. Killian submitted that the ruling dated 24.10.2024 does not comply with Regulation 20(1) of GN. No. 174 of 2003. That the date when the application was filed and the records was not among the issues for determination in Misc. Land Application No. 103 of 2024. The application for extension of time was dismissed without considering material facts in the affidavit accompanying the application. He re-joined further that the reason for delay adduced were sufficient and genuine to grant extension of time. That the first reason was that the matter shifted from one chairman to another and the second was the illegality which is apparent on the impugned ruling in Application No.9 of 2020 dated 16.03.2023. That, the respondent is not disputing the irregularity on the party of the trial chairman in handling Land Application No. 103 of 2024 instead he disputes the reason of irregularity as sufficient cause for extension of time. That after the close of case by the parties on 29.11.2021, the trial chairman was duty bound under Regulation 19(1) of GN. No. 174 of 2003 to compose a judgment within three months. The act of dismissing the application for nonappearance instead of composing judgment is a serious irregularity apparently on the face of record and the same is a sufficient ground for extension of time. Also that the opinion of assessors was not considered as per regulation 19(2) of the said 8 regulation. He reiterated his submission in chief and prayed that the appeal be allowed with costs. Having examined the records and the written submissions of the parties, the question for my determination is whether the appeal has merit or not. Starting with the 1st and 2nd ground of appeal, it was submitted that from 07.01.2020 when Application No. 9 of 2020 was filed, until 29.11.2021 when hearing was concluded, both parties attended promptly. Also that the application was for extension/enlargement of time upon which the applicant can file application to set aside the dismissal order in Land Application No. 9 of 2020 and not for extensions of time to file application for fresh hearing of the said application. On the other side it was argued that the appellant was absent for three consecutive occasions when Land Application No. 9 of 2020 was called. After going through the record, it is clear to me that Land Application No. 9 of 2020 was for extension of time to file an application to set aside the dismissal order and not for fresh hearing of the dismissed application. It is also on record and undisputed that hearing of the said application was closed on 29.09.2021 when the respondent closed his case. With those finding, it is my settled view that the trial chairman was partly right to hold that the applicant was not appearing in the Tribunal but not that he abandoned the application because it was at the stage of composing the judgment. He 9 should have composed and delivered the judgment in the absence of the applicant. Having so found, it is my considered observation that the holding by the trial chairman that the appellant abandoned his application while aware that it was at the stage of judgment was wrong. It should have not been taken as a reason to deny the application for extension of time. In the circumstance, I find that the 1st and 2nd ground of appeal have merits to the extent explained. I will now revert to the 4th ground of appeal before going to the 3rd and 5th grounds as submitted by the parties for reason to be realized later. On the 4th ground of appeal, the appellant challenged the findings of the trial chairman that \..Hivyo basi, sababu yake ya kusema faili la shauri hili HHpotea sio za kweli". That the proceeding in Land Application No. 9 of 2020 revealed that the trial chairman, Hon. Rugarabamu acknowledged that the suit has lost truck after Hon. Kamugisha left back to his duty station. That there are letters showing how the appellant was making follow ups for his judgment. On the other side, the respondent referred to the dates in which the appellant did not appear before the tribunal and contended that the argument that the suit has lost track is not a sufficient cause for the delay. I have carefully examined the record and noted that the said comment was truly made by Hon. Rugarabamu on the proceeding dated 08.08.2022. io However, the said comment had nothing to do with the non-appearance of the appellant on the material date and thereafter. It is also on record that the chairman stated that "sababu yake ya kusema faili hili HHpotea siyo kweii baii ni yeye mwenyewe Mdai kutokuwa makini na ufuatiiiaji wa mwenendo wa shauri hili". It is my considered position that the said reason cannot be a good cause for extension of time. This ground in my view has no merit. Now coming to the 3rd and 5th grounds of appeal, it was submitted that the trial chairman failed to consider the affidavit in support of the application which stated the reasons for delay. These were the time spend when Application No. 9 of 2020 was moving from one chairman to another and the illegality which is apparent on the ruling dated 16.03.2023. Also that the impugned ruling contradicted Order XX Rule 4 of the CPC. Also that the act of the Tribunal to substitute the then respondent, NTEKAMIWA IBAMBA E. MVATA with NEEMA WILLIAM MLUTU as his administratix and dismissing the application while it was at the stage of composing judgment amounted to serious illegality apparently on the face of the record and the same is a sufficient ground for extension of time. On the other side, the respondent argued that the CPC does not apply to the Tribunal and instead the proceedings are guided by GN. No. 174 of 2003 and the correct provision with regard to the content of the ruling is Regulation 20(1). Further that the argument that the matter shifted from one chairman to li another cannot be a reason for extension of time and that the alleged illegalities are not apparent on the face of records. After my examination of the record, and as rightly submitted by the respondent, i am satisfied that the fact that the application kept changing from one chairman to another does not amount to a sufficient cause for extension of time. On the issue that the impugned ruling contradicted Order XX Rule 4 of CPC and that CPC does not apply to the Tribunal, it is trite law under section 52(2) of the Land Disputes Courts Act [Cap 216 R: E 2019] that Tribunal shall apply the CPC in case of inadequacy of its Regulations. In the instant application, regulation 20 of GN. No. 174 2003 is adequate in as far as the contents of judgment is concerned. Unfortunately, both Order XX Rule 4 of CPC and regulation 20 of GN. No. 174 2003 are inapplicable in the circumstance due to fact that what is challenged is a ruling and not a judgment. On the issue of illegality, one, i have found that the dismissal order in Land Application No 9 of 2020 was made against the then respondent, NTEKAMIWA IBAMBA E. MZAVA and the respondent was neither a party to the proceeding nor applied to be joined as the administratix of the late NTEKAMIWA IBAMBA E. MZAVA. Two, on the act of the chairman to dismiss the said application for the reason that it was abandoned instead of composing judgment, it is on record as rightly submitted by Mr. Killian that Application No. 9 of 2020 was at a stage of 12 composing judgment. I have also noted one of the assessors, Prof. S.M Kulaba has already given his opinion on 10.12.2021 as an indication that the application was at the judgment stage. It is clear to me therefore, that the act of trial chairman to reopen the proceedings in the absence of the parties and dismissing Application No. 9 of 2020 was illegal. It is trite law that the claim of illegality of the decision sought to be challenged constitutes sufficient reason for extension of time regardless of whether or not reasonable explanation has been given by the applicant to account for the days of delay. In the case of WINJUKA GODSON MANGARE VS. JOHN J. OTTARU, (Civil Application No. 657/01 of 2022) [2024] TZCA 243 (26 March 2024), the CAT held that: - "Admittedly, the law is settled in this jurisdiction that illegality of the impugned decision is a good cause and may be used to extend time under Rule 10 of the Rules. However, the said illegality must be apparent on the face of record" [Emphasize added] Again in RAMADHANI BAKARI & OTHERS VS. AGA KHAN HOSPITAL (Civil Application No.5/01 of 2022) [2023] TZCA 17552 (29 August 2023) the CAT held that: "It is a settled law that in an application for an extension of time where the applicant raises illegality as a ground, the Court has a duty to grant it_and that it is not for the Court extending time to determine as to whether or not the point raised is correct". [Emphasis added]. It is evident to me therefore, that the alleged illegality in Application No. 9 of 2020 was apparent on the face of the record. The trial chairman should have considered it for any other ground. Hence, the 3rd ground of appeal has merit. 13 In the end, and without prejudice to my observation, it is my finding that the appeal has merit. The appeal is therefore allowed. The decision in Application No. 103 of 2023 dated 23.10.2024 is hereby set aside. I order that the case file be returned to the trial Tribunal and placed before a different chairman and proceed to compose the judgment in Land Application No. 9 of 2020. Having considered the circumstance of the respondent, I make no order as to costs. It is so ordered. N.E MANDIA JUDGE 03/04/2025 14