CIVIL REFERENCE NO 09 OF 2023 PAULO MUSHI VS HAMISI HASSAN MKALAKALA 1

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MKUYE. J.A., GALEBA. J.A.. And MGEYEKWA, J.A.1 CIVIL REFERENCE NO. 09 OF 2023 PAULO MUSHI...................... .................................................... APPLICANT VERSUS HAMISI HASSAN MKALAKALA (Administrator of the estate of the late SAID SELEMANI MKALAKALA)...... ...... ........ RESPONDENT (Application for Reference from the Ruling and Order of the Court of Appeal of Tanzania at Dar es Salaam) (Maige, J.A) dated the 27thday of May, 2023 in Civil Application No. 560/17 of 2021 RULING OF THE COURT 17th July & 6th August, 2024 MGEYEKWA, J.A. This is an application for reference against the Ruling of a single Justice, dated 27th May, 2023 in Civil Application No. 590/17 of 2021 in which he granted the applicant's application for extension of time within which he could lodge a notice of appeal against the decision of the High Court of Tanzania dated 20th May, 2016 in Land Appeal No. 26 of 2015. The application is initiated by a letter of Mr. Lusajo Willy, learned counsel for the i applicant dated 29th May, 2023 as prescribed by rule 62 (1) (b) and (2) of the Tanzania Court of Appeal Rules, 2009, GN No. 368 of 2009 (the Rules). To appreciate the gist of this application, we find it apposite to narrate a brief background leading to it. The applicant successfully lodged an application in the District Land and Housing Tribunal (the DLHT) against the respondent for ownership of a piece of land in dispute. The applicant was declared as the lawful owner of the suit land. Aggrieved, the respondent unsuccessfully lodged an appeal in the High Court. In its judgment, the High Court declined to determine the issue of description of the suit property because it was not raised in the pleadings. Aggrieved, the applicant's application for extension of time to file a notice of appeal hit a snag. Still aggrieved, the respondent through the current successor administrator, lodged an application for extension of time to file a notice of appeal as a second bite before the single Justice. There were mainly two reasons for extension of time cited by the respondent in his written submission before the single Justice; one, the decision of the trial tribunal which was confirmed by the High Court was illegal as the assessors in the DLHT did not give opinions as the law requires. Two, the decision does not describe the size of the suit property, while the 2 evidence in the proceedings indicate that the total size of the land was eight acres while that in dispute was only five acres. In response to the foregoing, the learned counsel for the applicant contended that, neither of the two grounds amounted to an illegality, but a mere irregularity which cannot render the judgment of the trial tribunal illegal. The single Justice agreed with the respondents' arguments that, the second ground of illegality in regard to omission to give description of the suit property goes to the legality of the decision, hence, he granted the application. Undeterred, the respondent has brought this reference application. At the hearing of this reference, the applicant was represented by Mr. Lusajo Willy, learned counsel, and the respondent appeared in person, unrepresented. When Mr. Willy was given the floor to elaborate on the application, on the first ground, he argued that the previous administrator of the estate of the late Said Seleman Mkalakala in his affidavit informed the Tribunal that the former administrator, beneficiaries and relatives of the deceased had no interest to pursue the appeal, surprisingly, the single Justice, in his decision did not consider the respondent's argument. To reinforce his submission he referred us to Civil Application No. 69 of 2017. Mr, Willy further informed the Court that in his written submission before the lower court, he argued that the current administrator was not part of the case and not among the beneficiaries, thus, it was his view that, the respondent was supposed to swear an affidavit. On the second ground, the learned counsel faulted the single Justice for granting the applicant extension of time to file a notice of appeal based on the ground of illegality. Exemplifying, he contended that the single Justice misdirected himself by stating that the alleged illegality which is based on the description of the suit property was a fit point of law in granting extension of time. The learned counsel's further contention was that the alleged illegality on the description of the suit property is just an irregularity. Elaborating, he argued that, it was the respondent who lodged a suit against the applicant at the DLHT so he knew what he was claiming for, therefore, the single Justice ought not to consider his grounds of illegalities. Upon being probed by the Court whether his arguments are part of the record before the Court, Mr. Willy admitted that the same are neither featuring in the decision of the single Justice nor are they referred to in his 4 covering letter. Not surprising, the learned counsel took a different swipe. He asserted that, he raised the same concerns before the single Justice but he did not consider them. In conclusion, he implored the Court to decide this application by calling and examining the record before the single Justice and then grant the application with costs. On the adversary side, the respondent strenuously opposed the application. The applicant's complaint that the single Justice did not consider the respondent's averments in his decision, was challenged by the respondent for being unfounded. He elaborated that, the respondent's arguments that there was a former administrator are not supported by any document such as Form No. 4 to prove his appointment as an administrator, and he did not testify to substantiate the said claims. As regards the issue of illegality, the respondent defended the decision of the single Justice as sound and reasoned. The respondent submitted that, he raised two grounds of illegalities; one, the gentle assessor's failure to give their opinion and two, omission by the DLHT to give the description of the suit property, and the High Court agreed with him on the second point. To him, the omission to give description of the suit property could not lead to discovery of the size of the suit property. Expounding, he asserted that, the evidence in the proceedings indicated that, the applicant claimed ownership of a suit property with a total area of 5 acres while the DLHT awarded the applicant 8 acres and the decree shows the applicant was awarded 13 acres. It was his submission that, the single Justice noted that there was an illegality which needs to be cured. In conclusion, he urged the Court to dismiss the application with costs. In his brief rejoinder, Mr. Willy reiterated his submission in chief. He shifted the blames to the respondent and asserted that the applicant claims were uncertain because he once claimed for two acres and later for three acres. On the strength of the above submission, the learned counsel beckoned upon the Court to allow the application. Having considered the submissions for the parties, the issue for our determination is whether the applicant has made out a case warranting reversal of the decision issued by the single Justice in Civil Application No. 590/17 of 2021. Before considering the matter before us, we find it appropriate to state that the exercise of discretion by a single Justice under rule 10 of the Rules 6 can rarely be interfered with. The Court can only interfere with such exercise where there is a good cause such as the single Justice taking into account irrelevant factors and matters. The guiding principles when determining whether or not to interfere with the decision of the single Justice was clearly articulated by the Court in its numerous previous decisions including, Daudi Haga v. Jenitha Abdon Machafu, Civil Reference No, 01 of 2000 and Amada Batenga v. Francis Kataya, Civil Reference No. 01 of 2006 (unreported). The said principles are in the case of G.A.B Swale v. Tanzania Zambia Railways Authority, Civil Reference No. 05 of 2011 [2016] TZCA 863 (September 2016 TanzLII). In the latter decision, the Court having revisited its previous decisions on reference, summarized the principles upon which the Court can interfere with a decision of a single Justice or not in terms of Rule 62 (1) (b) of the Rules and restated as follows:- "a) On a reference, the full Court looks at the facts and submissions the basis o f which the single Justice made the decision. b) No new facts or evidence can be given by any party without prior leave o f the Court; and c) The single Justice discretion is wide, unfettered and flexible; it can only be interfered with if there is a misinterpretation o f the law." Beginning with the second ground, the applicant has assailed the single Justice decision in that, he wrongly observed that the alleged illegality on description of the suit property was a fit ground of illegality. It has been held times without number that illegality may as well constitute a good cause for extension of time. Among the decisions holding that view include, Principal Secretary Ministry of Defence and National Service v. Divram P. Valambhia (1992) T.L.R 387, Lyamuya Construction Company Limited v. Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 02 of 2010 [2011] TZCA 4 (3 October 2011TanzLII) and Ngao Godwin Losero v. Julius Mwarabu, Civil Application No. 10 of 2015 [2016] TZCA 2099 (October 2016 TanzLII). In Lyamuya Construction Company Limited, (supra) the Court made the following observation "Since every party intending to appeal seeks to challenge a decision either on points o f law or facts, it cannot in my view, be said that in 10 VALAMBIA's case, the court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises a point o f law should, as o f right, be granted extension o f time if he applies for one. The Court there emphasized that such point of law must be that of sufficient importance and, I would add that, it must also be apparent on the face o f the record such as the question of jurisdiction; not one that would be discovered by a long drawn argument or process." In the application at hand, we have examined the decision of the single Justice and found that, the respondent raised two grounds of illegality; one, the assessors did not give opinion and two, the impugned decision does not describe the size of the suit property. After consideration of the two grounds of illegality, the learned single Justice observed as follows: "The second element is omission to describe the suit property. My quick reading o f the judgment o f the trial Tribunal could not lead to discovery o f any description o f the suit property. Whether a decree which does not describe the suit property can stand, is a question which goes to the legality o f the decision." From the above excerpt, it is clear that the single Justice looked closely at the points raised and was satisfied that the issue of description of suit property if it was to be true goes to the legality of the decision. We, are therefore, inclined to agree with the respondent on that aspect. We have considered the fact that the applicant in his written submission before the single Justice and before us admitted that the issue of description of the suit property was an irregularity. Therefore, the single Justice cannot be faulted by considering the said illegality as a fit point of law to grant extension of time. Regarding the new submissions raised by the learned counsel that the single Justice did not consider the issues related to the current administrator and that parties did not dispute the issue of description of the suit property, it is our considered view that, the learned counsel's arguments intend to invite the Court to inquire into facts which were not on the face of the decision of the single Justice and to revisit the written submissions of parties before the single Justice which is not part of the record before us. In the circumstances, we are at one with the respondent that the applicant's counsel claim to fault the decision of the learned single Justice on this matter is not justified. Had the applicant wanted the Court to consider the said documents then she could have attached them with his application. For the aforegoing reasons, it is our settled view that the single Justice, who had all the material facts before him, judiciously exercised his discretion 10 to grant extension of time based on the second ground of illegality which, we think that, it is a serious point of law which cannot be brushed aside. Conclusively, we have found no reason to fault the decision of the learned single Justice, and hereby dismiss the application with costs. It is so ordered. DATED at DAR ES SALAAM this 31st day of July, 2024. R. K. MKUYE JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 6th day of August, 2024 in the presence of Mr. Sabath Shayo holding brief of Mr. Lusajo Willy, learned counsel for the Respondent and in the absence of the Applicant, is hereby certified as a R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL