RULING PHILIP ULISAGA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA MISCELLANEOUS CIVIL APPLICATION NO. 8935 OF 2024 CASE REFERENCE NO. 202404231000008935 (Originating from Application No. 42 of 2023 in the District Land and Housing Tribunal for Rungwe at Tukuyu) PHILIP ULISAJA MWAKIBIBI (administrator of estate of the late Ulisaga Kagubo Mwaiteleke) ......................................... APPLICANT VERSUS ASAGWILE MUNDEKESYE MWAITEBELE ........................... 1ST RESPONDENT NEGWAKO PASCHAL SADUKA ...........................................2ND RESPONDENT RULING Date of hearing: 14/08/2024 Date of ruling: 10/9/2024 NONGWA, J. This is an application for extension of time to file appeal to this court against the ruling in Application No. 42 of 2023 in the District Land and Housing Tribunal for Rungwe at Tukuyu which struck out the application. It is made under section 14(2) of the Law of Limitation Act [Cap 89 R:E 2019] and 95 of the Civil Procedure Code [Cap.33 R: E 2019] supported by an affidavit of the applicant. The application is resisted by the respondent who filed a counter affidavit. 1 When the application came for hearing, the applicant was represented by Mr. Tanzi Anthony Nyandulwa, learned counsel while the respondent has the service of Mr. Peter Jacob Kiranga, also, learned counsel. Parties agreed to dispose the application by way of written submission. Mr. Nyandulwa submitted that for application of this nature to be granted the applicant must advance good cause and powers to grant or refuse it in in the discretion of the court. He submitted that good cause has not been defined by law and it depends on circumstances of each case, cited the case of Joseph Magingo vs Republic, Criminal Application No. 102 of 2018 [2019] TZCA 98 (6 May 2019; TanzLII) and Valerie Mcgivern vs Salim Fakhrudin Dalal, Civil Application No. 11 of 2015 [2016] TZCA 820 (1 July 2016; TanzLII). He went on to state that plea of illegality or otherwise in the decision has been accepted as sufficient cause in extension of time Principal Secretary, Ministry of Defence and National Service vs Devram Valambia [1992] TLR 185. Having demonstrated the above law, Mr. Nyandulwa submitted that Application No. 42 of 2023 suffers illegalities and irregularities which is 2 apparent on the face of record and which resulted injustice to the applicant. He pointed the said alleged illegality to be the chairman not being aware that under customary law locus to sue and protect interest of the deceased estates can be acquired without obtaining letter of administration. He cited the case of Edward Ntinkule vs Evarist Ntafato, Land Appeal No. 11 of 2022 [2022] TZHC 10040 (10 June 2022; TanzLII) and Asnawi Ramadhani vs Hamisi Ally, Miscellaneous Land Case Appeal No. 24 of 2019 (Unreported). The applicant also referred to section 11 of JALA which takes cognizance of customary law. Another illegality pointed was the holding that the matter was not referred to mediation in the ward tribunal, he submitted that although mediation is recognised under article 107B of the Constitution, it is not mandatory as is a procedural lapse cured by overriding objective. Detailed submission on purpose of mediation, cases suitable for mediation and its effects which need not be reproduced here was made for it is not suitable in application for extension of time. Further illegality sported by Mr. Nyandulwa was failure to adjudicate of all points raise including whether a suit may be brought by heirs without possessing letter of administration and whether all parties must participate in mediation process. He cited the case of Sgs Societe 3 Generale De Surveillance S.A vs Vip Engineering & Marketing Ltd, Civil Appeal No. 124 of 2017 (Unreported) and Alisum Properties Limited vs Salum Selenda Msangi, Civil Appeal No. 39 of 2018 [2022] TZCA 389 (24 June 2022; TanzLII). Considerable submission was made but I find it not necessary to recite here. Mr. Nyandulwa submitted that before and after the ruling the applicant was sick making him unable to engage in productivity to generate income to file the revision and engage legal representation. He added that the respondent will not be prejudiced. From the above the applicant’s counsel was sure had advance sufficient cause for this court exercise its discretionary powers and grant him extension of time. Replying to the above, Mr. Kiranga submitted that in order application of extension to be granted the applicant must prove and convince the court on good cause for the delay he cited the case of Mumello vs Bank of Tanzania [2006] TLR 1. On the alleged illegality, he submitted that it must be those on face of record and not the one to be drawn out from long process of reasoning or argument. He supported the argument with the case of Lyamuya 4 Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4 (3 October 2011; TanzLII. He pointed that the issue of locus standi is a pure point of law by citing the case of Lujuna Shubi Ballonzi, Senior vs Registered Trustees of Chama Cha Mapinduzi [1996] TLR 203. He said that the law is that only administrator of estates of the deceased can bring action and no body else, he referred to the case of Swalehe Juma Sangawe & Another vs Halima Swalehe Sangawe, Civil Appeal No. 82 of 2021 [2022] TZCA 595 (4 October 2022; TanzLII). On attendance of all parties to mediate before the ward tribunal under section 13 of the LDCA, counsel for the respondent submitted that the procedure is mandatory and need involvements of all parties. He referred to the case of SGS Societe Generale de Surveillance SA and Another V VIP Engineering & Marketing Ltd and another, Civil Appeal No. 124 of 2017 (Unreported) and Issa Iddi Kauzu vs Ally Abdalla Mkoko & Another, Land Appeal No. 8 of 2022) [2022] TZHC 11910 (24 August 2022; TanzLII). From the above Mr. Kiranga was convinced that the applicant has failed to advance good cause for extension of time. Further that the order 5 to struck out the application is interlocutory which cannot be challenged by way of revision under section 79(2) of the Civil Procedure Code. That the applicant is required to correct the sported errors and bring competent application. I have dispassionately considered the application documents and submissions of the parties, the only question to be determined is whether the application has merit. Mr. Kiranga has raised issue of competence of this application in his reply submission to the effect that the order to strike out the application is interlocutory it cannot be challenged by revision as prohibited by section 79(2) of the CPC. This will not detain me much as whether the applicant has chance to remedy the error pointed by the tribunal and file fresh application or otherwise. cannot be decided in the application for extension of time as that will be dealing with the matter in wrong place and time. In Esther Kayaya vs Ubani Manyambo, Civil Appeal No. 328 of 2019 [2024] TZCA 818 (23 August 2024; TanzLII) the court stated; ‘... it was rather erroneous for the High Court Judge to go to the extent of deciding that the remedy of revision is not a substitute of an appeal while the application before him was basically for enlargement of time within which to file the application for 6 revision. So, it was equally premature to argue, as the appellant did that revision was not a substitute of appeal, the argument for which unfortunately, the High Court Judge prematurely fell hook line and sinker. It must be very elementary that, a preliminary point of objection cannot be raised to challenge a matter which is yet to be filed in court.’ Given the above the issue of incompetence of the application is ruled out for being brough pre-maturely. Coming to merits of application for extension of time, it is settled law that, in an application of this nature, the yardstick is for the applicant to show good cause before time can be extended for him to do an act permitted by the Rules. In Osward Masatu Mwizarubi vs Tanzania Fish Processors Ltd, Civil Application No. 13 of 2010 (unreported), the Court stated that: ‘What constitutes good cause cannot be laid down by any hard and fast rules. The term good cause is a relative one and is dependent upon the party seeking extension of time to provide the relevant material in order to move the Court to exercise its discretion.’ Some of the prevailing circumstances of the particular case guiding the court are the length of the delay, the reasons for the delay, the degree of prejudice the respondent stands to suffer if time is extended, whether 7 the applicant was diligent and whether there is a point of law of sufficient importance such as illegality of the decision sought to be challenged. See Abdulrahman Mohamed Ally vs Tata Africa Holdings T. Limited, Civil Application No. 166 of 2021 [2023] TZCA 60 (24 February 2023; TanzLII) and Lyamuya Construction Co. Ltd (supra). In this application the applicant has fronted two reasons for the delay to file the appeal, one, is illegality in the ruling and two, sickness. I prefer to start with health condition of the applicant. It has been submitted that the applicant was sick before and after ruling which made him incapable to obtain money to file revision and engage legal representation. The respondent did not make any reply on this. In this jurisdiction it is accepted that sickness in a fit case may amount to good cause for delay to do certain act within the prescribed time. However, in order for this reason to amount to sufficient cause there must be reliable or necessary material or medical proof from reliable registered hospital. This is geared towards avoiding mere allegation or fake medical reports of sickness. See Kulwa Lutambi vs Irene Sayi Goreshi, Civil Appeal No. 346 of 2020 [2024] TZCA 60 (20 February 2024; TanzLII). 8 In this application although the applicant alleges health problem in paragraph 2 of the affidavit there is no any scintilla of evidence in the form of the disease he is/was suffering, time when encountered such disease, kind of treatment received and has not demonstrate when did he recover from sickness, if necessary, substantiate it with medical chits. Absence of averments in the affidavit to that effect lead to the conclusion that sickness has not been established. Another reason is illegality in the impugned ruling, the legal position of law is clear that if an alleged illegality is established, it is sufficient to justify the court in extending the time. The court clearly stated this in the case of Principal Secretary, Ministry of Defence and National Services vs Durvam Valambhia [1992] TLR 387 held that; 'In our view, when the point at issue is one alleging the illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right.’ A more elaborative decision on the alleged illegality for the court to extend time was given in the case of Lyamuya Construction Co. Ltd (supra) when the court held; 9 ‘Since every party intending to appeal seeks to challenge a decision either on points of law or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrate that his intended appeal raises points of law should as of right, be granted extension of 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 of the record, such as the question of jurisdiction;not one that would be discovered by a long - drawn argument or process.’ Emphasize supplied.’ Some of the points accepted to be illegality in the impugned decision, includes, where the court has usurped jurisdiction, it entertains a time barred matter, and or the proceedings before it have contravened law or policy of the country and so forth. In this application the applicant has raised in paragraph 4 of the affidavit which read; ‘4. That after obtained the advice from my legal counsel, i scrutinised the ruling of the tribunal in Land Application No. 42 of 2023 Hogh Court Land Case No. 241 of 2013 and found out it is problematic as it suffers a lot of illegalities and irregularities which touches the substances of the decision that; 10 i. That the preliminary objections are matter of law and are purely determined by law and not by facts and evidence envisaged in the tribunal decision ii. That the trial chairman has set his own personal pre- condition in institution of case by person with no letters of probate which is non-existence in statute and case law iii. Whether mediation is mandatory without exception and render the dismissal of suit and all parties to the dispute must be involved in mediation process iv. The trial chairman failed to adjudicate on all issues raised by parties.’ In his submission the applicant has submitted in details with reference to come statutes and cases faulting the holding of the chairman in the raised points. The respondent in the first stance submitted that the alleged illegality is not on face of record and went on to back the decision of the chairman on those points. I have considered paragraph 4 of the affidavit and followed rival submission, my first task is to consider whether the point raised are illegality and then see if are on face of the decision. The term illegality is defined by the Black's Law Dictionary 11th Edition, Page 815, Bryan A. Garner to means; 1. An act that is not authorized by law 11 2. The state of not being legally authorized. Mulla's Code of Civil Procedure at page 1381 states that; ‘It is settled law that where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has acted illegally or with material Irregularity, merely because it has come to an erroneous decision on a question of fact or even of law.’ The above comments make is a distinction between decisional errors made by decision maker in exercise of their jurisdiction which would not constitute illegality and those which go to the powers of the decision maker in the case. See Kabula Azaria Ng'ondi and Others vs Maria Francis Zumba and Another, Civil Appeal No. 174 of 2020 [2023] TZCA 162 (30 March 2023; TanzLII). From the above context, the alleged illegality, assuming that it is indeed an error, is no more than a simple error of law committed by the chairman in the exercise of his jurisdiction. It is a decisional error not amounting to the Chairman acting without jurisdiction, it entertains a time barred matter, and or the proceedings before it contravened law or policy of the country. Examining the alleged illegality and submission made is the dissatisfaction with the decision of the tribunal. The court has to look 12 on the pleadings and arguments made by parties to arrive to a different conclusion. In Salum Rashid Kingalangala vs Republic, Criminal Appeal No. 192 of 2021 [2023] TZCA 17704 (3 October 2023; TanzLII) the court stated that; ‘We have sufficiently demonstrated how the principle of illegality has evolved and how it has been qualified over the years. We agree with Ms. Thomas that Mr. Sosthenes' nibbling of the proceedings cannot constitute illegalities. There could be decisional errors here and there but they are so small and insignificant that in comparison they are nowhere close to the illegality in the Principal Secretary case (supra). Allegations such as contradictions among witnesses, or the reading of the charge or grant of bail are as surprising as they are feeble and out of context. To pass such allegations off as constituting illegalities will lead to a very absurd situation which we must avoid.’ The above holding applies equally in this matter, the applicant is tempting the court to look whether the chairman was right to hold that a person without letters of administration cannot file suit on estates of the deceased, whether the chairman was right to hold that some parties did not pass through mediation in the ward tribunal, whether objection raised was pure point of law or not. It is unfortunate that even the ruling being attacked was not attached to the application to see if the alleged points 13 are on the face of the ruling of the tribunal bearing the nature of application not requiring calling of record of the lower tribunal. In the event, the applicant has not only failed to account each day of delay but also no any ground of illegality has been disclosed. The application is accordingly dismissed, owing to the circumstances of this case I order no costs. V.M. NONGWA JUDGE 10/9/2024 Dated and Delivered at Mbeya this 10th September 2024 in presence of the Applicant in person and in absence of the Respondent. V.M. NONGWA JUDGE 14 15