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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 386 OF 2023 (Arising from Mise. Land Application No. 607 of 2022) PRAKSEDA BARNABAS (Legal representative of HARRISON MANDALI)............................................ 1st APPLICANT MEKEFASONI MANDAL................................................. 2ND APPLICANT REHEMA R. RANGE....................................................... 3rd APPLICANT MARIAM MAGERO.....................................................4™ APPLICANT EZRA J MATOKE............................................................ 5th APPLICANT MARY KILIAN JOSEPH MCHAU(Legal representative of KILIAN MCHAU)................... 6th APPLICANT ABDALLA J MVUNGI............................................................................7thAPPLI ELIHURUMA MREMI.......................................................................... 8thAPPLIC RUKIA ATHUMANI.............................................................................9thAPPLIC MAJUTO RAJABU MBISA (Administrator of the estate of ABUU M BASAI........................................................... 10™APPLIC VERSUS THE REGISTERED TRUSTEE OF THE ARCHDIOCESE OF DAR ES SALAAM................................. RESPONDENT RULING. Date of last Order: -7/6/2024 Date of Ruling;25/6/2024 S.D. MWAIPOPO, J This ruling is respect of an application for extension of time for the Applicant to file a Notice of Appeal against the decision of the High Court of the United 1 Republic of Tanzania (Land division) Hon Mkuye J as she then was in Land Case No 181 of. The Application has been filed by the Applicant under section 11(1) of the Appellate Jurisdiction Act Cap 141 [R.E 2019] and it is supported by an affidavit sworn by SAMSON EDWARD MBAMBA, the Applicant's Advocate, and is opposed by a Counter Affidavit sworn by MICHAEL JOACHIM TUMAINI NGALO, the Respondent's Advocate. At the commencement of hearing, the Applicants were represented by Mr. Samsoni Mbamba, learned advocate while the Respondent was represented by Mr. Michael Ngalo, the learned Advocate. On 22nd April 2024, the hearing of the Application was ordered to proceed by way of written submissions pursuant to the timetable ordered by the court. Submitting in support of the application the learned counsel for the Applicants began by stating that; illegality alone is a ground for extension of time. He referred the court to the case of VIP Engineering and Marketing Limited & Others v Citibank Tanzania Ltd, consolidated Civil Reference No.6,7 & 8 of 2006 (unreported) where the Court of Appeal granted extension of time for the Applicant to file notice of appeal because the decision of the High Court was illegal in that there was breach of natural justice, at page 22 the Court observed that; 2 As the point of law at issue in these proceedings is the illegality or otherwise of the decision of the High Court annulling the respondents debenture with tri­ telecommunication (Tanzania) Ltd, then this point constitute "sufficient reason" as found by the learned single judge for extending the time to file a notice of appeal and applying for leave to appeal. This is notwithstanding the fact that the respondent brought the application very belatedly, because in the administration of justice, the right to be heard is the most overriding. If the respondent was not heard by the High Court, then it has an arguable case and deserved the extension of time". In NIC v Shengena Ltd, Civil Application No.63 of 2011 (unreported) the Court of Appeal granted extension of time for the Applicant to apply for revision on the illegality of the decision of the High Court. The Court observed, at page 14-15 thus; In our view when the point is one alleging illegality of the decision being challenged, the Court has a duty even if it means extending 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 records right". 3 in the light of the foregoing, I find myself to enjoin to grant this application so as to enable the Court to ascertain the existence or of the alleged, illegality and, if it be established, to take appropriate measures Thus, in fine, to take appropriate measures Thus, in fine, I grant the extension of time sought with costs. The application for revision should be instituted within fourteen (14) days from the date of the delivery this ruling" In Mariam Nyangasa v Shaban Ally Sembe Civil Application No. 139 /12 of 2017 the Court of Appeal observed, at page 6, thus; "In Edward Nyaluse for instance this court held that where a point of law at issue is the question of illegality, time will always be extended and leave to appeal to the Court of Appeal must be granted even where there is an in ordinate delay". He went on submitting that this court has also held that a ground of illegality if advanced for extension of time, outweighs negligence on the part of the Applicant if it is established in the case of Ezrom Magesa Malyogo v Kasim Mohamed Said & Another, Civil Application No.227 of 2015 (unreported) at page 12 of the ruling as follows; 4 "Even if there was attribute negligence on the initial advocate of the applicant to timely lodge an application for leave to appeal, the applicant deserves the grant of enlargement of the time to seek leave on the complaint of illegality of the impugned decision which has not been vigorously contested by the 1st respondent. The complaint raising possible illegality constitutes good cause whether or not a reasonable explanation has been given to account for the delay. This decision was taken by the Court in VIP ENGINEERING (Supra)". In respect of the ground of irregularities and impropriety of the decision as grounds for the extension of time, the learned counsel for the Applicant submitted that, in a further development of the law of sufficient cause, irregularities and impropriety in the proceedings leading to a decision subject to be challenged on appeal is a sufficient cause for extension of time. In the case of Tanzania National Parks (TANAPA) vs Joseph K. Magombi this court quoted with approval the case of Partobert D. Ishengoma v Kahama Mining Corporation Ltd Barrick Tanzania Bulya mkulu and 2 Others, Civil Application No.2 of 2013, where the Court of Appeal at page 13 held that; 5 "I am of the considered view that even though there is a considerable delay in the application, pertinent issues have been raised. Firstly, the applicant is alleging to have been.... There is an allegation of illegality, irregularities and impropriety...". Coming back to the instant Application, the learned counsel submitted that there are illegalities and irregularities of the proceedings in Land Case No. 181 of 2009 (which is subject of the present Application). That in the present Application, para 13 of the Affidavit, the Applicant has stated a catalogue or illegalities, irregularities and impropriety of the proceedings and the decision to be challenged, if extension of time is granted. The said para reads as follows; 13. further that the decision which is intended to be challenged on appeal if the intended notice of appeal is filed is tainted with illegalities, irregularities and impropriety in the following material particulars; i) . On 2nd April 2015 the new trial judge took over the trial from another Judge without complying with the provisions of Order XVIII Rule 10(1) of the Civil Procedure Court Cap 33 R.E 2019, the proceedings are therefore nullity. 6 ii) . On 2nd April 2015 the successor trial judge nullified and quashed the proceedings of the predecessor judge, a judge of the same grade on the ground of invalidity for having commenced without the aid of assessors, iii). Parties were not afforded an opportunity to object on the names of the appointed assessors. iv) . No opinion of the assessors was recorded by Hon. Judge when composing a judgment as mandatorily required by law, it is even not on the proceedings. v) . A witness for the Plaintiff's case (PW11) was recalled after closure of both plaintiffs and defence case and continued to testify and produce documentary evidence. vi) . Pleadings were amended pursuant to the order of 27th August 2012 to remove the 1st Plaintiff, one Martha C Nyaulingo and the 11th Plaintiff one Kwasmo 0. Mushi, which amendment left to the case 10 Plaintiffs but the judgment was composed on the basis of the old pleadings with all the original Plaintiffs. The learned counsel further submitted that; the grounds of illegalities in the decision subject of this Application, which are intended to be appealed against were already judiciously recognized and accepted by the Court of Appeal in Civil Application No.482/17/2017 where Ndika J, observed that; 7 "Applying the principle as stated in the above authorities, I am persuaded that the alleged illegality, irregularity and impropriety in the proceedings and the judgment of the High Court in Land Case No 181 of 2009 are further ground for granting extension of time. Without dulging into the substance of the intended revision I took account of the allegation that Mkuya J irregularly succeeded Mutungi J in the proceedings without complying with the provision of order XVIII Rule 10(1) of the CPC, Mkuye J wrongly quashed the decision of Mutungi J on the ground of invalidly due to the absence of assessors .....................am satisfied that these complains raise issues of sufficient importance and that there is justification for extension of time to afford this court an opportunity to investigate and determine them. Of Course, am alert that Mr. Ngalo was of the view that the alleged illegalities and impropriety were not fatal by dint of the application of the oxygen principle as it has been the case in a number of recent decisions of the Court. Whether the Court is right or not, it is not for me as a single justice of the court, but the full court itself, to consider and determine the tenability of the applicant's allegation". 8 In rebuttal, Counsel for the learned counsel for the Respondent began by giving an introduction on the background of this, which I shall not reproduce but refer the same as deemed appropriate. I will therefore go straight to the substantive submissions on the Application. With regard to the submissions of the Applicants on illegalities, irregularities, and impropriety as grounds of the extension of time sought, he submitted that the instant Application is made under Section 11 (1) of the Appellate Jurisdiction Act cap 141. The said provisions state that; "Subject to subsection 2, the High Court or where an appeal lies from a subordinate court exercising extended powers, the subordinate Court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned for making an application leave top appeal or certificate that the case is fit for case for appeal, notwithstanding that the time for giving the notice or making the application has already expired". He went on submitting that the Applicant is required to satisfy the court by demonstrating or showing good or sufficient cause for delay. He contended that, unfortunately good cause is not defined by any law 9 Similarly, there is no precedent which has offered an authoritative meaning of what good or sufficient cause mean, suffices to say that what amounts to good cause depends on the peculiar circumstances and facts of any given matter. That there are a number of decisions which have formulated some basic or minimum factors or conditions that an Application for extension of time has to satisfy. The most relied and quoted decision is that of the Court of Appeal in Civil Application No.3 of 2010 between Lyamuya Construction Company Limited and Board of the Registered Trustees of Young Women's Christian Association of Tanzania (unreported). This case has sets out factors formulated by the court to use or follow when considering and determining application for extension of time, as listed under para 6 & 7 as follows; a.) The Applicant must account for all the period of delay. b.) The delay should be inordinate c.) The application must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take d.) If the court feels that there are other sufficient reasons such as the existence of point of law of sufficient io importance such as the illegality of the decision sought to be challenged. He submitted that; Based on the case of Lyamuya (supra) the following questions are posed with answers in affirmative or in the negative; The first is whether the Applicant accounted for each day of the delays; that in this case from 22nd July 2016 to the 28th June 2023 when the Application was filed, the Applicants ought to have counted for each day of the 2520 days, they delayed to file notice of appeal to challenge High court judgment dated 22nd July 2016. He added that there is no any single paragraph in the Applicants' submission, where he submits on the delay of 2520 days to either filing the notice of appeal or lodging the present Application. He argued that; failure to account for 2520 days is tantamount to state that the Applicant does not have sufficient cause to be granted extension of time. Secondly; is on whether the Applicants are guilty of inaction, negligence or sloppiness. He submitted that there is no doubt that; the conduct of the Applicants and the steps they took since July 2016 to 20 June 2023 is one exhibiting high degree of the litigants' inaction, pure professional negligence and ill advice, want of diligence and sloppiness on their part. ii With respect to the question of whether there is manifest error on face of record, the learned counse submitted that the Applicants sole ground for extension sought are illegalities, irregularities and impropriety in the proceedings, records and judgment. Those allegations are deposed under para 13(viii), (vii), (ix), (x), (xi) of the supporting Affidavit, those allegations are countered by paragraph 20 of the Counter Affidavit. He contended that said errors are not apparent on the face of the judgment and decree and that the Applicants are using the decision of Hon.Ndika J.A which granted an extension for them to file to apply for revision. He argued that, Hon. Ndika's decision is of no avail to the Applicants in the present matter and at any rate its relevance and usefulness was for the purposes and the context in which it was applied for and granted. He added that the alleged illegality, impropriety and irregularities are the ones to be established after a long drawn process because neither of the Applicants has ever attempted to point out any single paragraph or page of the judgment and decree where one can vividly see, by a blink of an eye those errors of defects. Furthermore,learned counsel for the Respondent argued that in the case of Lyamuya (supra) the Court emphasized that such points of law must be that of sufficient important and he would add that it must also be 12 apparent on the face of the records, such as the question of jurisdiction, not one that would be discovered by a long drawn argument or process. The position has been repeated in a number of cases among them is the case of CAT Civil Application No. 12 of 2015 between MZA RTC Trading Company Ltd and Export Trading Company Ltd. In the end he submitted that there is nothing in the supporting Affidavit which alleges any prejudice the Applicants experienced and how that affected them or any injustice caused or suffered as a result of that and to what extent. Therefore, Applicants should not be granted extension of time. In rejoinder, the learned counsel for the Applicants reietrated his submissions in chief. Having gone through the rival submissions of the parties, affidavit and counter affidavits, the crucial question to be addressed is whether the Applicants have adduced sufficient reasons to be granted extension of time. Section 11 (1) of Appellate Jurisdiction Act Cap 141 RE 2019, grants this court with power to grant extension of time. The said section reads: 13 11(1) subject to subsection (2), the High Court or where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned may, extend the time for giving notice of intention to appeal from a judgement of the High court or of the subordinate court concerned, for making an Application for leave to appeal or for a certificate that the case is a fit case for appeal , notwithstanding that the time for giving the notice has or making the Application has already expired. However the said section does not provide for guidelines on how court can exercise its discretion in grating extension of time. Therefore reasons for extension of time vary from one case to another depending on the circumstances of each case. There is no a fixed list on the reasons for extension of time. However, through case law Courts have established some guidelines for Courts to consider while exercising their discretion judiciously. See for instance the case of Lyamuya Construction Ltd (supra) which has set out the following factors; a) The Applicant must account for all the period of delay. b)The delay should not be inordinate. c) The Applicant must show diligence and not, apathy, negligence or sloppiness in the prosecution of the action the intends to take and 14 d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged. The above factors were also restated in the case of Damas Assey and Another Vs. Raymond Mgonda Daula and others, Civil Application No. 232 of 208 CAT at DSM (unreported) see also the case of Maro Wambura Vs. Chacha Nyamahemba, Mise. Land Application No. 25 of 2021 MCT Musoma. Similarly, in the case of Tanga Cement Company Ltd Vs. Jumanne Massanga and Another Civil Application No. 6 of 2001 (unreported) the Court had this today; "What amounts to sufficient cause has not been defined from decided cases a number of factors have been taken into account including whether or not the Application has been brought promptly, the absence of any valid explanation for delay, lack of diligence negligence on the part of the Applicant" 15 Coming back to the case at hand, the Applicants have contended that they filed an Application for Revision named Civil Application No.390/17 of 2019 to challenge the decision of the High Court In Land Case No. 181 of 2009, being filed after Hon Mzuna as then he was) refused to grant the application for leave to appeal to the Court of Appeal, on 13th September the Court of Appeal struck out the application for the Revision based on the reason that they could not be moved by way of revision while there was a chance of appeal and the basis of their decision is that after the refusal of leave to appeal by the High Court they were supposed to appeal against such a decision and not to file revision. Then the Applicants filed the Application for review and while the appeal was still pending to CAT, the CAT emphasized that the remedy to challenge the decision in land case No. 181 of 2009 was to appeal and not revision following the stance of the CAT, the Applicants withdrew the Application for review in order to pursue their right to appeal. Therefore, the delay was not intentional and the Applicants did not stay idle from the date of the judgment in land case 181 of 2015 up to the filling of this Application and that the delay was caused by the Appellants pursing their rights and that the decision intended to be appealed is tainted with irregularities, impropriety and illegality. 16 From the above background of the case the reasons for the delay are that, first, the Applicants were busy pursing their rights in court corridors, since the delivery of the decision of the Land case No 181 of 2015 and the second reason is that the intended appeal is tainted with illegality, irregularities and impropriety. In conclusion, the Applicants submitted that, the ground of illegality alone is a ground of the extension of time. They referred the court to the cited the case of VIP Engineering where the Court granted extension of time because there was breach of natural justice. In the present case, the Applicants under paragraph 13 of the Affidavit mentioned illegality, impropriety an irregularity of the intended appeal. For easy of reference such assertions are reproduced hereunder; i) On the 2nd April 2015 the new trial judge took over the trial from another trial judge without complying with the provisions of Order XVIII Rule 10 (1) of the CPC, the proceedings were therefore nullity. ii) On 2nd April 2015 the successor trial judge nullified and quashed the proceedings of the predecessor judge, a judge of the same grade on the ground of invalidity for having been commenced without the aid of assessors 17 iii) Parties were not afforded an opportunity to object on the names of the appointed assessors. iv)No opinion of assessors was recorded by Hon Judge when composing a judgment as mandatorily required by law. It is even not at the record of proceedings. v) A witness for the Plaintiff case was recalled after closure of both cases and continued to testify and give documentary evidence. vi) Pleadings were amended pursuant to the Order of 27th August 2012 to remove the first Plaintiff, one Martha Nyaulingo and the 11th Plaintiff one Kwasmo Mushi which amendment left to the case 10 plaintiffs but the judgment was composed on the basis of the old pleadings with all original pleadings. In Lyamuya Construction Company limited v Board of Registered Trustee of Young Women Christian Association of Tanzania Civil Application No.02 of 2010(unreported) it was held that; "..... A Court meant to draw a general rule that every applicant who demonstrate that his intended appeal raises a point of law should as right be granted extension of time if he applies for one. The court there emphasize that point of law must be such of 18 sufficient importance and I would add that it must be apparent on the face of record, such as the question of jurisdiction, not one that will be discovered by long drawn argument or process". From the authority above and after having perused the above mentioned purported illegality, impropriety and irregularities, it is my view that the above cited alleged illegalities, impropriety and irregularities raises issues of sufficient importance to be examined further by the Court of Appeal since they are on the face of records and do not need a long drawn process of arguments. Similarly, the fact that the Applicants have been busy in court corridors pursuing their rights since 2015, after the delivery of the decision in land case No. 181 of 2015, is a sufficient reason for them to be granted extension of time. The attached proceedings and judgements in the Application attest to the fact that they never stayed idle but they were diligently busy in Court pursuing their rights that is to say that the delay was not caused by negligence of the Applicants. The Court of Appeal, in the case of Zahara Kitindi and another vs. Juma Swalehe and other Mise. Civil Application No. 9 of 2016 CAT Arusha while citing with approval the case of Fortunatus Masha vs William Shija and another 1997 TLR 154 had an opportunity of differentiating between actual and technical delay and 19 thereby provided guidance on how to confront these type of cases in which the Applicant pleads technical delay. The CAT stated in that case, and I quote; "A distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called as technical delays in the sense that the original Appeal was lodged in time but the present situation arose only because the original Appeal for one reason or another has been found to be incompetent and a fresh Appeal has to be instituted. In the circumstances, the negligence if any, really refers to the filing of an incompetent Appeal and not the delay in filling it.The filling of an incompetent Appeal having been dully penalised by striking it out, the same cannot be used yet again to determine the timeousness of applying for filing the fresh appeal. In fact in the present Appeal, the Applicant acted immediately after the pronouncement of the Ruling of this Court striking out the first Appeal/' Therefore since the Applicants in the first place pursued revision instead of filing an appeal, they were already punished by having it struck out by the CAT. They cannot be penalised in this court again based on ground of negilince since they have been busy in court pursuing their matter diligently. See also the case of Farhia where the Court of Appeal affirmed the position that once it is established that the Applicant has been in court pursuing his rights consistently then the Court can consider granting him extension of time. 20 Based on the quotation and the cases cited above, above and the submissions of the parties. It is my considered view that the Applicants have explained away the delay to my satisfaction. Therefore based on the submissions presented by the Applicants, I am of the firm position that, the period that the Applicants were pursuing their rights in Court can be termed as technical delay. There is ample evidence that the Applicants never rested and have been in Court corridors constantly since 2015. The reasons based on the negligence cited by the Respondent cannot hold water, as the Applicants have already been punished by having their Application for revision thrown out and struck out. They cannot be punished again by way of citing negligence on their part. Similarly after the incompetent Appeal was struck out last year in June 2023, the Applicant immediately took steps within a period of 16 days to file this instant Application. Which for me is within reasonable time. Therefore in my settled position the Applicants have advanced good cause for their technical delay, that the delay has not been inordinate (See the case of Lyamuya Construction (supra) and in view of the decisions of the CAT, in all his previous Appeals they cannot be punished again based on negligence. That done and said, these grounds are sufficient to dispose this Application. In the Upshot I proceed to grant this Application. Since I have found it to be meritorious. The Applicants are ordered to file their intended Notice of Appeal within 30 days from the date of this ruling. The 21 circumstances of this matter are such there should be made no order as to costs, therefore each party shall bear its own costs. It is so ordered. S.D.MWAIPOPO JUDGE 25/6/2024 22