Sizya 2

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB REGISTRY AT TABORA MISC. LAND APPLICATION NO. 3817 OF 2024 (Arising from the decision of the High of Tanzania, at Tabora in Land Case Appeal No. 05 of 2021, from the decision of the District Land and Housing Tribunal for Tabora in Land Appeal No. 75 of2020, Original Land Case No. 01 of2020 before Usisya Ward Tribunal) RASHIDI SHABANI SIZYA.............................................. APPLICANT VERSUS RAMADHANI JUMA MGONELA.................................... RESPONDENT RULING Date of Last Order: 30/10/2024 Date of Delivery: 14/11/2024 MANGO, J. The Applicant Rashid Shabani Sizya lodged this application praying to be granted extension of time within which to file a notice of appeal to the Court of Appeal against the decision of this Court in Land Case Appeal No. 05 of 2021 delivered on 31st March 2023. The application is made under Section 11(1) of the Appellate Jurisdiction Act [Cap 141 R.E 2019] and is supported by an affidavit sworn by counsel for the Applicant. During hearing of this application, the Applicant was represented by Mr. Lucas Kashindye, learned advocate. The Respondent did not enter appearance. Physical service to the Respondent could not be effected as his i whereabouts were reported to be unknown by the court process server namely Jihadi Said Kaloka via his affidavit affirmed on 10th June 2024. On 17th September 2024, the Applicant availed the Court with a proof of a failed physical service. In compliance with the laid down procedure of service, the Court ordered substituted service to the Respondent via publication. The Applicant complied with the Court order and served the Respondent via publication of Court summons through Uhuru Newspaper dated 23rd October 2024 at Page 24 and Mzalendo newspaper dated 27th October 2024 at page 20. Despite such service, the Respondent did not enter appearance hence the Court proceeded to hear the matter exparte. In support of the application, Mr. Kashindye, learned counsel for the Applicant, adopted the contents of the affidavit filed in support of the application to form part of his submission. He submitted further that, the application is centered on two grounds, first, the jurisdiction of the Ward tribunal as it entertained the matter without being duly composed and, second, un-executable orders issued by the High Court during appeal. On the first ground he submitted that, on a number of dates, the tribunal which determined this matter was not fully composed as required by Section 4 of the Ward Tribunal Act, and section 11 Land Disputes Courts Act [Cap 216 R.E 2019]. He argued that, the two provisions provide for the coram of the Ward Tribunal to be 4 to 8 members whom 3 of them should be women. He insisted that, according to the constructions of the two cited provisions, the requirement regarding the composition of the Ward Tribunal in determining disputes is mandatory. 2 Linking the legal requirements under section 11 of Cap. 216 and the matter at hand, he submitted that, record indicates that, on 29th April 2020 the tribunal sat with incomplete coram by having 5 members out of whom only one was a woman namely Amina Masele. On 06th May 2020 the coram was formed of 4 members with only one woman. It was his contention that, the coram kept on changing on different scheduled dates which means, the Ward Tribunal was not properly composed. To cement his arguments, he cited the decision of this court in the case of Joel Kondela Maduhu vs Siya Ndeja (Land Appeal 3 of 2021) [2022] TZHC 11978 (3 June 2022). On the second ground, the learned counsel argued that, the High Court issued orders incapable of being executed. He referred the Court to page 18 of un-typed proceedings of the trial tribunal which indicates that, the Respondent testified that, he was allocated by the government a plot of land measuring one acre. At page 27, DW3 stated that, the plot allocated to the Respondent had the following measurements, 100 length and width of 80. The High Court declared that, the land in dispute which is 45 acres is the property of the Respondent because he was allocated by the government. The learned counsel is of the view that, since the Applicant stated that his land has 45 acres and he gave the Respondent part of his land thus, the orders issued by the High Court are un-executable. I have carefully considered submission made by the Applicant's counsel and Court record, I am now in the position to determine whether this application has merits. The law requires the Applicant to account for each day of delay with good reason. The requirement has been emphasized in a number of 3 cases including the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011). In his affidavit and submission before this Court, the Applicant have not attempted to account for his delay as he did not advance any reason for his delay to lodge his intended appeal. He merely raised illegality of the proceedings before the Trial Tribunal and non-executable orders issued by this Court during appeal. Illegality is among good reasons that can move the Court to grant an application for extension of time. I understand that for illegality to be a reason for extension of time, it should be clear on the face of record. I am of the view that, illegality based on the composition of the coram of tribunal from which these proceedings originate, is clear on face of record as it does not require evaluation of evidence or factual consideration by the Court. Moreover, the alleged illegality touches the jurisdiction of the tribunal which determined this matter during trial. In such circumstances, I find it to be in the interest of justice to have the existence and effects of the alleged illegality assessed by the Court. Since this court has no powers to go into details in determining the alleged contravention of section 11 of [Cap 216 R.E 2019], the only remedy is to grant this application and to allow the alleged illegality to be assessed during application for certificate on point of law or during appeal before the Court of Appeal of Tanzania. 4 In the event, this application is hereby allowed, the Applicant should file his notice of appeal within 30 days from the date of extraction of the drawn order from this ruling. Given circumstances in this application, I award no costs. Dated at Tabora this 14th day of November 2024 Z.D.MANGO JUDGE 5