RULING Remigius Ngunja Another vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY

AT SONGEA MISCELLANEOUS LAND APPLICATION NO. 26931 OF 2024 (Originating from the High Court of Tanzania, Songea Sub-Registry in Land Appeal No. 35 of 2023) REMIGIUS NGUNJA ….……...………….……………..……………….. 1ST APPLICANT FABIAN MPONJI …………….……...……………....………………….. 2ND APPLICANT

VERSUS BENEDICT LUAMBANO MABALANGANYA …………….....………….. RESPONDENT

RULING 28th November & 17th December, 2024. KAWISHE, J.: The applicants, Remigius Ngunja and Fabian Mponji have moved this court by way of chamber summons made under section 14(1) (b) of the Law of Limitations Act (Cap 89, R.E 2019), seeking for an order for extension of time within which they can lodge an application for review out of time. The application is supported by affidavit sworn by the applicants’ 1 learned counsel, Mr. Marco J. Kisakali setting out the reasons for the delay and for the enlargement of time. According to the affidavit deponed by the applicants’ learned counsel, the reasons for the delay in lodging the application for review are on technical issues. That, after the delivery of the decision which they intend this court to intervene by way of review, the matter was remitted before the District Land and Housing Tribunal until on 11th October, 2024 when they were advised by the chairman to file an application for review. The other reason is on the irregularity found in the decision sought to be reviewed. That, the orders given by this court have confused the parties and the tribunal’s chairman. The application was not opposed by the respondent who opted not to file counter affidavit before this court. The hearing of the application was by way of oral submission. The applicants appeared under the legal service of Mr. Marco J. Kisakali, learned advocate while

the respondent enjoyed the legal services of Mr. Haji Ramadhani, learned advocate. As usual, at the hearing of the application, the applicants’ learned counsel was the first to address the court. At the outset, he prayed for the court to adopt the prayers made in the chamber summons and the facts 2 deponed in the affidavit sworn in support of the application to form part of his submission. He went on submitting that, the applicant intends to file an application for review of the judgment of this court in Land Appeal No. 35 of 2023 which was delivered on 29th November, 2023. That, the judgment ordered for the retrial of the matter before the District Land and Housing Tribunal for Songea. It was until 13th September, 2024 when the parties were summoned before the District Land and Housing Tribunal for Songea and when requested to address on the orders given by this court it was discovered that there are some errors on the face of records specifically at page 15 to 17 of the judgment. He pinpointed such errors which reads as follows: i. “I allow this appeal and set aside the decision and orders of the trial tribunal except for orders made during the hearing of PW2”. ii. “The trial tribunal to proceed recording the evidence which the parties may wish to adduce”. iii. “The hearing must resume from where PW2 ended in 26/2/2018.” He amplified that, the above orders cannot be executed

for the reason that; One, there is no records of the proceedings made on 26th February, 2018. Two, an order that the District Land Housing Tribunal may continue with hearing evidence the parties may wish to adduce 3 contravenes with an order that, the hearing must start from the hearing of PW2. That, with those errors, on 11th October, 2024, the District Land and Housing Tribunal for Songea could not know from which point to start with the hearing and advised the parties to request this court to review its orders but it was out of the prescribed time for making an application for review hence this application. He added that, from 29th November, 2023, when the judgment was delivered, up to 11th October, 2024, the matter was pending before the tribunal and was out of the party’s control and thereafter this application was immediately filed. He concluded by stating that, in this application the respondent did not file counter affidavit and has no avenue to argue on the facts stated by the applicants except on points of law. To bolster his stance, he cited the case of Sakina Issa vs. Rashid Juma, Miscellaneous Civil Application No. 55 of 2021. He finally prayed for this application to be allowed. On his part, the respondent’s learned counsel, supported the applicant’s submissions asserting that the delay was not caused by the applicants’ negligence. He added that, the orders of

this court are not executable. He prayed that the application for review is of utmost importance. 4 There was no rejoinder submission made by the applicants’ learned counsel. Having dutifully considered the affidavit and keenly followed the submissions made by the parties in this application, I find the main issue which needs to be determined by this Court is whether the applicants have advanced good and sufficient cause to enable this Court to exercise its discretionary powers to extend time within which they can file their application for review out of time. It is a settled law that, in our jurisdiction, courts have discretionary powers to grant an application for extension of time within which to file an application for review out of time. However, the discretionary powers given to the courts must be exercised judiciously and not frivolously. In order to exercise such powers judiciously and consistently, criteria for extension of time were developed in the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Women Christian Association of Tanzania (supra) and Ngao Godwin Losera vs. Julious Mwarabu, Civil Application No. 10 of 2015. The established practice of this Court and the Court of Appeal which is the Apex Court in our jurisdiction is that, for applications of this nature to 5 succeed the applicant has to give good and sufficient cause

for the delay to enable the Court to invoke its discretionary powers in granting the extension of time. There is a plethora of case law on this matter which include but not limited to the case of Robert Madololyo vs. Republic, Criminal Appeal No. 486 of 2015 [2018] TZCA 346 [14 February 2018; TanzLII], where the Court of Appeal, quoted with approval the decision of the Supreme Court of Appeal of South Africa in Uitenhage Transitional Local Council vs. South African Revenue Service, 2004 (1) SA 292 (SCA), cautioned that, in an application for condonation for delay the applicant must furnish a detailed and accurate explanation of the causes of the delay to enable the Court to understand the situation and assess the responsibility. Also, in the case of Republic vs. Yona Kaponda & 9 Others (1985) T. L. R 84, it was held that: “In deciding whether or not to allow an application to appeal out of time, the Court has to consider whether there are sufficient reasons not only for the delay but also sufficient reasons for extending time during which to entertain the appeal.” Guided by the quoted authority, this court has to assess if the applicants have sufficient reasons for the delay, and for extension of time as well. In the present application, the first reasons advanced by the applicants for the delay in filing an application for review is on the technical 6 delay and irregularities

found in the impugned decision. In respect to the issue of technical delay, the applicants’ learned advocate submitted that, from 29th November, 2023, when the judgment was delivered, up to 11th October, 2024, the matter was under control of the trial tribunal and was out of the parties’ control. Thereafter the applicant filed this application immediately after being advised by the trial tribunal to approach this court for an order for review. However, the application for review was already time barred. The only opportunity they had was to file an application for extension of time to file the review out of time. From the parties’ submission, it is clear that, the application has not been contested by the respondent. It is on record that, when the impugned decision was delivered by this court, the matter was remitted back before the trial tribunal and it was until September, 2024 when the parties were summoned. Then on 11th October, 2024, the parties were ordered to seek interpretation of this court on the orders given in the impugned decision. In such circumstances, it is my view that this case fits within the meaning of technical delay and the applicant acted diligently in dealing with the matter. 7 Moreover, the applicants’ learned counsel in his affidavit sworn in support of the application and in his submission at the hearing of the application averred that, the orders

given by this court, need some clarifications by this court. This has not been contested by the respondent’s learned counsel. Having gone through the alleged orders, it is my view that, they suffice for a good reason for this court to grant for an order for extension of time. In the event, from what has been discussed herein above, I find the applicants were not negligent nor sloppy in prosecuting the application. Hence, they have established a good and sufficient reason for this court to exercise its discretionary powers to grant for an order for extension of time within which to file an application for review out of time. Consequently, this application has merit and it is hereby granted. The applicants are given 14 days to file the relevant application as prayed. I give no order as to costs. It is so ordered. DATED and DELIVERED at SONGEA this 17th day of December, 2024. E. L. KAWISHE

JUDGE 8 COURT: Ruling delivered in the presence of Mr. Marko Kisakali, learned advocate for the applicants and in the presence of Mr. Hajj Ramadhani, learned advocate for the respondent and in absence of the applicants and respondent. E. L. KAWISHE

JUDGE 17/12/2024 9