RWABUTAZA

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA MISC. LAND APPLICATION NO. 8619 of 2023 (Arising from Land Appeal No. 61 of 2015 in the District Land and Housing Tribunal for Mwanza at Mwanza and from Land Case No. 266 of 2013 in the Nyamanoro Ward Tribunal at Ilemela) ROBERT RWABUTAZA……………………………………………………APPLICANT

VERSUS JESCA JUMA……………………………………………………………….RESPONDENT

RULING 2nd September & 31st October, 2024 KAMANA, J. Mr. Robert Rwabutaza, the applicant, has filed this application seeking an extension of time to file an appeal against the decision of the District Land and Housing Tribunal (DLHT) for Mwanza in Land Appeal No. 61 of 2015 which in his view was in favour of Ms. Jesica Juma, the respondent. The application is supported by an affidavit whose affiant is the applicant. The same is opposed by a counter affidavit deponed by the respondent. Submitting by way of a written submission, Mr. Anthony Nasimire, learned Counsel for the applicant, contended that the impugned 1 judgment was delivered on 30th November, 2023. He asserted that the applicant failed to appeal within the prescribed time as there was a network problem as the Judiciary System was migrating from JSSD to CMS. Mr. Nasimire argued that due to the network failure, the applicant was technically delayed in filing his appeal within the time. The learned Counsel contended further that the impugned judgment is tainted with illegality. Amplifying, he asserted that the DLHT failed to visit the locus in quo. Such failure, in his view, made the DLHT fails in ascertaining who between the parties testified the truth. He added that the decision of the DLHT was founded on an issue that was not addressed by the parties. He explained that by premised the decision on the issue that was

not addressed by the parties, his client and the respondent were not given a fair hearing. Mr. Nasimire went on to argue that the decision of the DLHT was premised on the opinion of one assessor and did not consider the other assessor’s opinion. Replying, Mr. Emmanuel John, learned Counsel for the respondent, contended that there was no technical delay on the part of the applicant. He amplified that according to the annexure, a failed attempt to lodge the appeal was made on 22nd January, 2024. He reasoned that 2 since the impugned judgment was delivered on 31st October, 2023, the applicant had ample time to file his appeal before 22nd January, 2024. He asserted that the applicant did not submit any proof to show that he had consulted the Judiciary on the challenges he alleged to face when trying to file his appeal. Concerning the visit to the locus in quo, Mr. John contended that the presiding Chairman explained that there was no need to visit the locus in quo as the dispute was on the surveyed land which requires the joining of the necessary parties. He amplified further that the order to visit the locus in quo was issued by the DLHT before the decision of this Court which held that the appeal be heard de novo. In that case, he held the view that such DLHT’s order which was not implemented had no legal effect following the decision of this Court. Concerning the argument that

the presiding Chairman did not consider the opinion of one of the assessors, Mr. Emmanuel contended that according to Rule 24 of the Land Disputes Courts Regulations, 2003, the presiding Chairman is not bound by the assessors’ opinion but he is required to give reasons when departing from their opinion. He asserted that by stating that the DLHT had no jurisdiction, the presiding 3 Chairman was supplying reasons for departing from the assessor’s opinion. In his rejoinder, Mr. Nasimire reiterated his position in the submission in chief. In determining this application, I wish to restate the cardinal principle that a mere statement that finds its way before the court of law by way of submission, whether oral or written, and not supported by an affidavit is not evidence. This principle was restated in the case of Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government and 11 Others, Civil Appeal No. 147 of 2006-CAT (Supra) where the Court of Appeal had this to state: ‘…. submissions are not evidence. Submissions are generally meant to reflect the general features of a party's case. They are elaborations or explanations on evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence.’ Inspired by that position and after going through the applicant’s affidavit,

I hasten to state that I will not discuss the ground of illegality 4 as the same is not reflected in the affidavit. This is because, in the affidavit, there is no reflection regarding the DLHT’s failure to visit the locus in quo; complaints regarding non-consideration of the assessor’s opinion; and infringement of the right to be heard. Having taken that position, I now turn to determine the issue of technical delay. According to section 38 of the Land Dispute Court Act, Cap. 216 [RE.2019] an appeal to this Court on matters originating from the Ward Tribunal ought to be filed within 60 days after the date of the impugned decision. That being the position, the applicant was supposed to file his appeal no later than 30th December, 2023. Given that, the argument that he was technically delayed by the network issue is devoid of merits as he attempted to file the appeal on 22nd January, 2024 as per the annexure. I understand that it is possible that the applicant failed to file an appeal within the prescribed time as the records were not issued to him timely, such understanding remains an assumption as the applicant’s affidavit did not disclose that. Further, in his affidavit, the applicant stated that he attempted to file his appeal on 30th November, 2023 which was within the time. However, the applicant did not submit any proof of that failed attempt but supplied the screenshots

that he 5 attempted to file an appeal on 22nd January, 2024 which was hopelessly out of time. My perusal of the records reveals that the instant application was filed on 20th April, 2024. In that case, I asked myself where the applicant was from 22nd January, 2024. In my view, the applicant after sleeping on his rights from 31st October, 2023 to 22nd January, 2024, fell into a deep slumber until 20th April, 2024 when he woke up. This shows that the applicant was not technically delayed but was not diligent in pursuing his rights. The application is dismissed with costs for wants of merits. Order accordingly. DATED at MWANZA this 31st of October, 2024.

KS KAMANA

JUDGE 6