CIVIL APPEAL NO 177 OF 2021 SHABANI MOHAMED MWANAMBINGU VS ALLY BWANA ALLY

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM f CO RAM: NDIKA. J.A.. KEREFU. J.A.. and NGWEMBE. J.A.^ CIVIL APPEAL NO. 177 OF 2021 SHABANI MOHAMED MWANAMBIGU........................... APPELLANT VERSUS ALLY BWANA ALLY......................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Land Division at Dar es Salaam) fMango, J.) dated the 12thday of March, 2021 in Misc. Land Application No. 707 of 2019 JUDGMENT OF THE COURT 9th & 16th July, 2024 KEREFU. 3.A.: This appeal arises from the decision of the High Court of Tanzania, Land Division at Dar es Salaam in respect of Misc. Land Application No. 707 of 2019 (Mango, J.) dated 12th March, 2021. In that application, the appellant applied for extension of time within which to lodge an appeal against the decision of the District Land and Housing Tribunal (the DLHT) for Kilosa in Land Appeal No. 57 of 2014 after failure to do so within the prescribed period under the law. The said application was dismissed by the High Court for failure by the applicant to advance sufficient cause for the delay, hence this appeal. As per the record of the appeal, this matter originates from Mabwegere Ward Tribunal in Land Case No. 7 of 2013, where the appellant unsuccessfully sued the respondent over the ownership of a parcel of land measuring 11 acres situated at Mabwegere Village within Kilosa District, claiming to be declared a lawful owner of the same. Aggrieved, the appellant unsuccessfully preferred an appeal to the DLHT vide Land Appeal No. 57 of 2014. Subsequently, in 2016, the appellant together with one Daudi Yahaya, who is not a party to this appeal, trespassed on the disputed land the actions which forced the respondent to lodge Criminal Case No. 282 of 2016 in the Primary Court of Mamba within Kilosa District. After a full trial, the trial court was convinced that the case against the appellant and his colleague was proved to the required standard. Thus, the appellant and his colleague were found guilty, convicted and sentenced to six months imprisonment. Having completed to serve his sentence and still dissatisfied with the decision of the DLHT, but being out of the time prescribed under section 38 (1) of the Land Disputes Courts Act, Cap. 216 (the Land Disputes Act) to appeal, the appellant lodged an application for extension of time in the High Court vide Misc. Land Application No. 707 of 2019. Before the High Court, the appellant submitted three reasons for the delay one; that, he was belatedly supplied with the certified copy of the DLHT's proceedings; two, that, he was serving a custodial sentence indicated above; and three, his ill health which caused him to be admitted at the Kilosa District Hospital from 9th to 13th April, 2018. The respondent resisted the application as he contended that the appellant failed to demonstrate good cause for extension of time. He added that, the appellant ought to have acted diligently and timely in pursuing the matter. He specifically, referred to the appellant's letter requesting for the certified copy of the DLHT's documents that it was written on 26th October, 2016 when the time limit to file an appeal had already lapsed. On the second reason, the respondent argued that, the appellant was sentenced to six months imprisonment in 2017 after the time to appeal to the High Court had already lapsed. He contended that, since, the decision of the DLHT sought to be challenged was issued on 14th July, 2016 and the appellant was sentenced on 18th January, 2017 and released from the prison on 17th May, 2017 the said reason is unfounded. On the reason of his ill health, the respondent contended that, the appellant became sick on 9th to 13th April, 2018 after a lapse of almost three years from the date of impugned decision. The respondent contended further that the appellant had failed to account for each day of delay as required by the law. Thus, the respondent prayed for the appellant's application to be dismissed with costs. In its decision, the learned High Court Judge, having been satisfied that the three reasons advanced by the appellant did not constitute good cause warranting extension of time, dismissed the application with costs. Aggrieved, the appellant lodged the current appeal. In the memorandum of appeal, the appellant has preferred two (2) grounds which boil down to one main ground that, "the learned High Court Judge erred in taw and fact for failure to find that the appellant has advanced good cause for the delay as required by the law.' At the hearing of this appeal, both, the appellant and the respondent appeared in person. When given the opportunity to amplify on his grounds of appeal, the appellant adopted the same with no more and urged the Court to consider them and allow his appeal. On the other side, the respondent, at the outset, declared his stance of opposing the appeal and intimated that the learned High Court Judge was correct to dismiss the application on account of failure by the applicant to advance good cause for the delay and account for the delay of each day. He thus implored us to dismiss the appeal with costs for lack of merit. Rejoining, the appellant did not have much to say other than insisting for his appeal to be allowed. On our part, having examined the record of the appeal and considered the oral submissions made by the parties, we are settled that, the issue for our determination is whether the appellant had advanced good cause to enable the High Court to exercise its discretion to extend time as prayed in the chamber summons. Before embarking on the determination of the said issue, we wish to state the general principle that an appellate court cannot interfere with the exercise of the discretion of the lower court unless it is satisfied that the decision concerned was made on a wrong principle or that certain factors were not taken into account. We find it apt at this point to refer to Mbogo and Another v. Shah [1968] 1 EA 93, a decision of theerstwhile Court of Appeal for East Africa, which has been cited and applied in numerous decisions of this Court. The relevant passage is as per Sir. Clement de Lestang VP at page 94 thus: "I think it is well settled that this Court will not interfere with the exercise o f its discretion by an inferior court unless it is satisfied that the decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. "[Emphasis added] The above principle has been restated in numerous decisions of the Court. See for instance, Credo Siwale v. Republic, Criminal Appeal No. 417 of 2013 [2014] TZCA 184: [22 October 2014: TanzLII] and Pangea Minerals Limited v. Gwandu Majali, Civil Appeal No. 504 of 2020 [2021] TZCA 414: [26 August 2021: TanzLII]. Therefore, in determining this appeal, we shall be guided by the same, as it is equally applicable to the instant appeal which is also questioning a High Court's exercise of its discretion. Having perused the record of the appeal, we must state at the outset that, we do not see any justification to fault the decision of the learned High Court Judge. We shall demonstrate. It is settled law that the court can only grant extension of time, if the appellant shows sufficient cause. In Shanti v. Hindocha & Others [1973] E.A. 207, the Erstwhile Court of Appeal for East Africa considered similar phrase, "sufficient cause" and defined it to mean the cause which is convincingly beyond the applicant's control, that is to say: ". . the more persuasive reason . . . that he can show is that the delay has not been caused or contributed by dilatory conduct on his part. But that is not the only reason." Some of the factors which may be taken into account in considering whether or not the applicant has shown good cause were stated by the Court in the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 [2011] TZCA 4: [3 October 2011: TanzLII], where the Court defined what was meant by sufficient cause and developed factors to be looked at when considering good cause for extension of time, that: (i) the applicant must account for all the period of delay; (ii) the delay should not be inordinate; (iii) the applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (iv) if the Court feels that there are other reasons, such as existence of a point of law of sufficient important, such as the illegality of the decision sought to be challenged. In the instant appeal, it is on record that, before the High Court, the appellant advanced three reasons for the delay one; that, he was belatedly supplied with the certified copy of the DLHT's proceedings; two, that, he was serving a custodial sentence indicated above; and three, that, he was admitted at the Kilosa District Hospital from 9th to 13th April, 2018. Starting with the first reason for the delay, we find it apposite to state that, pursuant to section 38 (1) of the Land Disputes Act, an appeal to the High Court from DLHT on matters originated from the Ward Tribunal must be filed within sixty (60) days from the date of the decision sought to be challenged. For clarity, the said section provides that: "38 (1) Any party who is aggrieved by a decision or order o f the District Land and Housing Tribunal in exercise o f its appellate or revisionai jurisdiction, may within sixty days after the date o f the decision or order, appeal to the High Court,..provided that the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period o f sixty days has expired. (2) Every appeal to the High Court shall be by way o f petition and shall be filed in the District Land and Housing Tribunal from the decision or order o f which the appeal is brought 8 (3) Upon receipt of a petition under this section, the District Land and Housing Tribunal shall within fourteen days dispatch the petition together with therecord o f the proceedings in theWard Tribunal and the District Land and Housing Tribunal to the High Court." [Emphasis added]. It is common ground that the decision of the DLHT sought to be challenged was delivered on 14th July, 2016. It is also on record that, the appellant's letter requesting for the certified copy of the DLHT's proceedings for appeal purposes was written on 26th October, 2016 after lapse of almost 102 days, when the time limit to file an appeal had already lapsed. Thus, the appellant's initial appeal which was lodged on 17th July, 2017 was struck out for being time barred. Hence, the appellant lodged an application for extension of time, subject of this appeal, which was filed in the High Court on 16th December, 2019, again, after a lapse of more than two years from the date of striking out of his first appeal. We are mindful of the fact that, in his affidavit in support of the said application, the appellant attributed his delay with the delay in obtaining the certified copy of the DLHT's proceedings. Having considered the said reason, the learned High Court Judge, correctly in our view, referred to section 38 (2) and (3) of Land Disputes Act reproduced above and reasoned at page 12 of the record of appeal that: "As to the relevance o f such delay in obtaining a copy o f judgment, the law section 38 (2) o f the Land Disputes Act indicates that copy o f judgment is not a mandatory document to be attached to the petition o f appeal...the duty to forward record and decisions o f the two tribunals is entrusted to the District Land Tribunal under section 38 (3) o f Cap. 216. The applicant was required to file only a petition o f appeal before the District Land and Housing Tribunal for Kilosa. Thus,; the excuse o f waiting for copies o f judgment is not relevant to this application." However, the learned High Court Judge went on to state that: "Even if it will be considered necessary for the applicant to have the copy o f judgment in formulation o f his appealsection 19 (2) o f the Law o f Limitation Act, [Cap. 89 R.E. 2019] excludes the time spent waiting for necessary documents for appeal in computing the prescribed time limit. For that reason, 60 days' time limit, in the matter at hand, started to run from l4 h October, 2016 to l4 h December, 2016. The applicant did not account for delay from I4 h 10 December, 2016 to 17th January. Conviction in the Criminal Case was issued on 18th January, 2017 and there was no evidence that he was attending sessions for criminal case every day." Having regard to the above reproduced reasons and finding of the learned Judge, we find the complaints by the appellant unfounded. We equally find the other reasons for the delay advanced by the appellant before the High Court to be irrelevant and couldnot have assisted him and or amounted to sufficient cause for extensionof time. It is on record at page 40 of the record of the appeal that the appellant was sentenced to six months imprisonment in 2017 when the time limit to appeal to the High Court had already lapsed. Likewise, according to the medical report attached to paragraph 6 of the appellant's affidavit in support of the application, he became sick and admitted at Kilosa District Hospital on 9th to 13th April, 2018, again, after a lapse of almost three years from the date of impugned decision. In addition, and as correctly found by the learned High Court Judge, in his affidavit in support of the application, the appellant did not account for the entire period of the delay as required by the law. As intimated above, in an application for extension of time, the applicant is required to account for the delay of each day. Indeed, the Court has reiterated this position in numerous cases - see for instance the cases of Bushiri Hassan v. ii Latifa Lukio Mashayo, Civil Application No. 3 of 2007 and Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 04 of 2014 (both unreported). Since in the instant appeal, the appellant failed to account for the delay of each day in lodging his appeal, the High Court could not have exercised its discretion to grant extension of time sought. In Michael Lessani Kweka v. John Eliafye [1997] T. L. R.152, the Court emphasized that: "The court has power to grant an extension o f time if sufficient cause has been shown for doing so." Therefore, to be entitled to an extension of time, the appellant was required to avail before the High Court sufficient material to show not only that he took actions before and after expiry of time to lodge the appeal, but also that he acted promptly and diligently to take the actions in order to convince the court to exercise its discretion to grant extension of time. In totality and having considered the appellant's reasons advanced before the High Court, we agree with the respondent that the learned Judge properly directed herself to the relevant facts of the case and correctly applied principles of the law in arriving at her decision that 12 good cause was not shown to justify the enlargement of time that had been prayed for. In the event, we are settled that this appeal is devoid of merit, and we hereby dismiss it with costs. DATED at DAR ES SALAAM this 12th day of July, 2024. G. A.M. NDIKA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 16th day of July, 2024 in the presence of the Appellant in person through video link from Kilosa District Court and in the absence of the Respondent is hereby certified as a true copy of the original. t. * A. S. ChjllGULU DEPUTY REGISTRAR COURT OF APPEAL 13