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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY

AT MBEYA MISC. LAND APPLICATION NO 6475 OF 2024 (Arising from the decision and Judgment of Land Application No. 27 of 2023 at District Land and Housing Tribunal of Mbozi within Songwe Region) SIKITU ALBART MGALLAH………………………………. APPLICANT

VERSUS OSCAR MLAGHA………….………………………….1ST RESPONDENT MELINA MGALLA………………….…………………2ND RESPONDENT

RULING Date: 2 July 2024 & 29 August 2024 SINDA, J.: This is an application for extension of time to file an appeal out of time. It has been preferred under section 14 (1)(2) of the Law of Limitation Act, Cap 89 R.E 2019 (the LLA). The first respondent at the District Land and Housing Tribunal (the DLHT) claimed to be the lawfully owner of 1.5 acres located at Shiwinga village at Mbozi district within Mbozi Songwe Region (the Disputed Land). He averred that he bought the Disputed Land from the second respondent 1 and the applicant invaded it. At the end of hearing the DLHT found that the Dispute Land belongs to the first respondent. Dissatisfied with decision, the applicant filed this application for extension of time on the following prayers: 1. This honorable court be pleased to extend time within which the applicant may lodge an appeal to challenge the judgment in the land case No. 27 of 2023 at the DLHT.

2. That this court be pleased to allow the applicant to lodge an appeal before this court.

3. Cost of this application be provided for 4. Any other relief this honorable court may deem fit to grant for the applicant. At the hearing the applicant appeared in personal unrepresented while the respondents were represented by Mr. Isack Chingilile, learned counsel. The application was argued by way of written submission. The applicant in his affidavit and submission stated that the judgment of the DLHT was delivered on 25 August 2023 and was certified and ready for collection on 26 October 2023. On 17 November 2023, the applicant attended to the DLHT to secure a copy of the judgment. But he was arrested by the police and charged for the offence of criminal trespass at 2 Mlowo Primary Court in Criminal Case No. 188 of 2023. He was detained for more than two weeks without bail. He was granted bail and convicted on 8 December 2023 and sentenced for 10 months imprisonment. He is serving the sentence to date. He submitted that he was not given an opportunity to use his constitution right of appeal within time because he was not given a copy of judgment on time. Also, in prison, he couldn’t file an appeal on time due to the Judiciary of Tanzania to introduce a new platform to file cases online and that a litigant is required to have the national Identification card (NIDA) which he left at home. He submitted that he made diligence to make appeal within time but circumstances were

not friendly and he had no advocate to initiate the process of appeal. In reply, the respondent submitted that in order for a party to be granted extension of time has to adduce sufficient grounds for delay. He referred to the case of Hamis Juma and two others vs. Nyachuma Maube, Civil Application No. 424/08, CAT at Musoma (unreported) page 5. He was of the view that the applicant had failed to adduce reason for delay. He argued that the applicant has failed to prove as to when he was arrested and when he was granted bail. There is no any affidavit or documentary proof of sureties to prove the date that the applicant was 3 released on bail. Also, being charged with another case is not sufficient ground since he was attending the same case from home and he was not prevented from lodging his appeal on time. He added that even after being sentenced to prison the time to appeal was still available. Mr. Chingilile submitted that the environment in prison does not prevent any party from lodging and prosecuting any appeal. Mr. Chingilile argued that the applicant has not sufficient ground for delay and also failed to account each day for delay. He refered to the case of Hamis Juma and two others vs. Nyachuma Maube (supra) which cited the case of Hassan Bushiri vs. Latifa Lukio Masheyo, Civil Application No. 03 of 2007 (unreported). The counsel for the respondents submitted that the

new issue that the applicant stated that he faced impediment of filing his appeal in the eCMS was not raised in the affidavit and cannot be raised in written submission without leave of the court. I have considered the affidavit, counter affidavit and submission filed by parties. Section 41 of Land Dispute Courts Act Cap 216 R.E 2022 (the LDCA) provides for time to appeal in respect of any proceeding in the DLHT exercise of its original jurisdiction that is 45 days after the date of decision or orders. Also, the High Court may, for the good cause, extend 4 the time for filing an appeal either before or after the expiration of such period of forty-five days. Now the issue is whether the applicant advanced sufficient reason for the delay to lodge his appeal. From the court records I find that the applicant has raised two reasons for delay to lodge his appeal within time as follows: 1. That, he was not supplied with copies of judgment on time while in prison.

2. While in prison he faced legal impediments to file his appeal due to the Judiciary of Tanzania to introduce a new platform of file the case on the eCMS. Starting with the first ground that the applicant was supplied with copies of judgment late, In this case the applicant stated that on 17 November 2023, he went to obtain a copy of a judgment and find that the same was not ready. Then, he was arrested and charged with Criminal Case No. 188 of 2023. He was detained for more than two weeks before granted bail. On 8 December 2023, he was convicted to serve 10 months imprisonment. He further stated that while in prison he could not obtain a copy of the judgment in time. 5 Section 19 (2) of LLA provides that: "In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded." However, in this case the records show that a copy of the judgment was certified and ready for collection on 26 October 2023. Based on the above provision, the time to appeal expired on 10 December 2023. This application was filed by the applicant on 19 March 2023 after expiration of more than 3 months. The applicant in his affidavit and

submission stated that he was not supplied with copies of judgment on time while in prison but failed to state the exact date he obtained a copy of judgment. It is a settled position of law that a delay for even a single day have to be accounted. In Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) it was held that: " .... Delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken." 6 Therefore, the applicant failed to account for delay from 10 December 2023 when the time to appeal expired to 19 March 2024 the date he filed this application which was more than 3 months. On the second ground, the applicant submitted that while in prison he faced legal impediments to file his appeal due to the Judiciary of Tanzania to introduce a new platform eCMS to file the cases online. It is a settled position of law that parties are bound by their pleadings. This was stated in the case of Makori Wassaga vs. Joshua Mwaikambo & Another [1987] T.L.R 88, the Court stated that: "A party is bound by his pleadings and can only succeed according to what he has averred in his plaint and proved in evidence; hence he is not allowed to set up a new case." The fact that the applicant while in prison faced legal impediments to file his appeal due to the Judiciary of Tanzania to introduce a new platform eCMS to file cases online was not stated by the applicant in his affidavit. Therefore, this court cannot rely on it. The applicant has failed to give reason for delay to lodge his appeal and the application is here by dismissed. Right to appeal is explained. 7 DATED at MBEYA on this 29 day of August 2024. A. A. SINDA

JUDGE 8