SIRAJI SAID

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA

AT MWANZA MISC. LAND APPLICATION NO. 11858 of 2024 (Arising from Land Application No. 92 of 2022 of the District Land and Housing Tribunal for Mwanza at Mwanza) SIRAJI SAID………………………….…………..……………..……..………..APPLICANT

VERSUS REGINALD MASELE…………....……………………………………………RESPONDENT

RULING 04th October & 11th October 2024. Kilekamajenga, J. The applicant and respondent are two brothers who married to two sisters from one family. The respondent was the first person to get married and happened to stay with the applicant’s wife before she was also married to the applicant. The respondent and his family settled in Dar es Salaam but they had an under-construction house in Mwanza. In 2019, when the applicant married the respondent’s sister-in-law, the respondent’s wife persuaded him (respondent) that they accommodate the applicant and his newly wedded wife in the house in Mwanza. The respondent was fully convinced that accommodating the applicant’s family in their unfinished house in Mwanza was a good idea. Unfortunately, the applicant’s wife died in 2021 leaving the applicant alone in the house. Thereafter, the respondent wanted to lease the house and availed the offer to the applicant or any other tenant. The respondent framed the lease agreement and tabled it 1 before the applicant. This time, the applicant refused to sign alleging that he injected some funds to improve the house. Perplexed enough, the respondent turned to his wife to enquire whether she ever received any penny from the applicant. The response was, however, negative. The respondent began to sense the danger ahead and urged the applicant to give vacant possession something which was not an

easy task. Efforts to evict the applicant from the house failed and the respondent was forced to file a complaint in the Ward Tribunal of Ilemela vide Civil Case No. 03 of 2022. The applicant wilfully refused to appear before the Ward Tribunal despite several summons. Through an exparte decision, the Ward Tribunal resolved to evict the applicant. The Ward Tribunal further ordered that any breach of peace shall be reported to the police. As a result, the applicant was forcefully evicted. Unhappy with the eviction, the applicant applied for revision in the District Land and Housing Tribunal for Mwanza vide Land Revision No. 82 of 2022. The District Land and Housing Tribunal nullified the decision and proceedings of the Ward Tribunal and the parties were ordered to maintain their status quo. As the applicant was already out of the house, he filed Land Application No. 157 of 2022 seeking to be reinstated. When the application was pending, the respondent filed Land Application No. 92 of 2022 in the same tribunal seeking, interalia, to be declared the lawful ownership of the house (plot No. 536 Block ‘M’ at Pasiansi – Ilemela in Mwanza). Before the final determination of the Land Application No. 92 of 2022, the applicant wrote several letters of complaint to different authorities. For instance, on 10th March 2023, the 2 applicant wrote a letter to TLS complaining about the conduct of

his advocate. On 25 th April 2023, the applicant wrote a letter to the anti-corruption bureau complaining that the Chairman of the District Land and Housing Tribunal has refused to execute the decision in Land Application No. 82 of 2022. In that letter, he complained that, his advocate refused to attend and prosecute his case in the District Land and Housing Tribunal. On 10th March 2023, the applicant wrote a letter to the Registrar of the Tribunals seeking the order of the Registrar to compel the recusal of the tribunal’s chairman. Now, back to the hearing of Land Application No. 92 of 2022, on 18th July 2022, both the applicant and respondent were present. The applicant’s advocate was granted an extension of seven days to file the Written Statement of Defence and the case was re- scheduled for mention on 22nd August 2022. On that day, both the applicant and respondent appeared. The applicant’s counsel alleged that the house had necessary documents for his case. The counsel prayed for the opening of the case so that she can get such documents for the defence. The prayer was objected by the respondent’s advocate though allowed by the trial tribunal. On 07th November 2022, the applicant appeared and addressed the trial tribunal that his counsel withdrew from representing him. However, he prayed to be assigned a court broker to execute his application No. 157 of 2022 which would

allow him to return to the house. The tribunal rejected the prayer and ordered the hearing of Land Application No. 92 of 2022 to proceed. On 08th February 2023, the applicant and respondent were present; the applicant had already hired the services of the learned advocate Adam. Nonetheless, the applicant’s 3 advocate was not ready to prosecute application No. 92 of 2022. He alleged that, he was only instructed by the applicant to handle application No. 157 of 2022. The applicant’s advocate withdrew from representing the applicant. The tribunal framed issues and ordered the hearing of the matter before it. On that day, the applicant told the tribunal that he would summon one witness for his case. The hearing continued in the presence of the respondent and applicant. The applicant was finally invited for cross-examination, however, the applicant had no questions. When the respondent closed his case, the applicant had the following response: ‘Mimi sina ushahidi wowote katika shauri hili. Naomba uamuzi utolewe kadiri ya utaratibu.’ On 06th April 2023, the case came for assessors’ opinions and the applicant was present. The two assessors unanimously opined in favour of the respondent. For instance, the second assessor, among other things, recounted that the applicant wilfully refused to defend the case. Finally, the decision of the trial tribunal was delivered on 11th May 2023 in

the presence of both the applicant and respondent. After one year, i.e. on 22nd May 2024, the applicant appeared in this court seeking an extension of time to challenge the decision of the District Land and Housing Tribunal in Land Application No. 92 of 2022. The application is made under section 41(2) of the Land Disputes Courts Act, Cap. 216 RE 2019 and accompanied by the applicant’s affidavit. In the affidavit, the applicant raised illegality as the major reason to warrant the extension of time. 4 Before this court, the applicant was ready to defend the application with the assistance of the learned advocate, Mr. Adam Robert. The counsel reiterated almost the same facts to the above that, the applicant seeks an extension of time to file an appeal against the decision of the District Land and Housing Tribunal in Land Application No. 92 of 2022. He submitted that, the applicant was the respondent in Land Application No. 92 of 2022 in the District Land and Housing Tribunal. In that application, the District Land and Housing Tribunal did not afford the applicant the right to be heard. The applicant was denied the right to representation after his advocate withdrew from service. He argued further that, in this application, the applicant accompanied letters of complaint proving that the Tribunal chairman was biased. The right to be heard is the principle of natural

justice enshrined in the constitution. The counsel referred the court to the case of Golden Global International Services v. Milcom (Tanzania), Civil Application No. 195/01 of 2017 at page 20, where the court quoted the case of Zabron Pangamaleza v. Joachim Kiwalaka and another [1987] TLR 140. The counsel insisted that, the applicant was not afforded a fair trial by the trial tribunal. The chairman had reasons to allow the applicant to hire another advocate before the hearing of the case. The fact that the chairman determined the case in the absence of the applicant’s advocate amounted to impartiality. Furthermore, there was an application for revision No. 82 of 2022 between the same parties. In the same case, the same trial tribunal ordered the applicant to be reinstated in the house where he was wrongly evicted. Based on that decision, the applicant filed 5 execution application No. 157 of 2022 in which the applicant sought reinstatement. However, the trial chairman determined Land Application No. 92 of 2022 leaving Application No. 157 of 2022 unresolved. Therefore, the application for execution No. 157 of 2022 is pending in the trial tribunal. Therefore, the applicant was not before a partial decision-maker. The counsel further argued that, the decree in Land Application No. 92 of 2022 is not executable and therefore illegal. An illegality is a sufficient reason for

the extension of time as per the case of Cornel Maiman Materu v. Cordian Matai Akaro, Civil Appeal No. 115 of 2021, CAT at page 12. He urged the court to allow the application. In response, the learned advocate, Mr. Stephen Kaijage for the respondent was of the view that section 41(2) of the Land Dispute Courts Act, requires a party to prefer an appeal within 45 days save where there is sufficient ground for extension of time. The major condition for the extension of time is the existence of good cause for the delay. He submitted, in this case, that the decision intended to be challenged was delivered on 11th May 2023; the applicant was supposed to prefer an appeal before 26th June 2023. From that day until on 22nd May 2024 when the applicant filed the instant application there is a lapse of more than 330 days which have not been accounted for. The requirement to account for each day of the delay is the requirement of the law. Also, the power to enlarge time is the discretion of this court. However, the discretion must be exercised judiciously. The counsel referred the court to the case of Wambele Mtumwa Shahame v. Muhamed Hamis, Civil Reference No. 08 of 2016, CAT at Dar es Salaam, where the Court of Appeal quoted the case of Bertha Bwire v. Alex Maganga, Civil Reference No. 07 of 2016 that provides the conditions for the extension of time. The Court of Appeal 6 went on to

state that, the court must consider the reasons for the delay such as the length of the delay, whether the applicant was diligent and the degree of prejudice on the respondent if time is extended. On the allegation of denial of the right to be heard, the counsel urged the court to revisit the records of the District Land and Housing Tribunal because the applicant was in court all the time that the court came for hearing. Also, there is no illegality committed by the trial tribunal because the applicant was present and the allegation that he was denied the right to be heard was a lie. He fortified his argument with the case of Ginazio Messina v. Willow Investment SPRL, Civil Application No. 21 of 2001 arguing that an affidavit tainted with untruth is no affidavit at all and false evidence cannot be acted upon to resolve any issue. On whether or not the chairman was supposed to recuse from the case, the applicant did not question the integrity of the trial chairman. However, the application for recusal must be coupled with sufficient reasons as was stated in the case of R. v. Seif Sharrif Hamad 1992 TLR 277. The court must be jealous of its own time and resources. A party cannot simply stand up to challenge the integrity of a magistrate or judge for the mere reason that he is not pleased with the anticipated decision. Furthermore, the application for execution No. 157 of 2022 was

set aside and the same tribunal proceeded to determine the main case. Moreover, going through the 4th 5th and 6th of the affidavit in support of the application, the information in those paragraphs is not borne in the applicant’s mind. The allegation that the decree is not executable is extraneous as per 7 Order XIX, Rule 3 of the CPC and the principles stated in the case of Stanbic Bank Tanzania Limited v. Kagera Sugar Limited, Civil Application No. 57 of 2007. The case stressed that the information acquired from the court record cannot be information from the best knowledge of the applicant. When rejoining, the applicant’s counsel was of the view that, as the applicant is relying on illegality as the reason for the delay, he is excluded from the requirement to account for each day of the delay. He further insisted that, the chairman was impartial which is the major concern in this matter. Also, application for revision No. 82 of 2022 ordered the parties to maintain their status quo. As the application was already evicted from the house, he applied for execution No. 157 of 2022. The same trial chairman which decided application No. 82 of 2022 found it proper to proceed with application No. 92 of 2022 leaving behind the application for execution. The trial chairman was therefore biased and could not give justice to the applicant. Even if the applicant could have sought a

recusal, the chairman could not have done so. The counsel further stressed that, the applicant had personal knowledge of the information contained in the affidavit. Therefore, the respondent’s counsel alleged something unfounded. Furthermore, even if the information did not come from the applicant, there are remedies which include amendment of the affidavit as it was stated in the case of Manase Reuben v. Baston Erick Mongi, Land Revision No. 9 of 2022 where this court referred to the case of Ramadhani Mikidadi v. Tanga Cement to the effect that an affidavit may be amended. The counsel reiterated the prayer for the extension of time. 8 As the applicant’s advocate raised new issues in the rejoinder, the court took the discretion to allow the respondent’s counsel to clear the allegation through a surrejoinder. The respondent’s advocate argued that, according to the case of Anatol Peter Rwebangila v. The Principal Secretary Minister of Defence, where the applicant does not specify which information is based on his knowledge, the affidavit may be defective. Also, where the paragraphs of the affidavit are inconsequential, such paragraphs may be expunged leaving the other paragraphs unaffected. In this application, the parties raised several issues, which in my view are irrelevant to the applicant’s prayer. As earlier stated, the applicant is seeking an extension of time to impugn

the decision of the District Land and Housing Tribunal which was delivered on 11th May 2023. The major issue is whether or not the applicant has advanced sufficient cause to warrant the extension of time. In passing, I wish to remind the parties, though extension of time is the discretion of the court, the same must be exercised judiciously. In the case of Tanga Cement Co. v. Jummanne Masangwa and Another, Civil Appeal No. 6 of 2001 (unreported) the Court held that: ‘This unfetted discretion of the court, however, has to be exercised judicially, and the overriding consideration is that there must be ‘sufficient cause’ for doing so. What amounts to sufficient cause has not been defined. From decided cases a number of factors has been taken into account, including whether or not the application was brought promptly: the absence of any valid explanation for the delay: lack of diligence on the part of the applicant.’ 9 Therefore, the applicant must demonstrate a good reason for the extension of time otherwise there would be no reason for having the law prescribing time limit. See, the cases of Tanga Cement Co. v. Jummanne Masangwa and Another Civil Application No. 6 of 2001 (unreported); Sospter Lulenga v. Republic, Criminal Appeal No. 107 of 2006, Court of Appeal of Tanzania at Dodoma (unreported); Aidan Chale v. Republic, Criminal Appeal No. 130 of 2003, Court of Appeal of

Tanzania at Mbeya (unreported) and Shanti v. Hindochi and Others [1973] EA 207. In this application, the applicant raised the issue of illegality as the major reason for the extension of time. The applicant further alleged to have been denied the right to be heard by the trial tribunal. He blamed the trial chairman for being impartial and denying him the right to representation. The applicant further assailed the trial chairman for failing to recuse from the case despite several complaints. I am well informed about the principle set in several cases that an allegation of illegality is sufficient to warrant extension of time. In the case of Principal Secretary, Ministry of Defence and National Service v. Devram P. Valamblia [1992] TLR 185 the Court stated that: ‘We think that where, as here, the point of law at issue is the illegality of or otherwise of the decision being challenged, that is of sufficient reason” Within the meaning of Rule 8 of the Rules for extension of time. To hold otherwise would amount to permitting a decision, which in law might not exist, to stand…in our view when the point at issue is one challenging illegality of the decision being challenged, the court has a duty even if it means extending the time for the purpose, to ascertain the point and, if the alleged be established, to take appropriate measures to put the matter and the record right.’ 10 Also,

in the case of VIP Engineering and Marketing Limited v. Citibank (T) LTD, Consolidated Civil Reference Nos. 6,7 and 8 of 2006 (unreported), the Court stressed that: ‘It is, therefore, settled law that a claim of illegality of the challenged decision constitutes reason for extension of time under Rule 8 regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay.’ However, the jurisprudence on this area has not been stagnant. The case of Charles Richard Kombe v. Kinondoni Municipal Council, Civil Reference No. 13 of 2019, CAT at Dar es Salaam has qualified further the illegality being a good reason for extension. Currently, a mere allegation of illegality does not automatically warrant the extension of time unless such illegality touches matters of jurisdiction, denial of the right to be heard or where the matter was time-barred. In this case, the applicant alleged to have been denied the right to be heard. As explained above, this was a pure lie from the applicant. I have recounted how the applicant did not miss the hearing of the case. Even when he was invited to cross-examine the respondent’s witness, he had no questions. Precisely, he was not willing to defend Land Application No. 92 of 2022. His interest was on the determination of Misc. Land Application No. 157 where he wanted an order to restore his illegal

occupation of the contested house. The applicant further blamed the trial chairman for failing to recuse from the case. On this point, I do not want to spend much time. Reasons calling for recusal of a judicial officer must be grounded. Filing a vexatious case 11 and demand a judicial officer to recuse is entirely an abuse of court process. See, Attorney General of the Republic of Kenya v. Prof. Anyang’ Nyongo and 10 Others, [2007] 1 EA 12. In the case of Registered Trustees of Social Action Trust Fund and Another v. Happy Sausages Ltd and Others [2004] TLR 264, the Court stated that: ‘It is our considered view that it would be an abduction of judicial function and encouragement of spurious application for judicial officers to adopt the approach that he/she should disqualify himself or herself whenever requested to do so on application of one of the parties.’ I have no hesitation in declaring that, the trial tribunal had jurisdiction to handle application No. 92 of 2022 and that the matter was not time-barred; over all, the applicant was given a fair hearing. Hence there was no illegality to warrant an extension of time. Furthermore, the applicant was so reluctant to account the delay of almost a year. As stated above, the instant application was filed on 22nd May 2024; almost a year after the decision of the trial tribunal. The law requires an applicant to account for each day

of the delay. The stance is reinforced in the case of Hassan v. Latifa Lukio Mashayo, Civil Application No. 03 of 2007 thus: ‘Delay of even a single day has to accounted for, otherwise there would be no point of having rules prescribing period within which certain steps have to be taken.’ In conclusion, the applicant has failed to demonstrate sufficient reasons for the delay. In this case, the alleged illegality does not warrant extension of time. In addition, the 12 applicant failed to account for delay. I find the application devoid of merit; the applicant is employing delaying tactics hence preventing the respondent from occupation of the house. I hereby dismiss the application with costs. I further order the District Land and Housing Tribunal to execute its decision and immediately hand over the house to the respondent as soon as possible. It is so ordered. DATED at Mwanza this 11th Day of October 2024. Ntemi N. Kilekamajenga

JUDGE 11/10/2024 Court: The ruling delivered this 11th October 2024 in the presence of the learned Advocate, Mr. Stephen Kaijage for the respondent and the applicant present in person. Right of appeal explained to the parties. 13 Ntemi N. Kilekamajenga.

JUDGE 11/10/2024 14