CIVIL APPLICATION NO 932 OF 2023 TANDUGA MUSTAFA NYAKIMWE 506 OTHERS VS KIGOMA UJIJI MUNICIPAL ANOTHER

IN THE COURT OF APPEAL OF TANZANIA ATTABORA CIVIL APPLICATION NO. 932 OF 2023 TANDUGA MUSTAFA NYAKIMWE & 506 OTHERS APPLICANTS VERSUS KIGOMA /UJIJI MUNICIPAL COUNCIL .1st RESPONDENT TANZANIA PORTS AUTHORITY........... 2nd RESPONDENT (Application for extension of time to appeal to the Court of Appeal out of time from the decision of the High Court of Tanzania at Tabora) f Rumanvika, 3.) dated the 20th April, 2017 in Land Case No. 10 of 2016. RULING 11th & 27th June, 2024 NGWEMBE. JA.: The applicants moved this Court under Rule 10 of the Tanzania Court of Appeal Rules (the Rules) for extension of time within which to file an appeal from the decision of the High Court delivered on 20th April, 2017. The application is supported by two affidavits, one was sworn by Mr. Kelvin Kayaga and another was affirmed by Tanduga Mustafa Nyakimwe on behalf of other applicants. l The core of the dispute between the parties involved unsatisfactory compensation effected by the respondents to the [applicants in year 2015 based on a valuation of their land done in year 2012. Consequently, they instituted Land Case No. 10 of 2016 claiming among others, new valuation over the suit land and fair compensation. Also, they claimed for permanent injunction restraining the respondents from disturbing them until fair and prompt compensation is paid to them. The suit passed through various turbulences before landing to the learned judge in charge of Tabora High Court who advised the applicants to institute separate suits at a range of ten (10) plaintiffs instead of having all 507 plaintiffs in a single suit. Having so advised, the learned judge struck out the suit with a view to allow the applicants/plaintiffs to consider his advice. As intimated above, the record indicates that upon institution of Land case No. 10 of 2016, same was assigned to Judge iMgonya J, (as she then was), and upon her transfer to another station, the! case was reassigned to the learned Judge Malaba J, however on 30th March, 2017 he recused from i conducting the suit after being asked by the plaintiffs/applicants to do so. Upon recusal of the predecessor judge, the suit landed to the learned Judge Rumanyika (as he then was) who on 20th June, 2017 did strike it out as indicated above. Instead of challenging that decision to this Court, five out of 507 applicants instituted another application registered as Miscellaneous Land Application No. 58 of 2017 seeking leave of the court to file a representative suit. The five applicants were Mwajuma Ramadhani Ntuka; Said Hussein Shaka; Tanduga Mustafa Nyakimwe; and Mpamba Ramadhani Mpamba. However, their application was encountered by a preliminary objection based on impropriety of the supporting affidavit and incompetence of the application itself. At the hearing of those objections, the court urged parties to address it on whether or not the application contradicted the decision made by the court (Rumanyika, J.) on 20th April, 2017 in Land Case No. 10 of 2016. Upon hearing both parties, the learned Judge Utamwa on 19th April, 2018 struck out their application for being a disguised circumvention of the previous order of the same court which was still intact. Since the applicants did not challenge it, the decision made by Rumanyika J (as he then was), remained intact. Being dissatisfied with the decision of Utamwa J, in Miscellaneous Land Application No. 58 of 2017, they timely lodged an appeal to this Court registered as Civil Appeal No. 124 of 2019. When the appeal was scheduled for hearing on 1st November, 2022, the appellants/applicants preferred to withdraw it after being engaged by the Court and the appeal was marked withdrawn. Tireless as they were, the applicants successfully lodged Miscellaneous Land Application No. 40 of 2022 for extension of time to file notice of appeal against the decision of the High Court in Land case No. 10 of 2016. Successfully, Judge Matuma in his ruling delivered on 19th July, 2023, granted the requisite extension of time to lodge notice of appeal within 14 days, which notice was timely filed in the Court on 1st August, 2023. It followed that the applicants could not appeal to the Court in the absence of certified copies of the proceedings, ruling, drawn order and necessary documents for appeal purposes. Those necessary documents were realised to the applicants after request letter dated 25th July, 2023 followed with several reminder letters, at the end on 3rd November, 2023 the requisite documents were released to them. Unfortunate may be, they were already out of sixty (60) days from the date of issuance of notice of appeal that is, on 1st August, 2023, hence, this application for extension of time to appeai against the decision of the High Court in Land Case No. 10 of 2016 delivered on 20th July, 2017. The notice of motion is grounded with the follow summarized reasons: First, the Deputy Registrar had no jurisdiction to issue certificate of delay and the applicants could only lodge an appeal after obtaining extension of time; second, the intended appeal stands chances of success; three, the applicants have been vigilant in pursuit of their rights; and four the decision of the High Court is coupled with illegalities. The respondents opposed the application for extension of time by filing an affidavit in reply. At the hearing of this application, the applicants were represented by Mr, Kelvin Kayaga, learned advocate and the respondents were advocated by Messrs. George Kalenda, Stephene Kimaro and Samwel Mahuma, all learned State Attorneys. Mr. Kayaga submitted briefly that, the applicants were informed by the High Court Deputy Registrar to collect the certified documents for purposes of lodging their appeal on 3rd November, 2023, while the 60 days expired on 30th 5 September, 2023 and this application was filed in Court on 13th November, 2023 equal to 10 days from the date of receipt of the requisite documents. He submitted further that, the decision of the learned Judge Rumanyika (as he then was), comprised illegalities for denying the parties rights to be heard as averred in para 10 of the affidavit. He buttressed his argument with our previous decisions in the cases of Mary Mchome Mbwambo & Another vs. Mbeya Cement Company Ltd (Civil Application No. 492/16 of 2018) [2019] TZCA 660 TANZLII (3 June 2019) and Rose Irene Mbwete vs. Phoebe Martin Kyomo (Civil Application No. 70 of 2019) [2023] TZCA 111 TANZLII (10 March 2023). He rested his case by urging the Court to allow the application and grant extension of time to actualize their rights of appeal. Opposing the application, Mr. Kalenda began by adopting his affidavit in reply and relied in the reasoning of the Court's decision in Lyamuya Construction Co. Ltd vs. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 4 TANZLII (3 October 2011) that as a general rule, extension of time is construed to be within the discretionary powers of the Court, which is 6 exercised judiciously. He went further to argued that there are numerous decisions of the Court which provide guidelines on the need to account for all period of delay; the delay should not be inordinate; the applicant must show diligence; and illegality on the face of the record may constitute good cause for extension of time. He further cited the cases of Elias Kahimba Tibenderana vs. Inspector General of Police & Another (Civil Application No. 388 of 2020) [2022] TZCA 497 TANZLII (9 August 2022); Jubilee Insurance Company (T) Ltd vs. Mohamed Sameer Khan (Civil Application No. 439 of 2020) [2022] TZCA 623 TANZLII (12 October 2022); and Sabena Technics Dar Limited vs. Michael J. Luwunzu (Civil Application No. 451 of 2020) [2021] TZCA 108 TANZLII (14 April 2021), whereas the Court insisted on diligence, accounting for days of delay even for a single day because there must be no sympathy for any unaccounted delay. However, he admitted that in case the impugned decision comprise illegality, the Court has a duty to grant extension of time with a view to correct it. Mr. Kalenda, argued that the impugned order of the High Court had no illegality because the High Court under section 95 of the Civil Procedure Code had jurisdiction to issue such an order. He further argued that, rule 10 of the Rules requires good cause be shown before extension of time can be granted as was decided in the case of Ms. Henry Leonard Maeda & Another vs. Ms. John Anael Mongi & Another (Civil Application No. 31 of 2013) [2014] TZCA 178 TANZLII (22 October 2014) whereas the Court defined good cause to mean reasonable cause which prevented the applicant to pursue his cause reasonably, contrary to the present application that the applicants had no good cause for the delay from 3rd to 13th November, 2023. Submitting on the right to be heard, Mr. Kalenda argued that, parties were present in court prior to striking out of the plaint and were heard before the learned Judge Malaba. He buttressed with a decision of Ahmed Teja t/a Almas Autoparts Limited vs. Commissioner General TRA (Civil Appeal No. 283 of 2021) [2022] TZCA 724 TANZLII (22 November 2022) which referred to the case of Afriscan Group (T) Ltd vs. Said Msangi (Commercial Case No. 87 of 2013) [2015] TZHCComD 2153 TANZLII (17 June 2015), the latter was held that right to be heard just like other rights, must be exercised within the confines of the law so as to avoid further breach of justice. Finally, he urged the Court to dismiss the application with costs. Caselaw is settled in this area that extension of time is in the discretion of the court, therefore in order for the applicants to succeed herein, they have to persuade me with good cause which prevented them to appeal within the prescribed time frame. Upon scrutiny of the record of this application and critical review of the submissions of learned counsels, I think, it is undisputed fact that the applicants successfully obtained extension of time to file notice of appeal in Miscellaneous Land Application No. 40 of 2022 and same was lodged in this Court's registry on 01/08/2023 rightly within 14 days from the date of the High Court's ruling. It is also evident in the record of the application that they kept reminding the High Court's Deputy Registrar to supply them with certified copies of proceedings, ruling, drawn order and all necessary documents for appeal purposes. However, until 3rd November 2023, when they were notified on availability of those documents for collection. The applicants have argued that the period between 3rd to 13th November, 2023 was used to coilect documents, verify them and prepare this application before it was lodged in this Court. Also Mr. Kayaga raised the issue of illegality as among the grounds for extension of time. In the contrary, the learned 9 State Attorney contested those grounds as unmerited and urged the Court to dismiss it with costs. In disposing of this application, I find the question for determination is whether the applicants have established a good cause for the Court to grant extension of time sought under rule 10 of the Rules. In determining existence of sufficient reason for extension of time, this Court has developed certain rules of practice that the Court must consider all facts relevant to the applicants' inability or failure to take the essential steps in time in actualizing their intention to appeal timely. It is settled that the Court may condone lapse of time and permit the applicants to lodge an appeal only upon disclosure of sufficient reason and in some exceptional cases, when the intended appeal bears reasonable cause including illegality apparent from the face of the record and is of public interest to be corrected. In its various decisions, the Court has enumerated possible reasons and factors which may be brought before it for consideration. Among those factors are; reasons assigned for the delay which seem to have impeded the applicants from their timely pursuit; length of the delay which should not be inordinate depending on the surrounding circumstance which varies on case- 10 to-case basis; diligence and promptness of the parties throughout the journey of litigation; illegality of the impugned decision as the Court may appreciate and any other factor which for the purpose of justice may exhibit the need for extension of time. See: Lyamuya Construction Co. Ltd (supra) and Dalia Burhan Nindi vs. Zainab Ismail Msami (Civil Application No. 235 of 2021) [2023] TZCA 72 TANZLII (27 February 2023). It is also accepted and settled that where a party is shown to have diligently taken steps only to be caught up in web of technicalities, a sufficient cause is generally taken to have existed for the delay. Technical delay has been pardoned by this Court as well. The learned advocate argued that due to the circumstances of this application, the applicants were diligent in pursuit of their rights in court. As intimated above, the applicants have persistently been in and out of the courts' corridors in search for justice particularly after striking out their land case No. 10 of 2016. Such persistence without loss of time was considered by the Court to be a good cause for extension of time. See: Royal Insurance Tanzania Limited v. Kiwengwe Strand Hotel Limited, Civil Application No. I l l of 2009 (unreported). li With due respect to the learned State Attorney for the respondents, I do not see the rationale that the delay of 10 days amounted into negligence or unexplained cause. The applicants have explained in their affidavit and at the hearing that the 10 days were used to collect the requisite documents from the High Court and to prepare for this application. Considering in totality the circumstances of this application, the delay of 10 days to my considered opinion was not inordinate. Moreover, Mr. Kayaga advanced illegality apparent on the face of the impugned decision, that parties were not heard prior to the order given by the High Court which ended up their case at the preliminary stages. I think it is a fundamental principle of natural justice that parties must be given right to be heard before the court's verdict. Therefore, the issue of illegality has attracted thorough consideration by this Court in countless decisions including the cases of Principal Secretary, Ministry of Defence and National Service vs. Devram Valambhia [1992] T.L.R. 185 and Lyamuya Construction Co. Ltd (supra). Deriving from the above premises, I find merit in this application. I am of the considered opinion that the applicants gave plausible reasons which amounted to good cause to warrant extension of time under rule 10 of the Rules. Consequently, the applicants are given 60 days from the date of delivery of this ruling to lodge their memorandum and record of appeal. It is so ordered. DATED at DAR ES SALAAM this 26th day of June, 2024. P. J. NGWEMBE JUSTICE OF APPEAL The Ruling delivered this 27th day of June, 2024 in the presence of Mr. Kelvin Kayaga, learned counsel for the Applicants and Mr. Samwel Mahuma, learned State Attorney for the Respondents; is hereby certified as a true copy of the original. 13