MERALI RULING

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA MISC.LAND APPLICATION NO.8100 OF 2024 (Arising from Land Appeal No. 146 of 2016 in the High Court-Mwanza Sub-Registry) THE DIRECTOR, MWANZA CITY COUNCIL……………………………APPLICANT VERSUS A. MERALI & SONS LTD…………………………………………………RESPONDENT RULING 11th & 27th September, 2024 KAMANA, J. Initially, this Ruling was set to be delivered on 10th October, 2024 on account of my schedule. However, due to the changes to the schedule, I thought it prudent and just to prepare and deliver the same before the scheduled date. The Director, Mwanza City Council, hereinafter referred to as the applicant, filed this application for an extension of time to file a notice of appeal to the Court of Appeal against A. Merali & Sons Ltd, the respondent. The dispute that led to this application started in 2006 when the applicant sued the respondent and other persons not parties to this application for trespassing. The District Land and Housing Tribunal 1 (DLHT) for Mwanza heard and determined the matter on 3rd July, 2015 whereby the applicant triumphed. Dissatisfied, the respondent appealed to this Court which decided in his favour on 21st January, 2020. The decision did not amuse the applicant who preferred an appeal to the Court of Appeal. As a matter of law, the applicant filed a notice of appeal which was struck out by the Court of Appeal on 13th February, 2024. The reason was cited to be the applicant’s failure to take the necessary steps toward the institution of the intended appeal since he lodged a notice of appeal on 31st January, 2020. Following the decision of the Court of Appeal, the applicant filed this application on 15th April, 2024 which is supported by an affidavit whose affiant is Mr. Joseph Vungwa, learned State Attorney. The application was challenged by the respondent through a counter- affidavit deponed by Mr. James Njelwa, learned Counsel for the respondent. The application was argued for and against by way of written submissions. Both parties complied with the scheduling order. Submitting in support of the application, Mr. Vungwa had two reasons for extension of time. One, illegality. Two, technical delay. 2 Expounding on the illegality, the learned State Attorney contended that the records are tainted with illegality as the applicant was not sued in its corporate name. He explained further that according to section 14(1)(b) of the Local Government (Urban Authorities) Act, Cap. 288 [RE.2002], the director is not a legal entity capable of being sued. In strengthening his argument, Mr. Vungwa cited the case of The District Executive Director, Bunda District Council v. Nyamarelo Mashauri Faraja, Land Revision No.22 of 2017-HC (Unreported). Fortified by the cited case, Mr. Vungwa contended that the illegality of the decision is a sufficient reason for an extension of time. He argued further that the application is meritorious due to the illegality. In enriching his stance, the learned State Attorney invited this Court to consider the case of Sinyoma Company Limited v. Bulyanhulu Goldmine Ltd, Civil Appeal No. 769/16 of 2022-CAT (Unreported). Concerning technical delay, it was Mr. Vungwa’s contention that the applicant was in the court’s corridors pursuing his appeal before the Court of Appeal. In this regard, the learned State Attorney cited the case of Zet Construction Company Ltd v. Kalokora Bwesha & Another, Civil Application No. 314/01 of 2022-CAT (Unreported). 3 Responding to illegality, Mr. Njelwa contended that the same is an afterthought. He explained that throughout the proceedings from the trial Tribunal to the Court of Appeal, the applicant did not raise the issue of the incompetence of the suit. He argued that the applicant had an apt time to raise the matter during the trial which would have allowed the DLHT to give directions as to the amendment of the pleadings. To substantiate his arguments, the learned Counsel cited the case of Ramadhan Sembejo Mongu v. District Executive Officer, Musoma Municipal Council & 3 Others, Civil Case No. 6 of 2021-HC (Unreported). Mr. Njelwa contended that since the issue of incompetence of the suit did not arise during the trial, such an issue is precluded from being raised at the appellate level. The case of Mrs. Mary Peter Otaru (Administratrix of the Estate of the Late Peter Casmir Otaru and Another v. African Banking Corporation (Tanzania) and Another, Civil Appeal No. 395 of 2020-CAT (Unreported). On technical delay, Mr. Njelwa submitted that there was no technical delay justifying an extension of time. Amplifying his argument, the learned Counsel contended that since the notice of appeal was struck out on 13th February, 2024 and the application was filed on 15th 4 April, 2024, the applicant is bound to account for each day of delay from 16th March, 2024 when 30 days for filing a notice of appeal expired. Supporting his arguments, Mr. Njelwa cited the case of Finca (T) Limited and Kipondogoro Auction Mart v. Boniface Mwalukisa, Civil Application No. 589/12 of 2018 (2019) TLR 312. I have given considerable thought to the pleadings, arguments of the legal minds and the cited authorities. The issue for my determination is whether the application is meritorious. Principally, this Court enjoys discretionary powers when it comes to applications for an extension of time. Such powers are counterbalanced by the need to judiciously consider the reasons that are required to be sufficient for the extension of time to be granted. This position was well restated by a plethora of authorities including the case of Tanga Cement Co. Ltd v. Jumanne D. Masangwa and Another, Civil Application No. 6 of 2001-CAT (Unreported) where it was stated: ‘……an application for extension of time is entirely in the discretion of the Court to grant or refuse it. This unfettered discretion however has to be exercised judicially and the overriding consideration is that there must be "sufficient cause" for so doing.’ 5 There is no clear-cut definition of what constitutes “sufficient cause”. However, in our jurisdiction, courts have the discretion to consider any advanced reason for the extension of time as a sufficient cause depending on the circumstances of the case before it. This was the position of the Court of Appeal in the case of Seif Store Limited v. Zulfikar H. Karim, Civil Application No. 181 of 2013-CAT (Unreported) where it stated: ‘The interpretation of what constitutes good cause is entirely left to the discretion of the court, a subjective approach. However, categories of what constitutes a good cause are never closed.’ That being the position, the illegality of the impugned decision is considered a sufficient cause for extending the time to appeal. The reason behind this is to accord an opportunity to the appellate court to do away with the alleged illegality. In this regard, I am inspired by the observation of the Court of Appeal in the case of Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambia [1992] TLR 185 where it was remarked: ‘We think that where, as here, the point of law at issue is the illegality of or otherwise of the decision being 6 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.’ However, our courts have been vigilant against unscrupulous litigants who might use illegality to circumvent ends of justice by filing endless appeals especially when they are time-barred. In this regard, it is the settled law that not all illegalities warrant an extension of time. The Court of Appeal in the case of Charles Richard Kombe v. Kinondoni Municipal Council, Civil Reference No.13 of 2019-CAT (Unreported) stated: ‘It is clear from these observations that a mere error of law in the exercise of jurisdiction is not enough.’ 7 Persuaded by the decision of the Gujarat High Court in Chunila Dahyabhai v. Dharamshi Nanji and Others, AIR 1969 Guj 213 (1969) GLR 734, the apex Court quoted with approval the following: ‘…the words ‘illegality’ and ‘material irregularity’ do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not errors of either law or fact after the formalities which the law prescribes have been complied with.’ In his submission, Mr. Vungwa contended that according to section 6A of Cap. 288, Mwanza City Council ought to sue or be sued in its corporate name. Given that, he held the view that it was incongruity on the part of the respondent to sue the Director, Mwanza City Council. On his part, Mr. Njelwa did not dispute the assertion but considered it as an afterthought that was supposed to be raised during the trial. He added that during the trial, the applicant was well represented by the State Attorneys who could have raised the issue for the determination of the trial Court. 8 In this regard, I asked myself whether the anomaly amounts to illegality or otherwise. There is no doubt that as per section 6A of Cap. 88, the respondent was supposed to sue Mwanza City Council and not the Director, Mwanza City Council. That being the case, I asked myself whether by contravening section 6A, the respondent caused the DLHT to lack jurisdiction or whether Mwanza City Council was not afforded the right to be heard during the trial or when the trial was conducted the subject matter was time-barred. I asked myself those questions while mindful of the position of the Court of Appeal in the case of Charles Richard Kombe v. Kinondoni Municipal Council (Supra) in which the Court categorically stated that illegality is about jurisdiction, right to be heard and time limit. The apex Court stated: ‘….it is our conclusion that for a decision to be attacked on ground of illegality, one has to successfully argue that the court acted illegally for want of jurisdiction, or for denial of right to be heard or that the matter was time barred.’ Inspired by that position, I am of the considered opinion that what is termed by Mr. Vungwa to be illegality does not fall within the ambits of illegality. 9 By the way, before I determine whether there was a technical delay, I wish to state that mindful of the litigation finger test principle, I asked myself whether the applicant when served with the application from the respondent knew it was meant for Mwanza City Council despite naming error or not. Gathered from the records, the applicant was represented by the City Solicitor Ms. Mariam Ukwaju. This indicates that the Mwanza City Council knew that the application was meant for it. Otherwise, how could Ms. Ukwaju appear before the DLHT if the matter was not of concern to her employer Mwanza City Council? Concerning technical delay, it is on record that the notice to appeal that was struck out by the Court of Appeal on 13th February, 2024 was filed within the time. This means that the time that was spent by the applicant waiting to institute his appeal was justified. Further, it is on record that the present application was filed on 15th April, 2024 which is more than sixty days from the date when the notice of appeal was struck out. According to Rule 83(2) of the Court of Appeal Rules, 2009, the notice of appeal must be filed within thirty days from when the impugned decision was delivered. That being the position, the applicant is not saved by a technical delay that he was in the Court’s corridors pursuing his appeal. He is 10 bound to account for each day of delay commencing on 13th February, 2024 when the application was struck out. Failure to account for each day of delay renders my hand tied to grant the application. In the upshot, the application stands dismissed with costs. Order accordingly. DATED at MWANZA this 27th of September, 2024. KS KAMANA JUDGE 11