20180716 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CIVIL APPLICATION NO. 80/08 OF 2017 THE REGISTERED TRUSTEE OF SOS CHILDREN'S VILLAGES TANZANIA •.•••..••..•..••..•..••.••...•....•.•.•.•..•• APPLICANT VERSUS 111 IGENGE CHARLES ......................................................... 1 st RESPONDENT 2. MASUMBUKO ALON ...................................................... 2 nd RESPONDENT rd 3. CHACHA MALWA ••• ••••••••••••••••••••••••••••••••••••••••••••••••••••••• 3 .RESPONDENT 4. MAMA KUNDI ............................................................... 4 th RESPONDENT . lli 5. JOYCE MSHABAHA ....................................................... 5 RESPONDENT 6. PAULINA ....................................................................... 6 th RESPONDENT 7. JOHN NDAKI ................................................................. 7 th RESPONDENT s. ANTHON ....................................................................... sth RESPONDENT 9. ZEPHANIA MSHABAHA .................................................. 9 th RESPONDENT 10. EDWARD KAZARABANHU ............................................. 10 th RESPONDENT (Application for extension of time in the intended Revision Proceedings arising from the decision of the High Court of Tanzania at Mwanza District Registry) (De - Mello J.) dated the 14th day of January, 2014 in Land Appeal No. 55 of 2009 RULING th th 29 June & 17 July, 2018 MWANGESI, J.A.: The application at hand which. is ,bY way of notice of motion, has been made under the provisions of Rule 10 of the ·Court of Appeal Rules, 2009, hereinafter referred to as the Rules, whereby the applicant is seeking the indulgence of the Court to extend time within which to lodge revision proceedings in respect of the 1 ,. proceedings and decision of the High Court of Tanzania Mwanza Registry, in Land Appeal No. 55 of 2009. The application has been premised on three grounds as to why there has to be revision namely; first, that the proceedings of the High Court plus the pronounced order, are tainted with illegalities, irregularities and impropriety, which have prejudiced the applicant contrary to the principles of natural justice. Secondly, that there is true confusion of proceedings which once left to stand will prejudice and likely to render the image and reputation of the judiciary impaired. And thirdly, that it is in the interest of justice that, the correctness, propriety and legality of the cited proceedings and decision of the High Court is examined by this Court. The notice of motion has been supported by an affidavit that was sworn by one Dorothy Ndege, who happens to be the Principal Officer of the applicant. And, in compliance with the provisions of Rule 106 (1) of the Rules, the applicant lodged written submissions in support of the grounds of the notice of motion. On the date when the application was called on for hearing, Mr. Sylivatus Sylivanus Mayenga, learned counsel, entered appearance for the applicant. On the part of the respondents, there was no 2 attendance. Much as the records in the case file could reveal, the first respondent was duly served as per the affidavit of the process server one Jackson Tinako dated the 25 th day of June, 2018. With regard to the other respondents, it was noted from the records in the case file that, their attendance was dispensed with from the High Court. And the fact that it was the first respondent who initiated the execution proceedings against the applicant, the dispensation with the other respondents was carried forward in this Court. And in that regard, I permitted the applicant to proceed with the hearing of his application in the absence of the first respondent in terms of the provisions of Rule 63 (2) of the Rules. In his oral submission to amplify the grounds of the notice of motion, Mr. Mayenga adopted the affidavit in support of the notice of motion as well as the written submission which was filed in support of the application. He gave a brief account of the matter giving rise to the application that, the applicant is an organization registered under the Non-Governmental Organization Act of 2002, which carries out various activities including provisions of material and moral support for needy Tanzanian children. In order to meet its objectives, 3 it applied and secured a plot of land which is the subject of the application at hand. The learned counsel for the applicant submitted further to the effect that, the process to secure the plot of land was done in accordance to law and through the requisite authorities that included the Administrator General, Mwanza City Council and the Ministry of Land as evidenced by annexures SOS 1 and SOS 2 to the affidavit in support of the application and that to date, the applicant is in actual occupation of the said plot of land. In September, 2016 the learned counsel went on to submit, the applicant was served with a fourteen days' notice, requiring it to give vacant possession of the disputed plot of land purporting to be in execution of the decree of the decision of the High Court in Land Appeal No. 55 OF 2009. It was submitted further by the learned counsel for the applicant that, the fact that the applicant was not a party to the proceedings before the High Court, she has no right of appeal against the decision of the High Court. The only available remedy for her is an application for revision. Nonetheless, she was not able to lodge the application for revision within the time prescribed by law because 4 he was not aware of the existence of the decree until when she was served with the notice of giving vacant possession. In that regard, it was from such situation where the application at hand was founded. The learned counsel implored the Court to grant the sought application for extension of time so as to pave way for the Court to consider the rights of the applicant, who was condemned unheard. Secondly, the decision of the High Court was tainted with illegality in that, the first respondent was declared to be the rightful owner of the disputed plot of land without establishing ownership. The learned counsel concluded his submission by arguing that, the applicant has managed to demonstrate good cause in failing to lodge the application in time which is the essential ingredient for the grant of extension of time as contained in Rule 10 of the Rules under which the application has been pegged. In view of the submission by the learned counsel for the applicant above, the issue which stands for deliberation and adjudication by the Court is whether the application by the applicant is merited. It is pertinent to point out from the outset that, the question as to whether to grant the application or not, falls within the discretion of the Court. See: Mumello Vs. Bank of Tanzania 5 [2006] TLR 227 as well as Kalunga and Company Advocates Vs. National Bank of Commerce [2006] TLR 235. Nonetheless, in exercising its discretion, the Court has to be guided by some principles as stipulated under the provisions of Rule 10 of the Rules, which bears the following wording that is; "The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal for doing of any act authorized or required by these Rules/ whether before or after the doing of the act/ and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. " What is meant by good cause has loudly been amplified in a number of decision of the Court that include the Regional Manager Tanroads Kagera Vs. Ruaha Conxcrete Company Limited, Civil Application No. 96 of 2007 (unreported), where the Court defined sufficient cause which was used in the repealed Court of Appeal Rules, 1979, which is the equivalent of good cause used in Rule 10 of the current Court of Appeal Rules, 2009. The Court stated that: 6 "What constitutes sufficient cause as it was Rule 8 of the Court of Appeal Rules, 1979, which now is good cause of the current Rule 10 of the Rules, 2009, cannot be laid down by any hard and fast rules. This must be determined by reference to all the circumstances of each particular case. This means that, the applicant must place before the Court material which will move the Court to exercise its Judicial discretion in order to extend time limited by the rules. " In Lyamuya Construction Company Limited Vs. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), the Court did move further by laying down some guidelines which can assist the Judge in considering a good cause namely: 1. The applicant must account for all the period of delay; 2. The delay should not be inordinate; 3. The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; 4. If the Court feels that there are other reasons, such as the existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged. 7 In the instant application, the decision sought to be challenged was delivered on the 14th January, 2014, while the application at hand was lodged on the 22 nd December, 2016. One would note that, a long spell has passed between the two dates. The explanation which was given by the applicant for the delay, was to the effect that, it was because she was not aware of the existence of the suit and its decision as she was not a party. And further that, he came to be aware of the matter during its execution, when she was required to give vacant possession of the disputed plot of land. In my considered view, such explanation is convincing. But there has yet been another ground raised by the applicant to the effect that, the decision sought to be challenged is tainted with some illegalities. The applicant has named such illegalities to include, the act of her being condemned unheard. A complaint of the like happened to feature in VIP Engineering and Marketing Limited, Tanzania Revenue Authority and the Liquidator of Tri - Telecommunication {Tanzania) Vs. City Bank Limited, Consolidated References No. 6, 7 and 8 of 2006 (unreported). The holding of the Court was to the effect that: 8 "It is settled law that a claim of illegality of the challenged decision constitutes sufficient reason (good cause) for extension of time under Rule 8 (now Rule 10) regardless of whether or not a reasonable explanation has been given by the applicant under the Rule to account for the delay." The flexibility of the Court in extending time where there is a question of illegality was further expressed in Selina Chibago Vs. Finhas Chibago, Civil Application No. 182 of 2007 (unreported), when the Court held that: "This Court therefore has a duty to ascertain this point of law and if established, to take the appropriate measures to rectify the situation. This will be possible if the Court will grant extension of time to the applicant to lodge the application or leave to appeal out of time, so as to pursue her appeal. We take this to be a point of law of great importance to be decided by this Court whatever its consequences. " Back to the application before me, as earlier hinted above, the grounds which have been advanced as to why there was delay in applying for revision, are convincing. But, as if that was not enough, there has been an additional ground which is the complaint regarding the legality of the 9 • decision which the applicant wants to challenge in the application for revision. To that end, the application for extension of time is found to be merited and it is hereby granted. The applicant is to lodge his application for revision within a period of twenty - one (21) days from the date of this ruling. The costs of the application will be in the course. Order accordingly. DATED at MWANZA this 16th day of July, 2018. S. S. MWANGESI JUSTICE OF APPEAL I certify that this is a true copy of the original. B.~O DEPUTY REGISTRAR COURT OF APPEAL 10