ATHUMANI NYUMBANYIKI

m THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY [AT MOROGORO] LAND APPEAL NO. 12426 OF 2024 {Arising from Land Application No. 157of2023 ofthe District Land and Housing Tribunal ofKllombero/Malinyi at Ifakara) THE REGISTERED TRUSTEES OF MASJID MKONGWE APPELLANT VERSUS ATHUMANI NYUMBANYIKI 1^^ RESPONDENT S. NAKUWOYA 2^^ RESPONDENT MAVUKBI NJALAMOTO 3^° RESPONDENT JUDGMENT 06/06/2024 & 30/07/2024 KINYAKA, J.: The appellant herein has preferred the instant appeal upon her discontentment with the decision of the District Land and Housing Tribunal for Ifakara hereinafter the "Tribunal" rendered on 25^^ April 2024 in Application No. 157 of 2023. In the respective decision, the Tribunal allowed the respondents' application for extension of time within which they could lodge the application for restoration of the execution proceedings in Miscellaneous Application No. 55 of 2022 hereinafter the ^ "execution proceedings" which were dismissed on 19^^ September 2022 for want of prosecution. In allowing the application, the Tribunal took the view that it was in the interest of justice for the respondents who were the successful litigants in the application subject of the execution proceedings to be granted the extension of time for them to apply for restoration of their application for execution for them to enjoy the fruits of the judgement. It therefore granted the respondents 21 days to lodge the said application. Dissatisfied with the outcome, the appellant preferred the present appeal advancing the following grounds of complaint:- 1. That, the trial tribunal erred in law and in fact for allowing the respondents' extension of time without any sufficient cause be shown; 2. That, the trial tribunal erred in lav\/ and fact for relying upon an affidavit of respondents which was tainted with untruths to support application for extension of time; 3. That, the trial tribunal erred in law and facts for failure to answer an issue raised itself as to whether the respondents adduced sufficient reasons to grant an application for extension of time and consequence grant such application; and fey 4. That, the trial tribunal erred in law and facts to grant extension of time whilst the respondents failed to account for each day of delay. By an order of this court dated 6^^ June 2024, the appeal proceeded by way of written submissions which were prepared and filed by Mr. Majid Ngaa Shaban and Ms. Josephine Mbena, learned counsels for the appellant and respondents, respectively. Submitting on the first ground, Mr. Shaban cited section 14(1) of the Law of Limitation Act Cap. 89 R.E. 2019 and the case of Mumello v. Bank of Tanzania (2005) E.A. to back up the legal stance that for an application for extension of time to be granted, the applicant must advance sufficient cause for delay. On that basis, he argued that the Tribunal wrongly exercised its discretion in allowing the application for extension of time in favour of the respondents without sufficient cause being adduced. He said, the reason that the failure to lodge the application for restoration was caused by the delay in receiving copies of ruling and drawn order was unsubstantiated as the same was not proved before the Tribunal. Addressing the second ground, the appellant's counsel faulted the Tribunal for relying on untruthful affidavits in reaching its decision despite its admission on page 3 and 4 of its ruling that the same contains false information. Fortified by the decision of the Court of Appeal in the case - ^zy of Bashir Ally v. Anyegite Andendekisye Mwamaluka and 2 others (Civil appeal No. 49 of 2021)[2024I TZCA (16 February 2024 TanzLII), it was the counsel's contention that an affidavit containing untruthful information cannot be acted upon to support an application. It was therefore his opinion that the Tribunal ought to have expunged the affidavits. In the third ground, Mr. Shaban's complaint was premised on the Tribunal's omission to resolve the issue it raised as to whether the respondents adduced sufficient grounds to warrant the Tribunal to grant extension of time sought. He made reference to paragraph 2 page 3 of the Tribunal's ruling and finally urged this Court to address the vacuum alleged created by the Tribunal. In support of the fourth ground, it was the learned counsel's submission at the trial that the respondents didn't account for each day of delay for the Tribunal to grant them the extension of time. He explained that the period of thirty eight(38) days from 12^^ October 2023 when the previous application for extension of time was struck out to 20^^ November 2023 when Application No. 157 of 2023 was lodged was not accounted for. Mr. Shaban cited the case of Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, Bashir Ally v. Anyegite Andendekisye Mwamaluka and 2 others (supra) and Lyamuya Construction Co. Ltd. V. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010)[2011] TZCA 4(3 October 2011)to reinforce his assertions and finally prayed for this Court to allow the instant appeal with costs. In her reply on the first ground, the learned counsel for the respondents relied on the case of Mumello v. Bank of Tanzania (2005) E.A. in submitting that at Tribunal, the respondents managed to adduce sufficient reasons that moved the Court to grant them the enlargement of time to make an application for restoration for their execution proceedings. He pointed out the reasons being their follow ups from the date their previous application for extension of time was struck out and the steps they took after the death of their fellow respondent. On the second ground, Ms. Mbena refuted the appellant's claim that the respondents' affidavits contained false Information as according to her, neither did the Tribunal's ruling expressed the concern nor did the appellant's counsel pointed out the alleged untruthful information. As for the third ground, the learned counsel insisted that the respondents adduced well and clear reasons for the delay in their affidavits which stated the chronological steps they took after the striking off of their previous application to the institution of the application subject of this appeal. ^ Submitting against the fourth ground, Ms. Mbena highlighted the causes for the respondents' delay. She mentioned the withdrawal of Misc. Application No. 155 of 2022, and the striking out of Misc. Application No. 108 of 2023 as sufficient causes. She supported the tribunal's reasoning that the enlargement of time was fair in the interest of justice as the same will enable the respondents to enjoy the fruits of the decree which was not appealed against by the appellant. In finalizing her submission, the respondent's learned counsel prayed for the appeal to be dismissed with costs. In rejoinder, the appellant's advocate maintained his standpoint on all grounds of Appeal. As for the first ground, he insisted that the records are clear that the Tribunal admitted that the respondents' affidavits contained false information as depicted on page 3 paragraph 2 and page 4 of its typed ruling. As such he stressed that the same ought to have been expunged. As for the third and fourth grounds, the learned counsel reiterated his submission in chief on the ground. He however attacked Ms. Mbena's contention that the appellant did not appeal in Misc. Application No. 155/2022 and have no interest in the case as hopeless and baseless. In the premise, he pleaded that the appeal be allowed with costs. I have deduced from the appellant's four grounds of appeal that the totality of the appellant's complaint in the present appeal is the decision of the Tribunal to grant the respondents extension of time to lodge an application for restoration of the application for execution without there being good or sufficient reasons for the delay, and despite their depositions which contained untruth statements. Basing on the repetitive grounds of appeal which establish the complaint as summarized above, I will consolidate all grounds of appeal and determine them as one. It is clear from the affidavits that paragraphs 3 and 4 common to the respondents' affidavits contend that part of the delay was occasioned by them waiting for the beneficiaries of the estate of the then 4^^ and 6^^ applicants to act but they did not. This part of the deposition of the respondents was refuted by the appellant by producing an affidavit of Hassan Njayaga, Chairperson of Misegese Village that the then 6^^ applicant in the execution proceedings was alive. There were no contradictions in the affidavits of the respondents as held by the Tribunal in the last paragraph of page 3 of the ruling. As the respondents did not refute the Chairperson's affidavit that the then 6^^ applicant was alive, that part of the respondents' deposition was incorrect. However, the same does not remove the fact that the then 2"^ and 4^^ applicants were dead and therefore it was important for the respondents to await for the beneficiaries to appoint legal representatives of the late and 4^^ applicants to join the execution proceedings. In the circumstance, I hesitate to hold that the entire affidavit is no affidavit as it was an established fact which was not contested by the appellant that the then 2"^ and 4"^^ applicants died. This does not refute the fact that the respondents were waiting for the beneficiaries of the estate of the then 2""^ and 4^'' applicants to join them the course that the respondents intended to take. I agree with the Tribunal that the delay enumerated in paragraphs 4, 5, 6 and 7 of the respondents' affidavits constituted technical delays which is a good ground for extension of time. It was deposed in the respondents' affidavits that from 19^^ September 2022 when the application for execution was dismissed for nonappearance of the respondents to 12^^ October 2023, they filed several applications including Application No. 155 of 2023 which they withdrew due to technical errors for including deceased persons, and Misc. Application No. 108 of 2023 which was struck out on 12^^ October 2023 on technical grounds. It was also contended by the respondents that from the period when they withdrew Application No. 155 of 2023, the respondents awaited for the beneficiaries of their colleagues who died after they won the main case in order to include them in the application, but due to their delay, the 8 ^ respondents decided to lodge Misc. Application No. 108 of 2023 which was struck out on 12^^ October 2023 on technical grounds. I find the above account of the events fall under what is termed as technical delay which is a good cause for extension of time as held by the Court of Appeal in the case of Fortunatus Masha v. William Shija and Another(1997)TLR 154 that:- "...a distinction should be made between cases invoiving reai or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appealfor one reason or another has been found to be incompetent and a fresh appeal has to be instituted. " I have also considered the respondents' deposition in their affidavits that the period'from 12^^ October 2023 to 13^^ November 2023, they were waiting for copies of the order striking out their Misc. Application No. 108 of 2023 which they received on 13^^ November 2023. That being the case, I find the delay of 38 days after the respondents' Misc. Application No. 108 of 2023 was struck out to the filing of the Application No. 157 of 2023, the subject of this appeal, not a prolonged delay in the circumstances where the respondents had to wait for copies of the order striking out the previous application, and preparation of a new application culminating to its filing on 20^^ November 2023. I therefore hold that the reasons for delay adduced by the applicants demonstrated good cause for delay. Be it as it may, I have also assessed the overall basis of the decision of the Tribunal that despite there being incorrect information in the affidavits of the respondents with regards to the death of the then applicant, refusing the application will lead to the respondents'failure to execute the decree of the Tribunal and hence, the judgement of the Tribunal which was in their favour, would have been rendered fruitless. I find the reasoning of the Honourable Chairperson of the Tribunal was sensible and correct in the circumstances. Apart from the fact that the denial of the application for extension of time would preclude the respondents from preferring an application to restore their Application No. 55 of 2022 for execution, I have not found any prejudice to the appellant upon the grant of the application. The appellant lost both at the Tribunal and the High Court in respect of the disputed land. The respondents are the decree holders. Whether the decree is executed by the court's assistance upon the grant of an order for execution or not, it will not change the status of the respondents as lawful owners of the disputed land. It will not change the fact that the 10 appellant is required to vacate the disputed land whether through forceful or peaceful eviction. It should also be noted that the decree of the Tribunal can be enforced without the Tribunal's order for execution. Applications for executions are normally preferred if the decree holder requires court's assistance in executing the decree, especially if there is likelihood of breach of peace if execution is carried without the court's assistance. This stance was taken by the Court of Appeal in case of Ibrahim Twahili Kusundwa & Another v. CRDB Bank PLC & Others (Civil Appeal No. 194 of 2021) [2024] TZCA 7(19 January 2024) where on page 24 through to 25 of the decision, the Court held:- /l5 t^e held in Shell and BP Tanzania Limited v. University ofDar esBalaam[2002] TLR. 225, at232 and 233, a decree-holder need notseek the assistance ofthe court to execute a decree in his favour if he can do so peaceably. Put differently, ifthe decree can be satisfied smoothly without any breach ofpeace or violence occurring, the decree-holder can proceed to enforce the decree singly. Depending on the nature of the subject-matter and the disposition of the judgment-debtor, execution of a decree may not require an order ofthe court. '''' 11 It means that whether the execution is carried out with or without the assistance of the Tribunal, the respondents will still be entitled to execute the decree and remove the appellant from the disputed land. In view of the above observations, I find that there was good cause for the Tribunal to grant the respondents' application for extension of time. Consequently, the present appeal is without merit and I proceed to dismiss the same. I uphold the decision of the District Land and Housing Tribunal of Kilombero/Malinyi at Ifakara in Land Application No. 157 of 2023. As parties have been involved in various proceedings at the Tribunal which involved costs to both parties, I order each party to bear its own costs. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 30'^^ day of July 2024. ■ o'^ / H. A. KINYAKA JUDGE r;V, 'fj 30/07/2024 12