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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 2007 OF 2024 (Arising from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam [Hon. B.R. Mutungi, J.] in Land Case No. 120 of2006 delivered on 29.6.2015 and pursuance to the Execution No. 106 of2023) THE REGISTERED TRUSTEES OF THE SEVENTH DAY ADVENTIST CHURCH...................... APPLICANT VERSUS THE REGISTERED TRUSTEES OF MARY IMMACULATE COLLABORATORS.............................................. 1st RESPONDENT ASENETH PENDO MOMEDI................. .............. 2nd RESPONDENT RULING 19h February & 29h April 2024 L. HEMED, J. Previously, the 1st Respondent herein, THE REGISTERED TRUSTEES OF MARY IMMACULATE COLLABORATORS instituted in this court Land Case No. 120 of 2006 against the Applicant herein, THE REGISTERED TRUSTEES OF SEVENTH DAY ADVENTIST CHURCH and one ASENETH PENDO MOMEDI, the 2nd Respondent. The Plaintiff/lst Respondent was seeking for declaration that she is the lawful owner of the suit land known as Farm No. 281 Kibamba, Kinondoni District, registered under C.T. No. 30571. She also sought for vacant possession of the suit landed property. On 29th June, 2015, this Court, Hon. B.R. Mutungi, J. delivered judgment in favour of the 1st Respondent who, on 10th October,2023, applied for execution of the Decree vide Execution No. 102 of 2023. Following such execution process, this application was preferred-swder section 11(1) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019] and Order XXXIX Rule 5(1) and 5(3) (a), (b) & (c) of the Civil Procedure Code, [Cap. 33 R.E. 2019]. Through the said application, the Applicant is in attempt to move this Court to grant the following orders:- "(a)That may this honourable Court be pleased to extend time for the Applicant to lodge notice of intention to appeal against the decision of the High Court of Tanzania (Land Division) at Dar es Salaam [Hon. Madam B. R. Mutungi, J.] in the Land Case No. 120 of2006 delivered on the 2dh Day of June, 2015. 2 (b)That may this honourable Court be pleased to stay proceedings of this honourable Court in Execution No. 102 of 2023 (Originating from the Judgment and Decree of the High Court of Tanzania (Land Division) at Dar es Salaam in the Land Case No. 120 of 2006 [Hon. Madam B. R. Mutungi, J.] delivered on the 2dh Day of June, 2015) pending hearing and determination of the intended appeal. Cost to follow the event; and (d) Any other order(s) as this honourable Court may deem just to grant" ■ .. The respondents were duly served on 16th February, 2024. However, only the 1st Respondent who managed to challenge the application through . . . ■' ■.» - ty;,«5f, . y:- ■ the counter affidavit of one Chinnappan Rita, one of the registered trustees of the 1st Respondent. The matter proceeded exparte against the 2nd Respondent who appeared to be not interested with the application. The matter was argued by way of written submissions. Mr. Paul Massanja, learned advocate acted for the Applicant while^th@^st Respondent enjoyed the service of Mr. Erasmus Buberwa, learned advocate. All submissions were promptly filed as per the directed schedule. This is an omnibus application of two compatible and interdependent prayers. The said prayers as for, (a) extension of time to file Notice of intention to appeal to the Court of Appeal of Tanzania against the Judgment of this Court in Land Case No. 120 of 2006; and (b) stay of execution of the decree. The determination of the prayer for extension of will affect the second prayer for stay of execution of the decree in Land Case No. 120 of 2006. Having gone through the rival affidavits and submissions-^lhe question is whether the application is meritorious. The nature of the instant application compels me to begin with the prayer for extension of time to lodge notice of appeal to the Court of Appeal of Tanzania. The prayer is governed by section 11(1) of the Appellate Jurisdiction Act,[Cap.141 R.E 2019] which provides thus:- "11. -(1) Subject to subsection (2), the High Court or. where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired. zzfEmphasis added) The word "may extend" as used in the provision hereinabove cited, gives discretion powers to the Court in determining the application for extension of time. However, this discretionary power is judicial in nature and must be confined on the rules of reason and justice. This was insisted in METS Industries Limited v. Twiga Bankcorp, Misc. Commercial Cause No.234 of 2015, that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. In the instant matter, the Applicant has relied on two grounds for extension of time:- (a) That the Applicant became aware of the impugned Decree on 5th January, 2024 when she received Court's summons for application for execution; and (b) Illegalities With regard to the 1st ground, it was asserted by the learned counsel for the Applicant that, the Applicant became aware of the Judgment and Decree of this Court in respect of Land Case No. 120 of 2006 on 5th January 2024, when she received Court's Summons attached with a copy of application for execution. According to him, the Applicant was unable to challenge the decision which she was unaware of it. He relied on the decision of the Regional Manager, TANROADS Kagera v. Ruaha Concrete Company Limited, Civil Application No. 96 of 2007. As to the ground of illegalities, the learned counsel argued that the impugned decision of this Court is tainted with material illegalities and irregularities which if left unchallenged will lead to substantial loss to Applicant, worshippers, conduct of fellowship and provisions -of. .soda! services at the area and to over a thousand regular members. According to Applicant, the illegalities alleged to be on the face of record are such that:- i. The Court failed to evaluate evidence lodged by the 2nd Respondent/defendant during trial; ii. The court deliberately failed to take into account evidence of DW3, caretaker of the disputed land who new and in fact showed interested people including the 1st Respondent. iii. The Court illegally and harshly arrived at decision that all of the testimony of DW1 Amon Jackson Mkangara, a donee and Holder of Power of Attorney of the 1st Defendant, Aseneth 6 Pendo Momedi, was merely a hearsay, without the court properly evaluating DW's testimony before it. The Court deliberately and illegally held that the piece of land sold to 2nd Defendant/respondent was not adequately described by the defendants and could not be identified. The Court illegally and glossily misdirected itself where the Court failed to appreciate the evidence thus failed to arrive at a decision that prior to the 1st Defendant selling the land in dispute to the Plaintiff, the 1st Defendant had sold part of the land to the 2nd Defendant/respondent. That the Court unlawfully ignored the facts and admissions by Plaintiff, PW1, PW2, PW3 and PW4 that at the time of the Plaintiff purporting to purchase the whole of land in dispute the 2nd Defendant/Respondent had already moved the disputed land and had clearly developed the portion of the said land now in dispute; The court illegally and grossly erred in law on the face of record on its failure to establish that there was no privity of contract; The court illegally and erroneously relied only upon terms and conditions in exhibit Pl, a contract between Plaintiff, Defendant in total exclusion of terms and condition of exhibit D2, contract between the 1st and the 2nd defendants; The court illegally and in biased manner reached a finding that, on the one hand, the 1st Defendant was bound by a contract with Plaintiff while, on the other hand and without reasonable cause, the trial Court failed to establish as to why the 1st Defendant was not bound by a contract with 2nd Defendant; x. The court illegally and contrary to evidence on face of record misdirected itself in reaching a finding that the Plaintiff, its nuns, PW3 and PW4 become aware of 2nd Defendant presence in the suit land, during the construction of structure foundation and well after Plaintiff and 1st Defendant signing of Sale Agreement Exhibit pl and occupying the suit land; and xi. The court illegally, unlawfully and erroneously found that the counter claim raised by the 2nd Defendant was not proved by ;• '-.feB evidence on a balance of probabilities. In view of the above-alleged illegalities, the counsel for the Applicant prayed the court to grant the application. In response thereto, the learned counsel for the 1st Respondent contended that the Applicant was aware of the Judgment and Decree of this Court delivered on 29th June 2015 because she filed notice of Appeal against that decision on 13th July 2015. It was also stated by the learned counsel for the 1st Respondent that on the date the Judgment was delivered, the advocate of the Applicant sent advocate Eustace to hold her brief. He added that Maira and Company Advocates were the ones representing the defendants and are the advocates who filed the notice of 8 . appeal. He insisted that since the affidavit supporting the application consisted false information that the Applicant was not aware of the Judgment, then, the whole affidavit should not be relied upon. He fortified his argument by the decision of the Court of Appeal of Tanzania in Damas Assey and Another vs. Raymond Mgonda Paulo and 8 Application No.32/17 of 2018. With regard to the point of illegalities, the learned counselft^ihe. Respondent was of the view that there is no illegalities on the face of impugned judgment. He glued his arguments by the decision of the Court ■ ■ " '' ...... . . of Appeal in Hawa Mashaka(as Administratrix of the Estate of the late Mashaka Maftah Mwinyihami) v. Mtami Maftah and Fadhili Mfilinge (administrator of the Estate of the late Modestus Mfilinge), Civil Application No.393/13 of 2023. In the said decision, the Court of Appeal of Tanzania insisted that for illegality to constitute a good r cause for extension of time, it must be apparent on the face of record. Let me begin with the ground of the Applicant having no knowledge on the existence of the Judgment and Decree dated 29th June,2015. I have perused the records of Land Case No. 120 of 2006 and found that Naira and Company Advocates were the ones who represented the* defendants during trial. I also noticed that the impugned judgment was delivered on 29th June 2015. On the particular date, Mr. Eustace appeared to hold brief- ■ of Ms. Irene Maira, advocate for the defendant, one of them was the Applicant herein. It further came to my light through the counter affidavit and the records of Land Case No. 120 of 2006 that Maira & Co. Advocates also filed Notice of Appeal on 13th July 2015. The aforesaid information unequivocally suggests the naked truth that the Applicant was aware dr the matter but negligently opted not to pursue her intended action in time. The Court of Appeal of Tanzania in Lyamuya Construction Company.Lt Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010, laid down the ■ ' -Z-f''" ■ ... following guidelines for consideration in determining application for extension of time:- "(a) The applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take (c) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged." [Emphasis added] In the present case, I find that the delay to pursue the Appeal in the Court of Appeal of Tanzania from 2015 to 2024 is inordinate. The delay for that very long time also shows how sloppy and negligent the Applicant was in prosecuting the action she intended. I have also keenly gone through the affidavit supporting the Application, indeed, apart from the false information given by the deponent that the Applicant was not aware of,the judgment, the time from 29th June 2015 up to January 2024 has not been accounted for. In that regard, the Applicant is also considered to have failed to account for the entire period of the delay. The Applicant also tried to rely on the illegality in the impugned Judgment. I totally agree with the learned counsel for the ApplicaritThat illegality can constitute a good cause for extension of time. However, for such alleged illegality to constitute good cause, it must be apparen^Qil^ • . face of the impugned record. I am holding so because if every allegation of illegality is considered a good cause there will be no need of having time limit to pursue appeals, for all appeals are to some points based on illegalities. I have also seen the observation of the Court of Appeal of Tanzania in Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania (supra), thus: "Since every party intending to appeal seeks to challenge a decision either on points of law or fact, it cannot in my view, be said that... every applicant who demonstrate that his intended appeal raises points of law should as of right, be granted extension of time if he applies for one. The Court there emphasized that such point of law, must be that "of sufficient importance"and I would add that it must also be apparent on the face of the record...not one that would be discovered by a long drawn argument or process." [Emphasis added] I have examined the ten (10) points of illegalities pointed out by the Applicant and found that they are based on the evaluation of evidence. Such kind of alleged illegalities require long drawn arguments and process to discover them. In other words, the alleged illegalities are not apparent on the face of record to constitute good and sufficient cause,to grant the , • application for extension of time. By the way, the judgment faulted by the Applicant to be Jajnted with illegalities is of this Court. The question is whether this same Court has 12 loose hands to assess its own committed illegalities. The answer to this question is straight forward that, under the doctrine of functus officio, the court issued the decision has no power to assess the illegalities alleged to have committed by itself. I have tried to trace the genesis of the ground of illegality and found that it was developed by the Court of Appeal from the case of the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] TLR 387, in Lyamuya Construction Company Ltd (supra) and several other decisions of the Court. In all said cases, the applications for extension of time were before the CAT, made under the Court of Appeal Rules, 2009 seeking to challenge the decisions of the High Court. In my view, in those cases, it was possible to raise and rely pj] ground of illegality because the applications for extension of time were before the CAT and the impugned decisions alleged to be tainted with . . .-,e« . illegalities were decisions of the High Court. In my view, unless the application is in the court of higher rank, illegality cannot be a ground for extension of time if the application is sought before the same court that delivered the impugned decision. ■' ■ —-.... In the final analysis, I find no merits in the 1st prayer of extension of time. This being the case, the 2nd prayer for stay of execution of the decree of this court in Land Case No. 120 of 2006 becomes redundant. In the upshot I dismiss the entire application with costs. Order accordingly. 14 ..