thomas martin kiama vs saidi ally muhawi 2021 tzhclandd 313 30 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 422 OF 2020 {Arising from Misc. Land Appeal No. 13 of 2019) THOMAS MARTIN KIAMA........................................ APPLICANT VERSUS SAID ALLY MUHAWI (The administrator o f the Estate o f the late AH Saidi Muhawi)............................. RESPONDENT RULING Dated: 24® & 3ffh June, 2021 3.M. KARAYEMAHA, 3. This Court is being moved under Section 11 (1) of the Appellate Jurisdiction Act [Cap. 141 R. E. 2019] to grant orders prayed in the Chamber Summons namely: (a) This Honourable Court be pleased to grant the applicant extension o f time to lodge Notice ofAppeal to the Court o fAppeal against the judgment and decree o f this Hon. Court (Honourable Makani, J) dated l$ hJune, 2020. (b) This Honourable Court be pleased to grant the applicant extension o f time to file an application for leave to appeal to the court o f appeal out o f time. (c) Costs to follow the event (d) Any other relief(s) as the Honourable Court deems fit to grant. The application is brought by way of a Chamber Summons supported with an affidavit sworn by Thomas Martin Kiama giving the grounds and reasons thereof which together with other records gives the background of this matter. The respondent filed a counter affidavit sworn by Said Ally Mhawi, in which the conduct of the applicant was put on spotlight. He, nevertheless, averred that the applicant is not entitled to extension of time to lodge a Notice of Appeal to Court of Appeal because he was negligent. He averred further that no illegality is manifesting itself to be committed by the High Court (the Court) and tribunals subordinate thereto. A brief background as discerned from the records and pleadings is that the respondent filed a suit at Tumbi Kibaha Ward Tribunal complaining that the applicant trespassed in his farm measuring 13 acres. The Ward Tribunal after weighing the evidence, decided in favour of the respondent. The applicant was not amused by the decision of the Ward Tribunal, hence appealed to the District Land and Housing Tribunal (the DLHT) which upheld the Ward Tribunal's decision. Still aggrieved, the applicant appealed against that decision to this court vide Misc. Land Appeal No. 13 of 2019. The appeal was before Her Lady Justice Makani, J. who after hearing both parties was convinced that the appeal was unmeritorious. Consequently, she dismissed the appeal with costs on 15/6/2020. Apparently, the Applicant did not know the outcome of the appeal in time. He deposed in his affidavit that his former advocate Gilbert Kalanda who was representing him didn't give him the feedback albeit several follow-ups. This was because advocate Gilbert Kalanda travelled up country. Following that event, he decided to instruct the current advocate (Ndanu Emmanuel) to take up the matter and get the status on 15/7/2020. On 17/7/2020 the current advocate was informed by the court clerk that the case was finally decided on 15/6/2020. By then he was late by two (2) days to lodge a notice of appeal and apply for leave to appeal to the Court of Appeal. Believing that the delay was.not through his laxity or negligence, he has emerged with this application. When the application came up for hearing on 24/6/2021, Mr. Godfrey Mpandikizi learned advocate appeared for the applicant and Mr. Abel Ngalaba, [earned advocate appeared for the respondent. The center of Mr. Mpandikizi's argument in addition to the averments in the affidavit is that after realizing that they were late to lodge a notice of appeal they instantly applied for proper certified copies of judgment and. decree but the same were supplied late due to errors that needed corrections. He submitted adding that the impugned judgment and decree raises important issues of law and facts which call for the court of appeal attention. They are: (i) Whether her Ladyship was correct to uphold the Judgment of the District land housing Tribunal without considering that the opinion of the assessors was never considered. (ii) Whether her Ladyship was correct to upheld the decision of the District land housing Tribunal without considering the same did not consider the argument that the ward tribunal did not consider the documentary evidence tendered before it. (iii) Whether it was proper for the Hon. Appellant, J. to upheld the judgment and Decree of the District Land and Housing Tribunal despite its illegality as pointed out and submitted by the Applicant In his reply submission, Mr. Ngalaba stated that the Court's judgment was delivered on 15/6/2020 and the chamber summons was filed on 6/8/2020. So, to him the delay was more than two days. Attacking the application, the learned advocate observed that the same did not disclose any sufficient reasons to explain why he failed to lodge the notice of appeal within normal time. According to him, the copy of judgment was already typed on 15/6/2020 when it was delivered. Therefore, the contentions that the applicant and advocate were making follow up for a judgment were a hollow, he stated. He submitted further that the reasons advanced were not sufficient to trigger this court to exercise its discretionary powers to extend time. To fortify his position, he took refuge on the case of Wambele Mtumwa Shahame v Mohammed Hamis, Civil Application No. 138 of 2016 CAT at pages 14 and 15 (unreported). Untired, Mr. Ngalaba stated further that the reasons that can be considered to be sufficient would include sickness, travel upcountry and illegality. He observed that the allegation of illegality of the decision of the Court was enough to constitute sufficient reason for extension of time. He referred to the case of Attorney General v Tanzania Ports Authority and Alex Msama Mwita, Civil Case No. 87 of 2016 CAT at page 11 (unreported). Since the instant application lacked these causes he implored this court to dismiss it with costs. In his rejoinder, Mr. Mpandikizi submitted that the judgment of the Court contained clerical errors that needed to be corrected before it could be consumed. The learned counsel also stated that paragraph 7 of the affidavit has demonstrated illegality, for instance, whether it was correct for the Court to uphold a decision of the DLHT which was reached without assessors. He said that this single ground of illegality constituted good cause as was held in the case of Minister of Defence, National Defence v Devlan [1992] TLR 185. That principle, he said, was emphasized in the case of V.I.P Engineering and Marketing & 2 others v City Banka Tanzania Limited which he failed to give full citation and supply a copy because it is unreported. This Court has considered the submissions of both sides and gone through the record. It found, as correctly argued by both sides, that the judgment in Misc. Land Appeal No. 13 of 2019 of the Court was delivered on 15/6/2020. The judgment was signed on the same date but the decree was extracted 16/6/2020 meaning that they became consumable by the public as from 16/6/2020. Any part who was in need including the Applicant who wanted the same for appeal purposes was at liberty to obtain them. Obviously^ time started to run from 16/6/2020, because the provisions of section 19 (2) of the Law of Limitation Act, [Cap 89. R. E. 2020] excludes the day on which the judgment was delivered and the period of time for obtaining the copies of judgment and decree. It shouldn't be over emphasized that the law on extension of time is well settled in our land. First of all, extension of time is in the discretional powers of the courts. The applicant in an application for extension of time is required to establish good cause in order for the court to, exercise its discretional powers to extend the time. In the famous case of Alliance Endurance Corporation Ltd vs. Arusha Art Ltd, Civil Application No. 33 of 2015 (unreported) the Court of Appeal of Tanzania explained that extension of time is a matter of discretion of the Court and the applicant must put material before the Court which will persuade it to exercise its discretion in favour of an extension of time. Also, in the case of Regional Manager TAN ROAD Kagera vs. Ruaha Concrete Co. Ltd, Civil Application No. 96 of 2007 (unreported) the Court of Appeal of Tanzania had insisted at pages 6 and 7 that: "For the court to grant extension o f time there must be sufficient material in order to enable it exercise its powers. A person who proposes to have time extended he must have sufficient material in order to enable the Court to move away from its time table for disposal o f caser that is; cases must have time limit." Again, in Wambele Mtumwa Shahame v Mohammed Hamis, (supra) the CAT set out criteria for a court to extend time as: 1. Length of delay; 2. Reasons for delay; 3. The degree of prejudice to the other party, if granted; 4. The chances of success if the application is granted In this case the Applicant gives reasons for delay to file notice of appeal as being lack of information from his previous advocate who travelled upcountry without handing over the record and/or giving feedback. But he did not sit with hands akimbo., He managed to instruct Mr. Mpandikizi who made follow-up. On 17/7/2020 Mr. Mpandikizi became aware that the judgment was delivered on 15/6/2020. In truth, two days had passed by then and therefore the length of delay was short. The current application was presented for filing on 6/8/2020. From 17/7/2020 when he became aware of the decision to 6/8/2020 when he filed the current application there is a difference of 19 days. Rule 83 (2) of the Tanzania Court of Appeal Rules, 2009 requires the Notice of Appeal to be lodged within thirty (30) days of the date of decision against which it is desired to appeal. Although it is vivid through a letter dated 24/7/2020 (a letter addressed to the Registrar High Court of Tanzania (Land Division)) that by that date the applicant had not been supplied with copies of judgment and decree and so was praying for perusal, it is very unfortunate that the applicant has not given me an advantage of knowing when he received copies of judgment and decree. However, the cardinal principle is that the period between the delivery of judgment and obtaining the copies ought to be excluded in computing time. Assuming that the applicant obtained copies on 24/7/2020. Once that period is excluded, the applicant is remained with 12 days. It follows then that he was in fact and law not time bared. I am supported in this view by the case of The Registered Trustees of the Marian Faith Health Center @ Wanamaombi v The Registered Trustees of the Catholic Church Sumbawanga Dioces, Civil Appeal No. 64 of 2007 (unreported) which quoted the Indian case of Krishnappa Ramasa Walvekar v Ramchandra Ramasa Walvekar and others, AIR 1973 Mys (DB) which states that: "once the appellant makes such an application; the mere fact that he has made an application but has not been furnished with a copy, without any default in his part, is sufficient to entitle him to secure exclusion o f the period from computing the period o f limitation for appeal." This ground alone suffices to allow the application. Nevertheless, Mr. Mpandikizi added a second ground that there are three serious issues of law and facts which calls for the Court of Appeal attention, A trite law is that illegalities constitute ground for extending time. In the famous case of The Ministry of Defence and National Service vs, Devran Valambia [1992] TLR 387 at holding number 7 the Court of Appeal of Tanzania said that: " Where a point o fJaw at.issue is illegality dr otherwise o f the decision being challenged that is a point o f law o f sufficient importance to constitute a sufficient reason within Rule 8 o f the Court o fAppeal Rules to overlook noncompliance with the requirement o f the rules and to enlarge the time for such compliance." The decision in Devran Valambia was followed in many other cases including, but not limited to, the cases of Kalunga and company Advocates Vs. National Bank of Commerce Ltd Civil Application No. 124 of 2005 (unreported) as well as the case of Amour Habib Salim Vs. Hussein Bafagi, Civil application No. 52 of 2009 (unreported). For example, in the case of Amour Habib Salim vs. Hussein Bafagi, the Court of Appeal of Tanzania after citing the case of VIP Engineering (supra) insisted that illegalities on the impugned decision forms good ground for time enlargement in order to correct the same, at page 6 said that: "It is our views that the illegal point we observed we have no room to argue about it and this Court will have no place to correct." It is my conviction that the illegality is supposed to be glaring on the face of the record not one to be proved by analysis of evidence which would mean hearing of the appeal itself as it is in this case. Leaving that to form reasons I base my holding to grant the application, I wish to discuss concisely on application for leave to appeal to the Court of Appeal of Tanzania. It is trite law that in absence of a valid notice of appeal filed, leave of appeal to the Court of Appeal cannot be tenable. I am guided by the 8 provisions of Rule 46 (1) of the Court of Appeal Rules, 2009, GN No. 368 of 2009 which put a mandatory requirement of a notice of appeal to be filed first before an application for a certificate of point of law, where applicable or leave to appeal is made. The said Rule reads: "46.-(!) Where an application fora certificate or for leave is necessary, it shall be made after the notice o f appeal is lodged." It is this second application for leave to appeal to the court of Appeal which makes this application bad and unmaintainable in law for being omnibus application. The other aspect that needs my attention related to application for leave to appeal to point the Court of appeal and a certificate of law by High Court. I have dispassionately read the record of this matter. Conspicuously, the record tells it all that the land dispute originated from the Ward Tribunal. Since this appeal originated from the Ward Tribunal, the applicant should apply for the certificate of the High Court under section 47 (2) and (3) of the Land Disputes Act, Cap 216 R.E. 2019 which read as follows: "47.- (2) A person who is aggrieved by the decision o f the High Court in the exercise o f its revisional or appellate jurisdiction may, with leave o f the High Court or Court o f Appeal, appeal to the Court o f Appeal. (3) Where an appeal to the Court o fAppeal originates from the Ward Tribunal, the appellant shall be required to seek for the Certificate from the High Court certifying that there is point o f law involved in the appeal." 9 The position stated above is supported by the decision of the Court of Appeal in the case of Dorina N. Mkumwa v Edwin David Hamis, Civil Appeal No. 53 of 2017 whereby the Court of Appeal speaking through Hon. Juma, C.J held that: "... the right o f appeal in land disputes originating from the Ward Tribunals to the Court o f Appeal is conditional upon grant o f a certificate o f the High Court obtainable under section 47 (2) o f the Land Disputes Courts A c t " Guided by statutory and case laws, I am now comfortable to hold that the applicant was wrong to seek for leave to appeal to the Court of Appeal which was not required. Now having discussed different issues, it is my final observation that basing on the circumstances of this application and reasons explained above, I find that the application has merits. I hereby extend the time within which to lodge Notice of Appeal to the Court of Appeal within thirty (30) days from the date of this ruling. Each party will bear his costs. It is so ordered. Dated at Dar es Salaam this 30th June, 2021. J. M. KARAYEMAHA JUDGE 10