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IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MOROGORO AT MOROGORO LAND APPEAL NO. 27045 OF 2023 (Appeal from the decision of the District Land and Housing Tribunal for Morogoro at Morogoro in Miscellaneous Land Application No. 476 of 2023; Originating from Land Application No 148 of 2015 of the District Land and Housing Tribunal for Morogoro) BETWEEN TOM KYELU APPELLANT VERSUS KHAMIS MWALIMU KHAMA RESPONDENT JUDGMENT MRUMA,J. At the District Land and Housing Tribunal for Morogoro at Morogoro the appellant herein was a losing party in Land Case no. 148 of 2015 where the trial tribunal entered an exparte judgement against him. The appellant institutes Misc. Application no. 476 at the District Land and Housing Tribunal for Morogoro praying for the tribunal to grant him an extension of time within which he can lodge an application for setting aside exparte order against him in Land case no. 148 of 2015. Page 1 of 14 Having heard both parties In the said application, the DLHT found no merit In the application thus ended up dismissing It for want of sufficient cause. This was done after having satisfied that there was a proof that the appellant was served with summons to appear at the DLHT to defend his case, even If the summons didn't bear his correct names, he signed It and that Is a prove of service and It entails the appellants knowledge of the case at the DLHT, and If there was an error on his name the appellant could have attended the tribunal and rectification of the name could have been done later. Aggrieved thereto the appellant preferred this appeal armed with five grounds of appeal that; 1. That the trial tribunal erred both In law and In fact by not determining the reasons for extension of time which are beyond human capacity. 2. That, the trial tribunal erred both In law and facts by not determining the Issue of Illegality hence reached erroneous decision. 3. That, the trial tribunal erred In law and facts by not curing the substantive error that occurred In the names of the appellant. Page 2 of 14 4. That the trial tribunal erred in law and in facts by shifting the burden of proof to from the respondents to the appellant on the issue of service of summons. 5. That, the trial tribunal erred in both law and facts by allowing the respondent to file execution against the appellant who was not party to the main land application no. 148/2015. When this appeal came for hearing the parties were represented, the appellant was represented by Mr. Derick Vicent and the respondent by Mr. Ricard Gilay, both advocates. Arguing in support of the appeal, Mr. Derrick submitted, this an appeal against the ruling of the District Tribunal in Miscellaneous Land Application 476 of 2022 of the District Land and Housing Tribunal for Morogoro dated 19/9/ 2023. In that application the applicant had applied for extension of time to set aside an ex-parte judgment. In his submission he prays to argue the first ground alone and combine the second and third grounds and argue them together and abandon the fifth ground. Starting with the first ground he submitted that the District Tribunal erred in law and in fact in refusing to grant an extension sought while the appellant adduced sufficient cause for his failure to appear. Appellant was Page 3 of 14 sick since 2015 and had paralysed to date. He has been attending various hospitals and attached medical chits to his affidavit. Sickness is good reason because it is beyond human control. On the second and third grounds are that there were apparent errors in the Judgment particularly in the names of the Appellant. In Land Application No 148 of 2015 (before the District Tribunal), the Respondent had sued one Tom Kyure, but intentional he wanted to sue Tom Kyelu, the present Appellant. The errors were discovered when the Respondent wanted to execute a decree resulting from Land Application Case No 148 of 2015 through execution Application No 91 of 2022. This apparent error was sufficient to cause the trial tribunal to allow the extension so that errors could be rectified. The error is very clear at page 5 of the typed judgment of the District Tribunal where the trial chairperson stated that there was an error in the summons served on the Appellant. In the fourth ground Mr. Derrick contend that the tribunal was wrong to shift the burden of proof to the appellant instead from the respondent. The Respondent was duty bound to prove that the appellant was served [See page 6 of the ruling of the District Tribunal]. Page 4 of 14 Opposing the appeal Mr. Girray submitted that, for record purposes, the ex-parte Judgment of the District Tribunal was passed on 29/12/ 2016 and application for execution was filed on 3/ 3/ 2022. Miscellaneous Application No 476 of 2022 seeking for extension of time was filed on 19/ 5/ 2022. The learned counsel raises questions as to where was the appellant for six years? a quick look would suggest that he raised after the respondent had filed an application for execution. The appellant was supposed to count for everyday of delay, they did not and therefore the district tribunal was correct to find that there was no sufficient cause for the delay. He further submitted that sickness is an afterthought as they only came to hear it when he was applying for extension of time and it was not proved. Regarding the names Mr. Girray submitted that on 18/ 11/ 2015 the appellant was served with summons and chamber application, he accepted summons and signed and he wrote his names correctly how it is supposed to be. So, the appellant was aware of the case and the date it was set for orders. On that date the tribunal informed counsel for the applicant (now the Respondent) about the err in the names of the Respondent (now the Appellant) and he was given time to rectify. On Page 5 of 14 21/12/2015 counsel for the applicant prayed and was granted leave to amend the application by correcting the names of the Respondent (now the Appellant). The amended Application was filed on 18/ 1/ 2016. Fresh summons was issued but he refused to accept summons. There is an affidavit to that effect. Thus, the complaint regarding the names of the appellant is base less. Based on submission Mr. Girray prayed this appeal to be dismissed with costs. By way of rejoinder Mr. Derrick had this to say, the Appellant produced medical report to prove that he was sick and the names of the appellant was not rectified because the Judgment was against Tom Kyure. I have carefully gone through the records of the lower tribunal, the grounds of appeal and submissions of the learned counsel for the parties and the impugned decision and it is my conviction that the issue for determination in this appeal is whether the District Land and Housing Tribunal wrongly exercised its discretion in refusing to grant an extension of time to the Appellant. As correctly submitted by the counsel for the parties, it is a settled principle in our law of practice that extension of time is a matter of Page 6 of 14 discretion of the court, though such discretion must be exercised judiciously after taking into consideration relevant facts of a particular case. It has not been possible to lay down an invariable definition of good cause so as to guide the exercise of the Court's discretion. That notwithstanding, courts have consistently looked at a number of factors such as the reasons for the delay, the length of the delay, whether the applicant was diligent, the degree of prejudice to the Respondent if time is extended, to name but a few before granting or refusing a prayer for extension of time (See, for instance, Dar es Salaam City Council v. Jayantilal P. Rajani, Civil Application No. 27 of 1987; and Tanga Cement Company Limited v. Jumarine D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (both unreported). There are, however circumstances under which entitles the higher court to interfere with the decision of a lower court exercising its discretion. These principles were stated in the case of Credo Siwale vs. The Republic, Criminal Appeal no. 417 of.2013 (unreported) where the Court of Appeal stated thus-: The appellantcomes to this courtasa second bite after the DLHT denies his application for extension oftime to set aside expate judgment entered against him. There are principles upon which Page 7 of 14 an appellate court can Interference with the exercise of discretion of an Inferior court or tribunal. These general principles were set In the decision of the East African Court of Appeal In MBOGO AND ANOTHER V SHAH[1968]EA 93. And these are (I) Ifthe Inferior court misdirected Itself; or OV It has acted on matters on which Itshould not ha ve acted/or (III) It has failed to take Into consideration matters which It should have taken Into consideration And In doing so arrived ata wrong conclusion. In the first ground of appeal, the learned advocate for the appellant challenged the ruling of the lower tribunal on the ground that It failed to determine the reasons for extension of time adduced which are beyond human capacity, that Is sickness. Agreeable sickness once proved can be sufficient cause for extension of time. In the case of Tiluhuma Pima vs. Malogoi Muhoyi, Civil Application No. 418/ 08 of 2022, CAT at Mwanza (Unreported) the Court stated that:- "The law Is settled that once sickness Is established and proved as tojustify the delay." Page 8 of 14 The question is therefore whether sickness was proved in this case. This court also guided by the principles in the case of Pastory Bunonga vs. Pius Tofiri, in Misc. Land Application No. 12 of 2019 where Hon. Mr. Justice Rumanyika, J as he then was High Court Judge held that; "Where it was on the balance ofprobabilities proved, sickness has been good and sufficient ground for extension oftime yes. But with aii fairness the fact cannot be founded on mere allegations. There always mustbe proofby the applicant that he feii sick and for the reason of sickness he was reasonably prevented from taking the necessary step within the prescribed time". In his application to the District Tribunal the Applicant appended to his supporting affidavit copies of the National Health Insurance Fund (NHIF)forms showing that oin different dates in 2021 he attended a Health Facility as an out- patient. He also attached to his affidavit a copy of an Ex Ray picture taken on 4^^ March 2021. The ex-ray does not indicate the hospital from which it was taken. The irnmediately question is whether this evidence was sufficient to prove that the Page 9 of 14 Appellant was sick. In my view it was not. In the first place sickness can only be proved upon production of medical examination reports of the person who claims to be sick at the time. The National Health Insurance Fund (NHIF) forms are patient claim forms which are intended for use by the Service Provider (i.e. the Health Facility) to claim medical service fees from the Fund. They are not medical reports or documents used by medical professionals for documenting patient's medical treatment. Secondly as stated above, the attached National Health Insurance Fund forms were issued in 2021 while the judgment of the District Land and Housing Tribunal which gave rise to the impugned ruling in execution proceedings No 476 of 2022 was delivered way back on 29^^ December 2016. The Applicant didn't account for the delay of six years from the date the Judgment was handed down to the date he preferred his application for extension of time. Apparently the forms annex AM3 to the supporting affidavit were intended to cover delay in defending execution proceedings and not the original land case which was decided in December 2016. Thirdly under paragraph 8 of the supporting affidavit the Applicant alleged that since 2015 he fell sick and paralyzed but there is no Page 10 of 14 medical report suggesting that he had paralyzed and what was his health status at the time he lodged his application for extension of time. In the second and third grounds of his appeal, the Appellant faulted the lower tribunal that it tried the matter notwithstanding that there was an error in the names of the Appellant in that in the application he was cited as Tom Kyure instead Tom Kyelu. It was the submission of the Appellant's counsel the error in citing proper names of a party is an irregularity which entitles the Applicant for extension of time. I have carefully gone through the records and I note that when the Appellant was served with the summons he signed it and the court process server stated in the affidavit of service that: ^^Wito umepokelewa na kusainiwa pamoja na nakala ya maombina mjibu maombi Thorn Kyure nyumbaniKwake" The Appellant did not challenge the contents of the affidavit of the court process server. It therefore go without saying that he didn't challenge service on him but a technical error in the summons served on him in that his name was erroneously cited as Thom Kyeru instead of Thom Kyeru. He received the summons believing that it was his Page 11 of 14 summons despite the error in the names. He cannot be heard saying that he didn't enter appearance because of the tying error in the summons. In the case of Victor Rweyemamu Binamungu vs. Geofrey Kabaka and another, Civil Application no. 602/08 of 2017 the Court of Appeal faced the same problem regarding the names of a party. The Court found the issue to be minor and held that;- because the applicants arguments that it is a typing error makes sense and as the Courts eyes is more fixed on substantive justice than technicaiities, the second respondents contention on the names can hardiy find purchase". Also, in the case of China Henan International Cooperation Group Co. Ltd (CHICO) vs. Morning Glory Construction Co. Ltd, Misc. Civil Application no. 2 of 2021 HC Songea where the court had this to say on issue of error on the names; Itis obvious that the errors are mere typographicai errors which do notgo to the root ofthe case. It is apparent that the parties are not different, as shown it is oniy a coupie ofietters which were wrongiy written. Page 12 of 14 Based on the above holding the names of the Appellant being mistakenly written in the case is a typing error which didn't prejudice him. On the complaint that the court shifted the burden of prove to the Appellant that he was served with the copy of summons, I find it to be unfounded. At page 5 of the ruling of the trial tribunal it is clear that summons was served on the Appellant. He signed it in acknowledgment that he was actually served. The only problem was that there was a typing error in the names printed in that summons. The error did not make him not to be him. The act of signing the summons by the Appellant is a proof that he was served. Extension of time is not an absolute right, rather it is a right given to a party in exercise of court's discretion. This being the appeal challenging the decision entered in exercise of court's discretion the Appellant was required to satisfy this court that the trial tribunal didn't exercise its discretion judiciously. In the case of CRDB vs. Joyce Deodatus Kato and Others, Land Appeal no. 64 of 2020, HC Dar es salaam (unreported) thIS court had this to say; In the same vein, for one to successfully appealagainstan order entered In the exercise ofdiscretionarypowers ofthe court must Page 13 of 14 clearly show the court that the discretion was notjudiciously exercised. That said, I do not find merits in this appeal, consequently I hereby dismiss it with costs to the Respondent. It is so ordered. a:r. mruma (J a: JUDGE 0^. 15. 5. 2024. Page 14 of 14