ZAINABU KAISI VERSUS HAMISI RAMADHANI KADOGA

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA Miscellaneous Land Application No.10659 of 2024 (Arising from the decision of the District Land and Housing Tribunal for Dodoma in Land Application No. 225 of 2019 dated 22.11. 2023) BETWEEN ZAINABU KAISI (Administratrix of the Estate of late Mohamed Kaisi).………………………………..…………...APPLICANT VERSUS 1. HAMISI RAMADHANI KAGOLA…………………..…….….……..1ST RESPONDENT 2. JOHN AGREY MZAVA ……………………………..…………..….. 2ND RESPONDENT 3. JULIANA JOHN………………………………..………………….….3RD RESPONDENT 4. JOSEPH CHINA………………………………..…..…………….…..4TH RESPONDENT 5. HAMZA MBILINYI……………………………..……………….……5TH RESPONDENT 6. PUDES HAKI PUDES………………………..……….………………6TH RESPONDENT 7. ISMAIL ZUBERI NGORO………………………....…………….….7TH RESPONDENT 8. MOHAMED OMARY ALLY……………………….....…………….. 8TH RESPONDENT 9. MUHIDIN A. KONDO…………………………..……..….…………9TH RESPONDENT 10. RAPHAEL LEUNA………………………………………..….…….10TH RESPONDENT 11. ANTONI MAKABA NYAMTUMA ……………………..…..……11TH RESPONDENT 12. LINUS PETER KIMARO……………………………..…….…….12TH RESPONDENT 13. GODLUCK M. CHUWA……………………………..…..………..13TH RESPONDENT 14. FULGENCE EDWARD TEMU………………………..….……….14TH RESPONDENT 15. SARAH VINCENT SHIRIMA……………………..……………..15TH RESPONDENT 16. BEATUS JOSEPH MKAWE……………………..……….……….16TH RESPONDENT 1|Page RULING Date of last Order: 10/09/2024 Date of Ruling: 17/09/2024 LONGOPA, J.: The applicant obtained a Default Judgment in her favour dated 22nd November 2023 against the respondents on trespass of land. The District Land and Housing Tribunal found that a total of 6 acres of land belonging to the estate of late Mohamed Kaisi were invaded by the respondents. On 22nd May 2024, the applicant filed this application under section 14(1) of the Law of Limitation Act, Cap 89 R.E. 2019 seeking for the following orders namely: 1. That this Honourable Court be pleased to grant the applicant’s application for leave to appeal out of time against the default judgment of the District Land and Housing Tribunal for Dodoma delivered on 22/11/2023. 2. That costs of this application be provided for. 2|Page 3. That, any other or further reliefs this Honourable High Court will deem fit and just to grant. This application is supported by an affidavit of the applicant one Zainabu Kaisi dated 22nd April 2024 which avers that: 1. THAT, I am the Applicant and deponent herein, thus conversant with facts I am about to depone hereunder. 2. THAT, I was the Applicant in Land Application No. 225/2019 of the District Land and Housing Tribunal of Dodoma in which Hamisi Ramadhani Kagola and 15 others were the Respondents. 3. THAT, on 22/11/2023 the said District Land and Housing Tribunal of Dodoma pronounced default judgment in favour of the Applicant and against the Respondents. 4. THAT, in the said default judgment the trial Tribunal awarded the Applicant with 6 acres of Land and ordered that all Respondents should be evicted from the land in 3|Page dispute and give vacant possession of the same to the Applicant forthwith. 5. THAT, when adducing her testimony before the trial Tribunal the Applicant said that all she wanted was to be given back some 19 acres of land which were the property of her late father namely Mohamed Kaisi which have been unlawfully sold by the 1st Respondent one Hamisi Ramadhani Kagola to the other 15 Respondents. 6. THAT, being aggrieved by the said decision the Applicant instantly requested for copy of the default judgment for appeal purpose against the whole decision to this Honorable High Court of Tanzania at Dodoma. 7. THAT, because the Applicant is a lay woman the first thing she did before pursing her Appeal to the High Court was to seek for legal advice from lawyers. 8. THAT, after the Applicant was satisfied with the legal knowledge, she was given by the lawyers she started to do the fund raising for money to file an appeal at the High 4|Page Court of Tanzania at Dodoma from all member of the family of the late Mohamed Kaisi the exercise which took time and that when the Applicant got the require amount the appeal period had elapsed. 9. THAT, since the Applicant is still interested to pursue her appeal to this Honorable High Court of the United Republic of Tanzania at Dodoma and because delay of the appeal and payment required when legal advice was being sought from lawyers for appeal purposes. 10. THAT, in view of the above reasons the Applicant prays to your Hon. High Court of Tanzania to grant the Applicant's application for leave to appeal out of time. On the 10th September 2024, the applicant was heard in this court having satisfied this Court that the respondents were nowhere to be found. There was proof of service on record by one Said A. Salumu, a process server that the respondents were not found thus the court proceeded to hear the applicant. 5|Page The applicant stated that the judgment of the District Land and Housing Tribunal was pronounced on 22nd November 2023. The applicant argued that she did not obtain the judgment timely until sometimes in February 2024 when the trial Chairperson availed the decision having returned to office after completion of his annual leave. It was her submission that she went back to the trial Chairman to request to review the judgment as she claims that she had tendered evidence and stated in her application that there was a total of 19 acres that were belonging to her late father that had been trespassed. The judgment had only awarded the applicant a judgment and decree on six (6) acres only. According to the applicant, the trial Chairperson of the District Land and Housing Tribunal did inform her that the records would be perused to check if there was something that was not included in the decision thus need to review or otherwise. It was the applicant’s submission that she had waited for the same from the trial Tribunal's Chairman up to April 2024 when the trial Chairman informed the applicant that the decision could not 6|Page be revisited. It is this juncture, that the applicant was informed that if she was aggrieved then she should prefer an appeal. Thus, the applicant had to start the procedure to apply for extension of time to file such appeal out of time. The applicant adopted the whole contents of the affidavit in support of the application to form part and parcel of the submission in this application. As such, it is the fact that applicant was making follow ups to the tribunal for review of the matter that made her delay to file the appeal against the decision of the tribunal namely the Default Judgment. Having heard the submission by the applicant, I have reviewed the record including the affidavit in support of the application to find out on whether or not this application has merits. The application being an application for extension of time is governed by settled principles that require existence of sufficient cause on part of the applicant for the Court to exercise its discretionary powers in determining the application. 7|Page The criteria for grant of extension of service were illustratively articulated in the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) (TANZLII), at pages 6-7, the Court of Appeal stated that: As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated:- (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; (d) If the court feels that there are other sufficient reasons, such as the existence of a point of 8|Page law of sufficient importance; such as the illegality of the decision sought to be challenged. It is on record that decision of the Tribunal was made on 22nd November 2023 and this application was preferred on 22nd May 2024 which was some six months from that date of the delivery of judgment of the trial Tribunal. The criteria set in the cited in Lyamuya Construction Co Ltd requires that accounting of all the period of delay, such delay should not be inordinate and the applicant must show diligence not apathy. My thorough perusal of the affidavit reveals in paragraphs 7 and 8 of the affidavit contain the main reasons for delayed time. It is lucid from the affidavit in support of the application reveals two main reasons. First, the applicant as a lay woman was seeking for legal advice. Second, that she was looking for money to process the appeal. 9|Page Further, in Meis Industries Ltd & 2 Others vs Twiga Bankcorp (Misc. Commercial Cause No. 243 of 2015) [2016] TZHCComD 2127 (18 February 2016) (TANZLII), at page 6, the High Court reiterated that: It must be put clear that this court has discretion to extend time under section 14 of the Law of Limitation but such extension can only be exercised if sufficient reason has been given by an applicant. Only sufficient cause for the delay, and not sympathy, will make an application of this nature succeed. In John Harald Christer Abrahamsson vs Exim Bank T. Limited & Others (Civil Application No. 468/16 of 2022) [2024] TZCA 130 (27 February 2024) (TANZLII), at pages 4-5, the Court of Appeal reiterated the principle in exercising discretionary powers. It stated that: It is trite law that, extension of time is a matter of the discretion of the Court which must be exercised judiciously according to the facts of each case. See; 10 | P a g e Mwita s/o Mhere v. Republic [2005] T.L.R. 107 and Ngao Godwin Losero V. Julius Mwarabu, Civil Application No. 10 of 2015 (unreported). It is also common that, in applications for extension of time, the Court is required to consider whether or not sufficient cause for delay has been shown to warrant the exercise its discretion to grant the extension of time. There is, however, no definition of what amounts to "sufficient cause" but in determining whether in a particular case, sufficient cause has been established or not, a number of factors have to be taken into consideration depending on include; whether the applicant was diligent, reasons for the delay, the length of the delay, the degree of prejudice to the respondent if time is extended, whether there is a point of law or the illegality or otherwise of the impugned decision. 11 | P a g e The main issue is whether the reasons advanced by the applicant suffice the criterion on grant of extension of time. I am of the view that certainly, the advanced grounds do not reveal any sufficient cause being disclosed. The sufficient cause may include the sickness of the applicant, time spent in following up of the records of the court, pursuit of rights in wrong forum etc. However, a mere assertion of the reason is not sufficient. The same must be substantiated thorough evidence availed to the Court to allow it to determine in favour of the applicant. There is nothing tangible on record revealing that applicant requested for the copies of the judgment, decree and proceedings from the District Land and Housing Tribunal. There is no record as well to indicate that she applied for the review of the matter by the District Land and Housing Tribunal for Dodoma. In the instant appeal, the decision and proceedings of the trial District Land and Housing Tribunal for Dodoma reveal that the applicant was in Court on 22nd November 2023 when the default judgment was 12 | P a g e delivered. Also, the right to appeal was explained. That is all that can be found on record. All assertions on the judgment being supplied in February 2024 or time spent in following up review of the decision are not supported with any cogent evidence on record. As such, the application before this Court does not falls within the established principles on grant of extension of time. In totality of events, I shall proceed to dismiss the application for extension of time to appeal out of time against the decision of the District Land and Housing Tribunal for lack of merits. There is no order as costs. It is so ordered. DATED at DODOMA this 17th day of September 2024. E.E. LONGOPA JUDGE 17/09/2024. 13 | P a g e