CIVIL APPLICATION NO 582 04 OF 2022 ZAINUL NAUSHAD FAZAL VS ZULFIKAL PYALL SHAMJ ANOTHER

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CIVIL APPLICATION NO. 582/04 OF 2022 ZAINUL NAUSHAD FAZAL (as the Administrator of the Estates of the late Naushad Gulamabbas Fazal) APPLICANT VERSUS ZULFIKAL PYALL SHAMJ.......................... .1st RESPONDENT MURTAZA HUSSEINALI RAJ ABA L VISRAM 2nd RESPONDENT (Application for extension of time within which to apply for a copy of the proceedings of the High Court of Tanzania at Bukoba) (M w angesLi) Dated the 28th day of April, 2016 in Land Case No. 01 of 2011 RULING l 3 h March, & 30th April, 2024 KAIRO, 3.A This is an application for extension of time within which to lodge an appeal against the decision of the High Court of Tanzania at Bukoba delivered on 28th April 2016. The application is predicated under rules 10, 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It is supported by an affidavit duly affirmed by the applicant. In compliance with rule 106 (1) of the Rules, the applicant through the legal services of Peter Joseph Matete, learned advocate from Orbit Attorneys, who also represented the applicant, filed written submissions and prayed to adopt the same to form part of his oral 1 submissions to amplify the application. The respondent, on the other hand, filed a joint affidavit in reply to oppose the application. At the hearing, the applicant was represented by Mr. Matete while the respondents were represented by Messrs. Silvanus Mayenga and Remidius Mbekomize, both learned counsel. The 1st respondent also was present in Court. According to the facts gathered from the record, the applicant sued the respondents in Land Case No. 01 of 2011 in the High Court of Tanzani at Bukoba. He claimed among other things, a declaration that he is the registered owner of the suit land situated in plot No. 12 Block F within Bukoba Municipality after the same was bequeathed to him vide the Will of the former owner, the late Asgarali Yusuf Mohamed. He further prayed for vacant possession and payment of mesne profit against the second respondent Having heard the matter, the trial High Court ruled out in favour of the respondents. The Trial Court went further to rule that, the property of the late Asgarali Yusufu Mohamed has no dear immediate person, who is legally entitled to succession and ordered that, the disputed house be placed under the hands of the Administrator-General to hold it 2 for one year pending any legal formalities that might be taken by whoever thinks that he is legally entitled to the same. The applicant was aggrieved by that decision and decided to file a notice of appeal after being granted the extension of time to do so. He thereafter lodged Civil Appeal No. 466 of 2020 to challenge the trial Court's decision. However, the said appeal was withdrawn on 26th November, 2021 for want of competence. The applicant, in paragraph 5 of his affidavit deponed that, the appeal was withdrawn because the letter to the Registrar applying for copies of the records for appeal purpose was filed to the High Court and served to the respondents out of time, as a result, the appeal was rendered incompetent. Hence, this application which was filed on 13th December, 2021, applying for the extension of time as alluded to earlier. In paragraphs 8 and 14 of his affidavit, the applicant stated the reason for his delay to be technical as through-out the time, since when the judgment intended to be challenged was delivered, the applicant was busy in courts trying to pursue his right. Further, after the withdrawal of Civil Appeal No. 466 of 2020 to the date of filing this application, the time lapsed was spent by his advocate making research and preparation of the relevant documents to be filed. 3 The second reason advanced according to the notice of motion was illegality. He asserted that, the decision in Land Case No.01 of 2011 is tainted with material illegalities as the Hon. trial Judge had no mandate to nullify the letters of probate granted by the primary court while exercising its exclusive powers under land law. Clarifying, the applicant at Paragraph 7 of the affidavit enumerated the list of the alleged orders which according to him, were made by the trial Court without jurisdiction as follows:- i) That the Will was not attested by the Commissioner for Oaths, thus, null and void. ii) That the late Asgaral Yusufu Mohamed died interstate. Hi) That the Urban Primary Court o f Bukoba erroneously granted the letters o f probate to the plaintiff (applicant herein) basing on Exhibit P2, which was a bogus Will. iv) That the transfer o f the title deed from the name o f the late Asgarali Yusufu Mohamed to the name o f Naushad Gulamabbas Fazal, was illegally procured and therefore, void ab initio, which in turn could not confer any title to the plaintiff. v) That there is no any dose relative o f the deceased, other than the blood brother one Hassana/i Yusuph Mohamed, whom according to the evidence on record, has never been in the country for quite long. 4 vi) That, the act o f the High Court to nullify the probate proceedings in the Primary Court while the said proceedings were not brought before the High Court in any way and further that the High Court was exercising its exclusive jurisdiction under land laws It was his further averments at para 9 of the affidavit that the learned Judge declared the letters of administration granted by Bukoba Urban Primary Court null and void without having called the proceedings so as to satisfy himself on its correctness and legality or otherwise. He contended that, the legal irregularity is a ground for extension of time and referred the Court to the case of Efrasia Mfugale vs Andew J. Ndimbo, Civil Application No. 38/10 of 2017. He added that, since there are illegalities in the decision intended to be challenged, he implored the Court to exercise its discretion and grant the application, lest it create bad precedent in future as per the doctrine of stare decisis. He cited the cases of Principal Secretary, Ministry of Defence and National Service vs Devram Valambhia [1992] T.L.R. 185 and Lyamuya Construction Company Limited vs Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) to back up his arguments. As alluded to above, the respondents opposed the application. It was the submission of Mr. Mayenga that, the applicant has failed to exhibit sufficient cause for the delay to request the proceedings as required under rule 10 of the Rules. Elaborating, the learned counsel submitted that, Civil Appeal No. 466 of 2020 was withdrawn on 25th November, 2021 but the application at hand was filed on 13th December, 2021, that is about 20 days later. Yet, nowhere has the applicant accounted for the said delay. He further contended that, neither in the notice of motion nor in the affidavit has the applicant stated if there is any initial appeal process that was going on. As regards the point of illegality raised by the applicant, Mr. Mayenga argued that, it is trite law that the same has to be apparent on the face of the record and not the one that would require fishing an explanation for its justification, as the case in the present matter. According to him, the pointed-out illegalities have not passed the test as the trial Court had the mandate to give the said orders complained of considering that the High Court has unlimited jurisdiction including correcting the errors done by the lower courts, as it did. Rounding-up, Mr. Mayenga insisted that, there was no any illegality committed by the trial court, and the alleged error, if any, was supposed to be brought to the Court as a ground of appeal. Mr. Mbekomize wholly agreed with Mr. Mayenga's submission, insisting that, there was no any illegality to justify the grant of the extension of time sought. He elucidated that, the High Court in this case, had a duty to verify the validity of the Will and it did so by stipulating the quality of a valid Will which according to him, did not require it to go through the primary court proceedings which granted it. He thus, implored the Court to dismiss the application. In his rejoinder, Mr. Matete submitted that, among the appeal steps taken by the applicant is the filing of this application, as such Mr. Mayenga's contention on this aspect was incorrect. Mr. Matete refuted the alleged failure to account for the period between the withdrawal of the appeal to the filing of this application asserting that, paragraphs 14 of the applicant's affidavit is clear that, the same was the time spent for researching and preparing this application for filing. Thus, accounted for. Mr. Matete conceded to the asserted unlimited powers of the High Court. However, qualified the same by adding that, each jurisdiction is created by statute. As such, the governing law when the learned Judge presided over the matter at hand was Land law. He further contended that, the application of other laws including probate laws, was the issue the applicant intends to interrogate at the Court after being granted the extension of time sought, as the applicant believes that the High Court went overboard its powers and reached an erroneous decision as a result. It was his contention that, the said flaws cannot be just errors of taw, rather, are illegalities as they touch the jurisdiction of the High Court, hence calls for the Court's intervention. He restated his prayer to have this application granted for the reasons above stated, with costs. In the course of composing the ruling, the Court wanted to satisfy itself as to the tenability and competence of the application, in the wake of the followings:- i) withdrawal of the Civil Appeal No. 466 of 2020, having in mind that the notice of appeal became ineffectual, and ii) reason for requesting the records for appeal purpose while the filing of Civil Appeal No. 466 of 2020 presupposes the granting of the documents intended to be requested, to the applicant. Since the record of application is silent on the two issues above, the Court decided to recall the counsel for the parties to address the raised observations. On 3rd April, 2024, Messrs Matete and Mbekomize addressed the Court virtually from Bukoba Urban and Muleba Districts respectively, while the Court sat in Dar es Salaam. Addressing the pointed-out observations, Mr. Matete submitted that, in his view, this application is tenable and competent. He contended that, there is no law which oblige the applicant who requests for relevant documents for appeal purpose, to verify whether the notice of appeal is present or attach the same in his application. As such, the application cannot be rendered incompetent just because the notice of appeal has not been mentioned in the affidavit or attached. He argued that, the issue cannot be a question of law as it needs evidence contrary to the principle laid down in Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696. According to him, the proper place to question the presence of the notice of appeal is at the Court, during the appeal proper, and not in this application. Adding that, asking for it at this stage is premature. He insisted that, the presence of the notice of appeal document is not a necessary document to warrant the grant of this application. Distinguishing the two fora for the applications of extension of time to file the notice of appeal and applying for copies of the requisite documents from the Registrar, Mr. Matete submitted that, the notice of appeal is provided under rule 83 (1) of the Rules and filed at the High Court before transmitted later to the CAT under rule 85 of the Rules. He went on that, in case of applying for filing of the notice of appeal out of time, the applicant has to apply first at the High Court, and later to the Court as a second bite, if refused by the High Court. While for the letter to the Registrar requesting for documents for appeal is provided under the proviso to rule 90 (1) of the Rules and the one with the mandate to grant the same is the Registrar after the grant of the extension of time by a single Justice in case of delay to apply for the said documents. In that context, each one is a stand-alone process with no connection as regards their application for. Regarding the second observation, Mr. Matete conceded that, the applicant had already been availed with the documents intended to be requested from the Registrar, upon the grant of leave to do so. However, since the incompetence that necessitated the withdrawal of the appeal was the delay in requesting them, it goes that, the Registrar had no jurisdiction the avail them to the applicant, and the purported grant was null and void ab initio. In other words, the applicant legally has no such documents, and that is why the applicant prays to be extended time within which to apply for the same. He invited the Court to invoke Section 3A of the Appellate Jurisdiction Act No 141 of 2019 (the AJA) and grant this application. When invited to address the two observations, Mr. Mbekomize was of the view that this application is untenable and incompetent before the Court. Elaborating, he stated that, since the applicant had already filed Civil Appeal No. 466 of 2020, it means that he already had the 10 documents he intends to request again from the Registrar if the prayed leave to do so would be granted by this Court. As such, this application is obsolete and serves no purpose, he argued. Mr. Mbekomize went on to submit that, the applicant's contention that, the Registrar granted the documents to the applicant without jurisdiction was supposed to be depicted into the applicant's affidavit, short of it, the same amount to words from the bar, hence no evidential value can be accorded to. He went on submitting that, questioning about the notice of appeal in this application is correct contrary to Mr. Matete's assertion that the question is premature, lest the Court waste its precious time on a non-starter matter. He went on to submit that even if the question is not a point of law as argued by Mr. Matete for requirement of evidence, it was his contention that, the evidence required was supposed to be in the affidavit of the applicant so as to show that some necessary steps have already been taken place including the obtaining of the notice of appeal, but there is none. He argued that the omission has the effect of rendering this application untenable. Mr. Mbekomize added that, he has no qualms with the explained distinction as regards requesting for the extension of time for the notice of appeal and for the letter to the Registrar for the documents for appeal, but in his view, the applicant 11 cannot request for the documents which have already been given to him, arguing this to be the reason why this application is not tenable and incompetent before the Court. I have heard the parties' reactions which are basically opposing to each other. Indeed, the applicant had previously lodged Civil Appeal No. 466 of 2020 and later withdrew it for lack of competence. According to the applicant, the incompetence was the result of his failure to write a letter to the Registrar to requesting for relevant documents for appeal. Thus, contrary to the dictates of rule 90 (1) of the Rules. However, despite the said delay, the Registrar went ahead and granted the requested documents to the applicant. In the circumstances, there is no gain saying that, the granting of the documents was null and void due to lack of jurisdiction on the Registrar's part. As such, the purported grant was void ab initio as rightly submitted by Mr. Matete. It was the contention of Mr. Mbekomize that, the applicant was availed with the requisite documents for appeal and that is why he was able to lodge the previous appeal, which is true, but since the Registrar had no jurisdiction to do so, the grant was illegal. It was as if no documents were availed to the applicant at all. In other words, currently, the applicant has no requisite documents for appeal purpose as the grant was a nullity. 12 I do not want to be detained by the other observation regarding the collapse of the notice of appeal following the withdrawal of the appeal by the applicant. Essentially, I agree with Mr. Matete that, the question whether a notice of appeal is available or not has nothing to do with this application. Indeed, the question will be asked by the Court on appeal if the application would be granted. In my view, the Court in this application is strictly required to determine whether or not the applicant has complied with rule 10 of the Rules, that is by exhibiting good cause to warrant the grant of the extension of time sought. As such, enquiring about it in this application is indeed, premature. With respect therefore, I beg to differ with Mr. Mbekomize's submission on this aspect. Basing on what was discussed above, this application in my view is tenable and competent before the Court. I now revert to determine whether or not this application is meritorious. The law, under rule 10 of the Rules, requires a party who seeks an extension of time to advance good cause for the Court to exercise its discretionary power to extending time. It provides: "The Court may, upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal, for the doing o f any 13 act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act/ and any reference in these Rules to any such time shaii be construed as a reference to that time as so extended. As to what exactly constitutes "good cause" has been left to the discretion of the Court. Essentially, there is no hard and fast rule in establishing it. Nevertheless, the case of Lyamuya Construction Company vs Board of Registered Trustees of Young Women Christian Associated of Tanzania, Civil Application No. 2 of 2010 (unreported) has laid down some factors to be considered when determining "goodcausd'. These are: (a) The applicant must account for all the period for delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, negligence or sioppiness in the prosecution o f the action that he intends to take; and (d) I f the court feels that there are other sufficient reasons, such as the existence o f a point o f iaw o f sufficient importance; such as the illegality o f the decision sought to be challenged. (See also Dar es Salaam City Council vs Jayantilal P. 14 Rajani, Civil Application No. 27 of 1987 (unreported); The Principal Secretary, Ministry of Defence and National Service vs Devram P. Valambhia [1992] T.L.R. 387; and Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (unreported)). It is on record that, the applicant withdrew his appeal on 26th November, 2021 and filed this application on 13th December, 2021, which is a lapse of 17 days and not 20 days as submitted by the counsel for the respondents. It was Mr. Matete's argument that the days lapsed were used for researching and preparing this application for filing in Court. According to him, the time lapsed was therefore accounted for. On the other hand, the respondents' counsel were of different view that, the days were not accounted for. To say the least, I wholly join hands with the counsel of the respondent's argument on this aspect. The law is long settled that, the applicant is required to account for each day of delay. [See: Hassan Bushiri vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007, Sebastian Ndaula vs Grace Rwamafa, Civil Application No. 4 of 2014, and Omary Makunja vs Republic, Criminal Application No. 88 of 2018 (all unreported)]. Suffice to state that the applicant has failed to account for the stated delay. Instead, he has just given a general or a blanket accounting of the days of delay, 15 which in my view is legally unacceptable. As such, I am constrained to rule out that, the applicant has failed to account for the 17 days of delay. The applicant in this application is also alleging illegality. Elaborating he stated that, the trial court had no jurisdiction to give the orders listed above as per paragraph 7 of his supporting affidavit. It is settled law that where an issue of illegality is raised as a reason for applying for extension of time, such reason amounts to good cause. This position was stated in the case of Devram Valambhia (supra) wherein as follows: "In our view when the point at issue is one alleging illegality o f the decision being challenged, the Court has a duty, even if it means extending the time for the purpose to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record right", Further in VIP Engineering and Marketing Limited and Three Others vs Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006 CA (Unreported) the Court of Appeal patently stated: "It is therefore/ settled law that a claim of illegality 16 of the challenged decision constitutes sufficient reason for extension o f time under rule 8 regardless o f whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay". It follows then that an allegation of illegality by itself suffices for an extension of time. I am further aware that, the raised allegation of illegality must be apparent on the face of the record, such as the question of jurisdiction and not a point that would be discovered by long drawn argument or process. (See the case of Lyamuya Construction Company Limited vs Board of Registered Trustees of Young Women's Christian Association of Tanzania (supra). As regards the matter at hand, I am convinced that the points raised have complied with the stated requirement as the illegality complained of, touches the issue of jurisdiction. Though the counsel for the respondents contended that the alleged illegalities were not apparent on the face of the record, but with much respect, the argument is not supported by the record. Therefore, without going into merits of the same, I am satisfied that the alleged illegality suffices for the grant of an extension of time. For the foregoing reasons, I find the applicant has exhibited 17 good cause. Accordingly, I grant the application. It is hereby ordered that the applicant shall lodge his letter to the Registrar applying for requisite application within sixty (30) days from the date of the delivery of this ruling. Costs to be in the cause. It is so ordered. DATED at DAR ES SALAAM this 25th day of April, 2024. L. G. KAIRO JUSTICE OF APPEAL The Ruling delivered this 30th day of April, 2024 in the presence of Mr. Peter Joseph Matete, learned counsel for the applicant linked via- Video conference from High Court at Bukoba and Mr. Derick Zephrine holding brief for Mr. Remidius Mbekomize, learned counsel for the 1st and 2nd respondents, is hereby certified as a true copy of the original. 18