Ahmad Issa Ching'ang'a & Others vs Tanzania Ports Authority (TPA) & Others (Civil Application No. 715 of 2024) [2025] TZCA 1170 (28 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 715 OF 2024 AHMAD ISSA CHING'ANG'A AND 170 OTHERS ..... . ................. APPLICANTS VERSUS TANZANIA PORTS AUTHORITY (TPA) .................. . .......... . 1 st RESPONDENT MTWARA DISTRICT COUNCIL .......................................... 2 nd RESPONDENT THE COMMISIONER FOR LAND ..................................... . 3 rd RESPONDENT THE ATTORNEY GENERAL . .................................. . .............4™ RESPONDENT (Application for Extension of Time from Proceedings, Ruling and Order of the High Court of Tanzania Land Division at Mtwara) fNawembe. J.^ l dated the 30th day of November, 2020 in Land Case No. 05 of 2019 RULING 26th August, & 28th October, 2025 MAKUNGU. J.A: By way of notice of motion supported by two affidavits one was sworn by Ahmad Issa Ching'ang'a who is the 1s t applicant herein and second one was sworn by Mr. Rozan Senzia Mbwambo, the counsel for the applicants. The application is made under rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) seeking an order to extend time within which to serve the respondents documents namely, a notice of appeal and copy of their letter requesting for copy of the proceedings in i the High Court for appeal purposes. They have fronted two grounds as set out in the notice of motion. Those grounds are paraphrased to read as follows: one, that the applicants' attempt to serve the Solicitor General at Mtwara was refused, and the applicants were directed to serve the respondents through Head Offices in Dar es Salaam and two, due to the prevailing heavy rains on those days, some floods had hit between 7th and 13th January, 2021 so the applicants representative could not travel and effect service timely in Dar es Salaam. The historical back ground of this matter it goes thus: The applicants had sued the respondents before the High Court of Tanzania at Mtwara (the trial Court) in Land Case No. 5 of 2019. In that suit the applicants sought, among other things, one, a court's declaratory order that they are rightful owners of the pieces of land comprising plot No. 1/1 Port Additional Area, Msanga Mkuu Ngwale (the suit land), and two, that the survey on that suit land, the subsequent registration and reallocation were unlawful, since the respondents did not allow them to participate in the purported allocation of the suit land to the 1s t respondent on 12th December, 2007. The respondents in their Written Statement of Defence denied all the claims. They as well successfully raised a preliminary objection that, the suit was time barred, since, owners of the suit land 2 were compensated between the years 1999 and 2001 and that, the cause of action arose in 2001 latest, when the last person was compensated. The suit, therefore, was dismissed for being time barred on 30th November, 2020. Dissatisfied by that decision, the applicants filed a notice of appeal on 29th December, 2020. They wrote a letter to the Registrar requesting to be supplied with the copy of the proceedings, the same day. However, the applicants failed to serve copies of the said documents to the respondents within the prescribed time, hence the instant application. On the day the application was called on for hearing, Mr. Ndanu Emmanuel, learned counsel appeared for the applicants whereas the respondents were represented by Mr. Daniel Nyakiha, learned Senior State Attorney assisted by Mr. Maroha Wambura, learned State Attorney. Mr. Emmanuel commenced his submission by adopting the notice of motion, the two affidavits and the applicants' written submissions in support of the application. He then informed the Court that he had nothing to add, and since the respondents did not file their affidavits in reply, he believed that all what was stated in the two affidavits are not contested. He prayed the application be granted. 3 Mr. Nyakiha submitted that, the grounds in the notice of motion are wholly bereft of substance. He argued that the applicants failed to give good reasons for the delay. He pointed out that the applicants claimed that there were heavy rains and floods in Mtwara but they failed to attach any evidence from weather authority TMA. They managed to serve their advocate in Dar es Salaam but they failed to serve the respondents, and in the notice of motion there was an email address of Ms. Lucy Kimaryo but they failed to utilize it to send those documents. Based on those reasons, he concluded that the applicants failed to act diligently to serve the respondents. He relied on the case of Omary Ally Nyamalege & Others v. Mwanza Engineering Works [2018] TZCA 230 where the applicants have been required to account for each day of delay, but they failed to do so. On the issue of illegality in the ruling, the learned Senior State Attorney replied that it has nothing to do with the service of the respondents. He cited the case of Charles Richard Komba v. Kinondoni Municipal Council [2023] TZCA 137. Based on that submission, he prayed the Court to dismiss this application. In rejoinder, Mr. Emmanuel insisted that the applicants in their affidavits managed to account for each day of the delay because the 4 respondents failed to indicate the period the applicants failed to account for as required. On the issue of illegality, he replied that the applicants have raised that issue at paragraphs 23, 24 and 25 of the affidavit of one Ahmadi Issa Ching'ang'a where the applicants wishes this Court to hear and make a determination on merit and demerit of the illegality complained of. He relied on the case of Principal Secretary, Ministry of Defence and National Service v. Devram P. Valamblia (1992) T. L. R. 185. He prayed this Court to allow this application. Upon the consideration of the instant application, the issue for determination is whether the application should be granted. The Court's power to extend time under rule 10 of the Rules is discretionary, but it has to be judiciously exercised upon good cause being shown by the litigant who wishes the Court to extend such time. Likewise, there is no proper definition of "good cause", nevertheless the Court considers factors like, the length of delay involved, the reasons for the delay; the degree of prejudice, if any, that each part stands to suffer depending on how the Court exercises its discretion; the conduct of the parties, and the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right 5 of appeal or revision. See, the Court decision in Attorney General v. Tanzania Ports Authority & Another, [2016] TZCA 2422. Furthermore, the Court has pinpointed illegality in the decision sought to be challenged as the reason for the extension of time, see the cases of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, [2011] TZCA 4 and Principal Secretary, Ministry of Defence and National Service (supra) In the instant application, the applicants have failed to account for each day of the delay. As the record stood, the notice of appeal and letter requesting documents for appeal were filed on 29/12/2020. Therefore, service aught to be within fourteen (14) days, which means before 13/1/2021. The record does not show when the Civil Application No. 8/07 of 2021 (the first application for extension of time) was filed, but it shows that up to 22/1/2021, the same had not been filed yet. Similarly, on 28/6/2024, the application was struck out, and an instant application was filed on 28/8/2024. Ostensibly, the period for delay was unaccounted for by the applicants; however, the applicants have maintained that the decision sought to be appealed contains an illegality. Clarifying of the illegality, they argued that the suit before the High Court was filed within 6 time, as calculating the period from 12/12/2007, when the suit land was allocated to the 1s t respondent, to 12/7/2019, when the case was filed, twelve (12) years had not yet expired. Therefore, the High Court had failed to ascertain the jurisdiction of the court by its failure to discover that the suit was filed within the prescribed twelve (12) years. In light of the above, I think the issue in contention is whether the matter before the High Court was filed within the prescribed time; thus, the contention falls within the ambit of illegality, as it touches the jurisdiction of the court. In the case of Patrobert D. Ishengomba v. Kahama Mining Corporation Limited, (Barrick Tanzania Bulyankulu) & 2 Others, [2014] TZCA 2314 the Court made the following observation; "... I am o f the considered view that even though there is a considerable deiay in the application, pertinent issue have been raised. Firstly, there is an allegation o f illegality, irregularities and impropriety, which cannot be brushed aside''. For the foregoing reasons, I have the view that the applicants have advanced good cause to warrant extension of time. In the final result, this application succeeds and that the applicants should serve the said documents to the respondents within twenty one (21) days from the date of delivered of this ruling. Order accordingly. DATED at DODOMA this 24th day of October, 2025 Ruling delivered this 28th day of October, 2025 in the presence of Mr. John James, learned counsel for the applicant and Mr. Daniel Nyakiha, learned Senior State Attorney for the respondent both through Virtual Court and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. 0. 0. MAKUNGU JUSTICE OF APPEAL 8