Nyabazere Gora vs Charles Buya (Civil Appeal No. 164 of 2016) [2019] TZCA 454 (6 December 2019)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MUGASHA, 3.A.. MWANDAMBO, J.A., And LEVIRA, J.A.) CIVIL APPEAL NO. 164 OF 2016 NYABAZERE GORA.......................................................... . .................... APPELLANT VERSUS CHARLES BUYA ...... . .......... . ........................................... . ..................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (SumarLJ.) dated the 20th day of August, 2013 in Misc. Land Application No. 43 of 2011 JUDGMENT OF THE COURT 3rd & 6th December, 2019. MUGASHA. 3.A.: The respondent successfully sued the appellant before the Ward Tribunal of Salama, Bunda District on a claim of ownership of a piece of land within Salama 'A' Village. The appellant unsuccessfully appealed to the District Land and Housing Tribunal at Musoma (the DLHT) which dismissed his appeal. Since the appellant had delayed to file an appeal before the High Court, she unsuccessfully lodged an application seeking extension of

time to lodge an appeal whereby the application was dismissed and hence the present appeal. To understand what underlies this appeal, a brief background to this appeal is to the effect that, way back in 2010, the respondent lodged a case against the appellant seeking to be declared a lawful owner of a piece of land which the respondent had cleared for agricultural purposes in 1985. During the trial before the Ward Tribunal, the appellant contested the case claiming to have been allocated the land in question as a plot by the Village Council of Salama 'A' Village for the purposes of constructing a building. Unimpressed by the appellant's account and upon being satisfied that she had encroached into the respondent's land, the Ward Tribunal ruled in favour of the respondent who was declared the rightful owner of the suit premises. The appellant's first appeal before the DLHT was unsuccessful whereby, in its decision handed down on 21/2/2011 it ruled in favour of the respondent and sustained the verdict of the Ward Tribunal. Still undaunted, as the appellant was desirous to pursue an appeal before the High Court, but had run out of time, initially, she unsuccessfully applied for extension of time to lodge an appeal against the decision of the DLHT. The

application was dismissed on 20/8/2013 upon the following Order by the learned High Court Judge which reads thus:- "7776? record show s that the judgm ent was delivered on 21/02/2011 and according to the applicant's affid avit she requested fo r copies o f judgm ent which were supplied to her on 15/04/2011. However, she could not file this application u n til 16/05/2011 after the elapse o f 30 days. The applicant has not given o r shown to this court why a fte r she was supplied with copies o f judgm ent she failed to file th is application u n til after 30 days elapse. This show s how unserious she was. I tend to believe the respondent that it is after the respondent file d h is b ill o f costs that is when the applicant waked up and think o f appeal. S h e is in fa c t d e la y in g th e re sp o n d e n t's rig h ts u n n e ce ssa rily ; th e in te n d e d a p p e a l is an

a fte rth o u g h t. I d ism iss th e a p p lic a tio n w ith c o s ts " [Em phasis supplied]. The bolded expression contains extraneous issues considered by the Judge. We shall revert to it at a later stage. It is against the said backdrop, the appellant is now in this Court seeking the reversal of the decision of the High Court of Tanzania refusing her an extension of time to lodge the respective appeal out of time from the decision of the DLHT in Land Appeal No. 129 of 2010 originating from Land Dispute No. 34 of 2009 before the Ward Tribunal of Salama. The grounds of complaint are as follows:-

1. That, the High Court o f Tanzania a t Mwanza erred in Law to dism iss the Application after the lapse o f 30 days, whereas the tim e o f lim itation fo r a person aggrieved by the Decision o f the D istrict Land and Housing Tribunal to the High Court is sixty days a p er the provisions o f section 38 (1) o f the Land D isputes Courts Act, Cap 216 RE. 2002.

2. That the High Court erred in law in dism issing the Application on m ere suspicious b e lie f that the A ppellant file d an Application fo r extension o f tim e to lodge an appeal out o f tim e, after the respondent had file d B ill o f Costs, a fa ct which am ounts to total denial o f R ight o f being properly heard, hence a violation o f Principles o f N atural Justice.

3. That, the High Court erred in law when it fa ile d to take into consideration the fact, the A ppellant's delay to file Appeal before the High Court was the T rial D istrict Land and Housing Tribunal's in ab ility to supply appellant the requisite docum ents in tim e, a fact which led A ppellant to apply before the High Court fo r extension o f tim e to lodge an appeal which was dism issed by the High Court. To buttress the grounds of appeal, the applicant filed written submissions which basically echoe the grounds of complaint to the effect that, the delay to lodge the appeal before the High was not due to the appellant's fault but rather, the delayed supply of the judgment of the DLHT.

In view of the above, the appellant is now challenging the said dismissal whose thrust brings to question the learned Judge's refusal to enlarge time under section 38 (1) of the Land Disputes Courts Act [CAP 216 RE.2002] (the LDCA). At the hearing of the appeal before us, parties appeared in person unrepresented. When invited to address the Court on the appeal, the appellant adopted the written submissions without more. In the submissions, she basically faulted the High Court's refusal to extend time to appeal to the High Court but expressed her belief that the application before the High Court had met the threshold requirement of sufficient cause on account of the delayed supply of the impugned judgment and proceedings by the DLHT. She thus urged us to allow the appeal. On the other hand, the respondent opposed the appeal on ground that, before the High Court the appellant did not account for the delay to lodge the application for extension of time to appeal against the decision of the DLHT. He thus urged us to dismiss the appeal. Having considered the submissions of the parties and examined the record of appeal, the crucial issue for our determination is whether there is

any justification for this Court to interfere with the High Court's exercise of its discretion under the proviso to section 38 (1) of the Land Disputes Courts Act CAP 216 RE. 2002 which vest the High Court with discretion in the following terms: (1) A ny party who is aggrieved by a decision or order o f the D istrict Land and Housing Tribunal in the exercise o f its appellate or revisionai ju risd iction , m ay within sixty days after the date o f the decision o r order, appeal to the High Court (Land D ivision): P ro v id e d th a t th e H ig h C o u rt (L a n d D iv is io n ) m a y fo r g o o d a n d s u ffic ie n t cau se e x te n d th e tim e fo r fiiin g a n a p p e a l e ith e r b e fo re o r a fte r su ch p e rio d o f s ix ty d a ys h a s e x p ire d . In terms of the cited provision the extension of time is a matter of discretion on the part of the High Court which must be judiciously be exercised to consider if there is good and sufficient cause for the delay. As

to what the applicant has been doing since becoming aware of the fact that he had not filed an appeal after obtaining the impugned decision and proceedings is one of the questions that shall guide us in the determination of the existence or otherwise, of good cause in the application before the High Court which is a subject of this appeal. This Court dealt with a similar question in r o y a l in s u r a n c e T a n z a n ia lim it e d vs. k iw e n g w a s t r a n d h o t e l lim it e d , Civil Application No. 116 of 2008 (unreported) where an applicant therein was required to show sufficient reason. The Court had stated "It is trite iaw that an applicant before the Court m ust satisfy the Court that since becom ing aware o f the fa ct that he is out o f tim e, a ct very expeditiously and that the application has been brought in good faith . " In the supporting affidavit the appellant had deposed to have made a follow up for copies of judgment and proceedings from the date of judgment until when she was supplied with the same on 15/4/2011. She averred to have been unable to purchase copies because the Tribunal Clerk did not have Exchequer Receipts. However, the applicant did not annex 8

the affidavit of the Clerk to confirm if at all he/she had run out of the exchequer receipts to enable the appellant herein to purchase the documents in question which renders her assertion on absence of the Tribunal clerk not supported by any proof. That apart, the appellant did not disclose as to when she managed to purchase the documents in question and why did she not apply for extension of time earlier than 16/5/2011 when the application before the High Court was filed. It is settled position of the law that, in an application for extension of time, the applicant has to account for every day of the delay: See- b a r ik i ISRAEL VS. t h e r e p u b lic , Criminal Application No. 4 of 2011(unreported). The appellant's suggestion that she had been pursuing the matter which made her to delay to file an appeal, is discrepant because after the expiry of the time limit of 60 days on 20/4/2011, she did not account for the 25 days' delay considering that she had been supplied with the impugned decision of the DLHT on 15/4/2011. In view of the above as earlier intimated, is this one of the instances warranting interference of the discretion of the High Court? It is settled position of the law that this Court cannot interfere with the High Court's

exercise of its discretion unless it is satisfied that the decision was made on a wrong principle or that certain factors were not taken into account. This was emphasized in the case of m bogo a n d a n o t h e r vs. sh a h [1968] 1 EA 93, where the Court said: 7 think it is w ell settled that this Court w ill not interfere with the exercise o f its discretion by an in ferio r court unless it is satisfied that the decision is c ie a riy w ron g, b e ca u se it h a s m isd ire c te d it s e lf o r b e ca u se it h a s a cte d on m a tte rs on w h ich it sh o u ld n o t h ave a cte d o r b e ca u se it h a s fa ile d to ta k e in to co n sid e ra tio n m a tte rs w h ich it sh o u ld h ave ta k e n in to c o n sid e ra tio n a n d in d o in g so a rriv e d a t a w ron g c o n c lu sio n ." [Emphasis added] We wholly subscribe to the above standpoint, which we think is equally applicable to the instant appeal questioning a High Court Judge's exercise of his discretion. 10

In view of what we have endeavoured to discuss, in particular what had transpired before the High Court, we are of the clear opinion that, though the learned High Court Judge had considered extraneous issues, as earlier pointed out which was irregular, however she judiciously exercised discretion in refusing the appellant extension of time to lodge an appeal against the decision of the DLHT on account of the appellant having not exhibited good and sufficient cause. In consequence, we dismiss the appeal in its entirety with no order as to costs. DATED at MWANZA this 4th day of December, 2019. S. E. A. MUGASHA JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL This Judgment delivered this 6th day of December, 2019 in the presence of the Appellant and Respondent in person, is hereby certified as a true copy of the original. 'AWm | fl . KAINDA r REGISTRAR OF APPEAL li