Industrial Project and Technical Services Ltd vs Sabri Mbaraka Salim and 4 Others (Civil Application No. 778/17 of 2024) [2025] TZCA 938 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PODOMA CIVIL APPLICATION NO. 778/17 OF 2024 INDUSTRIAL PROJECT AND TECHNICAL SERVICES L T D .............. APPLICANT VERSUS SABRI MBARAKA SALIM ........................ . ............................. l5T RESPONDENT THE COMMISSIONER FOR LA N D ................................. - ...... 2 nd RESPONDENT KIGAMBONI DEVELOPMENT AG EN CY .................................... 3 rd RESPONDENT THE EXECUTIVE DIRECTOR, KIGAMBONI MUNICIPAL COUNCIL............................................................ 4™ RESPONDENT THE HONOURABLE ATTORNEY GENERAL .......................... . 5 th RESPONDENT (Application for Extension of time to File Revision against the proceedings and decision of the High Court of Tanzania Land Division) (Mqava, JO dated the 19th day of January, 2017 in Land Case No. 282 of 2016 RULLING MAIGE, J.A.: This is an application for extension of time to apply for revision against the decision of the High Court Land Division (the HC) as per Mgaya, J dated 19th January, 2017 and the proceedings thereof which arose from Land Case No. 282 of 2016. The grounds for the application are pleaded in the notice of motion and have been substantiated by the affidavits deposed on the applicant's behalf by her principal officer one Franken Peter Lubeleje and her learned advocate one Sinare Zaharani. In the first place, the applicant alleges that the delay to apply for revision was not caused by her inaction i

but bonafide prosecution, without negligence, of the proceedings in Civil Application No. 638/17 of 2022 (the revisional application). In the second place, the applicant alleges existence of the following elements of illegality in the intended application for revision: (i) The applicant was denied a right to be heard. (ii) The issue o f ownership o f the suit property was determined in favour o f the first respondent without the parties therein being afforded a right to be heard. (Hi) The HC illegally disposed o f the suit, without triai, upon entry o f a defaultjudgment against the 2n dand 9 h respondents on a ground that there were no triable issues despite the serious factual contention between the parties on the ownership of the suit property. (iv) The HC lackedjurisdiction to enter defaultjudgment against the J d respondent without being moved by the first respondent. In opposition to the application, Mr. Edward Chuwa, learned advocate deposed an affidavit in reply on behalf of the first respondent whereas, on behalf of the second, third, fourth and fifth respondents an affidavit in reply has been deposed by Mr. Mathew Fuko, learned State Attorney. The counsel for the parties filed the relevant written submissions, which, at the hearings, were adopted to read as part of their oral arguments with further clarifications. The hearing of the application was partly virtual

to the extent that Mr. Stanley Mahenge, learned State Attorney who represented the last four respondents, appeared remotely from Dar Es Salaam while the other counsel were in physical appearance. The applicant was represented by Mr. Emmanuel Safari who teamed up with Mr. Razaro Buxay, both learned advocates; whereas, the first respondent was represented by Mr. Roman Selasini Lamwai, learned advocate. The facts from which the application traces its genesis can briefly but precisely be narrated as follows. The applicant is a juristic person which was incorporated under the laws of Tanzania way back in 1978. In 1997, however, it was dissolved, without winding up, and its name struck off the register of the companies as a defunct company. It is common ground that, in 1995, the suit property was allocated, by way of a letter of offer, to the applicant. Seemingly, in the course of the applicant's non-existence, the first respondent took possession of the suit property on the basis that it was part of the pieces of land that she had purchased from the original owner who had allegedly held it under either deemed right of occupancy or by reason of being in adverse possession of the same for a period of over 15 years. As a result, a suit in the name of the applicant (Land Case No. 192 of 2016) was commenced at the HC. It was, however, dismissed on 18th July, 2016 by the HC (Mkuye, J) after it had been noted that the applicant was not in 3

existence. Soon thereafter, the first respondent instituted a suit at the same court (Land Case No. 282 of 2016) against the last four respondents for a grant of title on the suit property after it had been subdivided in accordance with the third respondent's alleged proposal. The grounds for the claim were pleaded in paragraph 9, 10 and 11 of the plaint as follows; "9. That upon purchasing the said land from original owner as stated in para8 herein above, the Plaintiff made an application for the sub-division of the plot the J d Defendant in Council meeting held on 3rd day o f February, 2015, approved the sub-division and forwarded a request for the approval o f the subdivision to the 1st Defendant Copies o f the minutes o f the Council meeting and the communication between the Plaintiff, the local Authorities and the 1st Defendant through the Ministry's Permanent Secretary are annexed hereto as Annexure " P2" and "P3" collectively and the Plaintiffcraves to refer to them as part o f this Plaint" "10. That the 1st Defendant has refused to grant the plaintiff's application on the ground that there is a company known as M/S Industrial Projects and TechnicalServices Limited despite the fact that it has been legally established that such company does not exist Copies o f the communication between the Plaintiff's advocates and the 1st Defendant and his Permanent Secretary are annexed hereto as

Annexure "P4" and the Plaintiff craves to refer to them as part o f this Plaint". 11. That upon search in the Registry o f Companies by an officer o f the Plaintiff, it was confirmed that the said M/S Industrial Projects and Technical Services Limited had been stricken off the register o f companies and this was confirmed by the decision o f the High Court o f Tanzania, Land Case No. 192 o f 2016 and Miscellaneous Land Application No. 491 of 2016 brought by the purported company claiming the plot, which found as a fact the company was non-existent Copies o f the search report and the proceedings o f the High Court,; in Land Case No. 192 o f 2016 and Miscellaneous Land Application No. 491 o f 2016 are annexed hereto as Annexure "P5" collectively and the Plaintiff craves to refer to them as part o f this Piaint" Because the third and fourth respondents did not file written statements of defence, default judgments were entered against each of them. Believing that the pronouncement of default judgment against the third respondent and confirmation by the HC that the applicant was not in existence rendered the suit without triable issues, the first respondent through her counsel moved the HC for pronouncement of a judgment against the first and fifth respondents without trial. At the address of the issue, the second and fifth respondents through their counsel conceded that,

indeed the entry of default judgment against the third respondent had rendered the suit without triable issues. That aside, he informally raised a preliminary point that the suit was time barred which was, however, overruled and the HC observed: "In view o f the above, cause o f action arose in 2015 when the plaintiffprayer for subdivision was refused by the 1st defendant after the same was approved by the J d Defendant and not 1995 when the same suit plot was allocated to M/S Industrial Projects and Technical Services Ltd". Having said that, the HC considered whether triable issues existed in the circumstances, and established that there were no triable issues which would necessitate a trial. It, accordingly, pronounced a judgment against the second and fifth respondents. The applicant was aggrieved by the said decision. As she did not have legal existence, an omnibus application was lodged in 2020 for extension of time to apply for restoration of the name of the applicant in the register of the company and for the relevant substantive relief. The High Court, now Commercial Division, granted the application with the result that the name of the applicant was restored in the register of the company. That was on 19th March, 2021. Afterwards, the applicant lodged Misc. Land Application No. 419 of 2022 whose outcome is neither in the affidavit nor in the notice

of motion. Subsequently, the applicant filed revisional application which was, on 10th June, 2024, struck out for being time barred. The application at hand, which was filed on 27th September, 2024, is for an extension of time to file a similar application. As I said above, the applicant justifies the delay on account of prosecution of the revisional application. It was submitted, making reference to Mr. Share's affidavit that, the applicant became aware of the existence of the decision sought to be faulted in the intended revision on 16th August, 2022 when she was served through her attorney, a counter affidavit in opposition to the proceedings in Miscellaneous Land Application No. 419 of 2022. A day after, the applicant's attorney applied for perusal of the court file which was made available to him 30 days after. The revisional application, it was submitted, was filed on 17th October, 2022 and was struck out, on 10th June, 2024 for being time barred. From there to the date of filing the current application, it was submitted, the applicant was in the process of updating her records at the register of the companies. The counsel submitted further that even in the period before institution of the revisional application, the applicant had been proactive and diligent in taking necessary steps to protect her interest on the suit property by, among others, instituting Land Case No. 192 of 2016 after the first respondent had trespassed unto the suit property, the suit which was,

however, dismissed on the ground that the applicant was a defunct company. Further to that, he submitted, the applicant filed an application for restoration of her name into the register of the companies. He concluded, therefore that, the applicant was prevented by good cause from instituting the intended application within time. In rebuttal, Mr. Selasini submitted that, though the revisional application was struck out on 10th June, 2024, the current application was filed on 27th September, 2024 without the period in between being accounted for. The applicant, it was further submitted, have not justified the period between 19th January, 2017 when the decision in question was made to 27th September, 2024 when the current application was filed despite her previous application being struck out for being time barred. He submitted, therefore that, the applicant has not accounted for every day of the delay as per the principle in Bushiri Hassan v. Latifa Likio Mathayo, Civil Application No. 3 of 2017 (unreported). On his part, Mr. Mahenge joined hand with Mr. Salasini and added that, the period of more than three months from the striking out of the revisional application to the date of filing the current application has not been justified because, the affidavit is silent on when the applicant requested for updating the record at the register and when it was due. It is also suggestive in his submission which was based on the relevant affidavit 8

in reply that, in a situation where the wrong complained was allegedly committed during the period when the applicant had no legal existence, explanations as to why had it taken more than 20 years to apply for restoration was necessary. It was further suggested in his submission as per paragraph 5 of the relevant affidavit in reply that, in accordance with the record in the land registry, the suit property phased out of existence after the registrar of title had complied with the decision sought to be challenged by resurveying and subdividing the same. Having examined the affidavits both for and against the motion in line with the rival submissions, I will hereinafter determine whether the applicant's delay to apply for revision resulted from sufficient cause. Much as the Rules are silent on the factual circumstances within which sufficient cause for the delay can be implied, case law provides numerous tests which can be applied to establish existence of the same. The primary consideration being whether the applicant was prevented by unavoidable circumstances from pursuing the intended cause of action with the available time. In whatever case, the applicant is obliged as per the principle in Bushiri Hassan v. Latifa Lukio Mashayo (supra) to account for every day of delay. Importantly, the court is always expected to take into consideration the length of the delay of, and any explanation for the delay in pursuit of the intended action. See for instance, Lyamuya Construction 9

Company Limited v. Board of Trustees of Young Women Christian Association of Tanzania (Civil Application No. 2 of 2010) [2011] TZCA 513, TANZLII. In doing so, however, the Court has to contradistinguish between actual delay and technical delay. As per the decision of a single justice of the Court in Fortunatus Masha v. William Shija [1997] TLR 154 which was cemented, with some modifications, by the full Court in William Shija v. Fortunatus Masha [1997] TLR 213, technical delay occurs where the original proceeding though timely filed and prosecuted in good faith and without negligence, is subsequently struck out for being incompetent and thereby necessitating for refiling of the same. In here, the major justification is prosecution of the revisional application which was irrefutably struck out for being time barred. In my view, the fact that the said proceeding was held to be time barred is conclusive evidence that the time spent in prosecuting the same does not amount to technical delay. Otherwise, it was upon the applicant to justify the delay to institute the said revisional application first. The decision sought to be revised was delivered on 17th January, 2017 while the revisional application was lodged on 17th October, 2022. There is an interval of about 5 years in between. Be what as it may, this amount to inordinate delay. The contention by Mr. Safari is that, the applicant was not aware of the decision until on 16th August, 2022 when she was served with a counter

affidavit in Misc. Land Application No. 419 of 2022. It is a fact, however that, the dispute in the intended revision pertains to the suit property. As acknowledged in the affidavit, before the commencement of the suit sought to be challenged in the intended revision, the applicant had instituted a suit at the same court against the first respondent for ownership of the suit property which was dismissed in 2016 for want of legal existence on the part of the applicant. It is noteworthy that, the applicant's factual allegations in the said suit was that, the first respondent was in illegal possession of the suit property. Surprisingly, it took four years for the applicant to institute an application for restoration of her name in the register in order that she could have the necessary legal existence to protect her alleged interest on the suit property. I agree with the counsel for the respondents that the unexplainable applicant's silence for such a long period to apply for its restoration into the register despite being aware of there being the first respondent's adverse assertion of title on the suit property, is an apparent signification of serious negligence and lack due diligence, which are factors against grant of an extension of time. In any event, the applicant has not been able to account for each and every day of delay from the date of disposal of the revisional application to that of lodging this application. Mr. Safari's submission that the respective period was spent in updating the applicant's records in the register of

companies without there being factual deposition in the affidavit as to when the applicant actually requested for the alleged updating and when it was completed, cannot establish such requirement. Reason being that submissions are mere legal arguments from the bar with no evidential value whatsoever. In view of the foregoing and considering the inordinate delay and negligence herein exposed, justice will cry if time to pursue the intended application for revision is granted on account of the alleged prosecution of previous proceedings. Indeed, it is a matter of public policy that litigation must come to an end and parties should not, if I can borrow the wisdom in William Mpalange v. Lilian Bavu (Misc. Civil Application No. 501 of 2020) [2022] TZHC 10098, TAN ZLII, "be held captive to endless litigation." In addition and subject to what will be my finding on the ground of illegality, the deposition in the affidavits that the decision in question has already been executed may not be irrelevant. Those are my reasons in dismissing the first ground of the application This now takes me to the issue whether the applicant has demonstrated points of illegality sufficient to warrant an extension of time. The counsel are in agreement that in exceptional circumstances, illegality can by itself suffice as a ground for extension of time. Therefore, in

Principal Secretary, Ministry of Defence v. Devram Valambia [1992] TLR 182, it was observed: "When the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even it means extending the time for the purpose, to ascertain the point and, if the alleged illegality to be established, to take appropriate measures to put the matter and the record straight" It is worth noting that, for illegality to suffice as a ground as such, it must be apparent on the face of the record with significant importance. See for instance, the case of Lyamuya Construction Co. Ltd v Board of Registered Trustees of Young Women Christians Association of Tanzania(supra), where it was stated: "Since every party intending to appeal seeks to challenge a decision either on points o f law or facts, it cannot in my view, be said that every applicant who demonstrates that his intended appeal raises points o flaw should as o fright, be granted extension o f time if he applies for one. The Court there emphasized that such point o f law, must be that"of sufficient importance"and I would add that, it must also be apparent on the face o f the record, such as the question o fjurisdiction; not one that would be discovered by a long-drawn arguments or process."

In the above case, the Court refused to grant extension of time on illegality on the reason that the alleged illegality was based on controversial factual issue as to when did the cause of action accrue which could not be determined without a long drawn process. In particular, the Court observed that: " Certainly\ the two paragraphs, cannot be reconciled, and it would take a long drawn out process to get to the bottom of this, and decipher "the point o f law" or Illegality" in the decision that is sought to be challenged. I must therefore conclude that the applicant has failed to con vince me that there is a point o f law o f sufficient importance, involved in the intended appeal, to warrant extension o f time" The scope of the application of the principle was further clarified in Rovitha Kemilembe v. Mic Tanzania Limited (Civil Application No. 192/17 of 2021) [2023] TZCA 237, TANZLII where, like here, the application was for extension of time to apply for revision, and a single justice of the Court remarked: "As I understand the principle in the case of Lyamuya Construction Limited (supra), a decision does not become illegal merely because it is incorrect, however apparent the incorrectness may be. It only becomes illegal if it is reached without

jurisdiction or against the provisions o f the law or its principles." The Court was, in the above authority, inspired by the following statement of the High Court of Uganda in Nilefos Minerals Ltd v. Attorney General & Another (Misc. Cause No. 0184 of 2014) quoted by the Supreme Court of the same country in Uganda Taxi Operators & (OTODA) v. Uganda Revenue Authority (URA), Civil Application No. 52 of 2021 (unreported): "Illegality is when the decision making authority commits an error o f law in the process o f taking or making the act subject o f the complaint. Acting without jurisdiction or utra-vires or contrary to the provisions o f iaw or its principles are instances o f iiiegaiity." In more or less similar way, the High Court of Tanzania (Mruma, J) construed the phrase illegality in William Mpalange v. Lilian Bavu, Misc. Civil Application No. 501 of 2020 in the following words: "While I agree with the principle that where illegality is set as a ground for seeking extension o f time, court will always grant the application , but a party asserting illegality must sufficiently demonstrate his/her assertions. Court will not grant an extension o f time simply because illegality is mentioned. The applicant must go further and demonstrate

what has been done which is forbidden by law. The applicant is required to prove the illegality o f the proceedings." [Emphasis supplied] One of the alleged points of illegality in this matter is that, the applicant was denied a right to be heard. Mr. Safari submitted that, as the suit property was in the name of the applicant, hearing could not legally proceed without the applicant being afforded a right to be heard. In response, Mr. Selasini submitted (and it is common ground) that, the applicant was not in existence when hearing of the suit and the ultimate decision were being made as to be capable of being heard. Without much ado, I think, the complaint does not establish any element of illegality which would justify an extension of time as the right to be heard cannot, as a matter of common sense, be denied against a person who is incapable of being heard. Another complaint was that the decision in question was made in denial of the right to be heard on the part of the second and fourth respondents. Mr. Safari submitted that the said respondents were not heard on their preliminary point that the suit was time barred before the judgment was pronounced. Contrarywise, Mr. Mahenge who spoke for the said respondents, submitted, making reference to the proceedings attached in

the affidavits that, the said respondents were indeed heard. A similar submission was made by Mr. Selasini. From the factual set up of the application as portrayed herein and having had a quick perusal of the affidavits in support of the application and the annexures thereof, I am, prima facie, unable to decode any element of denial on the part of the first and fifth respondents of their right to be heard. Interestingly, in their affidavit in reply and submission made on their behalf, the said respondents who would have been the victim of the alleged denial and had an automatic right to appeal therefrom, confirmed that they were afforded such right. Mr. Safari also suggested that the approach taken by the HC was unprocedural. Assuming it is true, the alleged procedural irregularity cannot by itself render the decision illegal or a nullity in as long as a prima facie case of denial of a right to be heard has not been established. The applicant further alleges that the HC grossly misdirected itself by holding that there were no triable issues after entry of default judgments against the third and fourth respondents whereas the second and fifth respondents had serious contest on the ownership of the suit property. On the face of it, the complaint appears to be on the correctness or otherwise of the HC's finding on non-existence of triable issues. In my view, determination if the HC was wrong and whether the error, if any, constitutes an element of illegality; requires scrutiny of the pleadings and relevant

proceedings containing the parties' arguments at the HC which will obviously entail a long drawn process and arguments. As per the principle in Lyamuya's case , that is an indication that the alleged illegality is not apparent on the face of the record as to justify an extension of time. Yet another complaint was that the rights of the parties were determined and concluded without trial. Seemingly, Mr. Safari's contention was based on the proposition that the HC had no jurisdiction to pronounce a judgment without trial. He did not cite any provision or principle of law, however, which absolutely forbid the HC to pronounce a judgment without trial even where there are no triable issues. Conversely, Mr. Selasini cited Order XV rule 1 of the Civil Procedure Code (RE, 2002) which provided as follows: " 1. Where at the first hearing o fa suit it appears that the parties are not at issue on any question o f iaw or o f facts the court may at once pronounce judgment" It may appear apparent to me, in view of the foregoing discussion that, the error complained of, assuming it exists, does not amount to jurisdictional error as to render the decision and proceedings thereof illegal or a nullity. It is not of significant importance any way. The last complaint is that the HC lacked jurisdiction to enter default judgment against the 3r d respondent. The respective judgment was 18

pronounced on 8th November, 2016 purportedly under Order VIII rule 14(1) of the Civil Procedure Code [R.E. 2002) which was applicable by then. It provided as follows: "14 (1) Where any party has been required to present a written statement o f defence under sub- ruie (1) o f ruie 1 o f this Order and fails to present the same within the time fixed by the court, the court maypronounce judgment against him or make such order in relation to the suit or counterclaim, as the case may be, as it thinks fit" In the notice of motion, however, the applicant has made it clear that the intended application for revision is against the ruling and drawn order of the HC dated 19th January, 2017. Therefore, Mr. Selasini submitted that, the complaint is totally irrelevant as it is not in the scope of the intended application for revision. To the contrary, Mr. Safari submitted that, the same is relevant because the applicant intends to challenge both the decision dated 19th January, 2017 and the whole proceedings. In its nature, however, a default judgment is a final decision with the effect of finalizing the controversy between the parties. It follows, therefore that, if the applicant desired to also challenge the default decree in the revision for which extension of time is sought, it should have been express in the notice of motion. On that account, therefore, the complaint cannot be relevant as a

ground for extension of time herein and it shall, accordingly, not be considered. The application cannot be granted on illegality, therefore. In the final result and for the foregoing reasons, I find the application devoid of any merit. It is accordingly dismissed with costs. DATED at DODOMA this 3rd day of September, 2025. Ruling delivered this 4th day of September, 2025 in the presence of Mr. Ms. Josepha Tewa, learned counsel for the applicant, Mr. Roman Selasini Lamwai, learned counsel for the 1s t respondent, Mr. Stanley Mahenge, Senior State Attorney for the 2n d , 3rd , 4th and 5th respondents via Virtual Court and John Banene, Court Clerk; is hereby certified a true copy of the 0 1 I. J. MAIGE JUSTICE OF APPEAL