Safi Msafiri Mtumbi @ Mama Sim Ba vs Evans Fram Others (Civil Application No. 949/17 of 2023) [2025] TZCA 930 (3 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 949/17 OF 2023 SAFI MSAFIRI MTUMBI @ MAMA SIM BA ............. . .................... APPLICANT VERSUS EVANS FRANK....................................... . ........................ . 1 st RESPONDENT HAMIS KASSIMU RAMADHANI ........................................... 2 nd RESPONDENT RAMADHANI KASSIMU YUSUFU.........................................3 rd RESPONDENT [Application for extension of time within which to lodge a Notice of Appeal against the decision of the High Court of Tanzania (Land Division) at Dar es Salaam] (Mgonya, J.) dated 31st day of May, 2019 in Land Case No. 292 of 2015. RULING 26th August & 3 rd September, 2025 MWAMPASHI. J.A.: This is an application for extension of time to file a notice of appeal to this Court against the decision of the High Court of Tanzania (Land Division) at Dar es Salaam, in Land Case No. 292 of 2015 dated 31.05. 2019. It is a second bite application under rule 45A (1) (a) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) following the refusal by the High Court of a similar previous application on 11.10.2023. The application is supported by an affidavit of the applicant and that of her i

advocate Mr. Samson Edward Mbamba. In opposition, there is an affidavit of the 1st respondent's advocate Mr. Augustino Mariano Mwanyigu. The background to this matter, as it can be gathered from the record, alb eit in brief, is as follows; In January 2013, the 1st respondent entered into a two years' tenancy agreement of a business store or shop premises (the store) situated at Kariakoo within the city of Dar es Salaam with the 2n d and 3rd respondents. After taking possession of the store, the 1st respondent allegedly stockpiled it with cartons of cosmetics. Sometime in February, 2014, in the absence of the 1st respondent, the applicant, on the pretext that before being leased to the 1st respondent, the store had been leased to her, allegedly broke the store and took away the 1st respondent's cartons of cosmetics. When the case was reported to the police, the applicant allegedly admitted to have removed the 1st respondent's cosmetics from the store. He took the police where he had kept them and that is when it was found that cosmetics valued at TZS. 35, 630,000.00 had been damaged hence the institution of High Court Land Case No. 292 of 2015 by the 1st respondent. In his suit before the High Court, the 1st respondent sued the applicant jointly with the 2n d and 3rd respondents. Amongst the reliefs sought by the 1st respondent were for him to be paid TZS. 100,000,000.00 2

by the 2n d and 3rd respondents being general damages for breach of tenancy contract and for payment of TZS. 35,000,000.00 by the applicant being the value of the damaged cosmetics. The suit was heard ex parte as against the applicant, the 2n d and 3rd respondents. In its judgment dated 31.05.2019, while the High Court found the 2n d and 3rd respondents not blameworthy, the applicant was found to have broken into the store and removed the 1st respondent's cartons of cosmetics from therein hence frustrating the tenancy agreement between the 1st, 2n d and 3rd respondents. The applicant was thus, condemned to pay to the 1st respondent TZS. 35,630,000.00 being the value of the damaged cosmetics plus interests and costs. Aggrieved and after his efforts to set aside the ex parte judgment have proved futile, the applicant found himself out of the prescribed period of time for appealing against the judgment. That being the case and as he was still desirous of challenging the decision, he applied for extension of time to lodge a notice of appeal before the High Court vide Miscellaneous Land Application No. 430 of 2023 which was however, dismissed on 11.10.2023 hence the instant second bite application before the Court which was lodged on 18.12.2023.

According to the notice of motion, the application is basically premised on a single ground, that is, illegality. It is complained that while the cause of action pleaded in the plaint by the 1st respondent was on breach of tenancy agreement to which the applicant was not a party, the High Court determined and condemned the applicant on trespass to land, a new cause of action which was not pleaded. At the hearing of the application, whereas the applicant had the services of Mr, Samson Edward Mbamba, learned advocate, the 1st respondent was represented by Mr. Augustino Mariano Mwanyigu, also learned advocate. Despite being duly served through publication of the notice of hearing in Mwananchi newspaper of 22.08.2025, the 2n d and 3rd respondents did not enter appearance. For that reason, the application was heard in their absence in terms of rule 63 (2) of the Rules. In support of the application, having adopted the notice of motion and the supporting affidavits Mr. Mbamba argued that as stated in the High Court judgment at page 1, the 1st respondent's suit was founded on breach of the tenancy agreement between the respondents and not on trespass to land. He further argued that, despite the suit not being founded on trespass to land and the same not being pleaded, the applicant was found liable and was condemned on that basis. Placing

reliance on the decisions of the Court in The Registered Trustees of Roman Catholic Archdiocese of Dar es Salaam v. Sophia Kamani [2017] TZCA 381 and National Housing Corporation & Another v. Property Bureau (T) Ltd, Civil Appeal No. 91 of 2007 (unreported), Mr. Mbamba insisted that any decision made by a court should be on the cause of action and issues pleaded and not otherwise. Mr. Mbamba concluded by submitting that the illegality pointed above renders the decision invalid and improper hence constituting good cause for extension of time within rule 10 of the Rules. In support of his argument, he referred me to the decision of the Court in Tanzania National Parks (TANAPA) v. Joseph K. Magombi [2017] TZCA 307. He thus, prayed for the application to be granted as sought by the applicant. Resisting the application and having adopted the affidavit in reply, Mr. Mwanyigu for the respondent, differed with Mr. Mbamba on the claim that the 1st respondent's suit was solely based on breach of tenancy agreement. He argued that the suit comprised two causes of action. It was expounded that while the 2n d and 3rd respondent were sued for breach of the tenancy agreement, the claim against the applicant was based on trespass to land and destruction of the 1st respondent's

cosmetics. To substantiate his argument, Mr. Mwanyigu referred me to paragraph 9 of the plaint where the cause of action against the applicant was allegedly pleaded. He also took me to page 10 of the High Court judgment where the evidence to prove that the applicant broke the store and destroyed the 1st respondent's cosmetics was reproduced and discussed by the High Court. On the basis of the above, it was argued by Mr. Mwanyigu that, no illegality constituting good cause for extension of time as sought by the applicant has been established. He further contended that for an illegality to constitute good cause for extension of time, it must be apparent on the face of record and should not be that which would be discovered by a long-drawn argument or process. To concretise this point, Mr. Mwanyigu referred me to the case of Lyamuya Construction Company Ltd v. The Board of Registered Trustees of Young Women's Christian Association of Tanzania [2011] TZCA 4. He thus, prayed for the application to be dismissed with costs because no good cause has been shown to warrant extension of time. In his brief rejoinder, Mr. Mbamba reiterated his submission in chief. He insisted that the judgment of the High Court is crystal clear on the facts that the suit was on breach of the tenancy agreement and that its

decision holding the applicant liable, was on the basis of trespass to land. He also argued that there was only one cause of action and not two as contended by Mr. Mwanyigu and further that the illegality in question is apparent on the face of the record. Having heard the submissions for and against the application and in consideration of the notice of motion together with the affidavits filed for and against the application, the issue for my determination is simply whether good cause has been shown to warrant extension of time as sought by the applicant. In particular and based on the ground raised in support of the instant application, the issue is whether or not the alleged legality constitutes good cause for extension of time within rule 10 of the Rules. Rule 10 of the Rules which governs extension of time by the Court provides that: " The Court, may, upon good cause shown , extend tim e lim ited b y these Rules o r by any decision o f the High Court or Tribunal, fo r the doing o f any a ct authorized or required by these Rules, whether before or after expiration o f that tim e and whether before o r after the doing o f the act; and any reference in these Rules to any such tim e sh all be

construed as a reference to that tim e as so extended" It is clear from the above provision that the mandate of the Court in extension of time is not only discretional but can be exercised only when good cause is shown. See- Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd [2006] T.L.R. 235 and Abdallah Salanga & 63 Others v. Tanzania Harbours Authority [2005] TZCA 19. It is also settled that, while it is not possible to define what constitutes "good cause" the Court has, in a number of its decisions, listed down factors that have to be considered when determining whether or not "good cause" has been shown for the Court to exercise its discretion under rule 10 of the Rules. These factors include the reasons for the delay, the length of the delay, whether the applicant was diligent, the degree of prejudice the respondent stands to suffer if time is extended and whether there is a point of law of sufficient importance such as the illegality of the decision intended to be appealed against. See- The Principal Secretary, Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R 387, Dar es Salaam City Council v. Jayantilal P. Rajan, Civil Application No. 27 of 1987 (unreported) and Lyamuya Construction Company Limited (supra). 8

As the instant application is based on a sole ground that the judgment of the High Court is marred with an illegality, it is worth restating that, generally, an existence of a point of law of sufficient importance, such as an illegality in the decision sought to be challenged, constitutes good cause for extension of time. In the case of The Principal Secretary, Ministry of Defence & National Service (supra), the Court stated that: "(i) Where, as here, the point o f law a t issue is the ille g a lity or otherwise o f the decision being challenged, that is o f sufficient im portance to constitute ’! 'sufficient reason" w ithin the m eaning o f rule 8 (now rule 10) o f the Rules fo r extending tim e; (ii) When the p oin t a t issue is one alleging ille g ality o f the decision being challenged, the Court has a duty, even if it means extending the tim e fo r the purpose, to ascertain the p oin t and, if the alleged ille g a lity be established, to take appropriate m easures to p u t the m atter and the record rig h t" Furthermore, in the case of VIP Engineering and Marketing Limited & 2 Others v. Citibank Tanzania Limited [2007] TZCA 165, it was stated by the Court that:

"It is, therefore, settled iaw that a claim o f ille g a lity o f the challenged decision constitutes sufficient reason fo r extension o f tim e under rule 8 (now rule 10) regardless o f whether or not a reasonable explanation has been given by the applicant under the rule to account fo r the delay ” Though it is settled as stated above that, illegality of an impugned decision constitutes good cause for purposes of extension of time, it is, as well, trite that for such an illegality to constitute good cause it must be on a point of law of sufficient importance. As also rightly argued by Mr. Mwanyigu, the illegality must also be apparent on the face of record not one that would be discovered by a long-drawn argument or process. This position was stated by the Court in Lyamuya Construction Company Limited (supra), thus: "Since every party intending to appeal seeks to challenge a decision either on p oin t o f law o r fact, it cannot in m y view, be said that in VALAMBHIA's case, the Court m eant to draw a general rule that every applicant who dem onstrates that h is intended appeal raises points o f law should as o f rig h t be granted extension o f tim e if he applies fo r one. The C o u rt th e re e m p h asize d th a t su ch p o in t o f ia w m u st b e th a t o f s u ffic ie n t im p o rta n ce and, I w o u ld a d d th a t it m u st b e 10

a p p a re n t on th e fa ce o f th e re co rd , su ch a s th e q u e stio n o f ju ris d ic tio n ; n o t one th a t w o u ld b e d isco v e re d b y io n g draw n a rg u m e n t o r p ro cess". [Emphasis supplied] Having in consideration the ground raised in support of the instant application, that is, illegality, I find that amongst the above stated positions, the most relevant position of the law applicable to the application, is that which states that, for an illegality to constitute good cause for extension of time, it must be on a point of law of sufficient importance and that it must be apparent on the face of the record. That being the case and mindful of the fact that, at this stage, the Court is not required to deeply go into consideration of whether the alleged illegality has merit or not, the issue for my determination becomes simply whether the alleged illegality is on a point of law of sufficient importance and it is apparent on the face of the record. As alluded to earlier, the alleged illegality in the instant application is that the High Court determined the suit and held the applicant liable for trespass to land which was not pleaded in the plaint by the 1st respondent. It is the applicant's complaint that, instead of determining the suit on basis of the pleaded cause of action on breach of tenancy agreement, the High

Court dwelt on and determined the suit on a new cause of action on trespass to land. In resistance, it has been Mr. Mwanyigu's stance not only that the alleged illegality does not exist because trespass to land against the applicant was pleaded in the plaint but also that the alleged illegality, if any, would require a long-drawn process to discover it. First of all, it is my considered view that since the existence of the alleged illegality is disputed and as it is insisted by Mr. Mwanyigu that trespass to land against the applicant was pleaded in the plaint and therefore the High Court did not determine the suit and hold the applicant liable on the basis of a new cause of action, then the need to have the said plaint and examine it is of paramount importance. Unfortunately, the plaint is not part of the record of the instant application. That being the case, there is no way the Court can ascertain that trespass to land as against the applicant was not pleaded. In principle it was upon the applicant who alleges that trespass to land against him was not pleaded in the plaint to have included it in the record. Under the circumstances of this matter, and as alluded to above, it cannot be found by the Court that the alleged illegality has been established and that it raises a point of law of sufficient importance without examining the plaint and ascertaining

that, trespass to land against the applicant was not pleaded in the plaint as claimed by the applicant. While I agree with Mr. Mbamba that, at the beginning of its judgment, the High Court is on record stating that the suit by the 1st respondent against the applicant, the 2n d and 3rd respondent was on breach of the tenancy agreement, I however find that, the said statement alone is not conclusive and does not necessarily mean that trespass to land against the applicant was not pleaded in the plaint Trespass to land against the applicant might have been pleaded as contended by Mr. Mwanyigu. I am of that view having noted that at page 2 of the judgment, the High Court is on record stating that it was averred by the 1st respondent in his plaint that in his absence, the applicant broke the store, removed some cosmetic products and took them to unknown places before locking the store by her own padlocks. To my considered view, such a statement by the High Court suggests that trespass to land against the applicant might have been pleaded in the plaint. Besides the above suggestion, I am still of a firm view that, in establishing the existence of the alleged illegality, the plaint ought not to have been omitted from the record of the application.

Based on the above, it is thus my finding that, the applicant has failed to substantiate the alleged illegality. In the same vein, I also join hands with Mr. Mwanyigu that the alleged illegality is not apparent on the face of the record. Discovering the alleged illegality will require a long- drawn argument and process of leafing through the record including the plaint which, unfortunately, is not even part of the record of the instant application. In the event, and on the basis of the foregoing findings, I am satisfied that, the applicant has failed to show good cause justifying extension of time as sought. Consequently, the application is dismissed with costs. DATED at DODOMA this 2n dday of September, 2025. The Ruling delivered this 3rd day of September, 2025 in presence of Ms. Aziza Msangi, learned counsel for the Applicant and Mr. Augustino Mariano Mwanyigu, (earned counsel for the 1st Respondent, 2n d and 3rd Respondents absent vis virtual Court and Musa Amry, Court Clerk; is A. M. MWAMPASHI JUSTICE OF APPEAL 14