Ally Hassan Namangaya vs Tutindaga John Mwambenja (Civil Application No. 672/17 of 2024) [2025] TZCA 914 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 672/17 OF 2024 ALLY HASSAN NAMANGAYA ..................................................... APPLICANT VERSUS TUTINDAGA JOHN MWAMBENJA (As Administratix of Estate of the Late Sabetha M. J. Mwambenja) ...............................RESPONDENT (In the matter of application of extension of time to file notice of appeal out of time against the decision of the High Court of Tanzania, Land Division at Dar es Salaam) (Rumanyika, J.) dated the 11th day of December, 2020 in Land Case No. 13 of 2016 RULING 28th & 29th August, 2025 MGONYA. J.A.: Ally Hassan Namangaya, the applicant, is seeking extension of time to file a notice of appeal out of time against the decision of the High Court of Tanzania, Land Division at Dar Es Salaam, in Land Case No. 13 of 2016 delivered on 11th December, 2020. The application is made pursuant to rule 45A (1) and 45A (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit deponed to by the applicant i

Briefly, the background of this matter is to the effect that, before the High Court, the applicant instituted Land Case No. 13 of 2016 against the respondent. Among other reliefs, the applicant was seeking recovery of land approximately measuring 127 acres situated at Kibaoni /Makurunge Bagamoyo District. The case was heard on merit and the judgment was delivered against the applicant. As the respondent did file a counter claim, the trial court decided it in her favor. The applicant was ordered to compensate the respondent with TZS. 7,000,000/= as general damages. Being aggrieved with that decision, the applicant intends to appeal, but he is out of time hence, this application. At the hearing of the application, the applicant was represented by Messrs. Faraji Mangula and Mussa S. Muhoja both learned advocates, whereas, the respondent had the services of Mr. Mohamed Tibanyendera, learned advocate. Submitting in support of the application, Mr. Mangula adopted the contents of the supporting affidavit and the applicant's written submission filed earlier. Expounding the grounds advanced by the applicant in his affidavit, the learned counsel opted to argue on illegality only. 2

He submitted that, the impugned decision of the High Court is tainted with illegality on the face of it. The alleged illegality was in four points. The first point was on non-joinder of a necessary part. By making reference to paragraph 4 of the written statement, Mr. Mangula argued that, there was non-joinder of the administrator of the late Setebe who was very important to the case, as the dispute arose from him. According to Mr. Mangula, it was prudent that the administrator of the late Setebe ought to have been given an opportunity to be heard. Submitting on a second point of illegality, by referring to page 5 of the written submission, the learned counsel submitted that, the judgment lacked clarity. That, in the pleadings, the suit property was said to be 127 acres whereas the judgment indicated that, there was 200 and 300 acres. In his view, that will lead to difficulties during execution. Submitting on a third point of illegality, the learned counsel asserted that, since the dispute involved un surveyed land, there ought to have special description to assist the court. To bolster his submission the case of Olorubare Nginyu v. Kilempu Kinoka Laizer (Civil Appeal No. 416 of 2021) [2024] TZCA 598 (18 July 2024, TanzLII) was referred.

Another point of illegality raised by the learned counsel is on involvement of assessors. It was his submission that, the law requires the participation of assessors in land matters. He contended that, it is mandatory to involve the assessors and parties should be asked if they wish the involvement of assessors. That, in the entire proceedings there is no sign that, parties were asked on their wish on either to involve the assessors or not. By referring to the decision of the Court in Joyce Christopher Masawe v. Amphares Geofrey Naburi (Civil Appeal No. 231 of 2020) [2023] TZCA 17930 (12 December 2023, TanzLII), he contended that, failure to ask the parties on involvement of assessors was a procedural irregularity. Likewise, Mr. Mangula submitted that, the judgment and decree were corrected without involving the applicant. According to him, this is a point of law to be seriously considered. He stated that, the applicant was not aware of what was going on which is contrary to article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977 (the CURT). To fortify his stance, the cases of Pendo Kawawa v. Okech Odiyo (Civil Application No. 562/08 of 2022) [2024] TZCA 457 (13 June 2024, TanzLII) and Secretary, Ministry of Defence and National Service v. Devram Vambhia [1992] TLR 182, were referred. 4

Premising on what he submitted, Mr. Mangula urged me to grant the application. Adding to what has been submitted by Mr. Mangula, Mr. Muhoja submitted that, there are many issues of illegality and irregularity. By citing the case of Abdallah Juma Kulava v. Faustine Gisi Kazinza (Civil Appeal No. 450 of 2021) [2024] TZCA 1093 (12 November 2024, TanzLII) he argued that, the pointed irregularity and illegality compel to grant the application so that those issues be taken seriously. In his view, the intended appeal has merit and granting the same will not be prejudicial to the respondent. In response, Mr. Tibanyedera submitted that, they object the application. By citing the case of Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011; TanzLII), he argued that, reasons and justice has to be considered and not personal opinions. The learned counsel submitted further that, the judgment in issue was delivered on 26/02/2021. The applicant and his advocates were in court all the time. He contended that, if they were concerned with the mentioned illegalities, they could have forwarded their

intention to appeal within thirty days. He argued further that, all issues alleged to be illegal are not in consideration. Responding on the issue on non-joinder of Setebe, he contended that, the same is meritless. Mr. Tibenyendera went on to submit that, the applicant was the plaintiff hence he ought to have rectified by joining Setebe. To fortify his stance the case of Joe Ocean Clearing & Forwarding Co. Ltd v. R & K Trucking Limited & Another (Civil Application No. 592/01 of 2023) [2025] TZCA 471 (21 May 2025; TanzLII) was cited. The learned counsel argued further that, the applicants delay is about four years and seven months that have lapsed without filing anything. That being more than 1,500 days delay where the applicant did not account for those days. To fortify his submission the case of Bushiri Hassani v. Latifa Lukio Mashayo (Civil Application No. 3 of 2007) [2008] TZCA 220 (22 April 2008; TanzLII), was cited. Making reference to paragraph 7 of the affidavit, the learned counsel contended that, it is not the illegalities on record that moved the applicant to file this application rather the same was triggered by a notice of execution as deponed under paragraph 12 of the affidavit. According 6

to Mr. Tibartyendera, the instant application intends to delay execution. He stressed that, all the cases cited are distinguishable hence, the application deserve not to be granted. The learned counsel argued further that, the application did not comply with the conditions laid down in Lyamuya's case. Responding on the claim that there were no assessors, Mr. Tibanyendera submitted that, the same is not a point of illegality. That, the applicant alleged that the record does not show if the assessors were involved. Moreover, he did not attach those records in the application. Therefore, in his view, without the said record, the Court will not be able to ascertain the applicant's complaint. Responding on a point that the judgment lacks clarity since the description of the size of a suit plot in the pleading and the judgment, differs, Mr. Tibanyendera contended that, if at all pleadings had illegality it was the applicant's fault as he was the one who filed a suit. He argued further that, the applicant did not show any illegality in the judgment. In his view, the Court has to focus on the illegalities in the judgment and not pleadings. 7

In regard to the complaint that, the judgment was corrected without involving the applicant, the learned counsel submitted that, all the time the applicant was represented by two advocates. That, the law did not state procedures on correcting judgment. Responding to the argument that non-involvement of the applicant was against Article 13(6)(a) of the CURT, Mr. Tibanyendera equally cited Article 107A (2) (e) of the CURT, which requires the Court to do away with technicalities when dispensing justice. The learned counsel further argued that, the applicant is complaining on the correction of the judgment without elaborating which judgment is subject to the intended appeal between the two, being the judgment written by Rumanyika, 1 (as he then was) or the corrected one by Maghimbi, J. Premising on what he submitted, the learned counsel urged me to deny the application for being unmerited. Rejoining, Mr. Mangula submitted that, since there is illegality, the issue of accounting for delay is not relevant. To bolster his stance the case of Attorney General v. Emmanuel Marangakisi (Civil Application No. 138 of 2019) [2023] TZCA 63 (24 February 2023; TanzLII) was referred. 8

He also submitted that, the extension of time involves the appeal against the corrected judgment by Maghimbi, J. Finally, the learned counsel urged me to grant the application. I have given a considerable weight to a notice of motion, affidavit, written submission by the applicant and oral submissions made by both counsel. The issue for determination is whether the applicant advanced sufficient reason/(s) to warrant extension of time. It is trite law that, whether to grant or refuse an application like the one at hand, is entirely in the discretion of the Court. However, that discretion is judicial and it must be exercised judiciously, ie. according to the rules of reason and justice. See for instance- Ngao Godwin Losero v. Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 302 (18 October 2016; TanzLII). Essentially, in exercising its discretion to grant or refuse the application, the Court has to consider the following guidelines: a) The applicant must account for all the period of delay; b) The delay should not be inordinate; c) The applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take;

d) If the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. See the cases of Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania (supra). It is evidenced from the record of this application that, the decision subject to the intended appeal was delivered on 11/12/2020 and the same was corrected on 26/02/2021. Likewise, it is on record that, the application at hand was filed on 30/8/2024, which is almost after three years. As rightly argued by Mr. Tibanyendera the law requires the applicant to account for each day of delay and adding to that, the delay should not be inordinate. Counting from 26/02/2021 to 30/8/2024 it is obvious that the delay is inordinate. Unfortunately, no scintilla of explanation has been brought to the fore in respect of the delayed days. See for instance- Hassan Bushiri v. Latifa Lukio (supra) and Muse Zongori Kisere v. Richard Kisika Mugendi & Others (Civil Application 244 of 2019) [2022] TZCA 640 (18 October 2022; TanzLII). 10

In his submission, the applicant's counsel opted to argue on a single point on illegality as a sufficient cause for the delay. I have no qualms with his choice as it is settled that, regardless of whether or not a reasonable explanation has been given by the applicant to account for the delay, a claim of illegality of the impugned decision constitutes a sufficient cause for extension of time under rule 10 of the Rules. That, what is important is that, the alleged illegality must be apparent on the face of the record, such as the question of jurisdiction and not one that would be discovered by long drawn argument or process. See for instance the cases of Permanent Secretary Ministry of Defence and National Service v. Devram Valambhia (supra), Hamisi Mohamed (Administrator of The Estates of The Late Risasi Ngawe) v. Mtumwa Moshi (administratix of The Late Moshi Abdallah) (Civil Application No. 407 of 2019) [2020] TZCA 13 (21 February 2020; TanzLII), Sirili Baha Ammo v. Andrea Yakobo (Civil Application 394 of 2020) [2022] TZCA 787 (8 December 2022;TanzLII) and Tanzania Breweries v. Herman Bildad Minja (Civil Application No. 11 of 2019)[2020] TZCA 63 (19 March 2020;TanzLII). The nagging question at this juncture is, whether the alleged illegality is apparent on the face of record. li

It is garnered from paragraph 13 of the affidavit; the applicant is claiming that the impugned decision is tainted with illegality on the following points. One, that, the trial court's decision is marred by significant irregularity as it introduced a new issue during the judgment, namely the administrator of the Estate of the late Setebe lacked authority to transfer title; two, the judgment is not clear as it shows that the land covers 200 and 300 acres, while the pleadings involved only 127 acres; three, he was neither notified nor involved in the process leading to the issuance of the corrected Judgment and Decree; four, the Judgment and Decree were issued based on defective pleadings, as the disputed land was unsurveyed and no distinctive boundary marks were indicated therein; five, the court erroneously ruled in favor of the respondent notwithstanding the fact that her witnesses provided contradictory testimony regarding the exact size of the disputed land; and six, that the judgment rendered by the High Court in Land Case No. 13 of 2016 (S.M. Rumanyika, J. as he then was) and corrected by Hon. S.M Maghimbi successor Judge, is manifestly repugnant and fraught with defects, rendering its susceptible to being overturned on appeal. Reading from the above illustrated grounds as the alleged illegality, I hasten to hold that, the same are not qualified to be illegality apparent 12

on a face of record. I am guided with the decision made in Lyamuya's case where it was stated that: " Since every party intending to appeai seeks to challenge a decision either on points oflaw or fact, it cannot in my view, be said that in VALAMBHIA's case, the Court meant to draw a general rule that every applicant who demonstrate that his intended appeal raises points of law should as of right, be granted extension of time if he applies for one. The Court there emphasized that such point oflaw, mustbe that "ofsufficientimportance and I would add that it must aiso be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by aiong drawn argument or process." Applying the foregoing position to the case at hand, I am not persuaded with the applicant's counsel argument that, the demonstrated complaints qualify to be illegality clearly apparent on the face of the impugned decision. Reading from paragraph 13 of the affidavit as well digesting the applicant's counsel's submission, it is undoubted that, to ascertain the alleged illegality, it will take a long-drawn argument, process and assessment of the whole proceedings, to grasp the alleged misdirection on points of law. 13

Premising on the findings above, I hold that the applicant failed to demonstrate any good cause to warrant the extension of time. Consequently, this application fails and is accordingly, dismissed with costs. DATED at DODOMA 29ththis day of August, 2025. L. E. MGONYA JUSTICE OF APPEAL Ruling delivered this 29thday of August, 2025 in the presence of Mr. Mussa S. Muhoja, learned counsel for Applicant, Mr. Mohamed Tibanyendera, learned counsel for the Respondent via virtual Court and Shaban Kanyai, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL