Assistant Commissioner for Lands & Another vs Building Water & Another (Civil Application No. 623/01 of 2024) [2025] TZCA 923 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 623/01 OF 2024 THE ASSISTANT COMMISSIONER FOR LANDS...................,..1S T APPLICANT THE HONOURABLE ATTORNEY GENERAL ............................. 2N DAPPLICANT VERSUS BUILDING WATER AND EARTH WORKS L T D .........................RESPONDENT (Application for extension of time to file an Appeal out of time against the decision of the High Court of Tanzania, at Dar es Salaam) (Mqpnyfl, J.) dated the 24th day of April, 2023 in Miscellaneous Cause No. 65 of 2022 RULING 27th & 29th August, 2025 MLACHA. J.A.: This is an application for extension of time within which, the applicants, The Assistant Commissioner for Lands and the Attorney General (the 1s t and 2n d respondents respectively) can file an appeal against the ruling of the High Court of Tanzania at Dar es Salaam in Miscellaneous Cause No. 65 of 2022 dated 24/04/2023. The respondent, Building, Water and Earth Works Ltd, is resisting the application. The facts of the case relevant to this application can be presented as follows. The respondent was granted a right of occupancy in respect i

of Plot No. 110, Mikocheni Light Industrial area, Kinondoni, Dar es Salaam, Certificate of title No. 52021 for a term of 33 years running from 1/10/1987. The certificate of title expired on 30/9/2020. The respondent applied to the 1st applicant for a new certificate on 1/3/2022 but the application was refused on 14/4/2022 vide a letter reference LD/175339/86. Aggrieved by the decision she filed Miscellaneous Cause No. 65 of 2022 at the High Court of Tanzania, Main Registry, at Dar es Salaam, for Prerogative orders of mandamus and certiorari. The High Court quashed the decision of the 1s t respondent who was directed to follow the procedure provided under the Land Act, Cap 33 R.E 2019 and make a new decision. Aggrieved by the decision, the applicants filed a notice of appeal before the Court and applied for copies of proceedings for appeal purposes from the Registrar. They were supplied with a copy of proceedings and a certificate of delay but could not lodge the appeal because the 60 days of lodging the appeal in terms of rule 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) had expired, hence the application for extension of time. The respondent stated in his affidavit in reply that, the applicant failed to file the appeal in time due to negligence so time shout not be extended.

The grounds upon which this application is made are based on the illegalities of the decision of the High Court. They can be paraphrased to read as follows: one, the decision of the High court is based on section 45, 46 and 49 of the Land act, Cap 113 R.E. 2019 providing for the procedure of revocation while the respondent was challenging the refusal to renew a right of occupancy; two, the High Court ordered the 1s t respondent to follow the procedure of revocation of a right of occupancy while there was no right of occupancy which had already expired; and three, the decision has created rights and obligations to the parties based on a right of occupancy which has already expired. The applicants were represented by Ms. Getruda Songoi, learned Senior State Attorney assisted by Mr. Francis Wisdom State Attorney, whereas the respondent was represented by Mr. Ashiru Hussein Lugwisa, learned advocate. On taking the floor, Ms. Songoi highlighted the three grounds as follows; one, that, the Judge relied more on section 45, 46 and 49 of the Land Act which are on revocation whereas the application before the Court was on refusal to renew the title deed. She contended that, this is an illegality apparent on the face of the decision calling for the attention of 3

the Court; two, that the High Court ordered the 1s t respondent to follow the procedure of service a notice to show course or warning letter to the respondent as provided under section 49 of the Land Act, a procedure which was not applicable because the right of occupancy have already expired. She contended that, this as an error apparent on the face of the decisions as well; three, the decision created rights and obligations to both parties based on a right of occupancy which had already expired, This was also referred to as an error in the decision of the High Court. Based on these illegalities, the learned Senior State Attorney urged me to allow the application. She cited the case of Abdallah Juma Kulava v. Faustine Ngisi Kazinza [2024] TZCA 1093 to support the contention that where there is an illegality in the decision of the lower court time must be extended. In response, it was the submission of Mr. Lugwisa that, the applicant has failed to comply with the conditions for extending time as provided in the case of Lyamuya Construction Company Ltd v. The Board of Registered Trustees of Young Women Christian Association of Tanzania [2011] TZCA 4 where it was stated: "As a matter o f general principle, it is in the discretion o f the Court to grant extension of time. But that discretion is judicial, and so it must be

exercised according to the rules o f reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: (a) The applicant must account for all the period o f delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take, (d) I f the court feels that there are other sufficient reasons, such as the existence of a point o f iaw o f sufficient importance; such as the illegality o f the decision sought to be challenged." He contended that the notice of appeal was lodged and the applicants were supplied with proceedings for appeal purposes but did not lodge the appeal. No explanation or account for the delay was given. On the illegalities of the decision of the lower court, he contended that the illegalities complained of are not apparent or manifest on the face of the record. He urged me to dismiss the application. I had time to examine the record and consider the submission of the learned counsel. On the submissions before me, it is not disputed that illegality of the decision of the lower court, where established to exist, is a ground for extension of time. That is the subject of item (d) of the case

of Lyamuya Construction Company Limited (supra) cited by the respondent. Illegality of the challenged decision constitutes sufficient reason for extension of time under rule 10 of the Rules regardless of whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay. See VIP Engineering and Marketing Limited & Three Others v. Citibank Tanzania Limited, Consolidated [2007] TZCA 165, The Attorney General v. Emmanuel Marangakisi (As Attorney of Anastasious Anagnostou) & Three Others [2023] TZCA 63 and Tanzania Breweries Limited v. Herman Bildad Minja [2018] TZCA 579. It follows that, illegality of the decision of the lower court can stand as a ground for extension of time on its own. There was thus nothing wrong to make a submission on illegality of the decision of the High Court without making an account for the delay. The issue now is whether, the illegalities pointed out by the applicant are apparent on the face of the decision of the High Court so as to qualify to be the basis of extending the time. My look of the judgment has shown me that the Judge treated the case before her as a case of revocation of a right of occupancy which was not the case. Based on this understanding, she applied the relevant law and made the orders which are the subject of the appeal. Looking through casually, without engaging

into arguments, one can find that, there is an illegality in the decision of the High Court calling for the attention of the Court because of the mixing up of the two concepts; revocation and refusal to renew the title deed. With that in mind, I find merit in the application and make an order extending a period of 60 days within which the applicant can file an appeal to the Court. I make no order for costs. It is ordered so. DATED at DODOMA this 29th day of August, 2025. The Ruling delivered this 29th day of August, 2025 in the presence of Mr. Francis Wisdom, learned State Attorney for the Applicant, Mr. Ashiru Hussein Lugwisa learned advocate for the Respondent via virtual Court and Christina Mwanandenje, Court Clerk; is hereby certified as a true copy of the original. L. M. MLACHA JUSTICE OF APPEAL