Yona Mtui vs Suzan Nova Magurusi & Others (Civil Application No. 945 of 2025) [2025] TZCA 906 (29 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 945 OF 2025 YONA MTUI........................................................................ . .........APPLICANT VERSUS SUZAN NOVA MAGURUSI ................ . ....................................1 st RESPONDENT COMMISSIONER FOR LANDS .............................................. 2 nd RESPONDENT THE REGISTRAR OF TITLES................................................ 3 rd RESPONDENT THE MINISTER FOR LANDS................................................. 4™ RESPONDENT THE ATTORNEY GENERAL.............................................. .....5 th RESPONDENT (Application for extension of time to serve Memorandum and Record of Appeal on the respondents in Civil Appeal No. 575 of 2025 of against the decision of the High Court of Tanzania - Land Division at Dar es Salaam) (Luvanda, J.) dated the 20th day of December, 2024 in Land Case No. 24794 of 2024 RULING 27l" & 29th August 2025 AGATHO, 3.A.: By way of a Notice of Motion the applicant is seeking an order for extension of time to serve the Memorandum and Record of Appeal in Civil Appeal No. 575 of 2025 on the respondents. The application is supported by an affidavit duly sworn by Hamza Matongo, the applicant's learned advocate. The 1s t respondent protested the application through the affidavit in reply deponed by her learned advocate, Mr. Thomas Eustace Rwebangira. i

When the matter came for hearing, the applicant was represented by Mr. Daimu Halfani and Hamza Matongo, learned advocates. Mr. Stanley Mahenge, learned State Attorney stood for the 2n d - 5th respondents, while Mr. Thomas Rwebangira, learned advocate appeared for the 1s t respondent. At the outset Mr. Mahenge pointed out that they do not oppose the application at hand that is why they did not file any affidavit in reply, whereas Mr. Rwebangira clearly indicated that the 1s t respondent is resisting the application. Certainly, I will refer to the submissions made by the learned advocates without reproducing them in verbatim. Before delving into the substance, I should point out that the issue of the affidavit in support which Mr. Halfani erroneously said was taken by him, should not detain us much and despite Mr. Rwebangira's stiff contention, it was a slip of the tongue. The supporting affidavit was sworn by Mr. Matongo. Now, as to merit of the application, I shall interrogate the law, the affidavits and the submissions made. Apparently, the applicant is applying for extension of time to serve the memorandum of appeal to the respondents within time which will be granted by the Court. The grounds advanced which Mr, Rwebangira opposes are contained in the supporting

affidavit. The applicant indicated inadvertence on his part as the main ground for this application. The same was discovered on 28th May 2025 when they were preparing to serve the written submission in support of the appeal on the respondents as the main ground of the application. That is found in paragraphs 5, 6, 7, 8, 9 and 10 of the supporting affidavit. Mr. Rwebangira disputed the said ground that inadvertence is not a good cause for extending time. In addition to that he attacked the affidavit in support for containing hearsay and for the deponent is failure to lacking owner the contents of the affidavit. According to him it is unclear whether it was an advocate or the applicant who was inadvertent. Mr. Halfani rejoined on this point arguing that the supporting affidavit was properly taken and the contents were that of the deponent, the applicant's advocate who is well conversant with the case. He contended that what is averred in the affidavit are in the knowledge of the deponent. It was his view that it will be superfluous to call other person to swear affidavits on the points that are central to the case say the fact that they inadvertently realized they delayed to serve the respondents with the memorandum of appeal. He argued that this fact is well known by Mr. Matongo. This point in my view is insignificant so long Mr. Matongo represents the applicant and prepared the memorandum of appeal. Much as the deponent is duty bound to depose facts which are within his own

knowledge, in the case at hand, there is not miscarriage of justice occasioned by the supporting affidavit deposing that the applicant or on the applicant's part they were inadvertent. The bottom line is that the applicant's side admitted that they were inadvertent. Therefore, I find Mr. Rwebangira's suggestion that the applicant ought to have sworn his own affidavit misplaced, and along with that his objections on the contents of the affidavit in support are dismissed. Equally, non-issue is his claim that the applicant as a material witness did not swear an affidavit. The grounds such as inadvertence to serve another party with relevant documents, and due diligence can be deposed by an advocate representing the applicant so long as such facts are within his knowledge. Regarding the substance of the application for extension of time, the parties were at loggerhead. Although Mr. Halfani cited inadvertence as a ground for seeking extension of time, the Notice of Motion contained two grounds: (1) inadvertence and (2) illegality and irregularities in the High Court decision sought to be imputed. Probably, the ground (2) was abandoned in silence as Mr. Halfani submitted nothing on it. Both parties agree that it is trite law that extension of time is a discretionary power of the court and there must be ground or sufficient cause for extension of time. It was Mr. Halfani's view that inadvertence and due diligence have been held to be sufficient cause for extending time

as per the cases of Joseph Magombi v. Tanzania National Parks [2021] TZCA 464; Royal Insurance Tanzania Limited v. Kiwengwa Strand Hotel Limited [2009] TZCA 261; Standard Chartered Bank Tanzania Limited v. Butter shoe company Tanzania Limited [2006] TZCA 348. These cases ruled that inadvertence is sufficient ground to extend time depending on the facts of a particular case. It was his contention that in the case at hand the facts showed failure to serve the respondents with the memorandum and record of appeal was unintentional, an oversight and it was not deliberate or planned. To him inadvertence is a human error. Arguing further, Mr. Halfani submitted that the applicant does not benefit from late service of the record of appeal. He only benefits if the same is served within time. To show that it was an oversight the applicant could not have done something which is prejudicial to himself. In showing further that this was an oversight the applicant prepared and filed this application for extension of time promptly. And he served the record of appeal and memorandum of appeal as well as submission in support of appeal on 21s t May 2025 which is allowed under rule 10 of the Rules which allows extension of time after doing the act. That is in line with the holding in the case of Idrissa R. Haishe v. Emmanuel Elinami

Makundi, [2019] TZCA 456 Shanti v. Hindocha [1973] EA 207 at page 208. Mr. Rwebangira on his side protested that the applicant served upon the respondents out of time and they are surprised why then he is seeking an extension of time to do what he has done. It was his belief that he is preempting the outcome of the application at hand or buying sympathy. Mr. Rwebangira contended that the cases of Standard Chartered Bank (supra); Elias Masija Nyango'ro & Others v. Mwananchi Insurance Co. Ltd [2021] TZCA 61; and the Royal Insurance (supra) which the applicant's counsel cited were specific that pleading of inadvertence is not sufficient ground unless supported by facts on the same. But, the Court granted that ground because there were material facts in which the applicant/deponent pleaded himself to be inadvertent and not generally. I have already ruled that it was sufficient for the applicant's counsel to depose in his affidavit facts which were in his own knowledge. After all, depending on the nature of the case, section 152 of the Evidence Act [Cap 6. R.E. 2023] clearly provides that there is no specific number of witness to prove a particular fact. Another point underscored is barring of blanket statement in the affidavit. The respondents' counsel referred to us the case Commercial Bank of Africa Tanzania Limited which held that an applicant is not 6

supposed to give a blank statement instead, he should give material facts from material witness. I subscribe to that position of the law. But as rightly submitted by, Mr. Halfani the supporting affidavit does not give a blanket statement. Instead, it states a situation which happened and Mr. Matongo was a competent person to swear the affidavit. Truly, promptness and diligence is a state of circumstance or fact, which in this case has been shown through Mr. Matongo's affidavit. However, an affidavit is unnecessary to prove trivial issues. Unless it is a critical point requiring proof, in such situation an affidavit is required. As for accounting for each day of the delay, Mr. Halfani submitted that the applicant has management to account for all days constituting the delay. The affidavit in support avers that. Each day of the delay as per the cases of Supreme Court of India, it held that each day of the delay does not mean saying what you did every day. But it is enough to say a reason that prevented a party from doing the act for which the extension of time is sought. These cases include Collector Land Acquisition v. Katiji and Others (1987) Vol. 2 SCR 387. Although the cited persuasive authority seems to be relevant in cases of inadvertence as a ground for extension of time, it is incompatible with our long established principle as correctly put by Mr. Rwebangira that even a single day of delay must be

accounted for as cemented in Bushiri Hassan v. Latifa Lukiyo Mashayo [2008] TZCA 220. Unfortunately, Mr. Halfani did not tell the Court that where inadvertence is pleaded it may be superfluous to demand counting of each day of the delay. The inadvertence referred as ground is that which was honest and genuine. For instance in Zuberi Musa v Shinyanga Town Council [2009] TZCA 234 a mistake of advocate in that case was found to be a human error and diligence was as well considered. I sensed that Mr. Rwebangira had no qualms with the foregoing legal stand because in his view advocates are humans too and bound to make mistakes. Reverting to the requirement of accounting for days delayed, it is an established principle that the applicant must account for each day of delay. However, there is sense in respondents' counsel argument that it is unknown when the memorandum and record of appeal were filed in Court as this is not mentioned in the affidavit. But he knew from his knowledge that they were filed on 18th March 2025. That was the time when the counting of days of delay ought to have started. There are abundant authorities on accounting of number of days including the case of Airtel Tanzania Limited V. Misterlight Electrical Installation Co. Ltd and Another [2009] TZCA 517 (supra). The authorities say each day of the delay must be accounted for as held in Bushiri Hassan (supra) 8

Therefore, it was his view that every day of the delay must be accounted for. I am in agreement with Mr. Rwebangira and the authorities he has cited including Airtel Tanzania Limited (supra) Mzee Mohamed Akida and 7 Others v. Low Shek Kon and 2 Others, [2023] TZCA 36 Commercial Bank of Africa (T) Limited v. MIC Tanzania Limited, [2025] TZCA 434. I am equally impressed with his view that in our jurisdiction we have a plethora of authorities on this issue. Therefore, there was no need to cite authorities from India on this point. Despite that, and as explained below, the application at hand is one of those cases where the Court cannot strictly and blindly enforce the rule on accounting for each day of the delay. Mr. Rwebangira has tacitly conceded that inadvertence may be a good cause when he admitted that advocates makes mistake. But he was concerned that neither the applicant nor his advocated owned the alleged inadvertence. I have noted that there is no dispute that there was a delay and equally undisputed is the fact that the respondents were served upon belatedly. Moreover, condonation in certain circumstances is accepted by the Court. Having delved into analysis of the affidavits and submission, we turn to the law on extension of time. Reading rule 97 (1) of the Rules, it states: 9

The appellant shall, before or within seven days after lodging the Memorandum of appeal and the record o f appeal in the appropriate registry, serve copies of them on each respondent who has complied with the requirements of Rule 86. The applicant lodged an appeal to the Court of Appeal on 18th March 2025. Counting seven days from then, he was supposed to have served the respondents by 25th March 2025. This he did not do. The Rules of this Court allow applications for extension of time under Rule 10. The Rule provides: - The Court may, upon good cause shown > extend the time iimited by these Ruies or by any decision of the High Court or tribunal, for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended. It is crystal clear from the above provision that showing a good cause is a prerequisite for extending time previously limited. In this case, the applicant, through the notice of motion, advanced two reasons for the court to grant extension of time:

1. Inadvertence 10

2. There are illegalities and irregularities in the proceedings and decisions of the High Court of Tanzania Land Division appealed from. What is left for the court to determine is whether the two reasons advanced suffice to grant an extension of time. The inadvertence of the applicant in serving the respondent has been discussed in various decisions of this court. Luckily, this is not a virgin area in this Court. In Elias Masija Nyango'ro (supra) the court put it clear that as a general rule "inadvertence" does not constitute good cause in terms of Rule 10 of the Rules. However, since to every general rule there is an exception, the Court continued to state in this case that, it may consider inadvertence as a cause of delay if the applicant upon discovery of the same, acted promptly to remedy it. See page 8-9 of the Elias Masija Nyango'ro (supra). Further, in the case of Standard Chartered Bank (T) Ltd v. Bata Shoe Company Ltd [2006] TZCA 151 the Court quoted with approval its decision in Michael Lessani Kweka v. John Eliafye [1997] TLR 152 at page 153 where it was stated as follows: "...Although generally speaking a plea of Inadvertence is not sufficient, nevertheless I think that extension of time may be granted upon such plea in certain cases, for example, where the party li

putting forward such plea is shown to have acted reasonably diligently to discover the omission and upon such discovery, he acted promptly to seek remedy for it". It is for the reason above that the court in Elias Masija Nyango'ro's case (supra), legalized the service of documents effected on the respondent though out of time. In that case the respondent was served on the day of discovering the omission and the following day, that is on the application for extension of time was lodged. Likewise in Standard Charter's case (supra) an attempt to serve the respondent was made to serve on 31/7/2006, just three days beyond the prescribed time. The applicant therein had discovered this omission on Monday 31/7/2006 and without wasting time, he drew and filed an application for extension of time on 3/8/2006. The court in both these cases granted the application. This trend was also followed in the case Bulyanhulu Gold Mine v. George Allen Gwabo [2016] TZCA 892. Bringing this application into the picture, the discovery of non service was on 20th May 2025 and on the same day, the applicant served the 1st Respondent with the documents. On the next day, that is, 21s t May 2025 he served the rest of the respondents. It is on this very day that he also prepared and lodged this application for extension of time to 12

serve the respondents. This in my view demonstrates diligence and promptness on the part of the applicant to remedy the wrong sooner after having discovered it. This fact on its own stands as a good cause to warrant extension of time as it has been done in the cases discussed above In the upshot, I find the application to have merit, and I grant it The applicant is ordered to serve the memorandum and record of appeal upon the respondents within seven days from the date of this ruling. No order as to costs is given. DATED at DODOMA this 29th day of August 2025. U. J. AGATHO JUSTICE OF APPEAL Ruling delivered this 29th day of August, 2025 in the presence of Mr. Hamza Matongo, learned counsel for the Applicant, Mr. Yuda Thadeus 1s t Respondent's son and Mr. Stanley Mahenge, learned State Attorney for the 2n d -5th Respondent's, through virtual court, is hereby certified as a 13