Shunyu Joseph Nkuzi vs Cyril Fred (Civil Application No. 381/17/2024) [2025] TZCA 882 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA CIVIL APPLICATION NO. 381/17/2024 SHUNYU JOSEPH NKUZI ............................................................ APPLICANT VERSUS CYRIL FR ED .................................... ............................ ....... RESPONDENT (Application for extension of time to file revision from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) fNchimbi. J.^ dated the 13th day of May 2016 in Miscellaneous Land Appeal No. 63 of 2015 RULING 26th & 27th August, 2025 NPIKA, J.A.: Shunyu Joseph Nkuzi, the applicant, moves for an extension of time to apply for a revision of the judgment of the High Court of Tanzania, Land Division at Dar es Salaam ("the High Court") dated 13th May 2016 in Miscellaneous Land Appeal No. 63 of 2015. The impugned judgment, which was in favour of the respondent herein, Cyril Fred, stemmed from the applicant's claim for vacant possession of the property he rented to the respondent. The Ward Tribunal of Msasani, which served as the forum of first instance, decided

the case in the applicant's favour and granted the order prayed for. After the respondent's first appeal was dismissed by the District Land and Housing Tribunal of Kinondoni District at Mwananyamala, he appealed to the High Court via Miscellaneous Land Appeal No. 63 of 2015. The court allowed the appeal and, as a result, proceeded to quash and set aside the order for vacant possession made in the applicant's favour. The applicant duly filed a notice of appeal on 24th May 2016, indicating his intention to appeal to this Court against the impugned judgment. However, according to the supporting affidavit deposed to by Mrs. Crescencia Rwechungura, an advocate representing the applicant, the applicant's former advocates failed to take the required actions in furtherance of the intended appeal in accordance with rule 90 of the Tanzania Court of Appeal Rules, 2009. As a result, the applicant is no longer able to file the appeal because it should have been done within sixty days of the notice of appeal being filed, but none was lodged by the deadline, which was on or around 13th July 2016. This application for an extension of time is based on the argument that the judicial procedure has now totally obstructed the appeal process, and that the applicant's only realistic option is to seek a revision of the contested decision.

The argument that the contested judgment is tainted with an illegality serves as the foundation for the extension of time prayed for, In paragraph 9 of her affidavit, the deponent asserts that the learned judge: "in hearing the respondent's appeal... unlawfully proceeded to receive and admit [certainJ bank pay-ln-slips from the respondent without recording the reasons for admitting [them] at the appeal stage contrary to the principles governing civil practice and procedure." In paragraph 10, the deponent states further that: "That in addition , Nchimbi, J. unlawfully relied on the new evidence he had received from the respondent to determine Miscellaneous Land Appeal in favour o f the respondent..." Mrs. Rwechungura went over the supporting affidavit during the virtual hearing of this motion and urged me to grant the application. She argued that it was clear from the contested judgment that the learned judge had improperly admitted additional evidence regarding the respondent's alleged payment of rent and acted on that information to rule in favour of the respondent. She insisted that the learned judge's stated course was illegal in the eyes of the law, which supported a time

extension even in the absence of an explanation from the applicant for the delay to institute the intended application for revision. However, the application was fiercely opposed by Mr. Barnabas Luguwa, the respondents erudite counsel. Based on the respondent's affidavit in reply, he made two main points in his argument: first, he claimed that the contested judgment contained no indication that the High Court had admitted any new evidence. He clarified that there was no chance for the court to request and admit additional evidence because the appeal before the High Court was heard and determined only based on the parties' written submissions. Secondly, he contended that the purported error is not evident enough in the record to be considered an illegality. Considering this, he argued in favour of dismissing the matter with costs. At the outset, we agree with Mrs. Rwechungura that an extension of time may be granted if it is established that there is a point of law of sufficient importance, such as the illegality of the decision sought to be challenged, even if the period of delay is not accounted for: see Principal Secretary/ Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185. See also VIP Engineering and Marketing Limited, Tanzania Revenue Authority and Liquidator

of TRI-Telecommunications (T) Ltd v. Citibank (T) Ltd, Consolidated Civil References No. 6, 7 and 8 of 2006 (unreported). Although the Court did not delineate illegality in its seminal ruling in Devram Valambhia {supra), a Justice of the Court elucidated in Lyamuya Construction Co. Ltd v. Board of Registered Young Women's Christian Association of Tanzania [2011] TZCA 4 that: "Since every party intending to appeal seeks to challenge a decision either on point ofiaw 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 demonstrates that his intended appeal raises points o f law should as o f right be granted extension o f time if he applies for one. The Court there emphasized that such point o f law must be that 'o f sufficient importance' and, I would add that it must be apparent on the face o f the record, such as the question of jurisdiction; not one that would be discovered by long drawn argument or process. "[Emphasis added] In Charles Richard Kombe v. Kinondoni Municipal Council [2023] TZCA 137, this Court delineated "illegality" as "an act that is not

authorised by iaw" or "the state o f not being iegaiiy authorized, "quoting Black's Law Dictionary, 11th Edition. The Court subsequently cited, with approval, a passage from the Supreme Court of India's decision in Keshardeo Chamria v. Radha Kissen Chamria & Others AIR 1953 SC 23, 1953 SCR 136: "... the words " illegally " and " material irregularity" do not cover either errors o f fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects o fprocedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with." [Emphasis added] The Court in Charles Richard Kombe {supra) ultimately determined that: n From the above definitions, it is our conclusion that for a decision to be attacked on the ground o f illegality, one has to successfully argue that the court acted illegally for want o f jurisdictionor for denial o f the right to be heard or that the matter was time-barred." [Emphasis added]

See also Hamza K. Sungura v. The Registered Trustees of Joy in the Harvest [2023] TZCA 17324, MS. Speed Security Limited v. Hussein Abdallah Kaniki & Others [2024] TZCA 311, Ramadhani Omary Mbuguni (A Legal Representative of the Late Rukia Ndaro) v. Ally Ramadhani & Others [2024] TZCA 344 and Nathanael Mwakipiti Kigwila v. Magreth Andulile Bukuku [2025] TZCA 849. I have considered the counterarguments put forward by the learned counsel and meticulously examined the disputed judgment of the High Court. Without any hesitation, I uphold Mr. Luguwa's assertion that the disputed judgment lacks any indication that the learned judge admitted any additional evidence and relied upon it to resolve the appeal against the applicant. With all due respect, I did not find anything of the kind at pages 10 and 11 of the judgment that the applicant's learned counsel cited to back up her claim that the learned judge admitted certain "bank pay-in-slips from the respondent without recording the reasons for admitting them" during the appellate proceedings. The court had no opportunity to request and admit such new evidence, as Mr. Luguwa correctly stated, as the appeal was heard and concluded exclusively based on the parties' written arguments (as indicated at page 4 of the judgment).

It may be necessary to clarify the record by noting that the learned judge noted at page 2 of his judgment that the District Land and Housing Tribunal had rejected the respondent's evidence that he had paid rent for the demised property for the period up to 31s t May 2014. According to the tribunal, the respondent had attempted to introduce that piece of evidence through his written submissions, even though it was not on the trial record. The learned counsel for the parties argued on that issue, as is evident in the contested judgment. Mr. Luguwa maintained that the said piece of evidence was not novel; however, Mr. Malima, an advocate who represented the applicant at the time, disagreed. The learned judge maintained Mr. Luguwa's submission, as shown at page 11 of the judgment, concluding that the issue of new evidence did not arise. In any case, this circumstance does not provide any evidence to substantiate the assertion that the learned judge admitted specific bank pay-in-slips from the respondent at the appellate stage, which would be in violation of the principles of civil practice and procedure. The applicant's accusation against the High Court is founded on distortions of the facts. The claim is rash and disingenuous, and it does not reveal any illegality of the contested judgment that would require this Court's attention in a revision. s

In the event, I find that the application is without substance and proceed to dismiss it with costs. DATED at DODOMA this 27th day of August, 2025. G. A. M. NDIKA JUSTICE OF APPEAL The Ruling delivered virtually this 27th day of August, 2025 in the presence of Mr. Barnabas Luguwa learned counsel for the Respondent who also hold brief for Ms. Crescencia Rwechungura, learned counsel for the Applicant, is hereby certified as a true copy of the original.