Uchaguzi Greyson Mwakabana and Others vs Registered Trustees of the Redeemed Assemblies of God in Tanzania (RAGT) (Civil Appeal No. 87 of 2022) [2024] TZCA 1160 (29 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MWANDAMBO, J.A.. KAIRO. J.A. And ISSA. J.A.^ CIVIL APPEAL NO. 87 OF 2022 UCHAGUZI GREYSON MWAKABANA ................................... I st APPELLANT ASAJENYE MWAMBONE.......................................................2N DAPPELLANT AUGUSTINO NTEPA............................................................. 3R DAPPELLANT THE REGISTERED TRUSTEES OF THE REVIVAL AND HEALING MINISTRY ASSEMBLIES OF GOD (T) .................... 4 th APPELLANT VERSUS THE REGISTERED TRUSTEES OF THE REDEEMED ASSEMBLIES OF GOD IN TANZANIA (RAGT)..........................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mbeya) (Ngwalq, J.) dated 5th day of June, 2018 in Misc. Land Application No. 41 of 2017 JUDGMENT OF THE COURT 26th & 29th November, 2024 MWANDAMBO, J.A.: The appellants were aggrieved by the decision of the High Court (Ngwala, J.) sitting at Mbeya which dismissed their application for extension of time within which to appeal from the decision of the District Land and Housing Tribunal (the DLHT) on a dispute over land. They are now appealing against the impugned decision upon a memorandum of

appeal containing one ground faulting the High Court largely for erroneous exercise of its discretion. Stripped of the irrelevant facts, the appeal has its genesis from a decision of the DLHT for Rungwe District in Land Application No. 37 of 2015 in which the appellants lost to the respondent over a claim on ownership of land. Regrettably, the appellant's first appeal to the High Court, Land Appeal No. 37 of 2015 was struck out, on the ground that the memorandum of appeal contained argumentative grounds. As time for filing a fresh appeal had already lapsed, the appellants applied for extension of time within which to do so vide Misc. Land Application No. 41 of 2017. The order striking out the appellant's first appeal was made on 29 March 2017. On 11 April 2017, the appellants filed Misc. Land Application No. 41 of 2017 which was subsequently dismissed by Ngwala, J. on 5 June, 2018, hence the instant appeal. At the hearing of the appeal, the first and second appellants appeared in person, unrepresented. The fourth appellant appeared through the first appellant. The second appellant was absent. The respondent for its part had Bishop Patrick Seif Kigava who introduced himself as chairman of its Board of Trustees.

As mentioned above, the appeal is premised on one ground faulting the High Court for dismissing their application allegedly because the appellant had not advanced sufficient cause for their delay after the order striking out their first appeal. The appellants filed their written submissions ahead of the hearing so did the respondents in reply expressly not contesting the appeal. With that concession, we do not think we should be detained further in this matter as we are indeed satisfied that the appeal is meritorious. It is plain from the affidavit supporting the application for extension of time that the delay in lodging the appeal was merely technical considering that their first appeal was struck out. In its ruling, the High Court stated: "As correctly submitted by Mr. Kyando, under the quoted section 41 (2) o f the Land Disputes Courts Act, 2002, as amended, for one to be granted an application for extension o f time within which to file an appeal he must advance good cause. Nothing has been stated by the applicants that show a good reason for the delay. In the two decisions cited by Mr. Kyando, to wit • Aidan Cha/e v. Republic, Criminal Application No. 13 o f 2003 and DPP v. Se/eman Erasto Mukundi, Criminal Application No. 36 o f 2011, it

was emphasized that good cause must be shown before court can grant an application for extension o f time within which to file an appeal out o f timd'. It is pertinent that the determination of an application for extension time for doing any act is a matter of the court's discretion. It is trite that such discretion must be exercised judicially depending on the peculiar circumstances of a particular case. It is also trite that a superior court as it were should be loath to interfere with the exercise of discretion of the lower court or tribunal unless it is satisfied that such exercise was erroneous resulting from, one; taking into consideration irrelevant extraneous matters; two, omitting to take into account relevant matters and three; misdirecting itself. See: Mbogo & Another v. Shah [1968] E.A. 93 and subsequent Court decisions amongst others, Credo Siwale v. Republic [2014] T7CA 184, TANZLII, The Commissioner General, Tanzania Revenue Authority v. New Musoma Textile Limited [2020] T7CA 284, TANZLII. The impugned decision emanates from an application for extension of time to appeal predicated on section 41 (2) of the Land Disputes Courts Act (the Act) which vests discretion in the High Court to extend time for filing an appeal upon good cause being shown. To a

large extent, section 41 (2) of the Act is similar to rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules) on the power of the Court to extend time. Rule 10 of the Rules has been a subject of a myriad of the Court's decisions including Lyamuya Construction Co. Ltd. v. Board of Registered Trustees of Young Women's Christian Association [2011] TZCA 4, TANZLII for our purpose. Several factors guiding the court in exercising discretion to extend time were restated in that decision. Briefly, it was underscored that, to succeed in such an application, it must be shown: (a) that the applicant has accounted for all the period of delay; (b) the delay is not inordinate and, (c) the applicant has shown diligence as opposed to apathy, negligence or sloppiness in the prosecution of the application he intends to take. Reverting to the extracted paragraph from the impugned ruling, it is glaring that the learned judge dismissed the application because the appellants had not shown good cause for their delay. That was notwithstanding the undisputed fact that the appellants' previous appeal had been struck out on a flimsy technical ground followed by an application for extension of time 12 days after the striking out of their appeal. It cannot be doubted that, striking out the appellants' earlier

appeal was the appellants' cause of the delay. While it may be debatable whether the appellants had accounted for the whole period of delay, it is glaring that the appellants exhibited diligence in lodging their application for extension of time to appeal 12 days after the striking out of their appeal on 29 March 2016. In our view, one of the relevant factors to be taken into account was the time taken in processing an application for extension of time which entailed applying and obtaining copies of the ruling striking out the first appeal and preparation of the application and filing it in court. Mindful of this aspect, we are reluctant to say that the appellants did not account for the whole period of delay considering that four days out of 12 fell on weekends. Considering the meaning of the word inordinate; far more than is usual or expected or excessive [See: Advanced Learners' Dictionary 10th edition at p. 800], we don't consider that a delay of 8 working days was inordinate in the circumstances of the case. It is significant that the appellants exhibited diligence in pursuing their rights which should have been taken into account by the High Court. For the foregoing and considering that the respondents did not contest the appeal, we allow it and quash the decision of the High Court and set aside the order dismissing the application and substitute it with

an order granting the application. That said, we hereby extend the time for filing an appeal from the DLHT to the High Court for 45 days from the date of delivery of this judgment. As the respondents did not resist the appeal, there will be no order as to costs. Order accordingly. DATED at MBEYA this 29th day of November, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 29th day of November, 2024 in the presence of the 1s t appellant who appeared in person and in the absence of the 2n d , 3r d and 4th appellants and respondent, is hereby certified as a true copy of the original.