Jeremiah Sumuni Kulindwa (As a legal representative of the late Joel Nyamageni Kisibike) and 4 Others vs Julius Nyaga Njololo and 2 Others (Civil Application No. 206/14 of 2024) [2024] TZCA 1120 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA CIVIL APPLICATION NO. 206/14 OF 2024 JEREMIAH SUMUNI KULINDWA (As a legal representative of the late Joel Nyamageni Kisibike) ......... . .................................... 1st APPLICANT MWANDU JOHN MATENDELE .................... . ............................. 2 nd APPLICANT MASANJA SONDA (represented by DAUDI SIMON M ABENGA) ...................................................... .3 rd APPLICANT RAMADHANI YAHYA MWESIGA.. ..... . .............................. 4 th APPLICANT NGULU LUNEGEJA SENI..........................................................5 th APPLICANT VERSUS JULIUS NYAGA NJOLOLO ......... . ....................... . .................... 1 st RESPONDENT SANDU MBOJE ........... ........ . .................................................. 2 nd RESPONDENT LUTONJA MASHILINGI ................................... . ................ .....3 rd RESPONDENT (Application for extension of time to lodge an application for revision of the proceedings and order of the High Court of Tanzania at Shinyanga) f Mkwizu, J.^ dated the 9th day of June, 2021 in Miscellaneous Land Application No. 1 of 2021 RULING 5th & 15th November, 2024 MWANDAMBO. J.A.: On 9 June, 2021, the High Court (Mkwizu, X), sitting at Shinyanga recorded a consent order in Land Appeal No. 1 of 2021 between Julius Nyaga Njololo (the first respondent) on the one hand, and the second and the third respondents on the other. That appeal emanated from the District Land and Housing Tribunal (DLHT) for Kahanna in Land Appeal No. 27 of 2019 in which Julius Nyaga Njololo was the respondent who

lost to the second and third respondents. Through the consent order extracted from a deed of settlement and crystallized into a decree in appeal, the second and third respondents are recorded to have agreed to relinquish all their interests over a parcel of land subject of Land Case No. 20 of 2019 before the trial Ward Tribunal from which Land Appeal No. 27 of 2019 was preferred to the DLHT. The applicants were not parties to any of the above-mentioned proceedings but were aggrieved by the consent order claiming that it affected their interests over their respective pieces of land situate in Nyakafuru Village, Mbog we District, Geita Region. Their attempts to pursue the matter through Government authorities ended in vain. They thus sought to pursue an application for revision before the Court when time for doing so had long expired. Consequently, they filed the instant application for extension of time to do so. In the notice of motion and the joint affidavit annexed thereto, the applicants have stated grounds for the delay in lodging the application, remarkably, unawares of the existence of the proceedings resulting into the impugned decision; the efforts they made to pursue their rights and; that the order sought to be revised is tainted with illegalities. Four instances of illegalities are cited in the notice of motion and reiterated in

paragraph 30 of the applicants' joint affidavit. That is to say; denial of right to be heard over ownership of the disputed land given to the first respondent over and above the size of the land in dispute before the Ward Tribunal and the DLHT; validity of the proceedings before the Ward Tribunal on account of time bar and lack of focus standi of the first respondent. The first respondent's affidavit in reply disputes most of the applicants' averments in their joint affidavit and prays for the dismissal of the application. In their joint affidavit in reply, the second and third respondents note most of the contents in the joint affidavit but aver that, the deed of settlement involved six acres of land and not 60 acres shown in the settlement order. Ahead of the date of hearing, Ms. Marina Mashimba, erstwhile advocate for the applicants filed written submissions in support of the application. None of the respondents filed any reply to the applicants' submissions. However, the learned advocate for the first respondent lodged a notice of preliminary objection contending that the application is misconceived for seeking to challenge the decree from a consent order of the High Court which has already been executed.

Before me at the hearing of the application, Messrs. James Njelwa and Bakari Chubwa Muheza, learned advocates appeared representing the applicants and first respondent respectively. The second and third respondents appeared in person, unrepresented. Prior to the commencement of hearing, Mr. Njelwa prayed to substitute the name of the deceased first applicant with Jeremiah Sumuni Kulindwa; administrator of the deceased's estate as a legal representative in terms of rule 57 (3) of the Tanzania Court of Appeal Rules, 2009 (the Rules). I granted the prayer and substituted the name of the deceased with Jeremiah Sumuni Kulindwa who shall henceforth be reflected as such. As mentioned earlier, the first respondent lodged a notice of preliminary objection which I directed to be addressed in the course of hearing the application so as to save time. Before winding up his submissions in reply, Mr. Muheza addressed me on the preliminary objection contending, as he did that, the application should be dismissed for being misconceived. This is so, he argued, the decree sought to be revised has been fully executed against the second and third respondents considering that it has not been challenged suggesting that the applicants cannot challenge it in the intended application for revision.

Mr. Njelwa did not make significant response to the argument on the preliminary objection. Be it as it may, it is my firm view that, the so-called preliminary objection is in itself misconceived in both form and substance. To begin with, it is not in conformity with rule 107 (1) and (2) of the Rules for failure to cite any specific law, principle or decision relied upon by the first respondent. He cited none in his oral submissions. Secondly, in so far as the preliminary objection contends that the application is misconceived, it ceases to be a preliminary objection on a pure point of law which, if argued would result in the disposal of the application. Put it more clearer, it does not meet the test of a preliminary objection on the rule enunciated in Mukisa Biscuits Co. Ltd v. West End Products Ltd [1969] E.A. 696 reflected in rule 107 (2) of the Rules. As far as I am aware, whether or not the decree sought to be revised has been fully executed has never been a ground for rendering an appeal or application for revision incompetent. I could go on and on in this regard but suffice to say that the so-called preliminary objection is, but a misconception and I dismiss it. I will now turn my attention to the merits of the application.

In the written submissions, counsel for the applicants has invited the Court to determine the application on the sole issue that is to say; whether the applicants have shown cause for the court to extend time as prayed in the notice of motion mindful of the factors the Court has taken into account in the exercise of its discretion under rule 10 of the Rules. Mr. Njelwa who stood with the written submissions, invited me to find that the applicants have indeed shown good cause for the exercise of discretion in the applicants' favour. First and foremost, he urged that the applicants were not aware of the existence of the proceedings that eventually resulted in the impugned decree covering land over and above the size of the land subject of the dispute before the Ward Tribunal and the DLHT, It was contended further that, after becoming aware of the fateful decree when the first respondent commenced execution, they approached government authorities for intervention but in vain. So were their attempts to institute suits before the High Court in Mwanza, hence, the resort to the challenge of the consent decree by way of revision. Mr. Njelwa also highlighted on the existence of illegalities particularized in the notice of motion and para 30 of the joint affidavit on which he impressed upon me to find that they are, in themselves, sufficient to

grant the application. To buttress his submission, counsel referred me to the Court's decision in Tropical Air (T) Ltd v. Godson Eliona Moshi [2018] TZCA 384, TANZLII to argue that, denial of a right to be heard as it were in this application, warrants automatic extension of time. He also referred to Eliakim Swai & Another v. Thomas Karawa Shoo [2017] TZGA 162, TANZLII for the proposition that, existence of illegality in the decision sought to be challenged suffices to enable the Court extend the time sought. Mr. Muheza argued in reply, that, the applicants have not shown good cause to enable the Court exercise its discretion and extend the time sought. He advanced several arguments in support of his position. First, the applicants have been aware of the decision in particular the second applicant who was a witness before the Ward Tribunal. Secondly, it is not true that they were denied right to be heard as they were not parties to the case. Thirdly, the applicants have not accounted for the delay between 2021 and 2023. It was his further submission that, the contention that the applicants spent time in pursuing their rights through Government authorities is baseless because time did not stop from running against them.

On the other hand, it was submitted by Mr. Muheza that, the alleged illegalities are mere claims by the applicants which do not suffice to warrant the Court exercising its discretion to extend time. It was further contended that, the alleged illegalities are not apparent on the face of the decision sought to be revised in that, it will entail long drawn arguments to discover them. For instance, he pointed out that, the complaint on the size of the land was determined by the Ward Tribunal to be 60 acres as shown at page 55 of the record of the application and so it cannot constitute an illegality, Similarly, it was argued that complaints on focus standi and time limitation would require evidence to discover for they are not self-evident. The second and third respondents had very little to respond understandably so because they are laymen. The second respondent supported by the third respondent only stated that the contents in the order of the High Court regarding the size of the land are at variance with the deed of settlement. That was consistent with their averments of para 11 of their joint affidavit in reply. Rejoining, Mr. Njelwa reiterated his submission in chief and urged the Court to grant the application since the applicants have sufficiently accounted for the delay. Counsel argued that the illegalities are self- 8

evident without the need for any long-drawn arguments to be established. In particular, regarding awareness of the case before the Ward Tribunal, counsel argued that the record shows that, the second respondent testified in respect of 6 acres and not 60 acres of land contrary to the contention by the first respondent's advocate. Having heard arguments for and against the application, it is now my singular duty to place them in context and see whether there is indeed good cause for the exercise of discretion in the applicant's favour. As rightly submitted by the applicants' counsel both in writing and orally, exercise of discretion to extend time under rule 10 of the Rules is predicated on the established parameters discussed in many of the Court's decisions. In particular, The Attorney General v. Twiga Paper Products Limited, Civil Application No. 108 of 2008 (unreported) and Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association (YWCA) [2011] TZCA 4, TANZLII. From the above decisions and many others, it is settled that, to succeed in an application for extension of time under rule 10 of the Rules, the applicant must: explain the reason for his delay in taking a particular cause, account for the length of the delay which should not be

inordinate and demonstrate that, it was not a result of negligence, apathy or sloppiness. Further, an applicant who moves the Court to extend time on account of any illegality or existence of a point of law, must demonstrate that, such illegality or point of law is self-evident in the decision sought to be challenged - see: Lyamuya Construction Co. Ltd and Thobias Karawa Shoo (supra), amongst others. For emphasis, the Court has been consistent that, each day of delay must be accounted for. The position in this application reveals that, the applicants became aware of the decision sought to be challenged sometime in October 2021 through execution involving land claimed to be theirs. After they became i aware, they summoned the intervention of the local government and the Government authorities all the way to the Regional Commissioner for Geita Region who advised them to challenge the matter through legal machinery. This is what they say in substance in paragraphs 13 and 14 of their joint affidavits. It is glaring from a letter dated 25 March 2022 whose copy is annexed to the affidavit marked JNK/14 addressed to one Kisiu Mhinda, Secretary of the representatives of Land owners, the Regional Commissioner advised the complainants to pursue their claims through legal machinery. I also note from annex JNK/15 referred to in 10

para 15 of the affidavit that, the applicants referred their complaint to Nyakafuru Ward Tribunal, which could not settle the dispute. However, there is no indication of any date the complaint was referred to Nyakafuru Ward Tribunal before the applicants filed two abortive suits before the High Court at Mwanza. Under the circumstances, it is hard to say with certainly that the applicants have succeeded in explaining away the delay between October 2021 to the date they referred the complaint to the Ward Tribunal. As rightly submitted by Mr. Muheza, the applicants' attempts to seek intervention from the Government had no effect of stopping the time from running. In the absence of any plausible material explaining away the delay in lodging their application, I am hesitant to agree with Mr. Njelwa that the applicants have sufficiently explained away the delay for me to exercise my discretion and extend time as prayed. Next for my consideration is whether there exists any illegality in the decision sought to be challenged sufficient for me to exercise my discretion. Mr. Muheza has downplayed that argument arguing, as he did that, none exists and that the alleged illegalities are, but mere complaints which are not apparent requiring long drawn arguments to be

established. The law on this is settled. Illegality must be apparent and self-evident. I have examined the affidavit in particular para 30 thereof and I am satisfied that the alleged illegalities are sufficient for me to exercise my discretion in the applicants' favour. It will be recalled that the second and third respondents too expressed their reservations against the impugned order in relation to the size of the land which is one of the main complaints by the applicants that, the consent order included their land on which they were not heard by the High Court. It is striking that even the second and third respondents had reservations against the order to the extent it relates to the size of the land. Similarly, there are complaints involving time limitation and locus standi of the first respondent to sue before the Ward Tribunal. These are too glaring to be brushed aside regardless of their merits which will be determined by the full Court at the time of determination of the application for revision. As the single Justice of the Court said in Thomas Karawa Shoo (supra): "I think, ju stice w iii triumph if the applicants [are] accorded an opportunity to argue before the Fu ii Court whether or not the decision o f the Ward Tribunal was res judicata. I w ill not indulge m yself into the w itty g ritty o f the point le st I step 12

onto the m erits o f the application on which ...am not bestowed with jurisdiction.... "[A t page 14]. I respectfully take the same path in this application being satisfied that the complained of illegalities have met the threshold for exercising my discretion for extension of time. In the event, much as I have held that the applicants have not explained and accounted for the delay, I grant the application on account of illegality and extend the time for lodging an application for revision as prayed in the notice of motion. The applicants shall lodge their application within 60 days from the date of this order. Costs shall abide the result of the application for revision. Order accordingly. DATED at DAR ES SALAAM this 14th day of November, 2024. The Ruling delivered this 15th day of November, 2024 in the presence of Mr. James Njelwa, learned counsel for the applicants, Mr. Bakari Chubwa Muheza, learned counsel for the 1st respondent, the 2n d respondent who appeared in person unrepresented and in the absence of 3rd respondent via video fink from High Court Shinyanga, is hereby certified as a true copy of the origir L. J. S. MWANDAMBO JUSTICE OF APPEAL A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL