Lamadi Village Council vs Issa Adam Mningo (Civil Application No. 201/14 of 2024) [2024] TZCA 1106 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA CIVIL APPLICATION NO. 201/14 OF 2024 LAMADI VILLAGE COUNCIL .................... .................... .................. APPLICANT VERSUS ISSA ADAM MNINGO...................... .......................................RESPONDENT (Application for Extension of Time to file Notice of Appeal and to lodge application for leave to appeal to the Court of Appeal from the decision of the High Court of Tanzania at Shinyanga) (Mdemu, J,1 ) dated the 23rd day of March, 2022 in Land Appeal No. 4 of 2021 RULING 5th& 15th November, 2024 MWANDAMBO. J.A.: Before the District Land and Housing Tribunal (DLHT) for Maswa District, the parties to this application had a dispute over a piece of land in which the respondent was declared as a lawful owner. Aggrieved, the applicant appealed before the High Court sitting at Shinyanga vide Land Appeal No. 4 of 2021. However, the High Court (Mdemu, J. as he then was) dismissed that appeal on 25th March 2022 after sustaining a preliminary objection on the ground that it was time barred. The applicant's effort to appeal against the decision hit a snag as it was late in lodging a notice of appeal and application for leave to appeal which should have been done within 30 days from the date of the decision. To

do so, it had to apply for extension of time which it did on 28 June 2023. Earlier on, the applicant had filed an application for extension of time to apply for revision from Mdemu, J's decision which was withdrawn on 30 November, 2022. Subsequently, the applicant applied before the High Court for extension of time to lodge a notice of intention to appeal and leave to appeal before the High Court vide Miscellaneous Application No. 35 of 2023. The reason advanced before the High Court revolved around the complaint that Mdemu, J's decision was tainted with illegality for dismissing the appeal without excluding time requisite for obtaining copies of judgment and decree from the DLHT for the purpose of the appeal. Mahimbali, J. who heard the application found no sufficient cause for the delay and dismissed it. Dissatisfied, the applicant has come before the Court on a second bite under rules 10, 45A (1) (a) and (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Supported by the affidavit of Mussa Mpogole, learned State Attorney, the application is predicated on the ground that, there is good cause for extension of time to lodge a notice of appeal and leave to appeal. However, in view of the abolition of the requirement for leave in second appeals vide Legal Sector Laws (Miscellaneous Amendments) Act,

No. 11 of 2023, the order for extension of time to apply for leave to appeal is no longer tenable. The respondent who is represented by Mr. James Njelwa, learned advocate, resists the application through his affidavit in reply. Stripped of everything else, the respondent disputes that there is good cause for the delay warranting the order sought in the notice of motion. Ms. Jesca Shengena, Principal State Attorney assisted by Mr. Mussa Mpogole, Senior State Attorney and Mr. James Njelwa, learned advocate appeared before me for the hearing of the application representing the applicant and respondent respectively. Ms. Shengena urged me to grant the application on the basis of the averments in the affidavit which, according to her, disclosed good cause for the Court to exercise its discretion to extend time under rule 10 of the rules. By and large, the Principal State Attorney's submissions were anchored on illegality in the decision sought to be appealed against on account of failure by the High Court to appreciate and exclude the time required for obtaining necessary documents for appeal purposes from the DLHT to the High Court. Mr. Mpogole who came in midway in aid, placed before me several decisions of the Court to argue that illegality is a sufficient ground to extend time independent of the applicant's failure to account

for the delay. The decisions include; Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Y.W.C.A) [2011] TZCA 4, Principal Secretary, Ministry of Defence and National Service v. D. P. Valambhia [1992] T.L.R. 185, Mohamed Salum Nahdi v. Elizabeth Jeremia [2019] TZCA 168, TANZLII. Mr. Mpogoie was resolute that illegality is apparent on the impugned decision since the learned Judge disregarded section 19 (2) of the Law of Limitation Act (the Act) which enjoins the court to exclude the period necessary for obtaining copies of the documents required for the purpose of the appeal. Counsel cited to me Court's decisions in Dar Express Ltd v. Mathew Paulo Mbaruku, Civil Appeal No. 132 of 2022 [2023] TZCA 228 and Bukoba Municipal Council v. New Metro Merchandise [2022] TZCA 413, TANZLII in support of the proposition that, exclusion of the time under section 19 (2) of the Act is automatic and thus, refusal by Mdemu, 1 to do so constituted an illegality justifying the court to extend time. While conceding that the applicant had not accounted for the delay, Mr. Mpogoie urged me to extend time all the same an account of illegality.

Mr. Njelwa on his part urged me to dismiss the application largely because the applicant has not shown cause for the delay. He premised his submission on, Omary Ally Nyamalege (as Administrator of the Estate of the Late Selemani Ally Nyamalege & 2 Others v. Mwanza Engineering Works [2018] TZCA 230, TANZLII to argue that, not every time illegality is raised it should be taken as sufficient to extend time unless the point is of sufficient importance and apparent on the face of the record. He also referred to Hamza K. Sungura v. The Registered Trustees of Joy in the Harvest [2023] TZCA 17324 TANZLII to the same effect. He argued that, neither is the alleged illegality of sufficient importance, nor is it apparent on the face of the decision sought to be appealed against. Counsel was steadfast that, the alleged illegality must be apparent and not one which can be determined after long drawn arguments. Mr. Njelwa downplayed the resort to section 19 (2) of the Act and argued that it was irrelevant. He took the view that, since the fateful appeal originated in the DLHT, the relevant provision was section 41 (2) of the Land Disputes Courts Act (Cap. 216) governing appeals originating from the DLHT. It was argued in the premises that, there was nothing illegal for the High Court to refuse exclusion of time required for

obtaining copies of necessary documents for appeal purposes since there was no automatic exclusion of such time under section 41 (2) of Cap. 216. He pointed out that, since time to appeal had long expired, the applicant was bound to apply for leave to appeal out of time as required by section 41 (2) of Cap. 216. He distinguished the cases cited by the learned Senior State Attorney for being applicable to appeals other than those originating in the DLHT. In his rebuttal, Mr. Mpogole was forceful that, illegality in the impugned decision is apparent. On the other hand, counsel argued that section 19 (2) of the Act is applicable irrespective of section 41 (2) of Cap. 216 in so far as that section is silent on the exclusion of time in the manner provided for under the Act. After hearing the counsel's rival submissions and having examined the founding affidavit, there is no dispute that the applicant has not accounted for the delay in lodging the intended notice of intention to appeal. His trump card is illegality which it claims to be sufficient to extend time. So, the issue lies in whether the point relied upon by the applicant is indeed sufficient in the circumstances of the application. It will be recalled that, counsel relied on two of the Court's decisions in Dar Express Co. Ltd v. Mathew Paulo Mbaruku and Bukoba Town

Council v. New Metro Merchandise (supra) to reinforce his argument on automatic exclusion of time requisite for obtaining copies of necessary documents for the purpose of the intended appeal from the trial court in the light of section 19 (2) of the Act. According to the learned Senior State Attorney, that was too apparent to Mdemu, J. to take into account in his decision despite which, he had no regard to it hence constituting an illegality sufficient for the Court to exercise its discretion to extend time. It is remarkable that, in D. P. Valambhia, the Court observed that time will be extended where the point of law of at issue is illegality or a point of law of sufficient importance. In Lyamuya Construction Co. Ltd, the Court stated that, for illegality to carry its day, it must be self- evident and not one that can be established by a long-drawn arguments or process. Mr. Njelwa was emphatic arguing that the alleged illegality is not apparent on the face of the decision and, since the applicant has not accounted for the delay, I should dismiss the application. In Omary Ally Nyamalege (supra) relied on by the respondent's advocate, the Court referred to Lyamuya to underscore the point that not in every case where there is a claim of illegality the Court should grant the application. I find it necessary to excerpt the relevant part in that decision:

"Since every party intending to appeal seeks to challenge a decision either on point o f law or fact, it cannot in m y view, be said that in VALAMBHIA's case, the Court m eant 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 em phasized that su ch p o in t o f la w m u st be th a t 'o f s u ffic ie n t im p o rta n ce ' and, I w o u ld a d d th a t it m u st be a p p a re n t on th e fa ce o f th e reco rd , su ch a s th e q u e stio n o f ju ris d ic tio n ; n o t one th a t w o u ld be d isco ve re d b y lo n g draw n arg u m en t o r p rocess". [Emphasis added]. The position in the instant application reveals that, Mdemu, J. was moved to dismiss the appeal for being time barred. It was argued for the applicant that the delay in lodging the appeal was attributed to the failure to obtain copies of decree, judgment and proceedings. The High Court rejected that argument reasoning that it could only be relevant in an application for extension of time if one was made as required by section 41 (2) of Cap 216. The learned Judge referred to a decision of the same court (Kulita, J.) in Mikocheni Builders Merchants Limited v. Daikin Tanzania Limited, Misc. Civil Application No. 210 of 2018

(unreported) to the same effect. Whether the High Court was right or not is not for me to say in this application. What is relevant for me is to demonstrate that the alleged illegality is not one which can be said to be apparent on the face of the decision. Unlike Mr. Mpogole, Mdemu, J. determined the preliminary objection on the basis of the relevant law to the appeal before him that is; section 41 (2) of Cap. 216. Admittedly, section 19 (2) of the Act was not drawn to his attention but it is debatable if it could have been helpful in view of section 43 (f) the Act which disapplies the Act to proceedings for which a period of limitation is prescribed by any other written law. It is striking that, section 52 (2) of Cap. 216 provides that the Act applies to proceedings before the DLHT and High Court in their respective original jurisdiction. Without deciding again, it is doubtful whether Mr. Mpogole's argument on the resort to section 19 (2) of the Act can prevail in view of the fact that the Act does not apply to the High Court in its appellate jurisdiction, as it were. The totality of the foregoing is that the claimed illegality is, but a point of dissatisfaction against the decision which cannot constitute sufficient cause to exercise the Court's discretion to extend time. With unfeigned respect, the decisions placed before me on the automatic 9

exclusion of time based or section 19 (2) of the Act are, as submitted by Mr. Njelwa, distinguishable to the instant application. In the event, since the applicant has not explained away the delay in lodging the notice of appeal against Mdemu, J's decision, I decline to grant the application. I accordingly dismiss it with costs. DATED at DAR ES SALAAM this 13th day of November, 2024. The Ruling delivered this 15th day of November, 2024 in the presence of Mr. Mussa Mpogole, learned Senior State Attorney for the applicant and Mr. James Njelwa, learned counsel for the respondent via video link from High Court Shinyanga, is hereby certified as a true copy of t L. J. S. MWANDAMBO JUSTICE OF APPEAL

| A. L. KALEGEYA m l DEPUTY REGISTRAR <*// COURT OF APPEAL ID