Abdallah Juma Kulava vs Faustine Gisi Kazinza (Civil Appeal No. 450 of 2021) [2024] TZCA 1093 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A.. MWAMPASHL J.A And NGWEMBE, J.A.) CIVIL APPEAL NO. 450 OF 2021 ABDALLAH JUMA KULAVA......................................................... APPELLANT VERSUS FAUSTINE GISI KAZINZA ......... ..................... ....................RESPONDENT [Appeal from the Decision of the High Court of Tanzania, (Land Division) at Dar es Salaam] (Mgonya, 3.) dated the 01st day of March, 2019 in Miscellaneous Land Application No. 450 of 2017. JUDGMENT OF THE COURT 28thOctober & 12th November, 2024 MWAMPASHL J.A,: The ground of complaint, the Court is invited to determine in the instant appeal, is on a settled position of the law. It is on the issue of whether or not the illegality or otherwise of a decision being challenged constitutes sufficient reason for extension of time within which to challenge such a decision in appeal or revision. Faustine Gisi Kazinza, the respondent herein, successfully sued the appellant, Abdallah Juma Kulava, for trespass to land before the Ward Tribunal of Kongowe at Kibaha in Land Dispute No. 68 of 2014. The appeal preferred by the appellant to challenge the decision of the Ward Tribunal

before the District Land and Housing Tribunal for Coastal Region at Kibaha (the DLHT) vide Land Appeal No. 128 of 2015, was dismissed on 23.05.2016 for being devoid of merit. Still aggrieved and desirous of appealing to the High Court against the DLHT decision but having delayed to do so within the prescribed period of time, the appellant filed, in the High Court, Miscellaneous Application No. 450 of 2017 for extension of time within which to file his intended delayed appeal. One of the grounds raised by the appellant in support of the application, related to issues of illegality and irregularities in the decision of the DLHT. In its ruling dated 01.03.2019, the High Court dismissed the appellant's application with costs hence, the instant appeal. The gravamen of the appellant's complaint in the instant appeal arises from the observation of the High Court which in dismissing the appellant's application for extension of time, it stated, among other things, that: "It is my firm view that, the issues o f irregularity, illegality and incorrectness during the proceedings at the lower Tribunals can be tabled as grounds o f Appeal or Revision when the order for extension o f time is granted. Under the circumstances■ , it is unfortunate that this point can hardily be accommodated under this application; as I have

said earlier that, this kind o f Application needs the Applicant to furnish the court with good cause o f his delay to file the Appeal/Revision within the statutory time and not otherwise" Two grounds have been raised in support of the appeal, however, for convenience, we find that they both revolve in one ground, to wit: the High Court erred in law in holding that illegality and irregularity o f an impugned decision cannot be raised as grounds for extension o f time within which to appeal against the decision. When the appeal was called on before us for hearing, the appellant was represented by Mr. Frank Andrew Chundu, learned advocate. On the other side, the respondent had the services of Mr. Robert Kadaso Mageni, also learned advocate. Arguing the above singled out ground of appeal, Mr. Chundu referred the Court to page 109 of the record of appeal where it is on record that the appellant's application for extension of time within which to file an application for revision, was refused by the High Court on account that issues of illegality and irregularity of the impugned decision raised by the appellant in support of his application, could only be tabled as grounds of appeal or revision when extension of time is granted and not as grounds for extension of time. He expounded that the stance by High Court is

contrary to the settled position of the law which is to the effect that, such issues constitute sufficient reason and can be raised as grounds for extension of time. Mr. Chundu also pointed out that, as deposed in the affidavit in support of the application before the High Court, the Ward Tribunal had acted without jurisdiction in entertaining the suit over the surveyed piece of land to which the appellant has an offer of right of occupancy and a title. Citing the decisions of the Court in The Attorney General v. Emmanuel Marangakisi (as attorney of Ananstansious Anagnostou) and 3 Others (Civil Application No. 138 of 2019) [2023] TZCA 63 (24 February, 2023; TanzLII), Vodacom Tanzania Limited v. Innocent Daniel Njau (Civil Application No. 60 of 2019) [2022] TZCA 639(7 October, 2022; TanzLII) and TANESCO v. Mufungo Leonard Majura and 15 Others (Civil Application No. 94 of 2016) [2017] TZCA 239(5 June, 2017:TanzLII), Mr. Chundu insisted that illegality constitutes sufficient reason and can be raised as a ground for extension of time. He thus, prayed for the appeal to be allowed and for the Court to go further and extend time within which the appellant should file his application for revision to the High Court against the decision of the DLHT. The response by Mr. Mageni was brief. He, on the first place, was in agreement with Mr. Chundu that the position of the law is settled that illegality of an impugned decision can be raised as a ground for extension

of time within which to challenge such a decision. He however, was of a view that in the instant case though illegality was raised as a ground for extension of time, the same was not established. On this point, that the alleged illegality has to be established, he refereed us to the case of Hassan Abdulhamid v. Erasto Eliphase (Civil Application No. 402 of 2019) [2020] TZCA 49(16 March,2020; TanzLII). Mr. Mageni argued further that no good cause for extension of time was shown and the High Court did not err in dismissing the application. He thus, prayed for the appeal to be dismissed with costs. It is glaringly clear as evidenced by the excerpt from the High Court decision we have earlier reproduced, that contrary to the settled position of the law that, a claim of illegality of the challenged decision can be raised as a ground for extension of time because it constitutes sufficient cause for that purpose, the High Court stated that such issues can only be raised as grounds in appeal or revision. As correctly submitted by the counsel for both partes, this, was a misdirection of the law. The Court has pronounced itself in a number of its decisions that existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged, constitutes good cause for extension of time. In the case of The Principal Secretary, Ministry of Defence & National Services v. Devram Valambhia [1992] T.LR. 185, the Court stated that:

"(i) Where, as here, the point o f law at issue is the illegality or otherwise o f the decision being challenged, that is o f sufficient importance to constitute "sufficient reason" within the meaning o f rule 8 (now rule 10) o fthe Rules for extending time; (ii) When the point at issue is one alleging illegality o f the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right" Furthermore, in the case of VIP Engineering and Marketing Limited & 2 Others v. Citibank Tanzania Limited (Consolidated Civil References Nos. 6, 7 and 8 of 2006) [2007] T7CA 165 (26 September, 2007;TanZLII) it was observed by the Court thus: "It is, therefore, settled law that a claim o f illegality o f the challenged decision constitutes sufficient reason for extension o f time under rule 8 (now rule 10) regardless o f whether or not a reasonable explanation has been given by the applicant under the rule to account for the delay" Based on the above settled position of the law and as we have alluded to above, it was therefore an error and misdirection of the High Court to hold that issues of illegalities and irregularities of the decision sought to be challenged can only be raised in appeal or revision. It is also apparent that

having held that issues of illegality and irregularities cannot be raised in the application for extension of time, the High Court did not consider such issues as raised by the appellant in support of his application. That being the case, it cannot be argued by Mr. Mageni that the issues were not established and further that the appellant failed to show good cause for extension of time. In its consideration whether sufficient cause for extension of time has been shown, the High Court never directed its mind to the issues of illegality and irregularities of the challenged decision. The fact that in finding that no sufficient cause had been shown for extension of time to be granted, the High Court did not consider issues of illegalities and irregularities raised by the appellant, as we have alluded to above, takes us to what should be the way forward in the disposition of the instant appeal. Mr. Chundu implored us to not only find that the High Court erred but also to go further and extend time within which the appellant should file his intended application for revision to the High Court. With due respect, we are not in agreement with Mr. Chundu. It is our considered view that, under the circumstances of this case, the right course is to nullify and quash the High Court relevant Ruling together with the respective proceedings and remit the file back to the High Court for the appellant's application for extension of time to be heard and determined afresh by another High Court judge.

All said and done, we allow the appeal by quashing and nullifying the High Court Ruling dated 01.03.2019 together with the respective proceedings. We also order that the appellant's application for extension of time within which to file an application for revision of the decision of the DLHT be expeditiously heard afresh and determined by another Judge of the High Court. Costs in the cause. DATED at DAR ES SALAAM this 8th day of November, 2024. The Judgment delivered on this 12th day of November, 2024 in the presence of Mr. Rubert Kadaso Mageni, learned counsel for the Respondent also holding brief for Mr. Andrew Chundu, learned counsel for the Appellant, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL