Zainabu Ally Gafusi and Another vs Asha Said (as legal representative of late Sofia Makuria) (Civil Application No. 155/5/2017) [2018] TZCA 950 (12 July 2018)

IN THE COURT OF APPEAL OF T A AT ARUSHA CIVIL APPLICATION NO. 155 / 5 /2017 ZAINABU ALL'Y' GAFUSI ............................................ I ...... FIRST APPLICANT REHEMA RAMADHANI MUSA ............ ... SECOND APPLICANT VERSUS ASHA SAID (As Legal Representative of the Late SOFIA l'IAKURIA) .................................... (Application for extension of time within which to file Notice of Appeal from zan i the Decision of the High Court of Tana at Moshi) (Maava, 1) dated the 11th day of July, 201 in Land ADDeal No. 37 of 2012 RULING 5" & 13 1h July 2018 NDIKA, iA.: By Notice of Motion made under Rule 10 the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicants k extension of time within which to lodge a Notice of Appeal in purSuit:)f their quest to appeal against the judgment of the High Court of Tan; ania at Moshi in Land Appeal No. 37 of 2012 dated 11th July, 2014. The 6plication is supported by a joint affidavit of the applicants, affirmed on 0th January, 2017. To 1

that affidavit, Advocate Peter Eliuforo Shayo deosL and filed an affidavit in reply on behalf of the respondent. As manifest on the Notice of Motion, the pplication is grounded upon the sole contention that the decision of the Hih Court intended to be challenged as well as that of the trial tribunal arettainted with illegalities. Ahead of delving into this ground, I find it pertinet to look at the factual background to this matter as can be gleaned from te record. Briefly, the applicants (along with another p4rson, a certain Muhsini Kitega) locked horns with the respondent before! the District Land and Housing Tribunal of Moshi at Moshi in Land AppIication No. 131 of 2008. The action concerned ownership and possesskn of landed property described as Plot No. 3, Block 'KK', Section 1114 Nyerere Road, Moshi Municipality. Having lost the suit as the responjent was adjudged the lawful owner of the property, the applicants appead to the High Court of Tanzania at Moshi in Land Appeal No. 37 of 2014. Again, they were not successful; the High Court dismissed the appeal ith costs on 11th July, 2014. In the aftermath of the decision of the High Court, it is averred that the appellants could not take any essential to pursue the matter further to this Court because they were obliviou5 of the delivery of the 2

judgment by the High Court; their advocate aq, the time, Mr. Apollo Maruma, did not inform them of the outcome of th, appeal. it is further claimed by the applicants that 4n gth June, 2016, they were summoned to the High Court for a hearing oJ the taxation of the bill of costs in respect of the appeal. It is at that time that they learnt, to their surprise, of the existence of the High Court's judgrent against them. It is averred further that, upon inquiring from their coLnsel on the matter and seeking his intervention, he proved to be disobliginb and not ready to give a hand. As hinted earlier on, the applicants' quest 1r extension of time is entirely predicated upon the contention that the) judgment of the High Court as well as that of the trial tribunal are fra0ght with illegalities as narrated in Paragraphs 8 to 10 of the supporting afidavit. It is noteworthy that this contention is replicated from a similar a - gument the applicants had fronted before the High Court in Miscellaneousand Application No. 98 of 2016, which was their first application for extens1on of time. To facilitate appreciation of the applicants' justification of the aplication, I find it fitting to reproduce Paragraphs 8 through 10 of the su ng affidavit: 3

V. That, the High Court as App, Hate Court determined that the Respondent is t e exdusive owner of the house. And in cross-ap eal the one Muhsini Kageta was condemned to ref ind the rent he had received, and failed to consider the illegality of the proceedings in the cross-appeal. That, in the trial tribunal proceeding, the District Land and Housing Tribunal in Land Ap eat No. 131 of 2008, it was decided that we Appllc nts we (sic) have impersonate (sic) to the house d occupied the same for many years and collected rent illegal (sic) without consent from the Resp ndent; that dedsion is tainted with illegality since the issue on who was the lawful heirs (sic) of the 3te Rehema Athumani, the Zd Applicant's fr other was determined by the Probate Cause and ot the Land Tribunal. That, we the Applicants still need ro challenge the illegality of the dedsions of the Hih Court and the tribunal below on the point of law t7 respect of the appeal and cross-appeal." Through the affidavit in reply, the respondent strongly denies the existence of illegalities in the impugned decisionsi It is averred that this 4

claim is nothing but a pretext for overlooking the v ~ , ry long and inexcusable delay in filing the Notice of Appeal. At the hearing of the application, Mr. Jerlemiah Mjema, learned counsel for the applicants, was very brief bu i t focused in his oral submissions. He, at first, adopted the sole groun4l seeking to justify the application as stated in the Notice of Motion, the $upporting affidavit and the written submissions. He contended that Pararaphs 8 and 9 of the supporting affidavit sufficiently explain that the imjugned decisions of the High Court and the tribunal below are fraught witi illegalities. He placed reliance on several decisions of this Court including Principal Secretary, Ministry of Defence and National Service vi Devram Valambhia [1992] TLR 185; National Housing Corporatkn v. Etiennes Hotel, Civil Application No. 175 of 2004 (unreported); Klunga and Company Advocates v. National Bank of Commerce [2Q06] TLR 235; and VIP Engineering and Marketing Limited, Tanzanio , Revenue Authority and Liquidator of TRI-Telecommunications (1) Ltd v. Citibank (T) Ltd, Consolidated Civil References No. 6, 7 and q of 2006 (unreported); and Shelina Midas )ahanger & 4 Others v. Nykutonya NPF Co Ltd, 5

Civil Application No. 186 of 2015 (unreported). Fitjally, he urged that the application be granted with costs. Replying, Mr. Peter Eliuforo Shayo, leaned counsel for the respondent, strongly resisted the application. Aknowledging that the thrust of the applicants' quest was an allegatici of illegalities in the decisions of the trial tribunal and the High Court, Fr. Shayo, first, assailed the alleged illegality perceived as per Paragrapi 8 of the supporting affidavit. He argued that the said allegation relates to the cross-appeal filed by the respondent in which one Muhsini Kageta (a1third respondent in the matter before the trial tribunal) was ordered to aciount to the respondent herein for the amount of rent he had received fron4 the tenants. It was his submission that there was evidence that the said geta had received rent from the tenants and, accordingly, an order for hi to pay that rent to the respondent was not illegal. Counsel also wondered' vhy the applicants were raising the point when the said Kageta was not aJ party to this matter or the intended appeal. As regards the allegation in Paragraph 9 of supporting affidavit, Mr. Shayo suggested that the perceived illegali here relates to two decisions respecting the suit property. That is, decision of the trial

tribunal that the respondent is the owner of that ptperty and the decision in Probate and Administration Cause filed by the scond applicant in 2008 in which she was appointed the administratrix on the estate of the late Rehema Athumani who died several decades ago a(d who was the original owner of the property in dispute. On this aspect, Counsel submitted that the appointment of the second applicant to admiiister the late Rehema Athumani's estate could not have overridden the fct that the respondent had long been the registered owner of the disput4l property and that the perceived illegality is imaginary rather than real. H4 added that the alleged illegalities were raised before the High Court; they were considered and dismissed. The High Court accepted the trial tribufal's reasoning that the disputed property was owned by the late Sofia Fiakuria as a registered owner since 1957 and that title to it passed to tIe administratrix of her estate, Asha Said, the respondent herein. In concluion, he prayed that the matter be dismissed with costs. In his brief rejoinder, Mr. Mjema reiterateJ his submissions and prayers that the application be granted as prayed. After hearing the learned submissions on botlj sides, I find it apposite to state that the power of the Court for extension jf time under Rule 10 of 7

the Rules is both broad and discretionary; it can oly be exercised if good cause is shown. The Rule stipulates as follows: "The Court may, upon good cause SI t/me limited by these Rules or by an the Hiih Court or tribunal, for the doh authorized or required by these Rb before or after expiration of that time before or after the doing of the reference in these Rules to any such construed as a reference to that extended." extend decision of of any act whether id whether and any ie shall be asso As is apparent on a.the Notice of Motion and il the submissions of the counsel, the applicant's solicitation for extension oftime is predicated upon the complaint that the decisions of the court/tribnal below are fraught with illegalities. It is evident that the applicant4 made no attempt to account for each day of delay despite throwing all he blame for the delay to their previous counsel. All the same, I find it harJ to resist interjecting a remark at this point that however blameworthy, the applicants' counsel might be; the applicants appear to have contributec to the wretchedness of their situation. How come they did not get to le4rn of the fate of their appeal much earlier is, by any yardstick, hard tolicomprehend. Is it true 8

that they did not follow up on the progress of theit appeal for almost two years after the High Court had handed down th,, judgment? Why didn't they do so? The supporting affidavit gives no ansers to these pertinent questions. Reverting to the question of alleged illegalitis, I would observe, at first, that it is settled jurisprudence of the Court tht where a point of law involved in the intended appeal is a claim of the illgality of the impugned decision, that in and of itself constitutes good causq, for the Court to extend the limitation period. The earliest decision of the court on this point was Devram Valambhia (supra) cited by Mr. Mjema. It held as follows: "We think that where, as here, the pc issue is the illegality or otherwise of being challenged, that is of sufficient ii constitute 'sufficient reason' within the rule 8 of the Ru/es [now rule 10 of th for extending time. To hold othe4 amount to permitting a decision, which not exist, to stand. In the context 0/ case this would amount to allowing t order to remain on record and to be e though it mi'ht very well turn out tha fact a nullity and does not exist in la of law at decision meaning of New Rules] 'vise would mn law might the present e garnishee even order is, in That would 'a,

not be in keeping with the role of thiso whose primary duty is to uphold the rule of iat4" The above position was echoed in Engineering and Marketing Limited (supra), also cited to the rt by Mr. Mjema. The Court restated as follows: "We have already accepted it as estab: this country that where the point of Ia illegality or otherwise of the de challenged, that by itself constitut reason' within the meaning of rule 8 [rule 10 of the New Rules] for, extendi the point of law at issue is these proce, illegality or otherwise of the decision Court annulling the respondent's de Tn -telecommunications (Tanzania) Lt point constitutes 'sufficient reason' the time to file a notice of appeal and leave to appeal. This is notwithstani that the respondent brought the appli belatedly ..." law in at issue is on being 'sufficient the Rules time.... As ngs is the the High ture with then this extending plying for 7 the fact very In Lyamuya Construction Company mited v. Board of Registered Trustees of Young Women's Christian Association of 10

Tanzania, Civil Application No. 2 of 2010(unrepor1ted), a single Justice of the Court elaborated that: "Since every party intending to app / seeks to challenge a decision either on point of w or fact, it cannot in my view, be said that inLAMB/hA's case, the Court meant to draw a gen al rule that every applicant who demonstrates that is intended appeal raises points of law should as of r,iht be granted extension of time if he applies or one. The Court there emphasized that such p mt of law must be that 'of sufficient importa r7ce' and I would add that it must be appar nt on the face of the record, such as the 4 uestion of jurisdiction; not one that would be Idisco vered by long drawn argument or' process." [Emphasis added] I wholly subscribe to the above position. The question that the Court is now enjoined to determine is whether the allegations in Paragraphs 8 and 9 of the supporting affidavit constitute illegalities manifest on the record and that they raise points of law of sufficient importance. In dealing with this issue, I ave carefully examined the entire record particularly the impugned decis4ns of the trial tribunal 11

and the High Court in the light of the compet g submissions of the counsel. Beginning with Paragraph 8, I am inclined to Ily accept Mr. Shayo's explanation of the allegation in that paragraph. Inthe first place, the trial tribunal's order against Muhsini Kageta (the third jesPondent at the trial) for the refund to the respondent herein, as ownerlof the suit property, of the whole sum of money collected as rent is 4iot, by any stretch of imagination, an illegality. Since he was not the oner of the property in dispute, he had the legal duty to account to the repondent, who was then adjudged the owner of the property, for all sums jf money collected from the tenants as rent. Secondly, the claimed '1llegaIity of the proceedings in the cross-appeal" before the High Court is, on judgment, completely unfathomable. The applica any elaboration to establish it as a sufficient cau there is justification in Mr. Shayo's criticism that if of illegalities is the said Muhsini Kageta, who is n do the applicants have any standing to pursue the behalf? I have no doubt that they have no such e face of the Court's counsel could not give of complaint. Thirdly, e "victim" of this limb a party to this matter, r on that person's rnding. It is no wonder 12

that the applicants were silent on this complaint iii both their written and oral submissions. Again, I go along with Mr. Shayo's enti) - e submission on the allegation in Paragraph 9 of the supporting affidait. With respect, I find the applicants' contention farfetched that the finding by the trial tribunal that the applicants collected rent illegally was itslf an "illegality" on the ground that as heirs they were beneficiaries of the Oroperty. This claim was made as if the courts below had no evidence on te record or other legal basis to support their findings on ownership of the qisputed property. I also endorse Mr. Shayo's submission that the appoihtment of the second applicant to administer the late Rehema Athumani estate could not have taken precedence over the fact that the respondnt had long been the registered owner of the disputed property. Sh4 may have been the administratrix of the estate of the late Rehema Athd'mani but that fact does not render the concurrent finding by the courts be as the administratrix of the estate of the late S owner of the disputed property. Indeed, as Mr. perceived illegality in Paragraph 9 of the su fantasy. that the respondent Makuria was the true put it, the applicants' ng affidavit is pure 13

All said and done, it is my conclusion that this matter reveals no "illegalities", let alone those which can be said to be "apparent on the face of the record." In the result, I find no good cause to warrant the Court's exercise of its discretion in favour of the applicants. Accordingly, this application stands dismissed in its entirety with costs. DATED at ARUSHA this 12th day of July 2018. G. A. M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. E. F. 14