10492 of 2024 scnd 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND CASE APPLICATION N0.10492 OF 2024 AHMAD ALLY NG'OMBE............................................. APPLICANT VERSUS JANUARIUS SABASTIAN MAGANGA......................RESPONDENT RULING 25th & 30th July 2024 L,HEMED J, AHMAD ALLY NGOMBE is the applicant in the instant application. The application has been preferred under section 14(1) of the Law of Limitation Act, [Cap. 89 R.E 2019] and section 95 of the Civil Procedure Code,[Cap.33 R.E 2019. The Applicant seeks for extension of time to apply for re - admission of Land Appeal No.382 of 2023 which was dismissed on 19th March 2024 for want of prosecution. Upon being served with the application the respondent herein, JANUARIUS SEBASTIAN MAGANGA, raised a preliminary objection in /imine //Zzsthus:- The application is untenable in law as the same has already been determined by this court and thus the court is functus officio.." i The preliminary objection was argued by way of written submissions, whereby the submission in chief was drawn and filed by the respondent while the applicant got assistance from the Legal and Human Rights Centre. Both parties adhered to the filing schedule as ordered by the court. In support of the preliminary objection, the Respondent argued that this court is functuo official because this matter was already determined by this court on merits. To cement his arguments, he referred to the case of Ayoub Issa Kidangi v Patricia Ismail Matogo (Administrator of the Estate of the late Ismail Elisali Nkya), Misc. Civil Application No 343 of 2023, Kamundi vs R (1973) EA 540 and James Kabalo Mapalala vs British Broadcasting Corporation [2004] TLR 143. He prayed for this court to dismiss the application with costs. In reply the applicant, contended that the dismissal order in Land Appeal No. 382 of 2023 was not a final order in disposing of the case. Reliance was put on case of Fadhili Bomani vs Commissioner for Lands & Others, Misc Land Application No. 378 of 2022. 2 Having heard the submissions from both parties the issue for determination is whether the application is meritorious. In other words, whether the court is functus officio to determine the instantaneous application. It is imperative to explain what amounts to functus officio. The court in plethora of decisions has defined and explained the term functus officio. In the case of Kamundi vs R [1973] EA 540, the court held that:- zz .. in a matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio..." The court further in Bibi Kisoko Medard vs Minister for Lands Housing and Urban Developments and Another [1983] TLR 250 had this to say: - "in a matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio." The Court of Appeal of Tanzania in Cipex Tanzania Limited vs Tanzania Investment Bank, Civil Appeal No. 127 of 2018, echoed the definition where it stated thus:- 3 'The term functus officio is a judicial context, simply connotes that once a judge or magistrate has performed his official duty, he is precluded from re­ opening the decision" From the above authorities, the court become functus officio when it disposes of a matter before it. In the instant case, the court dismissed Land Appeal No. 382 of 2023 on 19th March 2024 for want of prosecution after the Applicant/Appellant having failed to file submissions within the prescribed filing schedule. The dismissal order was made after the Appellant/Applicant having availed an opportunity to address the court why he did not timely file his submissions as directed by the court. As aforesaid, this is an application for extension of time for the Applicant to apply for re-admission of his dismissed appeal. In other words, the Applicant seeks for this court to extend time so that he may present reasons for re-admission of the said dismissed appeal. However, I have noted from the proceedings of the dismissed Land Appeal that on the fateful date, the Appellant was given the opportunity to address the court as to why he failed to file his submissions timely as per the filing schedule. Dissatisfied by the reasons advanced, the court proceeded to dismiss the said appeal for 4 want of prosecution. The question that arises is whether this same court can reconvene to re-consider re-admission of the said appeal. In my firm view, this court, having availed the Appellant/Applicant the opportunity to address the court as to why he failed to file submissions timely, it cannot sit to re-consider the application for re­ admission of the dismissed appeal. The court is functus officio. In upshot, I find merit in the preliminary objection. The court cannot extend time to the Applicant to file a matter which it is functus to determine it. The entire application is thus dismissed with costs. Order accordingly. DATED at DAR ES SALAAM at 30th day of July 2024 JUDGE 5