emanuel kaganda another vs mustafa haruna kigufa 2023 tzhclandd 16455 28 february 2023

i" IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISCELLENEOUS LAND CASE APPLICATION NO.802 OF 2022 (Originating from Land Case No.245 of2022) 3AMAL AMRI NASSORO(As Attorney of ASMA SAID SALUM) APPLICANT VERSUS RESPONDENT ABDALLAH KHALFAN WANGOMO Z'"' RESPONDENT JOHN HAMPHREY TEMBE S"® RESPONDENT RAJABU MTOAYE SAID 4™ RESPONDENT HASSAN KADEWELE RESPONDENT MAIKO BONIFACE MATEWELE .....6™ RESPONDENT MANZI ATHUMANI MATAWELE 7™ RESPONDENT HAMIS SHABAN 8™ RESPONDENT RULING Date ofLast Order: 17.03.2022 Date ofRuling: 27.03.2023 T. N- MWENEG0HA,3. The crux of this matter centres on an Application for Review of my own Ruling in respect of Land Case No. 245 of 2022 deiivered on 24''^ November, 2022. In the said Ruiing, I dismissed the suit for being time barred. Aggrieved by the said decision, the appiicant preferred this application based on the foilowing grounds; (1) "mere was an error apparentiy on the face of records of the impugned decision.(2)The Court was erroneously misled by the Plaintiffs counsel through his written submissions at page 2 and 3. The Application was heard by way of written submissions as ordered by this Court; Advocate Joseph Msengezi appeared for the applicant, while Bivery B. Lyabonga, learned counsel appeared for the 2"'' to 8''' respondents. Submitting in support of the application, Mr. Msengezi stressed that, the Court erred in computing the time used to prosecute Land Application No. 119 of 2009. That, as per the Ruiing, the Court stated that, the same came to an end on the 6^ of August 2010, while in reality it ended on the 6''^ October, 2010. That,these dates were picked up from the submissions by the plaintiff's counsel at page 2 and 3 who appeared to argue that the suit was time barred and prayed for it to be exempted. That is to say, the Court was erroneously led by the plaintiff's submissions hence arrived at an erroneous decision which is the subject matter of this application. To support his position, he cited the case of Tina and Company Limited and Othem versus Eura Africa Bank(T)Limited,Commercial Review No. 7 of 2018, High Court of Tanzania Commercial Division(unreported). In reply, thereto, Mr. Lyabonga was of the view that, the submissions by the applicant's counsel are devoid of merits. That, this Court did not error in striking out the Land Case No. 245 of 2022, rather it was the plaintiff's counsel himself who addressed the Court on the said date and indeed admitted that the suit in question was time barred. Had this Court failed to adhere to the legal provisions of the law, this ought to have been an illegality warranting Review in the circumstances. He stated that, in their case, they find that it is negligence on the part of the applicant himseif which necessitated for striking out of the said case. Having gone through the submissions of the counsels for the parties hereof. The issue for determination is whether the Application is meritorious or vice versa. Let It be known,that, by Review, it simpiy means a closeiy re-examination of the decision made by the Court itself for the purposes of rectifying its errors which are seen apparently on the face of the Court's record. In other words,this Court is obliged to reconsider or look again at its decision given in Land Case No.245 of 2022 and not otherwise. In deiiberating this matter, I have discovered that from the arguments of the appilcant's counsei, he fauited this Court in beiieving the submissions by the plaintiff as to the dates when the Land Application No. 119 of 2009 ended. That, with regard to the impugned Ruling, this Court stated that, the same came to an end on the of August 2010, while in reality it ended on the 6^ October, 2010. I find his arguments to be untenable as the said Ruling intended to be reviewed, resulted from a preliminary objection, that the suit was time barred. The counsei for the plaintiff admitted that the case was time barred, so he prayed for exclusion of the time used in prosecuting (Land Application No. 119 of 2009). He went further and provided the dates as shown on Court's case file. Therefore, if he deliberately misled this Court on the dates given through his submissions. This Court cannot be fauited for such unethical behavior. Nevertheless, the centre of controversy which lead to the said Ruling was not on the dates as averred, rather the plaint itself which contravened the provisions of Order VII Rule 6 of the Civil Procedure Code, Cap 33 R. E. 2019. That, the same should have contained a phrase, statement, or paragraph entailing the grounds of delay for the plaintiff so as to plead exemption. That being the case, I see nothing to Review as far as my decision in the Land Case No. 245 of 2022 is concerned as opting to do so will resolve nothing thereat as the claims leading to the raised objection in the said suit will remain unsettled. Having said so, this Application is hereby dismissed for want of merits before this Court. Each party to bear its own costs. It is so ordered. T. N. MWENEGOHA .7> OJl"\ 3UDGE ./^/ ^ Ik 2710311^22 'St—❖ ii fl .-v; Vr-y N A •y yj: !>v \ y."