Misc

IN THE HIGH COURT OF TANZANIA TANGA SUB- REGISTRY AT TANGA MISC. LAND APPEAL NO. 1229 OF 2024 (Arising from Misc. Land Application No 27 o f2023 In the District Land and Housing Tribunal for Handeni at Handeni.) ATHUMANI MSIGWA LUGUNDA........................................ APPELLANT VERSUS MIKIDADI WAZIRI (Administrator of the estate of The Late WAZIRI RASHIDI.............................................. RESPONDENT JUDGMENT K. R. Mteule, 3. 13/2/2025 & 21/2/2025 The Appellant, Athumani Msigwa Mgunda is aggrieved by the decision of the District Land and Housing Tribunal of Handeni at Handeni (DLHT) in Misc. Land Application No 27 of 2023. The decision in that matter is dated 19/12/2023 and it concerns an application for extension of time within which to file an application for review against the decision in Land Execution No. 30 of 2022 of the same DLHT. Upon being denied such extension of time, the appellant filed a memorandum of appeal armed with two grounds:- 1. The trial chairman erred in fact and in law by not extending time within which to file review while there are illegality of the decision sought to be challenged. 2. The trial chairman erred in fact and in law to hold that the conflict between execution order and judgment is irrelevant while it is a sufficient reasons of existence of point of law on the decision sought to be challenged. Whereof, the appellant prays that this appeal be allowed, and the ruling and the orders of the DLHT to be quashed and set aside with cost and the appellant be granted extension of time to file review in Land Execution No. 30 of 2023 therein. In reply to the Memorandum of Appeal, the Respondent is of the view that, the grounds of appeal are devoid of merit because there were no illegality in the decision intended to be reviewed and that there is no point of law worthy of consideration. He prayed that this appeal be dismissed with costs. The appeal was argued by written submissions. The Appellant is represented by Mr. Switbert D. Rwegasira, Advocate. On the other hand, the Respondent was unrepresented. In support of the first ground of Appeal, Mr. Rwegasira, Counsel for the Appellant is of the view that there are illegalities in the decision sought to be subject of review in Land Execution No. 30 of 2022. He explained the said illegalities to be the appellant not being given summons to appear and defend the application and the variation that existed between the execution order and the judgment of the Ward tribunal sought to be executed. He asserted that the execution covers a property which was not in dispute. He further submitted that, the reasons that the appellant was not aware of the existence Land Execution No. 30 of 2022 constituted sufficient ground for extension of time by the DLHT. In his view, the lack of awareness was due to the procedural irregularities in failing to effect service to the appellant for his attendance in Land Execution No. 30 of 2022 which caused the application to be heard ex-parte against him. To butters his argument, the Counsel referred to Order V Rule 16 of the Civil Procedure Code Cap 33 R.E 2019, which requires the court to satisfy itself on the reliability of the reason advanced before believing that the defendant is avoiding service and to issue an order of substituted service if needed. He challenged the DLHT's reliance on the affidavit of Omary A. Waziri, the Village Executive Officer of Kwamkono village within Handeni District, who is not an authorized court process server. The Counsel referred to the cases of Kaiza Katamba Mwalugaja vs Obby Sikuanguka Mwampaja & Another (Civil Appeal 7 of 2022) 2022 TZHC 13554 (6 September 2022) at Pg. 10; Rule 6 (3) of the Land Dispute Courts (the District Land and Housing Tribunal) Regulation GN.174 of 2003; and Order V Rule 10 of the Civil Procedure Code Cap 33 R.E 2019 which guide how the service of summons can be affected to the Respondent. Mr. Rwegasira attacked the order of the DLHT for having been granted in violation of the principles of natural justice, which is the right to be heard. He cited the case of Tanzania Breweries Ltd vs. Edson Dhobe & 19 Others, Misc. Application No. 96 of 2000(CAT) (unreported) arguing that illegality is good ground for extension of time. Regarding the second ground of appeal, the appellant asserted a distinction between the judgment and the orders in the DLHT in Land Execution No. 30 of 2022. In his view this variation was a sufficient reason of existence of point of law on the decision sought to be challenged. He referred to the case of Lyamuya Construction Company Limited vs The Board of Registered Trustees of Young women's Christian Association of Tanzania, Civil Application No. 2 of 2010, Court of Appeal of Tanzania at Arusha where the Court of appeal provided conditions to be considered by the court when exercising its discretionary power of granting extension of time. According to Mr. Rwegasira, it is clear in the record of the trial tribunal that the appellant did fulfill all the requirements provided under the above case. Lastly, he reiterated his prayers as stated in the Memorandum of Appeal. In replying to the Appellant's submission on the first ground of appeal, the Respondent refuted any substance in the purported illegality and inconsistency between the execution orders and judgment. In his view, nothing has been submitted to reveal the period of limitation something which is central in any application for an extension of time. According to him, since the DLHT's findings greatly centered on insufficient reasons for delay and on failure to account for the days of delay, then the Appellant had to expound these points in this appeal. The Respondent further submitted that, it is on records t that the Appellant was aware of the execution proceedings since a notice to show cause was sent to the appellant through the Ward Execution Office of Kwamkono but the Appellant refused to be served, and an affidavit to that effect was affirmed by the server to solidify his none service. Additionally, he submitted that, the ruling of Ward Tribunal was delivered on mid October, 2020 whereas the application for execution was made on June, 2022 more than a year from the date of the ruling against which the application for execution was sought. The Respondent also submitted that, the village executive officer of Kwamkono is a recognized agent in law under Order XXI Rule 21(1) of the Civil Procedure Code CAP 33 RE 2019. With regard to the second ground of appeal, the Respondent submitted that, he was declared the legal owner of the parcel of land measured 9 acres. On the application for execution the Respondent complained that the Appellant had protruded by 3 acres out of 9 acres. He prayed that the entire appeal be dismissed with costs. I have dully considered the submissions of the two contesting sides. What I find as the main issue is whether this appeal is tenable. In resolving this issue, the question is whether the appellant advanced sufficient reasons for the DLHT to grant extension of time to file an application for review. I have read the proceedings in Misc. Land Application No 27 of 2023 in the DLHT which is an application for extension of time within which the Appellant can file an application for review against Land Execution No. 30 of 2022. The reasons advanced therein to support the prayer for extension of time was the Appellant not being afforded right to be heard due failure to serve him with a summons to appear and to show cause in Land Execution No. 30 of 2022. Another reason is that the execution order and judgment is at variance. I will consider all the grounds of appeal together. In this appeal, I subscribe to the cases cited by Mr. Rwegasira Advocate for the Appellant especially Lyamuya's case (supra). In Lyamuya, illegality of the decision sought to be challenged is among the factors to justify granting of extension of time. I also agree that illegality must be apparent on the face of record rather than containing a long-drawn arguments and process pursuant to Lyamuya's case. I will concentrate more on the issue of illegality since by itself, the court may allow extension of time. See The Principal Secretary Ministry of Defence and National Service versus Devram P. Valambia [1992] TLR 185 and VIP Engineering and Marketing Limited and 2 Others versus Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 Of 2006 [2007] TZCA 165. Let me start with one important aspect to keep the record clear. The Respondent's submission at page 4-5 of the DLHT proceedings conceded to the Applicant/Appellant's prayer to be granted an extension of time. He stated as I quote from the proceedings thus; "Kama kupewa muda wapewe tu mimi nipo tayari kujibu maombiyao" Furthermore, the Respondent did not challenge the issues of illegality and generally, he did not oppose the granting of the extension of time. It is apparent that two points of illegalities were raised by the appellant one being defiance of the right to be heard and the second one being the variation between the execution order and the decree to be executed. In my view, these are conspicuous illegalities which can be instantly noticed on the face of the record if in existence. To discover the asserted variance, it just needs a comparison between the decree and the judgment on one hand and the orders in the execution on the other hand to see if there are any discrepancies. This does not entail long arguments and evaluation. Equally, to notice if the summons was properly served, it just needs a look at the summons. It does not need long argument. Since the above two points were alleged in the affidavit of the Appellant in the impugned Land Execution No. 30 of 2022 of the DLHT, they suffice to 8 constitute reasons for extending time. Shall it be found to have variation between the execution order and the judgment or the decree, then it will be a serious legal error which should not be left unaddressed. It will be an irregularity in the execution process. I grasped from the decision in the challenged Misc. Land Application No 27 of 2023 at page 5-6 when the Chairman conclusively addressed the alleged variation and whether there was a violation of the right to be heard. In my view, this should have been the ground to allow extension of time for the envisaged revision to resolve the issues. It should not have been resolved in the application for extension of time. Basing on the aforesaid, the asserted variance between the judgment and the execution order amounts to sufficient or good cause for the DLHT to have granted extension of time within which the Appellant could bring a review application. In this regard, I find that the Appeal has merits and the issue as to whether the appeal has merits is answered in the affirmative. From the above discussion, I therefore order that; 1. The Appeal is allowed. 2. The Ruling and the orders of the District Land and Housing Tribunal of Handeni at Handeni in Misc. Land Application No 27 of 2023 are quashed and set aside. 3. The Appellant is granted extension of time to file his application for review against Land Execution No. 30 of 2022 within 30 days from the date of this Ruling. 4. Each party to bear its own costs. It is so ordered. JUDGE Court: The Judgment is delivered this 21st day of February 2025 in the presence of the Mr. Switbert D. Rwegasira, Advocate for the Appellant and the absence of the Respondent Mr. Mikidadi Waziri (the Administrator of the Estate of the w\ (W" IA REVOCATI MTEULE >1 /£/ JUDGE st February 2025 10