Constancia 24355 Scanned

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) I AT DAR ES SALAAM * ’ MISC LAND APPLICATION NO. 24355 OF 2024 {Arising from Application No.230 of2018) BETWEEN CONSTANCIA KASUNGA as legal representative of the Late SYLVERY MISANGO KASUNGA....................................... 1st APPLICANT ELIZABETH ASAJILE ILOMO...................................................... 2nd APPLICANT LILIANI PETER HIZA as Legal Representative of the Estate of the Late PETER HIZA................. ...............................3rd APPLICANT VERSUS NELSON DANIEL NYAGIRO as Legal Representative of the Estate of the Late DANIEL KASUKUMBA NYAGIRO.................... RESPONDENT RULING 03/12/2024 & 18/02/2025 N.E MANDIA, J This omnibus application is made under section 14 (1) of the Law of Limitation Act [Cap. 89 R.E 2019] and section 43 (1) (b) of the Land Disputes Courts Act [Cap 16 R.E. 2019]. The following orders are being sought in the chamber summons: 1. That the Applicants be granted extension of time within which to file an application for revision of the judgment, decree and proceedings of the District Land and Housing Tribunal for 1 Kinondoni District at Mwananyamaia in Application No. 230 of 2008 between NELSON DANIEL NYAGIRO VS. SILVERY CM KASUNGA (Hon. R.B Mbiiinyi, Chairperson) dated l(Th June, 2016. 2. That upon extension of time, the judgment, decree and proceedings of the District Land and Housing Tribunal for Kinondoni District at Mwananyamaia in Application No. 230 of 2008(Hon. R.B Mbiiinyi, Chairperson) be revised and set aside on account of illegality. 3. Costs herein follow event 4. Any other orders and relief as may to the court seem just The chamber summons is supported by the affidavits of CONSTANCIA KASUNGA, ELIZABETH ASAJILE ILOMO and LILIAN PETER HIZA, the applicants and is opposed by the counter affidavit of the NELSON DANIEL NYAGIRO, the respondent. Hearing proceeded by way of written submission. The applicants enjoyed the legal services of Ms. Benadetha Shayo, learned counsel whereas Mr. Eben Elias Silayo learned counsel, represented the respondent. The factual background of the incident leading to this application is gleaned from the supporting affidavits. The applicant's affidavits discloses that SYLVERY KASUNGA (the deceased) was the registered owner of Plot No. 465, Block E. Sinza (the suit property). NELSON DANIEL NYAGIRO 2 sued the deceased in Land Application No. 230 of 2008 in the District Land and Housing Tribunal for Kinondoni at Mwananyamala (the Tribunal), claiming that on 30/09/2002, Mr. KASUNGA sold the suit property to DALPHONE KASUKUMBA NYAGIRO forTZS. 7,000,000 and that he paid the price but Mr. KASUNGA neither delivered vacant possession nor executed land forms No. 29, 30 and 35 to facilitate transfer of the suit property. Mr. NYAGIRO thus claimed specific performance of the contract. In his defence, Mr. KASUNGA stated that the purchase price was TZS. 24,500,000 which was not fully paid. After framing issues, the Tribunal heard the evidence of PW1 and PW2. The defence hearing was to start on 22/11/2012 but the matter was adjourned several times as Mr. KASUNGA was sick. On 10/12/2014 counsel for the respondent informed the Tribunal that Mr. KASUNGA had passed away. From 10/12/2014 up to 22/3/2016 Mr. KASUNGA's family did not file letters of administration of the estate of the late Mr. KASUNGA hence, on 22/3/2016 the Tribunal closed defence hearing and fixed judgment date. It transpired that on 09/01/2008 Mr. KASUGA sold the suit property to Ms. ELIZABETH ASAJILE ILOMO, the 2nd applicant, who then leased it to PETER PAULO HIZA (now deceased) and his wife LILIAN PETER HIZA and later, on 10/09/2008 Ms. ILOMO sold it to 3 them. In the process of transferring the title to her name, Ms. ILOMO noticed that the term of 33 years granted in suit property had expired hence, she applied for renewal which was granted and she was issued with a new Title No. 162533 for another term of 33 years commencing on 01/07/2016. Upon death of PETER PAULO HIZA in May 2016, the respondent, NELSON DANIEL NYAGIRO as the legal personal representative of DANIEL KASUKUMBA NYAGIRO in June 2016, trespassed into the suit property claiming that he is executing the decree issued in his favour in Land Application No. 230 of 2008. The 2nd applicant filed objection proceedings in the Tribunal through Misc. Land Application No. 602 of 2017 to object the alleged execution whereas the 3rd applicant joined the application. The Tribunal ordered that a fresh application be filed to include every person claiming any right in the suit property and that status quo be maintained. Thereafter, Application No. 20 of 2018 was amended to include all persons interested in the suit property and decided in favour of the 3rd respondent but on appeal, the high court reversed the decree of the Tribunal and ordered a retrial. Before the retrial resumed, the respondent accompanied with his agents trespassed onto the property and evicted the 3rd respondent. The 3rd 4 ' 0= Q k respondent applied for restoration of the status quo but the Tribunal refused holding that, "Kwa kuwa ipo hukumu ya shauri la Maombi Na. 230/2008 pamoja na amri ya utekelezaji... naona maombi... yanakosa mashiko". In support, Ms. Shayo prayed to adopt the contents of the applicant's affidavits to form part of her submissions. She submitted that there is apparent illegality in the proceedings, judgment and the decree of the Tribunal in Application No. 230 of 2008 as shown in paragraphs 5, 6 and 7 of the affidavit of the 1st applicant. That these serious allegations were only denied generally in paragraphs 6 and 7 of the counter affidavit of the respondent. Ms. Shayo submitted further that the allegation of illegality which has been impliedly admitted by the respondent constitutes sufficient cause for extension of time. She cited the cases of PRINCIPAL SECRETARY, MINISTRY OF DEFENCE VS. D.P VALAMBIA [1992] TLR 387 and RAMADHANI BAKARI & OTHERS VS. AGA KHAN HOSPITAL (Civil Application No.5/01 of 2022) [2023] TZCA 17552 (29 August 2023). In the latter case it was held that: - 5 "It is a settled law that in an application for an extension of time where the applicant raises illegality as a ground, the Court has a duty to grant it and that it is not for the Court extending time to determine as to whether or not the point raised is correct. "This is because such a determination would be the domain of the Court that would preside over the intended appeal. I am fortified in this stance in the case of VIP Engineering and Marketing Limited and Three Others vs Citibank Tanzania Limited, Consolidated Civil References No. 6, 7 and 8 of 2006 CA (unreported) wherein the Court observed as follows: - "we have already accepted it as an established law in this country that where the point of law at issue is the illegality or otherwise of the decision being challenged, that by itself constitute "sufficient reasons" within the meaning of rule 8 of the Rules for extending time " (now rule 10 of the Rules)." Ms. Shayo contended that the decision in Application No. 230 of 2008, adversely affects the interests of the applicants none of whom was heard. That the only available remedy to the person whose interests is affected by the suit which he/she was not a party is revision. She referred in the case of ARCOPAR (O.M) S.A VS. HARBERT MARWA AND FAMILY INVESTMENT CO. LTD & 3 OTHERS, Civil Application No. 94 Of 2013 to bolster her arguments. Also she cited the case of KHALIFA SELEMANI SADDOT VS. YAHYA JUMA AND 4 OTHERS, Civil Application No. 20 of 2003 to substantiate the argument that if a person 6 x was not a party to the previous proceedings, the remedy available for him is revision. Ms. Shayo prayed for the court to revise the judgment and decree of the Tribunal in Application No. 230 of 2008 because without joining the legal representatives, the Tribunal had no jurisdiction to enter a judgment and decree because the application had abated in terms of Order XXII Rule 4 (3) of the Civil Procedure Code [Cap 33 R.E 2019] after the demise of Mr. KASUNGA. She cited the case of PETER WILLIAM MATOKE VS. ABDALLAH CHAMPION (Civil Appeal 56 of 1994) 2001 TZCA 7 (11 May 2001), the Court of Appeal decided: - "It therefore seems, the law speaking loud, that where the sole appellant as was the case here dies, and there is no application to join his legal representative within limitation of ninety days, the appeal abates." Ms. Shayo contended further that, the fact that the Tribunal was aware of the death of Mr. KASUNGA and that no legal representative was made a party in the deceased's place, it was wrong for it to proceed to close the defence case and entering a judgment. That the judgment and decree is a nullity. She prayed for the court to quash and set aside the the judgment and decree. * 7 In response, Mr. Silayo submitted that this court does not have the jurisdiction to entertain the prayer for revision as outlined in their chamber application. That the matter of revision, under these circumstances, is constrained by time limitations that have already elapsed. Mr. Silayo submitted further that they strongly object the applicant's application for an extension of time on the grounds that they have provided no valid reasons for their delay which amounts to nearly eight (8) years since the judgment was delivered in June, 2016 to the filing of this application for extension of time in September, 2024. That despite the significant lapse, the applicants have failed to present any grounds to justify their delay. Mr. Silayo contended that it is trite law that an extension of time can only be granted if the applicants provide sufficient reasons for their delay. Each day of delay must be accounted for to demonstrate that the applicants have not exhibited negligence, sloppiness, or apathy on their part. He cited the case of NGAO GODWIN LOSERO VS. JULIUS MWARABU, Civil Application No. 10 of 2015, CAT at Arusha (unreported) where it was held that: - 8 "courts are enjoined to considered the following factors: one, length of delay, two, reason for the delay, thirdly, the Applicant must account for all the period of delay, fourthly, the Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take, and lastly, illegality of the decision sought to be challenged." Again the counsel cited the case of MAULID NGOWENGO AND 3 OTHERS VS. THE GENERAL MANAGER, SONIA INDUSTRIES LTD Misc. Civil Application No. 305 of 2023, which quoted the case of BUSHFIRE HASSAN VS. LATINA LUCIA MASANYA, Civil Application No.3 of 2007, CAT (unreported) in which it was held that: - "Delay even of a single day has to be accounted for, otherwise, there would be no point of having prescribing periods within which certain steps have to be taken" Mr. Silayo contended further that despite the applicants' assertions regarding the alleged illegality of the proceedings in Land Application No. 230/2008, it is important to note that these claims are largely speculative and do not reflect the actual proceedings. That the critical issue at hand is whether the applicants should be granted an extension of time based solely on the claim of illegality. That this issue is addressed in NGAO GODWIN LOSERO (supra) which clearly indicates that there are additional factors that the court must consider before granting an extension of time, beyond 9 just the claim of illegality. That this court should also take into consideration that the execution of the judgment and decree in Land Application No. 230 of 2008 has already taken place. The respondent is currently in possession of the suit property hence, allowing this application would result in injustice to the respondent and could lead to endless litigation regarding this matter. He prayed that this application be dismissed with costs. In her rejoinder, Ms. Shayo submitted that the issue that this court has no jurisdiction to entertain the application for revision was previously raised as preliminary objection and the objection were overruled by this court on 3/12/2024. The matter should not therefore be re- argued. That the only remedy to the person whose interests is affected by the suit which he/she was not a party is revision. She cited the case ARCOPAR (O.M) S.A and KHALIFA SELEMANI SADDOT (supra) to bolster her argument. She submitted further that the applicants have explained the length and reasons of the delay in the affidavits of COSTANCIA KASUNGA, ELIZABETH ASAJILE ILOMO, and LILIAN PETER HIZA, none of which has been dented by the respondent's counter-affidavit. io Ms. Shayo contended that the applicants were not parties to Application No. 230/2008 and they were not aware of it until in September 2024 when the Tribunal in Application No. 428 of 2023 dated 09/07/2024 made a decision based on the decision in Application No. 230 of 2008. That the counter affidavits of NELSON DANIEL NYAGIRO do not challenge the length nor do the reasons for the delay but dispute the facts generally. That he is therefore estopped from opposing the application on the basis of length and the reasons for the delay which are two among many factors that the court may consider in extending time. Regarding the illegalities in the proceedings and decision sought to be revised, Ms. Shayo rejoined that the respondent had the obligation to explain in what ways they are speculative and he did not. That the NGAO's decision did not require additional factors beyond proof of illegality. She submitted that if the illegality was apparent on the face of impugned decision, the Court of Appeal would have granted the application. That the applicants have pleaded the illegalities that are apparent on the face of record and have made extensive submissions showing that the illegalities are apparent on the face of record. She cited the case of ATTORNEY ii GENERAL VS. EMMANUEL MARANGAKISI (Civil Application No. 138 of 2019) (2023J TZCA 63 (24 February 2023) where the CAT stated that: - "In the case of VIP Engineering and Marketing Limited &Three Others v. Citibank Tanzania Limited, Consolidated Civil Reference Nos. 6, 7 and 8 of 2006 (unreported), the Court stated thus: 'It is, therefore, settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 (now rule 10) regardless ofwhether or not a reasonable explanation has been given by the applicant under the rule to account for the delay," {Also see Kafunga and Company Advocates v. National Bank of Commerce [2006] TLR 235; Mohamed Saturn Nahdi (mpra); Andrew Athuman Ntandu & Another v. Dustan Peter Rima (As an Administrator of the Estate of the late Peter Rima), Civil Application No.551101 of 2019; and Tanzania Breweries Limited v. Hernum Bi/dad Minja, Civil Application No. 11118 of2019 (both unreported). Ms. Shayo submitted that it is trite law that a claim of illegality is a sufficient reason for extension of time regardless of whether the applicant has given reasonable explanation for the delay. That because the allegation of illegality is apparent on the record of Application No. 230 of 2008, it constitutes sufficient reason for extension of time. She prayed that the prayers sought in the chamber summons be granted with costs. I have gone through the pleadings and considered the submissions made by the learned counsel for both parties. My duty is to determine whether the application for extension of time to revise and set aside the judgment, decree and proceedings in Application No. 230 of 2008 is meritorious. As regarding extension of time, the application is brought under section 14 (1) of the Law of Limitation Act (supra) which provides that: - "14. -(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application". [Emphasize added] The reason adduced for extension of time is that there is apparent illegality in the proceedings, judgment and the decree of the Tribunal in Application No. 230/2008. After going through paragraphs 5, 6, and 7 of the affidavit of CONSTANCIA KASUNGA, the 1st applicant, I have noted that the Tribunal was aware of the illness and death of Mr. KASUNGA and that there was no any effort made to join his legal representative in the said Application. It is 13 trite law that where within the time limited by law no application is made to join the legal representative the suit shall abate as against the deceased defendant. It is on record that Mr. KASUNGA died 10/07/2014. I am aware that Order XXII Rule 4(3) read together with the 1st Schedule, Part III, Item 16 of Law of Limitation Act [Cap 89 R.E 2019], the period of limitation prescribed to join legal representative is 90 days. In the circumstance, counting from the date when Mr. KASUNGA died, the 90 days to join his legal representative came to an end on 11/10/2014. It is also on record that despite the abatement of Application No. 230/2008, the Tribunal proceeded to decide the application and entered judgment on 10th June, 2016 against Mr. KASUNGA, the deceased. The contention by Mr. Silayo that no valid reasons was advanced to justify the delay of almost eight years beyond the prescribed time limit is in my view unfounded because the applicants were not aware of the Application No. 230/2008 until in September 2024, when the Tribunal in Application No. 428 of 2023 dated 09/07/2024 made a decision based on the decision in Application No. 230 of 2008. It is my considered position therefore, that all proceedings made after the expiry of the 90 days to join the legal representative including the judgment and decree were illegal. 14 It is again my considered view as rightly submitted by Ms. Shayo that allegations of illegality constitute a good reason for extension of time. As held in RAMADHANI BAKARI & OTHERS VS. AGA KHAN HOSPITAL case (supra), that: - "It is a settled law that in an application for an extension of time where the applicant raises illegality as a ground, the Court has a duty to grant it and that it is not for the Court extending time to determine as to whether or not the point raised is correct", [emphasis added]. Also in the case of WINJUKA GODSON MANGARE VS. JOHN J. OTTARU, Civil Application No. 657/01 of 2022 the CAT held that: - "Admittedly, the law is settled in this jurisdiction that illegality of the impugned decision is a good cause and may be used to extend time under Rule 10 of the Rules. However, the said illegality must be apparent on the face of record" [Emphasize added] Applying the foregoing principle to the application at hand, I am convinced that the alleged illegality is apparent on the face of the record. It is trite law that where the point of law at issue is the illegality of the decision being challenged, that by itself constitute sufficient reasons for extension of time. In the circumstance, I hereby grant extension of time as sought in the chamber summons. 15 I will now consider the issue of revision. I am aware that section 43(l)(b) of the Land Disputes Courts Act (supra) under which the application has been preferred allows revision to be made if it appears that there has been an error material to the merits of the case involving injustice. Ms. Shayo submitted that the decision in Application No. 230/2008 adversely affects the interests of the applicants as none of them was a party to it hence, were not heard. To the contrary Mr. Silayo submitted that this court does not have the jurisdiction to entertain the prayer for revision because is constrained by time limitations. After going through paragraph 5, 6 and 7 of the 1st applicants affidavit, paragraphs 8,9 and 10 of the 2nd applicant's affidavit and paragraphs 8, 10 and 11 of the 3rd applicant's affidavit, I have noted that the applicants are complaining on the decision in Application No. 230/2008 of the Tribunal which was issued against the deceased person without joining his legal representatives and that the applicants were not parties to the said application. I am of the considered observation that the complains of the applicants is a result of the illegalities on the face of the impugned judgment hence, a good ground for revision. In the case of PETER WILLIAM MATOKE VS. ABDALLAH CHAMPION (supra) the Court of 16 Appeal decided that where the sole appellant dies, and there is no application to join his legal representative within limitation, the appeal abates. Again, in the case of ARCOPAR (O.M) S.A VS. HARBERT MARWA AND FAMILY INVESTMENT CO. LTD & 3 OTHERS (supra), the Court of Appeal held that if a person was not a party to the previous proceedings, he could rightly bring an application for revision. It is therefore my view that, the decision which was made after the abatement of Application No. 230/2008 was illegal and hence, a good ground for revision. With due respect to the holding of Court of Appeal in the above decisions and in the circumstance at hand, I find merit in the prayer for revision made in the chamber summons. I therefore proceed to revise and set aside the proceedings, judgment and decree of District Land and Housing Tribunal for Kinondoni at Mwananyamaia in Application No. 230/2008 and order for the retrial with a different Chairperson and a new set of assessors. I make no order as to costs.