FARAJA JOACHIM KIHONGOLE 2

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA MISC. CIVIL APPLICATION NO. 9079 OF 2024 (Arising from the decision of the District Court of Dodoma in Execution No. 09 of2023) FARAJA JOACHIM KIHONGOLE............................... APPLICANT VERSUS PROJESTUS E. RWEGARULILA................................ RESPONDENT RULING 6th August & 11th October, 2024. MUSOKWA, J. The applicant herein filed this application under the provision of section 14 (1) of the Law of Limitation Act, Cap. 89, R.E. 2019 (LLA) praying for the following orders: - 1. That, this Honorable Court be pleased to extend time for the applicant to file revision against the order of the court in application for Execution No. 09 of2023 of the District Court of Dodoma made on 29h September, 2023 by Hon. A.E Katemana, PRM. 2. Costs of this application be provided for. 3. Any other order this court deems fit and just to grant. The application, is supported by an affidavit deponed by the applicant on 16th April, 2024. By the order of this court, the application was argued by i way of written submissions, and both parties complied with the scheduling orders. The applicant in the submission in chief, asserted that on 24th July 2023, the District Court of Kinondoni in Matrimonial Cause No. 37 of 2015 between the parties herein; made an order that the decree thereof, be transferred to District Court of Dodoma for execution. The transfer order was issued under Order XXI Rule 4 of the Civil Procedure Code, Cap. 33 R.E. 2019 (CPC). The aim of the said transfer order was to facilitate the execution of the decree in relation to one of the matrimonial properties. This property which is subject to equal division amongst the parties herein, is a plot located at Miyuji in Dodoma Region, thus within the jurisdiction of the District Court of Dodoma. The applicant further stated that the delay was a result of poor communication from the District Court of Kinondoni on the progress of the transfer process. Further, that the applicant became aware of the status of the execution proceedings, after the respondent had entered appearance before the District Court of Kinondoni on 12th February, 2024 upon being summoned. The respondent informed the District Court of Kinondoni that the execution process had been initiated and finalized by the District Court of Dodoma, vide Application for Execution No. 09 of 2 2023. The respondent added further that the execution was carried out by a court broker namely William Stanley Rutagwa t/a TANADEC EA LTD; whereby plot Nos. 354, 365, 367 and 369 with a total of 1080 square meters were handed over to the respondent. Further, that plot Nos. 361, 362 and 368 with a total of 1,257 square meters were to be handed over to the applicant. The respondent also supplied the District Court of Kinondoni with the said execution order. According to the applicant, the records provide that she was also the applicant in the impugned execution order. However, the applicant states that she never made an application to that effect. Further that the matter was brought to the attention of the Resident Magistrate in Charge of Dodoma District Court who wrote a letter dated 13th March, 2024 advising the applicant to appeal against the execution order. However, the said case file could not be traced in the judiciary's online filing system. Therefore, on 15th April, 2024 the Resident Magistrate in Charge of Dodoma District Court advised the applicant to file this application manually, in this court. In addition to the reasons aforementioned provided by the applicant resulting in the delay, the applicant further submitted on the existence of serious illegalities on the face of the records. The applicant reiterated that 3 the records of the District Court of Dodoma in the execution proceedings, falsely indicated her as the applicant in the execution proceedings. Other irregularities include illegal distribution of six plots. The applicant questions the source of information as to the particulars of the said plots considering the fact that none of the parties herein were in court on the hearing date. Further, that the decree and order of the District Court of Kinondoni dated 24th July, 2023 in Matrimonial Cause No. 37 of 2015 is silent on the description of the plots. In conclusion, the applicant prayed this court to consider this application favorably and accordingly, to grant the extension of time to file the revision sought, for the interests of justice. In reply, the respondent prayed to adopt the counter affidavit to form part of his submissions. The respondent, vehemently contending this application, submitted that the applicant failed to establish good cause and further failed to account for each day of delay as required by the law. The cases of Bharya Engineering and Contracting Co. Ltd vs Hamoud Ahmed Nassor, Civil Application No. 342/01 of 2017 and Hassan Bushiri vs Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (both unreported) were cited to cement this point. In essence, the respondent described the actions of the applicant as gross negligence for failure to discharge her duty to efficiently follow up on the 4 progress of the status of the case. The respondent further contends that all parties were fully aware of the existence of the Application for Execution No. 09 of 2023 at the District Court of Dodoma. The landmark case of Lyamuya Construction Company Limited vs Board of Registered Trustees of Young Womens Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) was relied upon by the respondent. In response to the existence of illegalities as alleged by the applicant, the respondent submitted that, the transfer order, to which the applicant was fully aware, was issued in accordance with the law. The respondent further challenged the assertions by the applicant that the distribution of the suit property was conducted illegally, reiterating that the applicant's assertions were frivolous; and that sufficient cause had not been shown to move this court to exercise its discretion to grant the prayers sought. In rejoinder, the applicant essentially adopted her submission in chief; further stating that, the respondent's assertions were unfounded and baseless, to say the least. I have carefully considered the application before this court together with the supporting documents thereto, the counter- affidavit and the rival submissions by the parties. The determination of this matter is based on 5 whether or not the applicant has established good cause to move this court to exercise its discretionary powers to grant the extension of time sought. To start with, section 14 of LLA provides that: - "74. (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", [emphasis added] Further, the landmark case of Lyamuya (supra) provides as follows: - "7/7 exercising its discretion of whether or not to grant extension of time the court is required to exercise it judicially while being guided by such factors which may not be exhaustive such as: 1. The applicant must account for all the period of delay. 2. The delay should not be inordinate. 3. The Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intended to take. 4. If the Court feels that there are sufficient reasons such as existence of a point of law of sufficient importance such as illegality of the decision ought to be challenged. In the instant application, the records indicate that the impugned order of the District Court of Dodoma was delivered on 29th September, 2023. On 6 the other hand, this application was lodged on 18th April, 2024, which is a delay of approximately seven (7) months. In light of the holding in the case of Lyamuya (supra), the applicant ought to account for each day of delay. Further, paragraph 21 of the schedule to the LLA, is indicative of the timeframe within which an application for revision ought to be filed in court. The said paragraph is reproduced hereinafter: - "27. Application under the Civil Procedure Code, the Magistrates' Courts Act or other written law for which no period of limitation is provided in this Act or any other written law is sixty days, "[emphasis added] In view of the above provision, an aggrieved party is required to file an application for revision within sixty days from the date of the contested decision. The applicant under paragraph 12 of her affidavit, provides for the grounds upon which the instant application is based as follows: - 12. That, the order for execution was issued by the Dodoma District Court on 29h September, 2023, was brought to the attention of Kinondoni by the respondent on 12th February, 2024 and Dodoma District Court wrote a letter advising me to appeal on 13th March 2024 and admission that application for Execution No. 09 of2023 was not in the court online system was done on 15th April, 2024. However, it is a settled law that the existence of illegalities on the face of the records, amount to good cause for extending time, even without 7 accounting for each day of delay. This is indicated in the case of TANESCO vs. Mufongo Leonard Majura and 15 Others, Civil Application No. 230 of 2016 (unreported); where the Court of Appeal of Tanzania (CAT) partly held that: - "'Notwithstanding the fact that the Applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fact that there is a complaint of illegality in the decision intended to be impugned, suffices to move the Court to grant extension of time so that the alleged illegality can be addressed by the Court." [emphasis added] Further, in the case of Stephen B.K. Mhauka vs The District Executive Director Morogoro District Council and two Others, Civil Application No. 68 of 2019 (unreported), CAT emphasized that the respective illegality must be apparent on the face of records. Looking at the records and the proceedings of the Application No. 9 of 2023 before the District Court of Dodoma provide as follows: - "Date: 29/09/2023 Coram: Hon. A. E. Katemana-PRM Applicant: Absent Respondent: Absent CC: Mwaka COURT: This court upon receipt of the decree in Matrimonial cause No. 32 of 2015 of Kinondoni District Court and a copy of application for execution No. 32 of 8 2015 at Kinondoni District following its transfer to this court in terms of Rule 4 of order XXI of the Civil Procedure Code, [ Cap 33 R.E 2019], so that this court can carry on with the execution process in respect of the plots located at Miyuji area within this court's jurisdiction let the copies and certificate so received be filled into this court in terms of Rule 6 of Order XXI of the Civil Procedure Code, [ Cap 33 R.E 2019]. Sign: A. E. Katemana - PRM 29/09/2023 COURT ORDER This court after having complied with the provision of Rule 6 of order XXI of The Civil Procedure Code, [ Cap 33 R.E 2019], do now proceed to allow execution to proceed in terms of plots located at Miyuji area within Dodoma City, whereas a court broker one William Stanley Rutagwa T/A TANADEC L TD is appointed to carry out into execution of the court order by handling over Plots number 361,362 and 368 with a total of1,257square meters to FARAJA JOACHIM KIHONGOLE the Judgment debtor and by handling over plots number354,365,367and369 with a total of1,080 square meters to PROJESTUS E RWEGARULILA the decree holder in terms of Rule 7 of Order XXI of the Civil Procedure Code, [ Cap 33 R.E 2019], Sign; A. E. Katemana - PRM 29/09/2023 According to the trial court records above, it is evident that both parties were absent when the matter was called on for hearing. Clearly, the 9 parties were not heard on the said application for execution before the District Court of Dodoma. The constitutional principle on the right to be heard or the fair hearing was adequately deliberated by the Court of Appeal of Tanzania (CAT) in the case of Severo Mutegeki and another vs Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (Duwasa), Civil Appeal No. 343 of 2019 (unreported). The CAT held on page 21 as follows: - "The right to be heard before adverse action or decision is taken against a party is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard. This is so because the violation is considered to be a breach of natural justice. See- Abbas Sherally & another vs. Abdul S. H. M. Fazalboy, Civil Application No. 33 of 2002 (unreported). Thus, the failure to accord the appellants an opportunity to be fully heard was a breach of natural justice and a violation of a fundamental right to be heard under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 (the Constitution) which provides: - Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi wa Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikiiizwa kwa ukamilifu..." [emphasis added] In another CAT case of Haji Rashidi Matundu and another vs Republic, Criminal Appeal No.314 of 2021 (unreported) deliberated on io the right to a fair trial to be given to all parties in the process of justice dispensation. On page 21, the CAT held as follows: - "The right to a fair trial was explained by this Court in Mfaume Daudi Mpoto & 2 Others v. Republic, Criminal Appeal No. 419 of2020 [2023] TZCA 17568 (31 August 2023) wherein we echoed that: "The constitution under Article 13(6), (b), (c), (d) and (e) further guarantees equality before the law for suspects and accused of criminal offences. As gleaned from that article, this right to a fair trial does not focus on a single issue but rather consists of a complex set of rules and practices. The rules applicable to the administration of justice are wide and as a minimum, refer to, inter alia: presumption of innocence, the right to be heard by a competent, independent and impartial court or tribunal; the right to be heard within a reasonable time." [emphasis added] In the circumstances, and being guided by the cited legal authorities, the violation of the constitutional right to be heard is a crucial and apparent error on the face of the records. Consequently, I am of the settled view that the existing illegalities that are apparent on the face of the records, warrant this court to exercise its discretionary powers to grant extension of time. Accordingly, the application is hereby granted. The applicant to file the revision within twenty one (21) days from the date of delivery of this ruling. No order as to costs. It is so ordered. li Right of appeal is explained. Ruling delivered in the presence of the applicant; and in the presence of the respondent. I.D. MUSOKWA JUDGE 12