farida omar and others vs farouk islam abeid 2021 tzhclandd 6920 21 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.151 OF 2020 (Arising from the Land Case No. 126 of 2006) FARIDA OMAR ISt APPLICANT AKHTAR KAMAL 2^" APPLICANT WAHID KAMAL 3'^'' APPLICANT JAMAL KAMAL 4™ APPLICANT FAUZIA ISLAM 5™ APPLICANT VERSUS FAROUK ISLAM ABEID (As an Administrator of the Estate of the Nuru Saad) RESPONDENT RULING OPIYO. J. This appllcation was brought under section 14(1)of the Law of Limitations Act, Cap 89, R,E 2019 and sections 93 & 95 of the Civil Procedure Act, Cap 33, R.E 2019. The applicants are jointly seeking for an order of extension of time so as they can apply for a review to challenge the consent judgement issued in Land Case No. 126 of 2006, dated 28^'^ September 2009. The application was supported by the Affidavit of the 1®^ applicant, Farida Omar, and heard by way of written submissions. Advocate Venance Athanas Hanje appeared for the applicants while the respondent appeared in person. 1 Submitting in favour of the appiication, Mr. Hanje after praying the Affidavit to be adopted, has insisted that, the appiicants have preferred this appiication because of the illegalities contained in in the consent judgment issued in Land Case No. 126 of 2006 which are apparent on the face of records. He contended that the iilegalities are apparent on the face of records as the consentjudgement was obtained without the knowiedge of the applicants, only initiated by the Advocate of one Nuru Saad who was the plaintiff in that case. As a result, the suit land was placed under the ownership of the said Nuru Saad unlawfully. The applicants' counsel cited the case Mary Rwabizi T/A Amuga Enterprises versus National Microfinance Bank, Civil Application No. 378/01 of 2019, Court of Appeal of Tanzania (unreported), where it was stated that "0/7 my part, having considered the submissions ofthe counsel for the parties, lam ofthe opinion that the error in thejudgmentofthe court has made the decision to be iiiegai, is a serious matter which deserves the attention ofthe court on review. itfollows that although in the present appiication the applicant has notsufficiently explained the delay oftwenty six days in lodging an application for review, which delay is not in ordinate, she deserves consideration ofcourt on the allegation ofHiegaiity'. In additional to that, the counsel for the applicants cited the case of the Principal Secretary, Ministry of Defence and National Service versus Devram Valambhia (1992) TLR 182, Court of Appeal of Tanzania. In reply, the respondent after praying to adopt the counter affidavit, he raised a concern that, in this application oniy the applicant, Farida Omar did swear in the affidavit, the rest of the applicants did not, therefore the 2"^ -5^^ applicants have no any cause of action against the respondent and have to be expunged from this appiication. He also argued that this court had already held by Ngwala J. (as she was) when Mr. Akhtar Kamal (2"^ respondent) challenged the execution of the case, that this court is functus oificio. That, the execution has long been caried out before the death of Nuru Saad. The ownership of the suit iand has aiready been transferred from Nuru Saad to the beneficiaries including Farida Omar (P' respondent). Therefore, no review can be entertained by this court. Hence this application is of no purpose. In rejoinder, the counsel for the applicants maintained that the execution of the decree was carried out without the knowledge of the applicants. However even if the execution has aiready been done it does not make other orders useless. In the land Case No. 126 of 2006, the dispute was centered on the ownership of land, the same can be reversed and the court is not barred by the doctrine of functus officio to do so. I have considered the submissions of parties, the affidavit in support of the application as weil as the counter affidavit. Concern that oniy one person signed the affidavit raised by the respondent has no basis for that one person signed on behalf of all other applicants. I therefore, proceed to determine the appiication on merits. The issue worth of determination is whether the application has merit or not. In the instant application it has been alleged by the counsel for the applicants that, the reason for seeking the extension of time is the fact that the impugned consent judgment issued in Land case No. 126 of 2006 is tainted with illegalities. The said judgment was not obtained by the consent of the applicants rather the court was influenced by the Advocate of one Nuru Saad. The question to be answered here is whether these allegations of illegalities in the impugned judgment constitute a sufficient cause capable of allowing an application extension of time. I am aware that it has been settled that, allegations of illegalities in the decision to which the intended course is sought constitutes a good cause for granting an extension of time, see Principal Secretary, Ministry of Defence and National Service versus Devram Valambhia, supra, and Mary Rwabizi T/A Amuga Enterprises, supra. However, for the court to extend time based solely on the ground of illegality, it should satisfy itself that the said illegalities are apparent on the face of records. There must at least a primafacie evidence to establish the existence of such illegalities. In our case, the applicants have contended to have no knowledge of the settlement of the Land case No. 126 of 2006 as the same was initiated by the plaintiff's Advocate in that case. Therefore, they seek to challenge the consent judgment resulted therefrom. However, I have gone through the proceedings and found nothing suggesting such illegalities in them as pointed out by the counsel for the applicants. The attached copy of proceedings in respect of Land Case No. 126 of 2006 at page 13 shows that, the applicant Farida Omary and the 5^'" applicant, Fauzia Islam in fact did participate in the settlement. They also agreed to hand over the suit property to Nuru Saad and they did agree. Hence the suit was marked settled. This is to say,the applicants were aware of the settlement, nothing was obtained without their knowledge let alone their consent. Therefore, the allegations of illegalities tainting the consent judgment to which their intended cause is sought are unfounded. Hence fore, I find the applicants to have no sufficient cause warranting their application to be allowed, see Oswald Masatu Mwinzarubi versus Tanzania Fish Processors LTD, Court of Appeal of Tanzania, Civil Application No. 13 of 2010,at Mwanza, (unreported)). In the event, I find no merit in the application and hereby dismiss the same. \J11T Op o c M.P. OPIYO, % JUDGE -k ★ O 21/06/2021 D