JOFREY SEMBE RAJABU SCANNED

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM M—umawaATlitwnniBininrTr 1-1— n.TMWlug.inn mia:iin» uty MISC. LAND APPLICATION NO, 29473 OF 2024 (Originating From Application no. 197/2017, Kinondoni District Land and Housing Tribunal) JOFREYSEMBE RAJAB U........................ ......... ........APPLICANT VERSUS MAYAYASHILINDE POLE...................... ....RESPONDENT RULING 19th to 27th February, 2.025 E.S. LUVANDA, J The Applicant is seeking for extension of time within which to file appeal .out of time against the whole judgment and decree of the trial Tribunal delivered on 18/05/2022 against the Applicant. In the affidavit in support of the application, the Applicant pleaded the ground of delay being premised on a fact that he has being in the court corridor prosecuting Mise. Land Application No. 44 of 2022 which was struck out. for being incompetent also thereafter embarked into defending several applications mounted by the Respondent against the Applicant including a bill of costs against Mise. Land Application No. 44 of 2022; Mise. Application No. 280 of 2024 at the Tribunal for execution of costs emanating from Execution No. 9 and 10 of 2023, where he was sent to prison as civil prisoner for failure to pay costs. i He averred that he received advice that the only remedy after Mise. Land Application No. 44 of 2022 was struck out, was to file a fresh application for extension of time to file his appeal, for explanation that Mise. Land Application No. 44 of 2022 was not dismissed. He pleaded that according to the advice given to him, is that the Tribunal which decide Application No. 197 of 2017 lacked jurisdiction over the suit for the explanation that the cause of action is sale agreement and claim for reimbursement of price of sell (business) and not ownership or claim for rent. He averred that even if the Tribunal had no jurisdiction over the suit, the Ubungo DLHT ought to transfer to Ubungo DLHT which had jurisdiction over the premises situated at Goba in Ubungo District. In the counter affidavit, the Respondent stated that the applicant filed Mise. Land Application No. 385 of 2021 at the High Court Land Division.at Dar es Salaam, for extension of time to file an appeal, of which was struck out by Hon. Mwenegoha, J for being incompetent on 11/10/2022, citing annexure MSP-3 to the counter affidavit. He stated that, after the struck out, the Applicant re-filed Mise. Land Application No. 44 of 2022 at the same High Court Land Division, for extension of time the same was heard and dismissed by Hon. Mwenegoha, J for lack of merit on 29/03/2023, citing annexure MSP-4 to the counter affidavit. That both Mise. Land Application 385 of 2021 and Mise. Land Application No. 44 of 2022, were filed by the Applicant at the High Court of Tanzania (Land 2 Division), by the Applicant as way of seeking mercy to escape reimbursing the Respondents money including going to the District Commissioner of Kinondoni and Ubungo, citing annexure MSP-5 to the counter affidavit. That the dispute emanates from ownership of land (double sale) of which the Applicant had admitted, and promised to pay his liability to the Respondent, of which he has not done to date, and that he now wants to use this Court to avoiding to reimbursing, citing annexure MSP-6 to the counter affidavit. That by the time of institution the Kinondoni DLHT had the geographical jurisdiction over the land dispute in Goba Ward. That the main case Application No. 197 of 2017 was filed on 29/05/2017, the Ubungo DLHT was established in January, 2022, where the all cases in which the hearing had begun were left at the Kinondoni DLHT. That cases which were filed and the hearing not began, were all transferred to Ubungo DLHT since 1/5/2022. That the main case Application No. 197 of 2017 did not qualify for being transferred. To this end, the Respondent raised the following preliminary' objections: One, the Applicant had already filed in this Court, an application for extension of time to filed an appeal arising from Application No. 197 of 2017 of Kinondoni DLHT, which was heard on merit and dismissed via Mise. Land Application No. 44 of 2022, therefore, this application is res judicata, hence contravenes section 9 of Civil Procedure Code, Cap 33 R.E. 2019; Two, having this Court heard and 3 dismissed Mise. Land Application No. 44 of 2022, this Court is functus official la entertain this application for extension of time to file an appeal in respect of the same Application no. 197 of 2017, hence lacks jurisdiction; Three, the application is legally untenable, and therefore overtaken by event, because the Applicant has begun to pay or satisfy or comply to the judgment and decree in Application No. 197 of 2017. The application is unnecessary hence abusing the court process. Mr. Gabriel M. Marose learned Counsel for Respondent submitted that historically, in this Court on 13/07/2022 the applicant had filed vide Mise. Land Application No. 385 of 2022 (before Hon. Mwenegoha, J) an application Tor extension of time to appeal against Application No. 197 of 2017 Kinondoni DLHT, which was struck out. He submitted that after Mise. Land Application No. 385 of 2022 being struck out, the Applicant filed Mise. Land Application No. 44 of 2022 (Hon. Mwenegoha J), for extension of time to appeal against Application No. 197 of 2017, which was heard and dismissed for lack of merit on 29/03/2023. He submitted that the Applicants is restricted from instituting another application for extension of time to file an appeal against Application No. 197 of 2017 for reason that he has been heard and determined as far as extension of time to appeal against Application No. 197 of 2017. He submitted 4 that after being dissatisfied, he ought to have taken a legal action,, of which is not the case at hand. He cited section 9 Cap 33 (supra) that it provides for doctrine of res judicata, arguing its object is to bar multiplicity of suits and guarantee finality to ligation. Also cited Peniel Lotta vs Gabriel Tanaki and others [2003] T.L.R 312; Jonas Mrema vs Janeth Elly Temu (2024) TZCA 950 (27th September, 2024) Tanzlii; Jebra Kam bole vs The Attorney General (2022) TZCA 377 (15th June, 2022) Tanzlii. For ground number two, the learned Counsel submitted that, this Court is hand capped and barred from entertaining this application for extension of time to file an appeal on Application No. 197 of 2017, on explanation that, it has already determined on merit from the applicant and dismissed the same via Mise. Land Application No. 44 of 2022 (Hon. Mwenegoha, J). He submitted that the previous and current presiding judge have the same power in this Court, arguing that once the previously Judge has finally and conclusively determined the issue of extension to file an appeal before her, the later Judge is barred for being fundus officio to determine the same. He cited CRDB Bank Plc vs The Registered Trustee of Kagera Farmers Trust Fund & Two Others (2024) TZCA 94 (23rd February, 2024) Tanzlii. Also cited Bibi Kisoko Medard vs 5 Minister for Land, Housing and Urban Development [1983] T.L.R 250. That, when the court finally determines the matter, it ceases to have jurisdiction. In reply, Mr. Massawe, N.K. learned Counsel for Applicant submitted that the first preliminary objection is based on the Miscellaneous Land Application No. 44 of 2022 which was dismissed, arguing that according to the learned Counsel for Respondent, the present application is res -judicata and that it contravenes s. 9, Cap 33 (supra). He submitted that it is true that Mise, land Application No. 44 of 2022 was filed in this Court but the Applicant was laboring to apply for extension of time within which to file his appeal and the said application was dismissed for devoid of merit, arguing that there was no discovery that the Tribunal which decided the dispute lacked jurisdiction because the dispute was not on ownership or recovery of rent. He submitted that the Respondent herein instituted the land matters in the District Land and housing Tribunal for Kinondoni, claiming that the present Applicant to be compelled to honour the sale agreement dated 24/7/2016, therefore claiming reimbursement of the sale price of TZS 3,000,000/=, the respondent herein to pay 10,000,000/= as general damages for loss of time chaos, disturbances, loss of opportunities and developments for all time of dispossession, costs and any other relief. He submitted that the cause of action in the Application No 197 of 2.017 was 6 the sale agreement of the land dated 16/12/2011, the land which situate at Shina No.13 Kibululu, Goba Ward, at Kinondoni District and the consideration was 7,000,000, the Respondent paid TZS 6,000,000/= on the due date of signing sale agreement leaving unpaid TZS 1,000,000/=. He submitted that later on the Respondent discovered that the Applicant the said plot of land was previously sold to another person namely Datisi Balongo on the 2/08/2010 for consideration of TZS 2,000,000/=.For reference we attach the copy of application no 197 of 2017. He submitted that the Respondent successfully obtained judgment in his favour while the suit was filed in the Tribunal which lacked jurisdiction and the Applicant herein applied for extension of time to file appeal and the application failed. He submitted that the application at hand cannot be res judicata simply because the Applicant filed application which was dismissed for lack of merit, while the biggest mistake was committed by the Respondent herein by instituting application in the Tribunal which is not clothed with jurisdiction and at the same time the Tribunal also committed the same mistake by hearing and determining; the suit emanating from commercial transaction and not ownership of land or matter of rent claim. He submitted that the Applicant herein cannot be punished by the Court which lack jurisdiction and this Court is the only which can rectify this great mistake. 7 He submitted that Miscellaneous Land Application No. 44 of 2022 emanated from the Tribunal which deals with the ownership of land and not commercial matters, arguing that the dispute was commercial whereby the Applicant herein sold the plot of land to two different persons although it was dismissed without the court consideration that land Tribunal lacked jurisdiction. He submitted that the litigation should come to an end where the court which determined the suit was clothed with jurisdiction, for the case at hand there is no court with competent jurisdiction which determined the suit between the parties on merit. He submitted that the Tribunal which heard and conclusively determined Application No. 197 of 2016 lacked jurisdiction, therefore the judgment which the respondent defend is equal to none existence which cannot be executed against the applicant herein. on the second limb of objection, the learned Counsel submitted that the reason for this application for extension of time is that the court which determine Application No 197 of 2017, lacked jurisdiction, reiterating the arguments in ground number one. He submitted that this Court has power to correct such mistakes. He submitted that the cited cases differ from our present application for reasons that there is nowhere the Applicants were praying for extension of time to file appeal from the judgment delivered by the court which lacked jurisdiction. 8 On rejoinder, the learned Counsel for Respondent submitted that his concerns on res-judicata and functus officios specifically addressed on the competence and validity of this Court to entertain the instant application for extension of time to file an appeal for reasons that there was a previously application for extension of time to file an appeal which has already heard and dismissed in respect of the same decision. He submitted that since the Applicant has already approached this court in respect of extension of time (of which is competent) thereby heard and dismissed vide Mise. Land Application No. 44 of 2022, arguing that the Applicant is restricted to file the instant application for extension of appeal in the same court which has heard and dismissed it. He submitted that in the entire reply submission, the Applicant has been wrong discussed and referred as well as questioned the decision of the Tribunal on whether or not had jurisdiction in Application No. 197 of 2017 of which is not the business of the raised objections. That is al! about submissions for both parties. It is to be noted that in the affidavit in support of this application, the Applicant asserted that Mise. Land Application No. 44 of 2022 was not dismissed by this Court rather was struck out. This suggest that on the face of it, the Applicant 9 deponed on misleading facts. In the submission in reply, technically the learned Counsel for Applicant, made a concession that he previous lodged an application for extension of time to appeal against Application No. 197 of 2017, vide Mise. Land Application No. 44 of 2022, which was heard and determined on its merits by this Court and dismissed for want of merits on 29/03/2023. However, the learned Counsel for Applicant, was of the view that since there is a new discovery of issues of jurisdiction for the Kinondoni District Land and Housing Tribunal which according to him the Tribunal entertained Application No. 197 of 2017 without prerequisite jurisdiction, arguing this Court has power to re­ determine an extension of time over the same decision of the Tribunal, based on those arguments of point of law (jurisdiction). This argument is not supportive. To my view, the line of argument taken by the learned Counsel for Respondent, is a correct stance of the law, that notwithstanding of the so called new discovery of question of jurisdiction of the Tribunal, the same cannot be taken as a ground for re-opening up a discussion for an issue of extension of time, which issue was previously determined by this Court. In Pernell Lotta (supra) it was held, 'Parties are not permitted to begin fresh litigation because of new views they may entertain of the law of the case or new versions which they present as to what should be a proper apprehension, by the court of the legal resuit. If this were io permitted, litigation would have no end excerpt when legal ingenuity is exhausted' The same position was stated in Jebra Kam bole (supra), 'The law of this country, like the laws of other jurisdictions, recognizes that, like life, litigation has to come to an end. Those who believe that litigation may be continued as long as legal ingenuity has not been exhausted are clearly wrong... therefore, the object of S. 9 of the CPC is to bar multiplicity of suits and guarantee finality to litigation. The doctrine of res judicata is also there to ensure certainty in the administration ofjustice' As alluded by the learned Counsel for Respondent that the policy underlying the doctrine of resjudicataxs that there should be an end to the litigation. The only recourse for the Applicant was to seek redress against the decision of this Court in Mise. Land Application No. 44 of 2022. Bringing in the same prayer for extension of time, under disguise of new discovery of a ground on point of law, is nothing other than an afterthought. For that matter, this Court is functus officio to sit and determine the issue of extension of time for a decision of the Tribunal in Application No. 197 of 2017. In the case of CRDB Bank PLC (supra), it was held, As we understand the law, a court becomes functus officio after having finally and conclusively determined an issue before it. Once that happens, it is settled law, the same court cannot, ii whether by the same judicial officer or a successor judicial officer, entertain the issue. It has been said so in a number of decision...' 12