joseph israel and another shomari kitwika administrator of the estate of the late habiba nassoro 2021 tzhclandd 819 3 september 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REVISION NO. 29 OF 2020 (Arising from the order and the Proceedings of Land Application No. 105 of 2019 from The District Land and Housing Tribunal for Morogoro) JOSEPH ISRAEL. 1st APPLICANT ST. GEMA GALGAN 2nd APPLICANT VERSUS SHOMARI KITWIKU (as the administratorofsthe estate of the late HABIBA NASSORO) .......?.^. RESPONDENT Last Order: 08/06/2021 Ruling date: 03/9/2021 \\/ \\ 105 of'2019before(tlTeDistrictland and Housing Tribunal for Morogoro. The Respondent who^is fhe^pplicant before the Tribunal instituted Application No. 105 of‘2019 claiming ownership of a piece of land located at Mkwajuni Street, ■ \X ) i Tungi in MbrQgorozRegion. He alleges the suit land forms part of the estate of the late HABIBA NASSORO. In their written statement of defence, the Applicants who are Respondents before the Tribunal, raised a Preliminary Objection on points of law against the competency of the Application. The points of objection may be paraphrased as follows: - i 1. That the Application against the first Respondent is incompetent in law for failure to disclose a cause of action against the first Respondent; 2. That the Applicant has sued a non-existing legal entity; 3. That the Application is time barred. The Trial Tribunal overruled the first and third points of objection, it sustained the second limb of objection and ordered the Applicant to amend his Application by inserting a proper name of the second Respondent, the second Applicant herein. n \ X. ■‘■S. NX V X /X Z y Aggrieved by the decision of the Trial Tribunal, the^AppIicants moved this court C. N\ \\ to revise the proceedings and Qrder^Hhe^Trial'Tnbunal. The Application has \\ v been preferred by way ot-Chamber Summons^made under section 41 and 43(l)(b),(2) of the Land^Qisputes Co'ur^s^A^ECap. 216 R. E. 2019] and Order XLIII Rule 2 of the Civil Pracedu c^Code, [Cap. 33 R. E. 2019], supported by an X^X. \ j affidavit sworn^-by Bartalomew Lewanga Tarimo, Applicants' advocate. The Chamber summons'cbntaTns the'following prayers: \\ ZL \\ , __ 1. TheHonourableNourtZbe pleased to call for and examine the (r^cords\arid\proceedings, so as to satisfy itself as to the correctness,^legality or propriety of the order in Application No. 105ot2019, of Morogoro District Land and Housing Tribunal dated 18th May 2020 and 16th June 2020; 2. That the Honourable High Court be pleased to declare the orders and the proceedings of the of Morogoro District Land and Housing Tribunal named above to be time barred, illegal and improper and dismiss Application No. 105 of 2019 with costs. 2 The Applicants were represented by Mr. Bartalomew L. Tarimo, learned Advocate while the Respondent prosecuted the Application in person. The Application was argued by way of written submissions. The Applicants and Respondent filed their written submissions within the prescribed schedule. In his submission, Mr. Bartoiomew advocate for the applicants adopted the contents of the Affidavit filed in support of this application to form part of his submission in chief. He also raised a new issue on<fahure of the Respondent to comply with the schedule of submissions fixedly the^FqeH Tribunal. In this he submitted that, the preliminary objection raised^by^h^'Applicante before the Trial Tribunal was ordered to be heafcNby wa\of)writterb>sdbmission. The \\ Respondents, herein Applicants, wefeordered^tofile their submission in support of the preliminary objection o'^19*h^MarGl!ix202O and the Applicant, herein Respondent, reply on 03rd/Aprib2^2Qi'and^ejoindir’ifany on 10th April 2020. The f ( XA\ ^\X Applicants filed their submission^on^ime^but tne Respondent, Shomari Kitwiku, did not file his submissjon.on time?HeTiieclon 14th April 2020 instead of filling . _ W \\v ) it 03rd April 2020, Jhus/he delayed-to file his submission for 11 days. The learnedjzounseL consideredThe Respondents failure to file his submission withii^t^f^d^i^Vimit^be improper. He counted the delay in filing the reply submission as the ’first Illegality in the proceedings before Trial Tribunal that need to bb>rectLfied/by this Court. He cited the case of JOHN CHUWA VERSUS ANTHONY CIZA[1992] TRL 233, as authority to back up his arguments. The learned advocate submitted further that, the submission which is filed beyond the fixed time limit, ought to have been ignored by the Tribunal. He argued that, it is a trite law that, failure to file submission amounts to failure to prosecute. He referred this Court to the decision in MS OLYMPIA KOWERO VERSUS EDITOR OF EXPRESS AND 3 OTHERS, CIVIL CASE NO. 176 OF 3 2005 HC, and registered his view that it was illegal for the Trial Tribunal to consider the Respondents submission which was filed beyond the fixed time limit. The learned counsel pointed out the second illegality in the proceedings of the Trial Tribunal to be suing a non-existing entity. He argued that the Applicant has not sued a legal entity because, ST GEMMA GALGAN is not a legal person in law. The incorporated body capable of being sued is THET^EGISTERED TRUSTEES OF THE CONGREGATION OF THE SAINT GEMMA- GALAGAN SISTERS. He argued \\ further that, the District Land and Housing TribtinaLconsidered th e> defect to be z- W \X/Z curable and ordered the Respondent wa^ordered^an^This application by inserting properly the name of the'Secorid^applicant. According to him, the District Tribunal misdirected the^pplicant'iiTit^ruling>by failure to distinguish between St. Gemma Galgar^hiclTiS'Wt'the incorporated name of the second Respondent and, THE RE^ISTERED^USTEES OF THE CONGREGATION OF W Z \\ SAINT GEMMA GALGAISI SISTERS whichjs the incorporated name of the second Respondent. Th^learn^-cobtfeel-consFders failure of the Applicant to sue the Second Respondent injts proper name, the incorporated name, is both irregular amendment ofth'e^Application to rectify the alleged spelling mistake instead of striking'dut of the Application. The learned advocate mentioned the 3rd illegality in the Trial Tribunal proceedings to be failure of the Applicant to file his amended application within the fixed time limit. He argued that, the Tribunal ordered the applicant to amend his application by rectifying the name of the second Applicant within 14 days. According to the order, the Respondent ought to have filed his amended Application by 18th May 2020. The Respondent filed the same on 19th June 2020, after the period of 30 days without leave of the Trial Tribunal. The amended 4 application was admitted and considered by the Trial Tribunal. The learned counsel is of the view that admitting and considering the amended Application which was filed out of time is irregular and illegal. The 4th illegality pointed out by the Applicants' Counsel concerns the competency of the Application before the Tribunal. He argued that the Application before the Tribunal is time barred because it was instituted after the expiry of 12 years contrary to Para 22 of the first schedule to the^Law of Limitations Act. He submitted that, Section 9(1) of the Law of Limitations'-Act, [Cap. 89 R. E. 2019] provides that the right to institute a suit to recover land ofthe deceased person 'x \\ ^xS W'/’ shall be deemed to have accrued on the. date 'of death-of the deceased. He \\ \V/\) submitted further that, the application Jndicatesthat (the suit land forms part of the estate ofthe Habiba Nassorb^wh^-dted-orx^S^-October 1993. The Applicant was appointed to be the administratorsof'the estate;of the late Habiba Nassoro ( "fr 'x "XX on 11th October 2016 which is almost^26'years after the death of Habiba Nassoro. Paragraph 6(a)(ii) ofthe Application indicates that the first Respondents trespass was committed'sdrnetimes 2010>Applying the facts contained in the Application (S' W \\ to sections 9(1) the Law of Limitations Act, he argued that the right to sue over —-- -X the suitland^accrued in'the year 1993 when Habiba Nassoro died. He concluded ( (' W \\ that,\the ApplicatipnKisxtime barred as according to section 4 of the Law of LimitatiohsAct provides time limit commences from the right for action accrued. In the case'atjnand'the 12 years'time limit has already expired. In his reply submission, the respondent submitted that this application is devoid of merit as the main suit is still pending before the District Land and Housing Tribunal for Morogoro. He argued that the only remedy here is to struck out this application to enable the Tribunal determine the suit before it in merits. 5 On the alleged failure to file his submission before the Tribunal within time, he submitted that, the same was filed on time as per the scheduled made by Tribunal. He added that, it seems that the counsel for the applicant has confused himself on the filing schedule thus, he is trying to mislead the court. On failure to sue the Second Applicant in her registered name, he submitted that the same is not fatal as it can be easily corrected as ordered by the Tribunal. He argued that it is not in the interest of justice to\struck out or dismiss the application for such curable defects. \\ In his rejoinder, Advocate for the Applicants reiterated-his^submission in chief. I have considered submissions by bottkparties^and Court. Court record indicates that Application No^l05\of 2019/is^stiH'pending before the District Land and Housing Tribunal-as submitted'bythe/Respondent. The proceedings at the Trial Tribunal est'abljThes'yhatxthe Application was scheduled for mention 10th Decemb^2020xArid ^ereJssa> pending preliminary objection on point of law (f Vx " that has been raisecbby the Applicants. The notice of preliminary objection was filed on^11 July 2020 arid it has not yet been determined by the Trial Tribunal. In their siJ&missjons^ parties do not dispute that the main Application is still for determination before the Tribunal. This court has been moved to revise orders dated 18th May 2020 and 16th June 2020. On 18th May 2020 the Tribunal overruled some of the Applicants Objection by holding that the application discloses a cause of action and it is not time barred. It also sustained the objection that the name of the second Respondent was wrongly written and ordered amendment of the application by inserting a 6 Registered name of the second Respondent. On 16th June 2020 the Tribunal granted the Applicant extension of time to file his amended Application after his failure to file his amended Application within the 14 days that were granted in the order dated 18th May. The nature of the orders sought to be revised did not determine the dispute between the parties to its finality. With due respect to the counsel for the Applicants, such orders are not revisable. The law, Regulation 22 of Land Dispute Court (The District Land and Housing Tribunal^ GN No:i74 of 2003, provides that such orders are neither appealable nor revisaBle.^The^levpit Regulation Reads:' \\ Regulation 22. The Chairman^shalkhavepowerkto determine: - C\ X S_ ■-'V. X 'x X Y \\A a) Preliminary objections'based'on points of law \ftnany aecidingtne case snail not ne appeaiaoie. The Court oTAppeal of Tanzania in the case of JUNACO(T) LTD and JUSTIN LAMBERT VERSUS HAREL MALLAC TANZANIA LIMITED, Civil Application No. 473/16 of 2016 when faced with an application for revision of an order issued by the High Court overruling a preliminary objection it held that, "In upshot, we find and hold that the orders sought to be challenged by way of revision were but interlocutory and therefore not revisable. We advise the Applicants to load their guns and wait to fire at an opportune moment if they so wish." 7 The Court of Appeal went ahead to struck out the application. I also find the application to have been preferred prematurely as the orders sought to be revised did not determine the dispute between the parties to its finality. Parties should first prosecute their case before the tribunal to its finality unless the Trial Tribunal has issued an order that determines rights of parties to their finality. For that reason, the Application is hereby struck out. Costs to follow events. JUDGE 03/09/2021 8