Land Appeal No 11988 ocr

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO.11988 OF 2024 (Originating from Misc. Land Application No. 467/2023 at the District Land and Housing Tribunal of Kinondoni at Mwananyamala) KHATIBU MOHAMED DIWANI (The administrator of the estates of the late MOHAMED KHATIBU DIWANI................................ APPELLANT VERSUS MARY WANJIRA BISHOTA BALIKUDDEMBE MWIJAGE JOSEPH BISHOTA (The administratrix and Administrator of the estates of the late DEUSDEDIT MUJWAHUZI KAGISA BISHOTA.......................... RESPONDENTS RULING 02/7/2024 & 26/7/2024 A, MSAFIRI, J, The appellant herein above being dissatisfied with the decision of the District Land and Housing Tribunal of Kinondoni at Mwananyamala (the trial Tribunal) in Misc. Application No. 467 of 2023 have lodged this appeal advancing three (3) grounds of appeal as follows; 1. That, the trial Chairman erred in law and facts in granting prayers of extension of time without considering key fundamental principles upon granting the said prayer resulting to the unreasonable and unjustifiable ruling. _/b L i 2. That, the trial Chairman erred in law and facts in granting prayers of extension of time without considering the unjustifiable reasons stated by the respondents for the delay ofmore than 6 years in their application for extension of time. 3. That, the trial Chairman erred in law and facts by ruling in favour of the respondents in their application for extension of time basing on the principle of natural justice (right to be heard) while it was upon the respondents themselves who failed to honour the said principle when given the chances to do so. The appellants prays to this court to quash the whole of the Ruling and Drawn order in Misc. Land Application No. 467/2023. The appeal was heard by way of written submissions and the submissions in chief in support of the appeal was drawn and filed by Ms.Tully Kaundime, learned advocate while the reply submission by the respondent was drawn and filed by Mr. Bernard Mbakileki, learned advocate. I have well considered the submissions by the parties through their counsels along with the cited authorities but I have no intention of reproducing the said submissions herein but will look into the same while determining the grounds of the appeal. The background of this appeal is that the now respondents who were the applicants in Application No. 204 of 2008 have instituted the said 2 application before the Tribunal. However the application was dismissed for want of prosecution on 23/4/2014 by Hon. Chairman Hemed (as he then was). The same applicants then filed Misc. Application No. 160 of 2015. Again they failed to enter appearance and the application was dismissed for want of prosecution on 06/02/2015. The applicants/ appellants again filed an application No. 1012 of 2020 seeking for an extension of time within which they can file an application for setting aside the dismissal order in Application No. 160 of 2015. On 13/9/2021, after detecting some defects, the counsel for the applicant prayed to amend the Application but the Tribunal marked the application withdrawn with leave to refile. The applicants/now respondents instead of filing a new suit as per the Tribunal's order, they filed the amended Application No 1012 of 2020. It was before Hon. Mwakibuja, Chairperson who struck out the said application on 03/7/2023. After that, the applicants/respondents instituted Application No. 467/2023 which is the origin of the instant appeal, seeking for extension of time within which to file an application to set aside the dismissal order by Hon. Hemed in Application No. 160 of 2015 dated 06/2/2015. The application was before Hon. Sillas, Chairman who after considering the arguments by both parties, he granted the= 3 sought orders to the applicants to file the application of setting aside dismissal order. This act aggrieved the appellants and have lodged this instant appeal. In their submissions, the appellant through his advocate Ms Kaundime have challenged the decision of Hon. Sillas in Application No 467/202 of granting the extension of time to the respondents averring that the respondents have failed to count for days of delay of almost six(6) years since the exparte judgment was delivered and that the respondents have shown negligence or sloppiness in the prosecution of the matter. In reply submissions, the respondents among other things, argued that the order of the Hon. Chairman of the Tribunal was an interlocutory order which does not finally determine the rights of the parties to its finality hence it is not appealable. To cement their case the respondents cited the case of Jitesh Jayantilal Ladwa vs. Indian Ocean Hotels Limited &2 others, Civil Application No. 154/2020 CAT at DSM which made a reference in approval of the case of Vodacom Tanzania Limited Company vs. Planetel Communications Limited where the Court of Appeal stated thus; LflL 4 "In the light of the settled position of the law, it is dear that an interlocutory order is not appealable save where it has the effect of finally determining the charge, suit or petition" The counsel for the appellants rejoined on this point and submitted that it should be noted that Misc. Application No. 467/2023 emerged after the lapse of statutory time thus the respondents were time barred. She said that the ruling in Application No. 467/2023 is appealable since if it remains unchallenged it will prejudice the appellants' rights over the suit property in which they are original owners. She prayed that the appeal be decided in favour of the appellants. Since the respondents have raised a point of law in their reply submission which has also been countered by the appellants in their rejoinder, the court cannot leave the said point of law undetermined hence before going into determination of the grounds of appeal, this court has to look on whether the order in Misc. Application No. 467/2023 was interlocutory hence not subject to appeal. As said earlier, the applicants in the said application were seeking for the extension of time within which to file an application to set aside the dismissal order in Application No. 160 /2015 dated 06/2/2015. The application was granted and the applicants were ordered to file the 5 intended application to set aside the dismissal order within 14 days from the date of ruling. The test on whether an order is interlocutory or not was laid by the Court of Appeal in the case of JUNACO (T) Ltd & Another vs. Harel Mallac Tanzania Limited, Civil Application No. 473/16 of 2016, CAT at DSM. In the said case, the Court of Appeal citing the case of Murtaza Ally Mangungu vs. Returning Officer for Kilwa & 2 others, Civil Application No. 80 of 2016 (Unreported) where the "nature of order test" was tested, the Court of Appeal had the following observation on the interlocutory order; " it is therefore apparent that in order to know whether the order is interlocutory or not, one has to apply the "nature of the order test". That is to ask oneself whether the judgment or order complained offinally disposed of the rights of the parties. If the answer is in the affirmative, then it must be treated as a final order. However, if it does not, it is then an interlocutory order" (emphasis added). It is important then to ask oneself in the instant matter. Did the order which is challenged by the appellant finally disposed of his rights? Did the grant of the extension of time by the Tribunal to the applicants in Misc. Application No. 467/2023 and order that the said applicants to file their 6 application to set aside the dismissal order, finally disposed the rights of the parties particularly appellant? Ms Kaundime for the appellant thinks in affirmative. She submitted that the grant of extension of time has the effect of prejudicing the rights of the appellant on the issue of ownership of the suit property since he is the original owner. However, it is my finding that the granting of extension of time for the applicants to file application to set aside the dismissal order does not in any way dispose the rights of the appellant for the reason that the appellant still have the right to be heard in the intended application to set aside the dismissal order. They have a right to challenge the application and hence the mere grant of extension of time does not in any way forfeit the said right and the matter was not finalized by the grant of extension of time to the applicants who are now the respondents. It is my view that this appeal is premature since the appellant still have a right to challenge the application to set aside the dismissal order. In the case of JUNACO (T) Ltd & Another vs. Harel Mallac Tanzania Limited (supra), the Court of Appeal observed further that; "It is our view that an order or decision is finally only when it finally disposes of the rights of the parties in the suit" 7 Guided by the above reasoning, as earlier stated, I find that the order which is challenged in this appeal to be interlocutory in nature as I don't see how the appellants' rights have been finally decided by that order. I therefore struck out the appeal and order the records to be remitted to the District Tribunal to continue with the hearing of the Application as scheduled. Since this suffice to dispose of the appeal, I find it academic to determine the grounds of appeal. Each party to bear their own costs of this appeal. 8