koloneli farusi higoro administrator of the estate of the latepharus hogoko kinono vs melania balandaje and two others 2022 tzhc 13509 20 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY Oc KIGOMA AT KIGOMA MISC. LAND APPLICATION NO. 16 OF 2022 (Arising from Misc. Land Application No. 237/2021 of 'he District Land and Housing Tribunal for Kigoma, before M. Mwir/i - Chairmanpersc i. Original Land case no 6/2020 of Kumsenga Ward Tribur al) KOLONELI FARUSI HIGORO (Administrator of the estate of the late Pharus Hogoko Kinono)...... ........................... APPLICANT VERSUS MELANIA BALANDAJE...................................................................................... 1stRESPONDE VEDASTO VIYILIKO......................................................................................... 2ndRESPONDE NYONYOMBA ZABULONI................................................................................ 3rdRESPONDE RULING 9/9/2022 & 20/9/2022 L.M. Mlacha, J The applicant Koloneli Farusi Hiqoro (Administra or of the estate of the late Pharus Hogoro Kinoko) filed an application seek -g extension of time within which to file an appeal against the decision of tt a District Land and Housing Tribunal for Kigoma (the DLHT) made in Lane Application No. 237/2021 originating from Kumsenga Ward Tribunal La *d case No. 6/2020. The application is made under section 41 (2) of the Land Disputes courts Act, cap 216 R.E 2019 and section 14 (1) of the Law or Limitation Act, Cap 89 i R.E 2019. It is supported by the affidavit of Koloneli Farusi Higoro stating the grounds upon which extension is sought. The respondents Melania Balandaje, Vedasto Viyiliko and Nyonyoba Zabuloni were duly served and filed a joint counter affidavit sworn by Abdulheri Ahmad sadiq opposing the application. Mr. Ignatus Kagashe appeared for the applicant while the respondents had the services of Mr. Abdulheri Ahmad Sadiq. Hearing was done online through our virtual services. It was the submission of Mr. Kagashe that the applicant sued the respondents at Kumsenga ward tribunal in Land case No. 6/2021. He won the case and filed an application for execution. While the application for execution was pending, the respondent filed application No. 237/2021 at the DLHT seeking extension of time within which to appeal to the DLHT. The application was set for hearing on 17/3/2022 in the presence of both parties. On 1/3/2022 in the absence of the applicant, the tribunal made an order changing the hearing date from 1/3/2022 to j/j/zuzz. ine summons came to Mr. Kagashe but he could not communicate it to the applicant who live at Nyakitonto village, Kasulu district given the short span of time. He could not appear. Mr. Kagashe could not appear as well due to the short notice and pressure of other issues. The application was heard exparte. The DLHT 2 granted the application in a ruling which was delivered on 25/6/2022. They applied for a copy of ruling ano drawn order, hey were supplied with the ruling on 27/4/2022 but could not get the drawn order which was a necessary document for appeal purposes to dat< Noting that he was late he decided to lodge the presen application seekin extension of time. Counsel concluded that the delay was rot deliberate. Counsel proceeded to submit that the ruling of the DLHT has wo illegalities; first, the unilateral change of date and secondly, the failu e to issue a summons for a date of ruling. He argued the court to grant the application. submitting in reply, counsel for the respondents told the court that it is true that there was change of date but that was necessary due tc disturbances which were being made to the respondents. Cour sei pointed out three areas upon which an application of this nature can be granted namely; the length of delay, reasons for the delay and the degrc ? of prejudice upon which parties to bear. He said that the applicant could r-ot count for the delay of 23 days adding that for ack of drawn order is not a good ground for extending the time. He added that, the app icant did not sa the decree of prejudice in which he will suffer if the application is not gran ed. He argued the court to dismiss the application. 3 Mr. Kagashe made a rejoinder and reiterated his earlier position. I had time to examine the pleadings and submissions closely. It is agreed that there was a change of date made in the absence of the applicant. It made the application to be heard in the absence of the applicant. It is not disputed that the application was heard ex-parte and decided exparte. It is also not disputed that, the applicant could not receive a summons for delivery of the ruling. He could not get a drawn order to date. I have no problem with principles pointed out by Mr. Abdulheri. My problem is the reason as to why the date was changed unilaterally and way the DLHT did not issue a summons to call the respondent to attend the court on the date of delivery of the ruling. I think that was contrary to the law and established principles which are now settled in our jurisdiction. Any changes to the hearing date have to be done only where there is sound reason to do so and must be well communicated to the other side. And where it is necessary that the case has to proceed ex parte under whatever situations, the defaulting party still has a right to be called to receive the decision. See Cosmas Construction Co. Ltd. v. Arrow Garments Ltd. (CAT), [1992] TLR 129 page 128 where it was said thus; 4 party who tails to ente • an appearance disables himself from participating when the proceedings are con: equentiy ex-parte, but that is the farthest exten' he suffers. Although the matter is therefore considered without any input by him he is entitled to know the final outcome. He has to be ti id when the judgment is delivered so that he may, if he wishes attend to take it as certain consequences may follow. "(Emphasis added) Further, there is also good evidence showing that he delayed while looking for a copy of the drawn order which he coulc not get to date. A drawn decree or order was a necessary document in lodging the appeal. See Attorney General v. Ahmad R. Yakuti and 2 others, Civil Appeal No. 49/2004 (CAT) and Mount Meru Flowers (T) Ltd v. Box Board (T) Ltd, Civil Appeal No. 260/2018 (CAT). In Mount Meru Flowers (T) Ltd it was said at page 10 that parties should not be punished for errors committed by the court. That said, the application is granted. The applk -nt is given 14 days within / ) which to lodge the appeal. I make no order as to costs. It is ordered so. L.M. MJacha Judge 20/9/2022 5 Court: Ruling delivered online in the presence of Mr. Kagashe for the applicant at Kigoma and John Nyamoroga at Ubungo Mabibo Dar es salaam. Right of Appeal Explained. Judge 20/9/2022 6