Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LAND DIVISION

AT PAR ES SALAAM MISC.LAND CASE APPLICATION NO. 5100 OF 2024 (Arising from Application number 36 of2020, before Hon. Lung 'wecha at the District Land and Housing tribunal Kibaha) MAHAD SAID MATIBWA..................................................... 1st APPLICANT IRENE SHADRACK SHOO.................................................... 2ndAPPLICANT NYAMBULI ANDREW MGETA.............................................. 3RDAPPLICANT HAPPYNESS SHADRACK SHOO........................................... 4THAPPLICANT HERMANNDARO GAMBA..................................................... 5™APPLICANT RICHARD JOHN HAULE....................................................... 6th APPLICANT AMON TAWILWAI BARUTI................................................. 7™APPLICANT EMMANUEL PENDAEL MMARI............................................ 8thAPPLICANT ASALIGWE ANANGISYE MWAKA PAN DE............................ 9TH APPLICANT

VERSUS LUCY MUSHI..................................................................... 1STRESPONDENT HERIEL MUSHI................................................................. 2ndRESPONDENT GEOFREY GODFREY KAHWIL.......................................... 3rdRESPONDENT GEOFFSON'S INVESTMENT LIMITED.............................. 4th RESPONDENT HOSSENI LUPANDE.......................................................... 5™RESPONDENT Page 1 of 13

RULING Date of last Order: 13/11/2024 Date of Ruling: 18/11/2024 LALTAIKA, J. The Applicants herein MAHAD SAID MATIBWA, IRENE SHADRACK SHOO, NYAMBULI ANDREW MGETA, HAPPYNESS SHADRACK SHOO, HERMANNDARO GAMBA, RICHARD JOHN HAULE, AMON TAWILWAI BARUTI, EMMANUEL PENDAEL MMARI and ASALIGWE ANANGISYE MWAKAPANDE herein referred to, unless the context otherwise necessitates, collectively as applicants, have filed this application praying for the following orders and or reliefs (i) That this Honourable Court be pieased to grant an order for extension of time within which the Applicants to apply (sic!) for revisiona/ orders against the judgement and decree of Application Number 36 of 2020 before Hon. Lung'wecha at the District Land and Housing Tribunal for Kibaha. (ii) Costs of the Application be provided for. When the application was called on for mention, parties opted for hearing by way of written submissions. Leave was granted and a schooled Page 2 of 13 to that effect was ordered. Whereas Mr. Epaphro Mwego, learned Advocate drafted the documents for the 6th to 8th Applicants, the Respondents enjoyed the legal services of Ms. Miriam Ndesarua, learned Advocate. I take this opportunity to commend the learned Advocates for meeting the deadlines as per the scheduled order. The next part of this Ruling is a summary of the submissions by parties followed by my analysis of the law and the

consequential order. Mr. Mwego, Counsel for the 6th to 8th Applicants, began by summarizing the facts leading to the application for an extension of time. He explained that the application arose from the decision of the District Land and Housing Tribunal for Kibaha in Application No. 36 of 2020, delivered on July 27, 2022, by Hon. Lung'wecha, Chairman. The said decision was initiated by the 1st and 2nd Respondents, counsel narrated, seeking orders to stop trespass on disputed land at Jonunga Zogowale. Mr. Mwego further elaborated that the parties to the application at the tribunal included Lucy Mushi and Heriel Mushi as the 1st and 2nd Applicants, respectively, while the Respondents were Geofrey Godfrey Kahwil, Geofrey Investment Ltd., and Hosseni Lupande. Mr. Mwego asserted that an ex Page 3 of 13 parte judgment and decree had been issued on December 2, 2022, in favour of the Applicants. Mr. Mwego went on to narrate that the 1st Respondent in this application, represented by three individuals, had raised a complaint about land trespass by the 8th Applicant, Emmanuel Pendael Mmari, before the Jonung'ha Local Government in Misugusugu Ward. A meeting was organized on November 11, 2023, to deliberate on the issue. The 1st Respondent's representatives claimed ownership of the land through a sale agreement and a court judgment. Meanwhile, the 8th Applicant asserted his ownership

of part of the disputed land, identified as Plot No. 173, Block J, Zegereni Visiga, covered by a 60-year certificate of title from April 1, 2020. The local government advised the parties to await a written summary of the meeting and its recommendations. Mr. Mwego stated that the Jonung'ha Local Government issued a written summary on January 31, 2024, which the 8th Applicant collected. The summary directed the 1st Respondent to pursue legal action, citing the local government's lack of jurisdiction over matters involving certificates of title or court decisions. This summary was shared with the 1st Respondent. However, weeks later, the 8th Applicant learned of a second written Page 4 of 13 summary with differing instructions, directing the 8th Applicant to seek guidance from superior authorities to determine the land's location. Subsequently, Mr. Mwego narrated, the 6th and 8th Applicants met with others and decided to file an application for revision of the judgment and decree in Application No. 36 of 2020. They based their decision on the ground of illegality due to the non-joinder of necessary parties. Both Applicants were not parties to Application No. 36 of 2020. Mr. Mwego emphasized that the 6th and 8th Applicants were necessary parties to the tribunal proceedings. He referred to the case of Godfrey Kuzungala v. Abdulrahim Peter Shangashi, Misc. Land Appeal No. 120 of

2019, where the court held that non-joinder of necessary parties rendered judgments and proceedings null and void. He also cited Martha Deogratius Magendela v. Irene Joseph Nkombachepa and 2 Others, Land Case No. 247 of 2023, where the apex Court struck out a suit for failure to join the Commissioner for Land and Registrar of Titles as necessary parties. In conclusion, Mr. Mwego argued that based on the cited cases and the demonstrated illegality, the Applicants' application for an extension of time should be granted to allow them to seek a revision of the judgment and Page 5 of 13 decree in Application No. 36 of 2020 before Hon. Lung'wecha at the District Land and Housing Tribunal for Kibaha. Ms. Ndesarua, Counsel for the 1st and 2nd Respondents, vehemently objected to the application. First, she contended that the 1st, 2nd, 3rd, 4th, 5th, 7th, and 9th Applicants failed to comply with the court's filing order, as they had not submitted their written submissions as required. This, she argued, indicated their lack of interest in prosecuting the case, as no leave had been sought to file the submissions out of time. Consequently, she submitted that there were no claims remaining against the 1st and 2nd Respondents. She referred to the case of Monica D/o Dickson v. Hussein J. (Kny Chama Cha Wafanyabiashara) (PC Civil Appeal 4 of 2019) [2020] TZHC 2291 to support the principle that

failure to file written submissions amounted to non-appearance and failure to prosecute. Second, Ms. Ndesarua submitted that the 6th and 8th Applicants introduced new facts and complaints in their submissions, which were not part of the affidavit, thus breaching the principle that parties are bound by their pleadings. She cited the cases of Barclays Bank (T) Ltd v. Jacob Muro and National Insurance Corporation v. Sekulu Construction Company CIVIL APPEAL NO. 357 OF 2019 to emphasize that extraneous Page 6 of 13 matters should be disregarded unless leave to raise them had been granted by the court. Third, she argued that the Applicants failed to demonstrate their direct connection to the matter in Application No. 36 of 2020, as the properties in dispute were located in different areas, Misugusugu and Visiga. She maintained that the Applicants' property descriptions did not match the disputed property and cited the cases of Elidadius M. Rushikala v. Samuel Malecela and Joel Kondela Maduhu v. Siya Ndeja LAND CASE NO. 89 OF 2023 to highlight the requirement for proper land descriptions in land disputes. Fourth, Ms. Ndesarua pointed out that the Applicants had failed to attach an affidavit from their informer to substantiate the information they received about the property, rendering their claims hearsay. She urged the court to disregard such evidence. Fifth, she observed that the

6th Applicant had failed to provide any ownership documents, such as a sale agreement or title deed, to support their claimed interest in the disputed area. She stressed the principle that Page 7 of 13 the burden of proof rests on the party asserting a claim and argued that the 6th Applicant's affidavit should not be considered. Sixth, she criticized the Applicants for not accounting for the period of delay between their acknowledgment of the property issue on 31st January 2024 and the filing of the application on 6th March 2024. She submitted that the Applicants' failure to provide reasons for the delay demonstrated negligence, contrary to the guidelines established in Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA. In conclusion, Ms. Ndesarua prayed for the dismissal of the application with costs, asserting that it lacked merit based on the reasons she had outlined. In his rejoinder submission, Mr. Mwego argued that the 6th and 8th Applicants had submitted their written submissions within the required timeframe and, as parties to the application, had complied with the court's order. He referred to Order I Rules 1, 2, and 4(a) of the Civil Procedure Code, Page 8 of 13 R.E. 2019, which allow for the joining or separation of parties and the issuance of separate reliefs to

plaintiffs. Mr. Mwego further noted that the 1st and 2nd Respondents, in their written submissions, had not specified the new facts allegedly included in the 6th and 8th Applicants' joint written submissions. He contended that the 1st and 2nd Respondents should identify those new facts to substantiate their claim. He argued that the 8th Applicant was summoned by the 1st and 2nd Respondents to the local government, as stated in paragraph 15 of their counter affidavit. This, he claimed, demonstrated that the parties were disputing the same land or location, making the 8th Applicant a necessary party to Application No. 36 of 2020. Similarly, he pointed out that the 6th Applicant had provided details in his affidavit about his land location, including when he occupied Plot No. 180, Block J, at Zegereni, which was within the same disputed area. Mr. Mwego emphasized that the issue of illegality arising from the non­ joinder of necessary parties to the application was a sufficient ground for granting an extension of time. He referred to the 6th Applicant's affidavit, Page 9 of 13 where paragraph 4 indicated his presence at the disputed land when Application No. 36 of 2020 was filed, and paragraph 5 noted that he had not been called to the proceedings. Similarly, Counsel asserted, the 8th Applicant's affidavit also stated in paragraph 4 that he had not been summoned to the application.

He cited cases such as Kinondoni Municipal Council v. Yusuph Mohamed Nandiie & Others, Misc. Application No. 500 of 2018, JHPIEGO v. Emmanuel Mmbaga, Misc. Labour Application No. 238 of 2019, and Hezron Magessa Mariogo v. Kassim Mohamed Said, Civil Application No. 227 of 2015, to argue that illegality is a sufficient reason to grant an extension of time, and where illegality is established, there is no need to account for each day of delay. In conclusion, he submitted that the illegality highlighted in the case provided a sufficient basis to grant the application for an extension of time, enabling the 6th, 8th, and other Applicants to apply for a revisional order against the judgment and decree in Application No. 36 of 2020 before Hon. Lung'wecha at the District Land and Housing Tribunal in Kibaha. Page 10 of 13 I have dispassionately considered the rival submissions and thoroughly examined the annexed documents. The crux of the Applicants' submissions revolves around two key grounds: compliance with procedural requirements and the presence of illegality. The primary issues for my determination are: 1. Whether the Applicants have demonstrated sufficient reasons for the extension of time.

2. Whether the alleged illegalityjustifies the grant of this application. Before moving to these two issues, I am inclined to address, albeit in passing the assertion on noncompliance with court orders. I am persuaded by the arguments of the 6th and 8th Applicants. The records indicate that the Applicants submitted their written submissions within the required timeframe. The Respondents' claim of non-compliance is unsubstantiated, as they failed to specify the new facts allegedly introduced in the Applicants' submissions. Regarding the alleged illegality, it is trite law that illegality is a sufficient ground for granting an extension of time, as reaffirmed in Lyamuya Construction Co. Ltd v. Board of Registered Trustees of Young Page 11 of 13 Women's Christian Association of Tanzania (supra) and a myriad of other cited authorities. The Applicants have sufficiently demonstrated that the failure to join necessary parties, particularly the 6th and 8th Applicants, to the proceedings in Application No. 36 of 2020 raises questions of legality. This issue is significant enough to warrant the court's consideration. On the issue of delay, while the Applicants did not explicitly account for each day of delay, the presence of illegality overshadows this requirement. It is trite law that once illegality is established, strict adherence to accounting for every day of delay may be

waived. Considering the foregoing, I find merit in the application. Accordingly, the application is hereby granted. The Applicants are directed to file their revisional application within fourteen (14) days from the date of this ruling. Each party to bear their own costs. It is so ordered. Page 12 of 13 COURT: Ruling delivered in Chambers this 18th day of October 2024 in the presence of the 8h Applicant and the 4h Respondent who is also the Director of the 3rd Respondent. Page 13 of 13