MASENZA SALEHE NGONDE SCANNED

THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC LAND APPLICATION NO. 18396 OF 2024 COriginating from the ruling and order of this Hon. Court (Hemed, J) delivered on 23/5/2024 in Land Appeal No. 27284 of2024) MASENZA SALEHE NGONDE.............................................. APPLICANT VERSUS HASSAN CHANDE HAME.......... ...................................... RESPONDENT RULING 2nd & 23rd September, 2024 L, HEMED, J. Previously, the Applicant herein, MASENZA SALEHE NGONDE had instituted Land Appeal No. 27284 of 2023 against the decision of the District Land and Housing Tribunal for Hala in Land Application No. 96 of 2019 which ended on 21st August 2023 in favour of HASSAN CHANDE HAME, the herein Respondent. The said Appeal was to be disposed of by way of written submission. However, when the matter was called on 23rd May, 2024, it was found that the Appellant filed his submissions in chief out of time without the leave of the court. After having heard from the parties, the court proceeded to dismiss the Appeal for want of prosecution. i The Applicant who was formerly the Appellant has lodged the instant Application preferred under section 14 (1) of the Law of Limitation Act, [Cap 89 R.E 2019] and section 93 of the Civil Procedure Code, [Cap 33 R.E 2019], seeking for extension of time within which to file an application for an order for re-hearing of the Appeal which was dismissed for want of Prosecution. Having gone through the circumstance under which Land Appeal No. 27284 of 2024 was dismissed, I directed the parties to address the court whether is not functus officio to set aside the dismissal order. They opted to address by way of written submissions. Submitting on behalf of the Applicant, Mr. Job Kerario, learned advocate for the Applicant asserted that this court has inherent power to set aside the dismissal order. According to him parties have never been heard by this court apart from few statements they made on 23rd May 2024 from the bar which in his view cannot constitute a formal hearing as envisaged by the law. He relied on the decision in Hotels and Lodges (T) Ltd vs. Attorney General & Chapwani Hotels Limited [2013] TLR, 250. He added that the instant application has been brought in compliance with the 2 law and coupled with evidence that could not be adduced at the spur of the moment on 23rd May, 2024 when the appeal was dismissed. The respondent who has been appearing in person did not address on the point raised by the court. He went to submit on the merit of the Application. Having carefully gone through the submissions made by the parties, it is pertinent to determine whether in the circumstance under which the appeal was dismissed this court can have jurisdiction to grant the intended prayer to restore the dismissed appeal. To start, the word functus officioXxas been defined by the Black's Law Dictionary, 8th Edition to mean:- "Having performed his or her office or an officer or official body without further authority or legal competence because the duties and function have been fully accomplished" In Kibibi Kisoko Merdard vs. Minister for Lands Housing and Urban Development and Another, [1993] TLR 250, the court had this to say in respect the word functus officier- "In a matter of Judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes functus officio." 3 In the circumstance of this matter the question is whether this court discharged its official duties in respect of Land Appeal No. 27284 of 2024 to make it functus officio. I have revisited the proceedings of 23rd May, 2024 in Land Appeal No. 27284 of 2023 and found that, prior to dismissing the Appeal parties were given the opportunities to address the court. On the said date, Mr. Job Kerario, learned advocate who appeared for the Appellant, admitted to have filed the Appellant's/Applicant's submission out of time contrary to the order of the court and without leave. He unsuccessfully prayed to withdraw the said submissions with permission to re-file and the court proceeded to dismiss the Appeal. In my view, having given the parties the opportunity to address the court prior to dismissing the Appeal, this court cannot have jurisdiction to determine any subsequent application for the prayer to restore the said appeal as the same were considered on 23rd May 2024 when the court opted to dismiss the Appeal. From the foregoing, I am of the considered view that since the dismissal was made in the presence of the parties after they were given an opportunity to address the court, this court remains with no undischarged duty in respect of Land Appeal No. 27284 of 2023. The court is functus officio 4 and thus is clothed with no jurisdiction to restore the dismissed Appeal. This court therefore, cannot extend time for something not grantable. I thus proceed to dismiss the instant application with no orders as to costs. Order accordingly. September 2024. 5