Mkwawa Tobacco Processors

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) fAT MOROGORO^ MISC. LAND APPLICATION NO. 22069 OF 2024 (Arising from the Judgment and Decree of the Morogoro District Land and Housing Tribunal, before M. Khasim, Chairperson, dated on 30^^ September, 2021 in Application No. 26 of 2016) MKWAWA TOBACCO PROCESSORS LIMITED APPLICANT VERSUS TANO GAMBAGO MASSABA RESPONDENT Date of Last Order: 12/11/2024 Dateof Ruling: 29/11/2024 RULING MAGOIGA,3. The applicant, MKWAWA TOBACCO PROCESSORS LIMITED filed the present application under section 41(2) of the Land Disputes Courts Act, [CAP. 216 R.E 2019], and section 19(1), (2), (3), and (5) of the Law of ) Limitation Act,[CAP. 89 R.E 2019], seeking the following reliefs: - 1. That this Honourable Court be pleased to grant an extension of time within which the applicant to file an appeal against the Page 1 of 14 Judgment and Decree of the Morogoro District Land and Housing Tribunal, Honorable M. Khasim, chairperson delivered on 30^^ September, 2021 in Application No. 26 of 2016 but served upon the applicant on 15^^ August, 2024. 2. Any other order(s) and relief(s) this Honorable court may deem fit to grant. The application was supported by an affidavit sworn by Ahmed Mansoor Huwel, the Principal officer of the applicant stating the reasons why this application should be granted. Upon being served with the application, the respondent filed a counter affidavit sworn by the respondent, in the strongest terms, contesting the grant of the instant application. When this application was called on for hearing, the applicant was represented by Mr. Ibrahim Shineni, learned advocate. And the respondent enjoyed the legal service of Mr. Bartolomew Tarimo, learned advocate. The application was argued viva voce. Mr. Shineni taking the floor prayed to adopt the affidavit and its annexures and the reply to the counter affidavit to be part of their Page 2 of 14 submission. According to Mr. Shineni, the applicant has strong reasons why this application should be granted as stated in the affidavit and reply to counter affidavit. Expounding the reasons, the learned advocate argued that, the existence of the judgement in dispute was made aware to the applicant on 15/08/2024 when she was served with an amended application for execution of the said judgement. The execution was Application No. 35 of 2024 between the respondent and Tanzania Tobacco Processing Limited (to be referred herein as ^TTLP'). Mr. Shineni submitted that, apart from the facts stated, there are legal issues in the judgement that need the attention of this court when an appeal, will be preferred; which are: one, the land in dispute has, as of now, two certificates of titles overlapping on the same plot. According to Mr. Shineni, the earlier surveyed land must have an approved map, which cannot be resurveyed unless all parties to be affected are involved. Mr. Shineni further expounded that the judgement in dispute has recognized a certificate of title issued in 2011 for 33 years against the certificate of title issued on 01/04/1969 for 99 years. The learned advocate for the applicant argued that. Page 3 of 14 the existence of two titles in one plot is an issue of law, that calls for intervention of this court. Another argument by Mr. Shineni was that, there is yet another legal issue whether the disputed land, which involves two plots with two certificates of titles, can be determined without involving the Registrar of Titles. This was not done. According to Mr. Shineni, this is a apparent illegality in the proceedings and judgement which once the Registrar of Titles is involved, then, the Tribunal had no jurisdiction. The advocate for the applicant pointed out that trespass cannot stand unless the legality of the titles is resolved. He referred the case of Nestroy Msoffe and 5 Others vs. The Registered Trustees of Catholic Archdiocese of Arusha, Civil Appeal No. 254 of 2019, in which it was held that that, "Failure to include the Registrar of Titles rendered the entire proceedings a nuiiit\f'. On the issue of iilegality, Mr. Shineni went on arguing that, the Court of Appeal of Tanzania has been persistent that once an illegality is proved,then, an extension must be given notwithstanding the time eiapsed. He submitted further that once an iliegality is proved in our jurisdiction, is trite and Page 4 of 14 constitute good cause for extension. Mr. Shineni to cement his assertion cited the case of The Attorney General vs. Emmanuel Marangakisi and 3 Others, Civil Application No.l38 of 2019, in which it was held that, "Illegality Is a good cause for extension of time even If the applicant failed to account for each day ofdelay" On the above reasons, Mr. Shineni prayed this application be granted as prayed. In response, Mr. Tarimo for the respondent prayed to adopt the respondent's counter affidavit as part of their submission, and in strong terms, resisted the grant of this application. Mr. Tarimo contended that in his view, no good case has been shown so far, and the illegality raised has not been substantiated, and the counsel for the applicant has not accounted for each day of delay. Mr. Tarimo argued that looking at the date of the judgement, which was on 30/09/2021 by the District Land and Housing Tribunal while TTPL was aware of the case, and the transfer of TTPL's shares was done in May 2022, and this application was preferred in September, 2024 after eight months, which is 240 days. According to Mr. Tarimo, TTPL was aware and never Page 5 of 14 wanted to appeal and kept quiet and It was by then that the hands changed fronn TTPL to the applicant. Mr. Tarimo submitted that the former owner was involved in the proceedings and was aware with the judgement of the Tribunal and it was not the duty of the present applicant to appeal, while the former owner, who was aware, did not have any issue after the judgement. Mr. Tarimo insisted that, the issue of account for the days of delay cannot apply in August 2024 when the present applicant was served to the present applicant because the former owner did not contest the judgement and accounting of delay should start from the date of judgement and not otherwise. In this application, the learned advocate for the respondent pointed out that, no account of days of delay has been done both in the affidavit and in the oral account of the advocate. On the legal issues raised by the applicant, Mr. Tarimo contended that, no such issue can arise here at this stage and the reasons are dear: one, no title was touched, and the joining of the Registrar of Titles was uncalled for. According to Mr. Tarimo, what was an issue was encroachment and not Page 6 of 14 trespass, and much as no order touched the titles, Mr. Tarimo insisted that the judgement of the trial Tribunal perfected the boundaries and not otherwise and no issue of the Registrar of Titles arises in the circumstances of this application. Further, Mr. Tarimo argued that not in every argument, illegality can stand, but it will depend on the circumstances of each case. He referred this court to the case of Solomon Mmari vs. Venance Benedict Minde, Misc. Land Application No.09 of 2023 HC at Morogoro, in which it was held that, "Illegality must have public significance''. Mr. Tarimo expounded that in the instant case there was no illegality has been proved, and as such, no need for extension and that cases cited by the learned advocate for the applicant are distinguishable in the circumstances of this application. On the foregoing reasons, Mr. Tarimo prayed that this matter be dismissed with costs. In rejoinder, Mr. Shineni argued that, arguments by the counsel for the respondent are misleading and not true in that when given the land he knew Page 7 of 14 of the case is not true, and in paragraph 4 of the affidavit is ciear on this point. Mr. Shineni toid the court that the argument of accounting for each day of delay and that the TTPL acquiesced to the judgement are mere arguments from the bar. According to Mr. Shineni, the applicant had duty to appeal and this application is geared towards that. Further, Mr. Shineni rejoined that the land that is contested is only 530 square meters. And the iiiegality, argued that much as there is contention on two titles and the registrar of titles was not involved, that amounts to iiiegality, and the Tribunal had no jurisdiction to entertain the application. Mr. Shineni pointed out that these two plots were surveyed and have titles, and as such, no way the custodian of titles can be avoided. Mr. Shineni ended up his rejoinder that the argument that the application was for perfection of the boundary dispute were just mere arguments with no legal justification and was not what was at issue before the trial Tribunal. On that note, Mr. Shineni implored this court to grant this application as prayed. Having gone through the parties' rival submissions, the issues for determination are whether the applicant has account for each day of delay. Page 8 of 14 demonstrated good cause and pointed out an lilegality apparent in the jmpugned judgement worth to grant of the extension. I wish to point out that in our jurisdiction, it is now settled that where iiiegaiity is proved in any application for extension of time same must be granted without considering the length of delay or other considerations. See the cases of The Principal Secretary/ Ministry of Defence and National Service Vs. Devram Vaiambia,[1992]TLR 387(CAT)in which it was held that a point of law must be of importance such as illegality of the decision sought to be challenged could constitute a sufficient reason for extension of time. Guided by the above trite stance, I find imperative to start considering the issue of iiiegaiity which, if proved, will definitely enjoined me to grant this application. And, if it fails, will consider other factual facts and come to the sound verdict. In this issue, Mr. Shineni for the applicant advanced two legal reasons why he should be granted an extension of time, which were contained in their affidavit. The learned advocate for the applicant pointed out that the dispute in the trial Tribunal involved two plots and both of them have been surveyed and granted a certificate of titles. According to Mr. Shineni, therefore, the Page 9 of 14 dispute in issue cannot be resoived without invoiving the Registrar of Tities. On the same parity, then learned advocate for the appiicant pointed out that, much as invoivement of the Registrar was imperative in the circumstances, then, the trial Tribunal had no jurisdiction to try the landed dispute. On the other hand, Mr. Tarimo for the respondent contended that this assertion of iiiegaiity is baseless because in the trial Tribunal judgement, no title was touched, and the joining of the Registrar of Titles was uncalled for. According to Mr. Tarimo, what was an issue was encroachment and not trespass, and much as no order touched the titles, then, the judgment of the trial Tribunal perfected the boundaries and no need of the Registrar of Tities. Having carefully considered the rivaling arguments by the legal trained minds for parties, and having considered what was at issue before the trial Tribunal and what was granted, I agree with Mr. Tarimo that a point of law in issue must have a sufficient importance and I may add that same must be apparent on the face of the record such as question of jurisdiction raised a public importance. However, in the trial Tribunal, I have noted that the issue was trespass and not encroachment as argued by Mr. Tarimo. For easy of reference, I beg to quote the first limb of prayer and the decree of the Page 10 of 14 trial Tribunal subject of this legal dispute. In the Application the respondent prayed, among others as follows: (i) Mwombaji atamkwe kuwa mmliki halali wa eneo lenye mgogoro ma mdaiwa atamkwe kuwa mvamizi.(Emphasis mine). The relief granted(decree) by the trial Tribunal speak volumes: - (ii) Mdaiwa wa kwanza anatamkwa kuwa mvamizi wa eneo hilo.(Emphasis mine). The above quoted part of the dispute and what was granted, negates the argument by Mr. Tarimo that the what was claimed and granted was encroachment and not trespass, hence, no need of the involvement of the Registrar. I have equally considered that the two plots, it is not in dispute are adjacent to each other as pleaded in the trial Tribunal and were granted the certificate of titles on different dates and tenure. The applicant in 1969 for 99 years and the respondent in 2011 for 33 years. In the circumstances of this and considering parties are accusing each other for trespass, in my considered opinion, the involvement of the Registrar of Titles was imperative than not to resolve and reconcile the 1969 survey and its title and the 2011 survey and its title which have resulted into two titles and Page 11 of 14 see if the same overlap or not. This state of affairs, raised a sufficient importance point of law which calls for involvement of the Registrar of Titles, and at most, the Commissioner for Lands as well. It is on the above reasons, as correctly argued by Mr. Shineni, learned advocate for the applicant, and rightly so in my considered opinion, I hereby find that much as the involvement of the Registrar of Titles was imperative, the jurisdiction of the trial Tribunal was at issue and the trial Tribunal could not have jurisdiction once the Registrar of Titles comes in. Equally, the argument by Mr. Tarimo that much as the decision of the trial Tribunal did not touch the certificate of titles in dispute, then, the issue and need of Registrar of Titles do not arise to be joined, with due respect to Mr. Tarimo, were argued out of context and misconceived because much as the issue here was trespass and it was the approved surveys of the two plots that are at issue same cannot be resolved without the Registrar of Title and the Commissioner of Lands. And that calls for the joining of the Registrar of Titles (or Commissioner for Lands) as the custodian of ail titles and their approved surveys. More so, the perfection of the boundaries could only be perfected by the approved surveys of the disputed plots and not anything else. Page 12 of 14 On the foregoing reasons, I find that the applicant has been able to demonstrate the issue of illegality in the impugned decision worth to be considered by this court. With that note, it suffices to grant this application. The above findings, in my considered opinion, being serious legal point of law amounts to good cause which parties can get chances to explain if an extension is granted. That said and done, even without engaging into other factual arguments on accounting each day of delay, I find the point suffices to grant this application to pave way for parties to be heard on merits. Finaily, and for the foregoing discussion, it is clear that the applicant has been able to satisfy the conditions for the grant of the extension of time to file his appeal. Hence, this application is found meritorious and granted. The applicant is to take necessary steps from today in accordance to law that governs appeals from the District Land and Housing Tribunal to this court. The applicant is granted without costs because the applicant never prayed for costs in her chamber summons. It is so ordered. Dated at Morogoro this 29'*^ day of November, 2024. Page 13 of 14 C:> 1— ^ If' S. M. MAGOIGA Wi ri judge' 29/11/2024 COURT: Ruling^d^vered today in chambers in the presence of Mr. Mikldadi Hassan Rwamakungu, learned advocate for the applicant and Mr. Bartholomew Tarlmo, learned advocate for the respondent at Morogoro on 29^^ day of November, 2024. Uj X "SAy*. s. I. MAGOIGA JUDGE 29/11/2024 Page 14 of 14