mohamed mussa vs mustafa rashid ngayonga 2020 tzhclandd 58 8 june 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATDAR ES SALAAM MISC. LAND APPLICATION NO. 697 OF 2019 MOHAMED MUSSA MBONDE.................. .................. APPLICANT VERSUS MUSTAFA RASHIDI NGAYONGA...............................RESPONDENT (Application for Review of the Ruling of this Court in Misc. Land Appeal No. 59 of 2018) RULING MGETTA, J: Aggrieved by the ruling handed down on 15/11/2019 by this Court (Hon. Mallaba, J as he then was), one Mohamed Mussa Mbonde, the then respondent (henceforth the applicant Mbonde) on 11/12/2019 as per exchanqer receipt had filed a memorandum of review under the Section 78(1) (a) and Order XLII rule 1(a) of the Civil Procedure Code, 1966 (henceforth the CPC). His complaint is and I quote that: "That the honorable Judge over loop on record as he did not consider that the Applicant applied for extension o f time before the District Land and Housing Tribunal for Mkuranga on Misc. Application No. 53 o f 2016, in order to file his appeal out o f time on which the Applicant was granted and filed his appeal"{s\c) Parties to this application were allowed by this court to argue the application by way of written submissions. On 5/5/2020, the applicant Mbonde filed his written submission arid one Mustafa Rashid Ngayonga, the then appellant (henceforth the respondent Ngayonga), submitted his for filing on 15/5/2020. Unfortunately, the judge who was supposed to handle this matter was transferred to another station of work. I then took over from where he ended upon addressing the parties why I took it over. In a nutshell, the genesis of this application is that the respondent Ngayonga successfully sued the applicant Mbonde at Mgomba Ward . Tribunal Ikwiriri, Rufiji which delivered its decision on 24/3/2016. Dissatisfied with that decision, the applicant Mbonde on 06/3/2017 lodged an appeal to the District Land and Housing Tribunal of Mkuranga (henceforth the appellate Tribunal). On 04/4/2018, in the presence of both parties, appellate tribunal delivered a judgment setting aside the trial tribunal decision, hence the applicant Mbonde emerged a Winner, the respondent Ngayonga, a looser. The respondent Ngayonga was aggrieved by the appellate tribunal judgment and appealed to this court. The appeal was not heard on merit. It was dismissed by this court on the ground that the appellate tribunal entertained the appeal lodged by the applicant Mbonde out of time. Then the decision of the trial tribunal that favoured the respondent Ngayonga remained undisturbed. The applicant Mbonde is now praying this Court to review its decision on the ground that at the time of lodging an appeal to appellate tribunal he had already applied for and granted extension of time in Misc. Application No. 53 of 2016 by the Appellate tribunal that's why the appellate tribunal continued to entertain his appeal, overturned the trial tribunal decision and he was declared a lawful owner of a piece of land in dispute measuring 3 % acres. Unfortunately, when the appeal was placed before Hon. Mallaba, J, it was not disclosed and he was therefore unaware that before lodging an appeal to the appellate tribunal against the trial tribunal decision, the applicant Mbonde had already sought and obtained an extension of time to file a memorandum of appeal out of time. Hence the appellate tribunal had jurisdiction to entertain that appeal lodged by the applicant Mbonde. It is therefore an error on the record that inadvertently it did not come to the eyes of this court there was already an extension of time granted to applicant Mbonde in Misc. Application No. 53 of 2016 by appellate tribunal within which to appeal against the trial tribunal decision. Hence, Misc. Land case Appeal No. 59 of 2018 was mistakenly dismissed by this court. In the event I find that the applicant Mbonde has advanced sufficient ground for a review of the decision of this Court handed down on 15/11/2019. I now order for the restoration of Miscellaneous Land Appeal No.59 of 2018. The same be heard on merits. Costs to follow the event. It is so ordered. J.S.MGETTA JUDGE 8 / 6/2020 COURT: This ruling is delivered today this 8th June, 2020 in the presence of Mr. Jumanne Semgomba holding a brief of Mr. Edward Mkungano, the learned advocate for the applicant and in the presence of respondent in person.