MISC

JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 11467 OF 2024 (Arising from the decision of the Court (Hon. Kalunde, J) in Land Case No. 227 of 2015 dated 15th May 2020) MTUMWA JUMA NGALEMA (Administratix of Estate of the late Juma Abdallah Ngalema)....................... 1st APPLICANT M/S KISWELE SALT WORKS LIMITED....................................... 2nd APPLICANT VERSUS VICTOR B.TEMBA............................................................................... RESPONDENT RULING 11/08/2024 & 24/10/2024 GWAE, J The applicants herein have filed this application under section 11 (1) of the Appellate Jurisdiction Act, Cap 141, Revised Edition, 2019 praying for the following orders:- 1. That, the Court be pleased to extend time to the applicants to file the Notice of Appeal out of time against the decision of the i High Court of Tanzania (Land Division) Dar es salaam in Land Case No. 227 of 2015 (Kalunde, J) dated 15th May 2020 2. The costs of this Application 3. Any other relief this court may deem fit to grant The records reveal that, in 2006 the applicants successfully sued the respondent, Victor B. Temba and another person known by the name of Yono Auction Mart Company Limited through Land Case No. 134 of 2006. The parties' saga was over the landed property described as Plot No. 29 Medium Density, Sinza, Kinondoni-DSM. The judgment of the Court (Ndika, J as he then was, now Justice of Appeal) on 5th September 2014. Subsequent to the delivery of judgment, the Court issued an eviction order on 12th June 2015. However, it is evident from the record that, in 2015 the respondent instituted the suit against the applicants over the landed property defined as Plot No. 143 "Block "A", Sinza in Dar es salaam alleged to have wrongly been auctioned as Plot No. 29 located at Sinza by the said Yono Auction Mart Company Limited. Seemingly, there was an order of the court for ex-parte hearing against the applicants. The applicants unsuccessfully applied for setting aside ex- 2 parte hearing order through Land Application No. 975 of 2016. Dissatisfied, the applicants filed Notice of Appeal to the Court of Appeal on 4th March 2019 but the same was withdrawn in 2022. It is also revealed that, the hearing of the respondent's suit (Land Case No. 227 of 2015) proceeded ex-parte while there was Notice of Appeal pending before the Court of Appeal against the ruling of the Court (Mgonja, J as he then was now JA). Eventually the ex-parte judgment was delivered by this court (Kalunde, J) on the 15th day of May 2020 in favour of the respondent, subject of the intended appeal to the Court of Appeal of Tanzania. Before me, Mr. Martine Geofrey Sangira, learned advocate practicing as Fortis Attorney and the responded appeared in person, unrepresented. Nevertheless, with the parties' unanimity, the application was disposed of by way of written submission. In their submission, the applicants through their advocate argued that, they have not been asleep of their rights since they became aware of the ex-parte hearing order pertaining Land Case No. 227 of 2015 whose decision was delivered on 15th May 2020. They cited a number of applications sequel to the ex-parte order in Land Case No. 227 of 2015 such as Misc. 3 Land Applications. No 975 of 2019, 812 of 2022, 479 of 2023 and 298 of 2023 disposed of on 17th September 2024. According to the applicants' advocate, this application is grantable due to the long pendency of cases between the parties and the illegalities involved in the judgment and decree to be addressed by the Court of Appeal. To cement his arguments, the learned counsel for the applicants cited a number of decisions such as Lyamuya Construction Company Limited vs. Board of registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported-CAT), Karibuel J. Mola vsTAZARA, Labour Revision No. 78012019 (Unreported), Fortunatus Masha vs. William Shija (1997) TLR154 and others. On the other hand, the respondent resisted this application by stating that, the applicants have disobeyed the lawful order granting extension of time in order to file an application for restoration of Misc. Land Application No. 812 of 2023, dismissed by the Court (Mhina, J). He invited the Court to the decision in Tanzania Harbour Authority vs. Mohamed R. Mohamed (2003) TLR 76 and Isdory Joseph Mwepogwe and 5 others vs. Ahamed Mohamed and 6 others (Administrator of the Deceased Estate of Omari 4 Salum Soud) & 6 Others (Land Case 167 of 2021) [2022] TZHCLandD 12433 (25 October 2022). The respondent further submitted that the, applicants are precluded from instituting the application at hand since the former application for extension of time to enable them file a notice of appeal to Appeal out of the prescribed time, was granted on 19th April 2024 by this Court (Mwaipopo, J)- Responding to the merit of the application, it was the view of the respondent's counsel that, the applicants have failed to account the delay each day of delay and that, there are no points of alleged illegalities as the same are neither shown nor they are apparent. To buttress his submission, he re-cited the case of Lyamioya (supra). In his rejoinder, the applicants' advocate stated that, the respondent misconceived the holding of the court (Mwaipopo, J) who granted leave to file this application. He also challenged the manner the objection as to the competency of the application is raised on the ground that, the same is not featured in the respondent's counter affidavit. He referred the court to the case of Rosemary Stella Chambejairo vs. David Kitundu, Civil Reference No. 6 of 2018 where the Court of Appeal stated that, submission 5 by the party or his advocate is not evidence. According to the applicants' advocate, the respondent is bound by his own pleadings. Hence, he cannot be let to bring a new case as doing so is equal to taking an adverse party by surprise at the trial of the case. He invited this court to a judicial decision in the case of Salim Said Mtomekela vs. Mohamed Abdallah, Civil Appeal No. 149 of 2019 (unreported-CAT) Nevertheless, Mr. Godfrey strangely stated that, the ruling of the Court (Mwaipopo, J) did not restore IMisc. Land Application No. 812 of 2022, which was for extension to file this application and not for restoration, in essence that, the applicants were allowed to apply for the extension of time to file Notice of Appeal. Mr. Godfrey further rejoined by reiterating his submission that, there are sufficient causes given by the applicants for their delay and that, there are illegalities in the judgment and decree intended to be appealed to the Court of Appeal. Examining the parties' affidavits as well as their respective written submissions, there are two (2) issues for determination. Firsts whether the respondent's failure to raise his objection that, the applicants were to comply with the court order directing filing of an application for restoration of Misc. 6 Land Application No. 812 of 2022, dismissed by the Court on 14 May 2023 for want of prosecution. Two, whether there are good causes given to justify the Court to grant the sought extension of time to file Notice of Appeal out of time. Before embarking into determination of the merits or otherwise of the application, it is perhaps commendable noting that this application is for extension of time within which to file an application for extension of time to file Notice of Appeal against the ex-parte judgment and its decree made on 15th May 2020. It must also be noted that, this application is for the same reliefs those depicted in the applicants' chamber summons through Misc. Land Application No. 812 of 2022). Thus, the argument by the applicants' counsel that, the decision of the Court in Misc. Land Application No. 298 of 2023 delivered on 19th April 2024 enabled the applicant to file this application is unfounded. For sake of clarity, parts of the ruling of the Court (Mwaipopo, J) is reproduced herein under;- "Mindfui of the fact that extension of time is in the discretion of the court the above reasons, I but has to be exercisedjudiciously and based on proceed to grant extension of time to the Applicants for 30 days from the date of this ruling to enable them file their Application for restoration of date of this ruling to No. 812/2022 which was dismissed by Mhina J." 7 In the light of the above excerpt, it is clear that, ruling of the Court is to the effect that, the applicants were granted extension of time (30 days) within which to file their application for restoration of Misc. Land Application No. 812 of 2022. It could not therefore enlarge time and the same time this application for extension of time already enlarged or condoned in the previous application. Now back to the determination of the first issue, I am alive that, submission are not evidence to be relied by the court and that, an affidavit is a substitute of oral evidence adduced by a witness. Hence, the respondent ought, as correctly argued by the applicants' learned counsel, to have filed a notice of preliminary objection questioning the competence of the application. This position has been consistently stressed in a chain of judicial decisions for example; in the case of Salim Lakhani and Two Others v. Ishfaque Shabir Yusufali (As an administrator of the Estate of the Late Shabir Yusufali), Civil Application No 23/17 of 2019 (unreported) where it was stated as follows: "Having made the above observations, we wish to endorse Mr. Lugwisa's submission that security or an undertaking to furnish security cannot be made in the course of submissions, be they oral or written. For submissions are an 8 elaboration ofthe content and issues canvassed in the notice of motion and the accompanying affidavit." Also in Bahari Oilfield Services FPZ LTD vs. Peter Wilson, (Civil Appeal No. 157 of 2020) [2021] TZCA 250 (11 June 2021) where the Court of Appeal held;- "We therefore agree with Mr. Mushi that, the principle that requires parties to be bound by their pleadings extends to grounds of appeal in an appeal. On that basis our conclusion is that an appellant's written and/or oral submission must be in consonance with the grounds of appeal." See also Commissioner General TRA vs. Pan African Energy (t) Ltd, 206 of 2016) [2017] TZCA 157 (29 May 2017) In our instant application, it is true that, the respondent has not raised his preliminary objection before the order fixing the dates of filing of parties' submissions for and against the application. Generally, it is improper to canvass a new matter (s) or ground (s) of appeal in the course of written submission. Nonetheless, since the points raised is all about compliance or none compliance of the court order made on 19th April 2024, which is in the court record, both physically and electronically. Worse, enough the preceding 9 application intended to be abandoned was for the same reliefs as earlier explained. That being the case, I am not precluded from ascertaining, if this application is competent before the Court or not. Had the respondent not raised the issue of disobedience of lawful order in his submission, yet the Court could not close its eyes on this vital issue. I thus find the issue so raised to be an exceptional to the general rule. In this regard, I am fortified by the decision of the Court of Appeal in Karori vs. Waitihache Merengo (Civil Appeal No. 164 of 2018 [2022] TZCA 83 (1 March 2022) when dealing with similar situation where an order of re-trial by the Ward Tribunal, which has been stripped by new amendment, it was stated;- "Uniike in the case before us, there is a pending order for a retrial. We think and firmly believe that the sanctity of court or Tribunal orders demands that those orders must be complied with. In the instant situation, it could simply be going to the Ward Tribunal for mediation, which would still be compliance. Once that has failed, then with the certificate issued by the Ward Tribunal, parties can still file their case in the Tribunal, ceased with jurisdiction." (Emphasis supplied). Guided by the above Court decision and procedural law, the applicants were therefore required to file an application for restoration of io their Misc. Land Application No. 812 of 2022 as they properly sought and obtained leave of doing so. Therefore, the acts of the applicants do not only tantamount to disobedience of lawful order of the court dated 19th April 2024, which granted exactly want they asked to, but also abuse of court process. The doctrine of the Res-subjudice, in the circumstances of the case, is applicable, since our courts or tribunals are precluded from proceeding with hearing of any case, in which the matter in issue is directly and substantially the same with the previously instituted case between the same parties pending before or another court with jurisdiction to entertain it. With due respect with the learned counsel for the applicants, it sounds awkwardly to file another application for restoration contrary to what he initiated vide Misc. Land Application No. 298 of 2023. (See section 8 of the Civil Procedure Code, Cap 33, R. E, 2019). Since it is evidently clear that, the applicants' former Application No. 812 of 2022 was not determined on merit except that, the Court (Mhina, J) dismissed it for want of prosecution on 14th March 2023 and since this application is plainly directly and substantially with the former, it follows that, this application is improper before me. This kind of non-compliance with lawful orders and professional negligence by a party to judicial proceedings ii cannot be, in my view, be tolerated on the expense of other party. Having found as herein above, I am therefore supposed to determine the merit of this application. In the light of the foregoing, this application is nothing but a total misdirection and non-compliance with the court order dated 19th April 2024. The present application is thus barred by the former application (Application No. 812 of 2022, which was dismissed for want of prosecution on 14th March 2023. I consequently strike it out for being incompetently filed to the Court. Under inherent power vested to the court, for the interest of justice as well as expeditious dispensation of justice, the applicant is given other fourteen (14) days period from the date of the ruling within which to file an application for restoration. The costs of this application shall be borne by the applicants' advocate (Mr. Martine Geofrey Sangira) following his gross professional negligence. It is so ordered. DATED and DELIVERED at DAR ES SALAAM this 24th October 2024 !! 5 I j £ I j oiviS' FCgWAE judge 12