MUHONO KEBWE RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (MUSOMA SUB REGISTRY AT MUSOMA) Misc. LAND APPLICATION No. 16286 OF 2024 (Arising from the District Land and Housing Tribunal for Mara at Serengeti in Ex-parte Application for Execution No. 36 of2023 and Ex-parte Judgment in Land Application No. 12 of2022) 1. MUHONO KEBWE\ 2. MKAMI GIRISI C............................................... APPLICANTS Versus EMMANUEL SASI CHACHA............................................ RESPONDENT RULING 05.09.2024 & 09.09.2024 Mtulya, J.: The instant application is simple and straight forward. In brief, the parties are in contest on the right to be heard and procedures to be followed in issuing summons of hearing and date of decision in the two (2) decisions issued ex-parte by the District Land and Housing Tribunal for Mara at Serengeti (the tribunal). The complained decisions are, viz, Ex-parte Application for Execution No. 36 of 2023 (the execution) and Ex-parte Judgment in Land Application No. 12 of 2022 (the judgment). According to Mr. Wambura Kisika, learned counsel for the applicants, the present application relates to the constitutional right to be heard whereas Mr. John Manyama, learned counsel for the respondents thinks that parties who refuse summons may be i declined the right to be heard. In rejoining the submission, Mr. Kisika contended that the applicants were not participated in several procedures and orders of the tribunals hence were not aware of the proceedings and decisions of the tribunal in the execution and judgment until when the applicants appeared for execution at their residence on 16th February 2024. Mr. Kisika submitted further that the applicants had previously disputed the decisions in this court via Land Revision No. 4540 of 2024 (the revision), but the revision was struck out by this court on 27th June 2024 for want of attachments of necessary documents and approached this court again on 3rd July 2024 for enlargement of time to file fresh and proper revision. In his opinion, the applicants were prompt in lodging the application and have been in this court following their actions to dispute the ex-parte execution and judgment of the tribunal. Finally, Mr. Kisika submitted that the applicants have approached this court in the instant application praying for enlargement of time to dispute the execution and judgment of the tribunal for two (2) reasons, namely: first, illegalities; and second, technical delay. In order to persuade this court in favor of the application, Mr. Kisika had cited three (3) decisions of the Court of Appeal (the Court) regulating enlargement of time via pigeon holes of technical delay and allegation of illegalities of the lower courts or tribunals, 2 namely: Vodacom Tanzania Public Co. Ltd v. Commissioner General (TRA), Civil Application No. 465/20 of 2019; Johan Harald Christer Abrahsson v. Exim Bank (T) Limited & Three Others, Civil Application No. 224/16 of 2018; and Samel Munsiro v. Chacha Mwikwabe, Civil Application No. 539 of 2019 . On the other hand, Mr. Manyama contended that the applicants had lodged the present application to contest the execution and judgment of the tribunal without sufficient reasons. In his opinion: first, the judgment of the tribunal was issued on 25th May 2023 and the applicants came to this court for revision on 12th March 2024, which is almost a year after the decision of the tribunal; second, the proper remedy available to the applicants is enacted in Regulation 11 of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003 GN. No. 174 of 2003 (the Regulations), to lodge an application for setting aside ex- parte execution and judgment of the tribunal; and finally, page 2 of the judgment of the tribunal shows that the applicants were served but had declined summons. Regarding the cited three (3) precedents of the Court, Mr. Manyama contended that the cases are not applicable in the instant application as the precedents indicate that the applicants were in court prosecuting their actions, whereas in the instant application the applicants took almost a year to prefer revision in this court, 3 hence it cannot be termed as technical delay. Concerning complaint on procedures of issuing summons and allegation of illegalities in the execution and judgment of the tribunal, Mr. Manyama had replied that the claim of illegalities must be related to breach of law and not summons, and in any case the applicants had declined summons and the tribunal stated so at page 2 of its judgment. I have scanned the instant record, submissions of the learned counsels of the parties and cited precedents of the Court. The record shows the tribunal had issued the judgment and execution of the judgment orders without presence of the parties. According to the second and fourth paragraph of the affidavit, the applicants were unaware of the orders until 16th February 2024 during execution of the disputed land. In the sixth, seventh and eighth paragraphs of the affidavit, the applicants state to have approached the tribunal to confirm on the judgment and execution orders and after the confirmation, on 5th March 2024, they filed the revision. The revision was struck out on 27th June 2024 for want of competence regarding attachment of the execution order of the tribunal and on 3rd July 2024, the applicants approached this court again and lodged the instant application. According to Mr. Kisika, the applicants were prompt in approaching this court and busy prosecuting their action to dispute the judgment and execution, 4 whereas Mr. Manyama thinks they took action after almost a year had lapsed. The applicants in the eleventh paragraph of the affidavit have produced a total of five (5) complaints stating that they display allegation of illegalities just on the face of the record, whereas Mr. Manyama disputed if issues of summons can be termed as illegalities or form part of the law regulating summons. Mr. Manyama contended further that the applicants have declined summons, and the tribunal has already justified it through its judgment. I have perused the judgment of the tribunal and at page 2 of the decision, I found the following words: wajibu maombi walikataa wito hivyo shauri kupangwa kuendelea upande mmoja. From the reading of the record and submissions of the learned counsels, there is no dispute that the judgment and execution were heard and resolved ex-parte as against the applicants. The only question which has remained, and this court is required to reply in the current application is: whether summons was properly served to the applicants, as displayed at page 2 of the judgment or in other words: whether the applicants were unaware of proceedings of the tribunal in the application and execution as shown at the eleventh paragraph in the affidavit. 5 However, before this court moves into replying the question, there is in place initial question, that: whether this court can do so in the instant application. N reply is obvious no. This court cannot reply such question which goes to the matter of the dispute. The matter has to be resolved during hearing of the revision, if the instant application is granted. That is why the Court in the cited precedent of Johan Harald Christer Abrahsson v. Exim Bank (T) Limited & Three Others (supra) at page 9 of the ruling stated that when the point of law at issue is an allegation of illegality, that is sufficient reason for enlarging time. The reasoning of the Court in the precedent was that: to hold otherwise, would amount to permitting a decision which in law might not exist to stand. According to page 8 of the decision of the Court, a claim of illegality is a special reason for enlargement of time and is intended to set a challenge in proceedings leading to the decision. I am aware that Mr. Manyama had introduced a bunch of issues in protest of the instant application, namely; first, whether summons is one of the legal issues that can be invited during determination in an application for enlargement of time; second, whether applicants were prompt in following their action in this court after taking almost a year to dispute decisions of the tribunal; third, whether it was proper for the applicants to decline application 6 of Regulation 11 of the Regulations; and finally, whether the applicants can properly approach this court during execution of the judgment and pray for an order on enlargement of time to lodge revision in protest of the judgment and execution. I appreciate complaints of Mr. Manyama in this regard. However, the indicated questions will be briefly replied in favor of the appropriate moment and saving precious time of this court. The applicants allege to have learned the judgment and execution on 16th February 2024. In such circumstances, it was difficult for them to invite the application of Regulation 11 of the Regulations or else to exhaust available remedies in the Regulations through the tribunal. They then preferred the revision in this court within sixty (60) days after being aware of the decisions of the tribunal. The revision was then struck out for want of competence and within six (6) days, they preferred the instant application. According to the Court, applicants who are prompt and approach this court in good faith immediately after becoming aware that they are out of time to protest decisions, they may be considered for enlargement of time (see: Royal Insurance Tanzania Limited v. Kiwengwa Strand Hotel Limited, Civil Application No. 116 of 2008). According to the Court, in the cited decision: 7 It is trite law that an applicant before the court must satisfy the court that since becoming aware of the fact that he is out of time, act very expeditiously and that the application has been brought in good faith. (Emphasis supplied) The applicants, in the instant application have spent six (6) days in preparations of necessary materials and filing of the application. The question whether six (6) days may be considered reasonable time, it is very difficult to reply, as each case has its own peculiar facts (see: NBC Limited & Another v. Bruno Vitus Swalo, Civil Application No. 139 of 2019). However, the Court has considered two (2) weeks delay in filing an application for enlargement of time after struck out order as a reasonable time (see: Johan Harald Christer Abrahsson v. Exim Bank (T) Limited & Three Others (supra). I am aware that a delay of one (1) day has to be accounted for in an application for enlargement of time to file disputes out of time (Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007). Similarly, I understand that applicants for enlargement of time cannot file applications for enlargement of time as and when they so wish (Bank of Tanzania v. Saidi Malinda & 30 Others, Civil Ref. 3 of 2014). That is very important. Otherwise, there would be no point of having rules prescribing 8 periods within which certain steps have to be taken (see: Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 4 of 2014). However, I shall keep myself reminded on the general principle of law that every case is to be decided upon its own peculiar facts (see: NBC Limited & Another v. Bruno Vitus Swalo (supra). In my considered opinion, the applicants in filing their action within a week were prompt and want to approach this court to dispute decisions of the tribunal in good faith. Similarly, the question whether the applicants can properly approach this court during execution of the judgment of the tribunal and pray for an order on enlargement of time to lodge revision in protest of the judgment. The reply of such question is found in the precedent of Johan Harald Christer Abrahsson v. Exim Bank (T) Limited & Three Others (supra). The facts in the case show that the applicant had applied for enlargement of time to dispute execution process of selling Plot No. 16 at Jangwani Beach titled number 4383 emanated from this court in Commercial Case No. 8 of 2008 (the case). In the application, the applicant had cited the reason of illegality of the procedures employed by the court during execution. The Court then thought that: the complained materials irregularities 9 in execution proceedings and sale of the applicant's property, which are apparent on record, are appropriate issues for enlargement of time for the applicant to file revision in order for the court to scrutinize the complained irregularities. In the instant application, the complained issues are obvious at page 2 of the judgment of the tribunal. Finally, it is common knowledge that land application forms in land tribunals and plaints in civil courts initiate proceedings. However, the important step which follows after filing the forms and plaints is issuing summons to the opposite party. The exercise of issuing and proving summons for mention, hearing or decision of land disputes is not a light one and cannot be easily taken away by any person in the proceedings of courts or tribunals. It goes deeper to the right to be heard, which is not only a human right issue, but also constitutional matter enacted under article 13 (6) (a) of our Constitution. In such circumstances, when there is an allegation on breach of the right to be heard, this court cannot justifiably close its eyes on the allegation, and if necessary, may grant enlargement of time in favor of the scrutiny of the alleged breach. The Civil Procedure Code [Cap. 33 R.E. 2022] (the Civil Code) and Regulations support the move (see: section 23 & Order V of the Civil Code and Regulations 5 & 6 of the Regulations). The applicants are praying for scrutiny of summons to see whether the 10 right to be heard was declined in the decision of the tribunal via the intended revision. They are praying for an order on enlargement of time for this court to examine the proceedings of the tribunal in the judgment and execution, which this court cannot do at this stage of the application. The law regulating enlargement of time to lodge actions out of time requires applicants to produce good or sufficient reason(s) to move court(s) to decide in their favor (see: Samwel Sichone v. Bulebe Hamis, Civil Application No. 8 of 2015 and Oswald Masatu Mwizarubi v. Tanzania Processing Ltd, Civil Application No. 13 of 2010). However, the law is silent on what constitutes good cause(s) or sufficient reason(s) (see: Dar Es Salaam City Council v. Jayantilal P. Rajani, Civil Application No. U of 1987). It is therefore upon a party who is seeking enlargement of time to provide relevant materials '^ order to move the court to exercise its discretionary mandate in his favor. The present applicants have produced two (2) reasons of delay, namely: first, the allegation of illegalities; and second, technical delay. I had an opportunity to examine the two (2) indicated reasons and found to have merit and I am persuaded to grant the application. In the end, I am moved to grant the applicants fourteen (14) days leave within which to lodge the intended revision in this court from today, 9th September 2024, ii without any further delay. Having said so and considering award of costs is the discretion of this court, and taking regard the dispute has not been resolved to its finality, I award no costs. Each party shall bear its own costs. / ordered. F.H. Mtulya Judge 09.09.2024 This Ruling was delivered in Chambers under the Seal of this court in the absence of the applicants, Muhono Kebwe and Mkami Girisi and in the presence of the respondent, Mr. Emmanuel Sasi Chacha. F.H. MtuTya Judge— 09.09.2024 12