RULING Rajan Industries

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO 23671 OF 2024 CASE REF NO 202409231000023671 RAJANI INDUSTRIES LIMITED............................................. APPLICANT VERSUS THE MINISTRY OF LAND HOUSING AND HUMAN SETTLEMENT DEVELOPMENT........................................1st RESPONDENT THE COMMISSIONER FOR LANDS ...............................2nd RESPONDENT REGISTRAR OF TITLES................................................3rd RESPONDENT KIGAMBONI MUNICIPAL COUNCIL...............................4th RESPONDENT HON. ATTORNEY GENERAL..........................................5thRESPONDENT RULNG: 22nd & 28th Nov 2024. KIREKIANO J. This application is brought under section 14 (1) of the Law of Limitation Act CAP 89 R.E 2019) 93 and 95, of the Civil Procedure Code (CAP 33. R.E 2019, and any other enabling provisions of the law, the applicant herein seeks the following orders; 1 1. That this Honorable Court be pleased to grant the application with an order for extension of time within which to file an application for leave to file Judicial Review. 2. Costs of this application abide the discretion of this Honorable Court. 3. Any other orders this Court deem fit and just to grant. According to the facts as gathered from the affidavit in support of the application, the applicant is the owner of landed property located at Vijibweni Kisiwani at Kigamboni Municipal in Dar es Salaam. The applicant was issued with Certificate of Occupancy on Plots no 46 and 47 with Tittle Number39618 and Certificate of Occupancy on Plot No 48- 50 with of Tittle no.39619 respectively. While the applicant was planning to develop the property, they sought a building permit to construct a boundary wall. While the construction was under way the applicant was served with a letter by fourth respondent revoking the building permit. Aggrieved the applicant wished to challenge the said revocation of the building permit they filed application for judicial review, miscellaneous application No. 13649 of 2024. 2 According to the applicant in cause of exchange of pleading, on the applicant learnt that the right of occupancy in respect of the said property had been revoked by order published by the first respondent on 15th March 2024. The applicant is equally aggrieved and desirous to challenge this decision by way of judicial review. The appellant had to apply and obtain leave in the first place as it is mandatorily required under rule 5 (1) of the Law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. The applicant had only six months to make that application, the time ended on 18.9.2024. Being out of time the applicant thus seeks this court for an order to extend time to that effect as indicated in the prayers above. The period of delay is from when the period six months ended till when this application was filed. The reason for delay are stated in the applicant affidavit significantly failure of the respondents to serve notice of revocation and time spent as initial measures to know the status of the ownership by conducting official search and also filing of caveat to protect his interest. The respondent contests this application they filed counter affidavit deponed by Mr. Kajesa Minga a land officer. In the counter affidavit facts related to cancelation of the building permit and revocation 3 of the right of occupancy was stated, more significantly the respondent states that the applicant has not accounted for each day of delay. During hearing the applicant was represented by Miss Anitha Nyangahondi and Mr Moses Mgonja learned advocates while the respondent had service of Mr Mathew Mfuko a learned state attorney Before, revisiting the parties’ submission, I wish to note at this stage that it has been held in number of times that, in an application of this nature, this court will be prepared to allow the same if an applicant exhibits good cause to warrant this court's exercise of its discretion to extend time. It is also settled law that an application for an extension of time must be filed as soon as an applicant becomes aware of the need to do so, and he is enjoined to account for every day of delay within the prescribed period. This is the reasoning in cases just to mention few; Board of Trustees of The Free Pentecostal Church of Tanzania vs Asha Selemani Chambada and Another (Civil Application 63 of 2023) [2023] TZCA 147 (28 March 2023)., Bushiri Hassan v. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported) and Finca (T) Limited and Another v. Boniface Mwalukisa, Civil Application No. 587/12 of 2018 [2019] TZCA (15 May 2019). The Court of appeal in 4 Lyamuya Construction v. Board of Registered Trustees, Civil Application No. 2 of 2010, the Court provided the following guidelines that may be considered in ascertaining whether there is a good cause: a) The applicant must account for all the period o f delay; b) The delay should not be inordinate; c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take and d) If the Court feels that there are other sufficient reasons, such as the existence of a point of law for sufficient importance; such as the illegality of the decision sought to be challenged. Miss Nyagahondi argued that going by date of notice of revocation the same was published on 15.3.2024. The reason for delay is also applicants’ grievance on lack of proper notice to the applicant before the purported revocation which was done contrary to section ,2 and, 13 and 47 of the Land Act. The applicant having noted about the alleged revocation, took steps to verify status of the property and in the end submitted this application for filing on 18.9. 2024. She said the delay was for three days only which was caused by reason above stated. 5 In those three days, the applicant took all the initiative to file the application on time. On his part the counsel for the respondent. Mr Mfuko was of submission that the applicant, in view of the decision in Lyamuya the applicant failed to meet the test in accounting for all days of delay. Mr Mfuko also had other ideas; he beseeched this court to find that no good cause is exhibited; according to him the applicants’ grievances against the respondents can be addressed by normal civil suit. He beseeched beached this court to decline granting the application. He cited decision in Land Mark Real Estate Limited Vs Commissioner for Lands &3 Others (Misc. Land Application No. 18562 of 2024) [2024] TZHC Land 606 (19 August 2024) but also Aloyce James Kasawa vs William Mufungo Mwangwa & Another (Civil Reference No. 5 of 2018) [2021] TZCA 610 (22 October 2021 at page 6. In which the court declined to grant application for leave to file judicial review, having taken a view that the applicant could exploit other remedies. In her rejoinder, Miss Nyagahondi insisted that the applicant has good reason to pursue for remedy by way of judicial review and they have 6 acted promptly as this application was submitted on 18.9.2024 three days late. On my part, I have given thought on the argument by Mr Mfuko that this application will be futile. I the decision Land Mark Real Estate the same was for leave to file judicial review, the court having examined the test in granting the application made a finding that leave could not be granted. In this application what the applicant ask is to be allowed to make their case in application for leave. It is settled procedural law that an application for judicial review must be preceded by a successful application for leave to file the same. It is in that stage the court having examined the chamber summons and affidavits will be enjoined to filter out hopeless and groundless applications and futile application to say the least. . From the above, deciding on the competence of the remedy of judicial review in my considered opinion can not be made at this stage, the risk is to pre empty the application for leave without facts and which is not my task in this application. Now with regards to accounting for days of delay, as indicated the impugned notice of revocation was issued on 15 March 2024. The applicant had six months to file the application for leave to file judicial 7 review. This application was, according to case management system submitted on .18.9.2024 pursuant to the Judicature and application of Laws Act (Electronic filing) Rules, 2018 particularly under Rule 21. Which provides that: (1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted unless a specific time is set by the court or it is rejected. It is thus correct to say that the applicant was already in court when they submitted this application. I took the same position in the case of Lukolo Company Limited and Another vs Daudi Ndimbo @ Daudi Salvius Ndimbo t/a Darban Aluminium, PVC & Balcons Works, Civil Appeal No. 2647 of 2024, Tanzlii. I thus find that the three days were reasonable to take the actions taken by the applicant that is filing of the caveat and preparing this application. From the foregoing, I find that this application is brought with sufficient cause, the same is granted. Applicant is given 14 days from this date of ruling to file application for leave to file judicial review. No order as to costs. 8 A. J. KIREKIANO JUDGE 28.11.2024 COURT Ruling delivered in chamber in presence of Miss Anitha Nyangahondi counsel for the applicant and Miss Rose Bosco learned state attorney for the respondents. A. J. KIREKIANO JUDGE 28.11.2024 9