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IN THE HIGH COURT OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. 12747 OF 2024 (Arising From Land Appeal No. 26058 of 2023, Land Division) REHEMA HEMED KILINDO I^t APPLICANT REHEMA HEMED KILINDO 2^° APPLICANT

VERSUS ABEL AISON MWAKABENGA 1®^ RESPONDENT KAUTILA ALI KAUTILA 2**^ RESPONDENT HEMEDY ALLY KAUTILA 3'*'' RESPONDENT ABDALLAH OMARY NYINGITE (Administrator of the Estate of the Late Kautila All Kautila) .......4™ RESPONDENT

RULING to 31='July, 2024 E.B. LUVANDA,J In the memorandum of review, the Applicant named above is seeking for review of the judgment in Land Appeal No. 26058 of 2023 dated 30/05/2024 for reason that there is apparent errors on the face of the records namely: One, Upon the Court finding that the amended appeal was filed out of time proceeded to dismiss the appeal for wan of prosecution while it held that there was nothing before the Court; Two, Further, the names of the Respondents are duplicated where Kautila Ail Kautila appears as the Second and re-appear againt as the Fourth Respondent vide his administrator of the estate of one Abdaiiah Omary 1 Nyigite) inconsistent with the parties at the District Land and Housing Tribunal where there were only three Respondents. Mr. Huruma Ntahena learned Counsel for the Applicants prayed for rectification of some names of the parties, in that the name of the Second Respondent is erroneously written as Rehema Hemed Kilindo instead of Pill Shija Sombi and further the name of the 4th Respondent is written as Abdalalh Omary Nyingite instead of Abdailah Omary Ngingite. The submitted that the errors in the names are typographical and has not caused any injustice to the Respondents. That following the introduction of the oxygen principle vide section 6 of the Written Laws Miscellaneous Amendments Act No. 3 of 2018, courts are advised to uphold

the overriding objective principle and disregard minor irregularities and unnecessary technicalities so as to abide with the need to achieve substantive justice. Regarding the merit of review, he submitted that on 30/4/2024 the High Court delivered judgment on appeal and held that the amended petition of appeal was time barred and consequently the court proceeded to dismiss the appeal for want of prosecution. It is his submission that having held that the appeal was filed out of time, the court did not have jurisdiction to deal with other issues including making a finding that the Applicants failed to prosecute their appeal. He submitted that failure to prosecute the appeal connotes that a party abandoned the matter and or did not enter appearance, arguing that in this particular case, the Applicants prosecuted their appeal by filing submissions in chief in support of the appeal. He submitted that the Applicants cannot be held that they failed to prosecute the appeal. He submitted that in the circumstances of the case, dismissing the matter for want of prosecution was an error apparent on the face of the decision. He cited Civil Appeal No. 629 of 2022 between the Registered Trustees of Baraza la Waislamu Tanzanlas(BAKWATA)vs Bodi ya Wadhamini Ya Jumuiya ya Waislamu Kumwelelo and Four Others, Court of Appeal of Tanzania at Kigoma. He submitted that having found that the amended

appeal was filed out of time hence there was no appeal before the court, the court should not have made a finding that the Appellants failed to prosecute the appeal as the court had held there was no appeal before the court worth prosecuting, arguing that one could not prosecute a nothing. He submitted that the finding that the appeal was not prosecuted was inadvertently made, arguing having found that the appeal was filed out of time the court should have dismissed or struck out the appeal. He submitted that the appeal which is subject of this review was initially filed well within time, but the amended one was filed out of the order of the court rendering it incompetent, arguing the remedy for an incompetent matter is to strike it out. He cited Civil Appeal No. 136 of 2021 Mary Agnes Mpelumbe (Administratrix of the estates of late Isaya Simon Mpelumbe)versus Shecka Nasser Hamad, Court of appeal of Tanzania at Dar es Salaam. He prayed that after correct the statement that the appeal is dismissed for want of prosecution, we propose that it should read "amended appeal is struck out" On the second point, the learned Counsel submitted that there is apparent on the face of the court record regarding the names of the parties. He submitted that the names of the Respondents are duplicated where Kautila Ali Kautila appears as the Second Respondent and re appears again as the

Fourth Respondent vide his administrator of the estate one Abdallah Omary Ngigite, arguing it is inconsistent with the parties at the District Land and Housing Tribunal where there were only three Respondents. He prayed that the application for review be granted, names of the parties corrected and the appeal be marked as struck out and not dismissed for want of prosecution. In reply, Mr. Gabriel Maros learned Counsel for Respondents submitted that the name of Rehema Hemed Kilindo (as Second Respondent) has been suo motto substituted with Pili Shija Sombi, without leave of this court. He submitted that on 30/5/2024 the Applicants filed a memorandum of review showing the all applicants as Rehema Hemed Kilindo. He submitted that they have sought an asylum on the oxygen principle. He submitted the view that this is not a typing error rather alteration name of party which was not formerly included in this application for roviow, without court loave; on tho othor hand, tho applicants have made their own review (suo-motto) on this appiication during the hearing of this appiication without leave. He submitted that so iong as Piii Shija Sombi was a party (one of appeliant) to land appeal 260658/2023 which is a subject of this review, proceeding in her absence denies her a right to be heard (this prejudice her). He submitted that if at all her name was left to be joined in this review

for any reason(s), the Applicant's side ought to have sought an order for amendment before hearing so that to rectifying such names defect/errors (if any). He submitted that once the document have been fiied in court and served to the other parties the rectification/amendment i.e. (changing of party name) is not automaticaily during the hearing, arguing that any action done by a party to this matter must obtain ieave of this court, the applicants doesn't cross this hurdie too. He submitted that he would have been leniency with the Nyingite instead of Ngingite as a typing error and minor defect if oniy the court's ieave wouid have been secured. He submitted that principaliy, review are done on error apparent on the face of record resulting in the miscarriage of justice, it has to be such obvious and patent (seif evident) not something which can be established by a iong drawing process of reasoning on point which there may conceivably be two opinions. He submitted that a mere error of law is not a ground for review, citing Saul Henry Amon &Another Vs. Hamis Bushiri Pazi & 7 Others (2024)TZCA 275 (22nd April, 2024, TANZLII). He submitted that the instant application invites the long drawing process of reasoning resulting to have two opinions hence disqualifies this review. He submitted that this court has never dismissed the appeal for being time barred rather for lack of

prosecution by the Applicants. He submitted that when the time chart was put in place on 13/3/2024 both hearing and amendment petition of appeal dates was fixed the applicants did not comply with filing amended petition surprisingly they filed their submission in-chief of which was also out of time without leave, arguing that in the circumstance, even if the amended petition of appeal would have been properly filed still the appeal would have the same be dismissed for want of prosecution on the ground that a said submission in chief was filed out of time without a court leave. He submitted that the Applicants argument that they prosecuted their appeal by filing submission in-chief in support of the appeal, doesn't hold water for reason that once there is an order of amendment of the document in place that which stood before the amendment ceases to exist or is no longer material before the court, citing Pantaleo Teresphory Vs. Republic,(2023), TZCA 47(23rd February, 2023, TANZLII). He submitted that a former petitioner of appeal fled on 27/11/2023 ceased to exist on 13/3/2024 when was replaced with an order for amendment. He submitted that legally, there was no any appeal in the eyes of the law, and there was no basis for the Appellants to argue or file the submission in-chief. He queried as to which one comes first between the filing of an appeal (amended) and

the arguing/submission on appeal. He submitted that as righty, held that since there was no appeal filed, the submission in-chief filed was pegged on nullity. He queried as to what is the position on appropriates remedy where a party (appellant(s) doesn't comply with a court order, whether the court strike out an appeal which was not filed by the appellants, or dismiss it for want of prosecution. He submitted that normally striking out is basing on incompetence. He queried as to whether failure to comply with court order result to incompetence, argued on the negative, for what the learned Counsel said from his jurisprudence, the consequence of non- compliance with the court orders, have two folds one, is the essence that has been equalled to non-appearance at a hearing, and two, the essence that has been interpreted to amount to abuse of court process. He submitted that or the above reason, a non- compliance of the court order always the remedy is to dismiss the case (appeal) for want of prosecution. He submitted that should the Appellants had the intention to prosecute their appeal, they should have filed the amended petition in time as per the former court order but they failed. He submitted that the outcome of filing the amended petition of appeal out of time is equal to have not complied, arguing it is always disregarded and amount to lack of prosecution. He submitted that

the court decision needs no interpolation that the Appellants did not comply with the order consequently; the court rightly dismissed the appeal for want of prosecution. He submitted that there is nowhere court held that, the appeal was dismissed for being time barred as the appellants purport to argue. He submitted that the cited cases of BAKATA as well as the case of Mary Agnes Mpelumbe are all distinguishable in the circumstance. Regard to the issues of names of the Second and Fourth Respondents to be duplicated, the learned Counsel submitted that this could only have relevance if the appellant would have complied with the order of amendment. He submitted that since, they ignored it; then there was no appeal with different names to argue for/against. He submitted that in the circumstance, he would have expected an application from a said Second and Fourth Respondents rather the Applicants, for correction of such names (if any). He further stressed that he disputes that this was not a mistake (if any) done by the court staff rather the applicants themselves. He submitted that the applicants are attempting to get legitimacy as to benefit from their own wrong contrary to the principle of the law. He submitted that such defect (if any) neither affected the merit of the appeal nor injured the right(s) of the parties in any way, as the right to fair hearing was accorded to all

parties who fully participated in the proceeding, citing Omary Ally Fuku (Administrator of the Estate of the Late Ally Rajabu) Vs. National Microfinance Bank & Others(2023) TZCA 17759 (16th October, 2023, TANZLII). He submitted that the instant appiication be dismissed for iack of merit with costs. In the impugned judgment, I made the following finging, I reproduce herein, A' ccording to the records^ on 13/03/2024 this Courtaiiowed the Appeiiants to amend their petition of appeai in view of impieading the administrator of the Fourth Respondent The said amended petition ofappeai was supposed to be hied on 20/03/2024. However, the documentin the hard hie as weii as in the eiectronic hie suggest it was hied on 25/03/2024 which was outside the time prescribed by the Court. In hissubmission in chief, the iearned Counseifor Appeiiant said nothing to this anomaiy, instead proceeded to argue his appeaias ifaii things were equaiand in order. The generairuie is that where anyperiod isfixed orgranted by the courtfor the doing ofany act, parties are under obiigation to compiy or eise in case of any fauit or technicai giitch are expected either to iiaise with the Courtfor variation, deviation or departure to its order andpossibie extension or ieave to do it outside the given orscheduied time. Butany attempt to do it outside a scheduie and without prior ieave ofthe Court, is as go one as

having not done at aii. In other words, the amended petition ofappeai which was died on 25/03/2024is akin as not having been died ataii. This is for reason that there is no court order which aiiowed it be died on that particuiar date of their Appeiiant choices and convenient. Equaiiy the submission in chieffiled in support of those grounds are taken not to have been prosecuted at aii. Because they are pegged on a nuiiity' To my respective view, having ruled that the purported amended petition of appeal filed on 25/03/2024 was as good one not having filed, I hold a view that I slept into an error to overstretch to the question of filing submission with its eventually of dismissing the appeal for want of prosecution. To my opinion, filing the amended petition out of the prescribed time, amounted to incompetence appeal, in a sense that the previous petition was ordered to be amended and the intended amended petition was not filed. Therefore, its is remedy as echoed by the learned Counsel for Applicants was to struck out the appeal as opposed to dismissal for want of prosecution. I therefore correct the above error to reflect that the appeal was struck out. Regarding improper naming in this application, I rule it being cured by the oxygen principle, regard that it is the Applicants themselves who committed the error and discovered it amid crafting their arguments. However,

regarding confusion of naming of the parties Second and Fourth Respondent to the impugned judgment. As alluded by the learned Counsel for the Respondents, the anomaly was orchestrated by the Applicants themselves and therefore they cannot always and ever seeking asylum and taking advantages for their own all mistakes, slackness and remissness. The rule is no 10 one can be permitted to take undue advantage of his own wrong to gain favaourable reliefs. I therefore correct the above error in a judgment dated 30/04/2024, to reflect that Land Appeal No. 26058 of 2023 was struck out. Also naming of the Applicants herein to reflect Rehema Hemed Kilindo (First Applicant) and Pill Shija Sombi (Second Applicant). The application is granted. No order for costs. Qp o

LUV DA

JUOGE ★ 3j/07/202| Ruling delivered in the presenc^lof the First Respondent, Mr. Abdul Karamba Advocate holding brief for m[./ Huruma Ntahena learned Counsel for the Applicants and in the absence of the Second, Third and Fourth Respondents. A3RT O 09 7: B. LUV A O 3U GE ;iy^07/2024 y 11