salum omary tangani vs nasoro majandila and three others 2023 tzhc 39 25 january 2023

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (DISTRICT REGISTRY OF MOROGORO) AT MOROGORO CIVIL REVISION NO. 7 OF 2022 (Originating from Appiication No. 128 of2016 DLHT Kiiombero) SALUM OMARYTANGANI APPLICANT VERSUS NASORO MAJANDILA RESPONDENT JAMES SHABANI 2^° RESPONDENT JOHNSON MLAY 3^° RESPONDENT TIMOTH TANDIKA 4™ RESPONDENT RULING Date of Last Order 09/01/2023 Date of Ruling 25/01/2023 MALATA. J. Page 1 of 10 The applicant, Salum Omary Tangani, the administrator of the estate of late Ibrahimu Majandila, filed an application for extension of time within which to file application for Revision against the decision in Land Application no. 128/2016 of District Land and Housing Tribunal (DLHT) for Kilombero dated 5^*^ February 2021 by Hon. C. P Kamugisha, Chairman. The application is premised under Section 14 of the Law of Limitation Act Cap. 89 R.E 2019. Upon being served with a copy of application, Mr. Benard Chuwa, learned advocate for the respondent filed counter affidavit and notice of preliminary objection with four grounds. The grounds of preliminary objections were to the effect that; 1. the application is bad in law for being time barred, 2. that the application is bad in law for having been overtaken by events, 3. the application is bad in law for having being filed without good faith or intention, and 4. the application is bad in law for wrong citation of the name of this court. Page 2 of 10 At the commencement of the hearing of the preliminary objection, the learned counsel abandoned the third and fourth grounds and argued only first and second grounds of the preliminary objection. Submitting in support of the first preliminary objection, the learned counsel stated that, the application for extension of time is time barred on the basis that, the Ruling by Hon. Justice Ngwembe, J dated 28/03/2022 in Misc. Land Revision no. 26/2021. He submitted that, the application was found to be time barred, consequently it was struck out. The present application is also time barred as the applicant did not file application within sixty (60) days from the date of stricking out by Hon. Ngwembe, J on 28/03/2022. As such, this application is time barred thus against item 21 of Part III to the Schedule of Law of Limitation Act. Cap.89 R.E.2019 which requires the application of this nature to be filed within sixty (60) days and not otherwise. He submitted that, the applicant filed the present application on 23/11/2022 which is eight months from the date of ruling by Hon. Ngwembe, J. To cement his submission the learned Counsel cited the case of Access Bank Tanzania Ltd Vs. Mahiti Manyoro Wambura, Civil Revision no. 37/2021. He thus rested the point by praying that, the application be dismissed. Page 3 of 10 On the second point of preliminary objection Mr. Chuwa submitted that the matter is overtaken by events, as the decision in Land Application no. 128/2016 by DLHT for Kilombero sought to be challenged has already been executed and the applicant was made aware of the existence of Execution application no. 14/2022 where he entered a reply on 29/10/2022. Further, the court broker has also submitted the execution report to the DLHT. He finally argued that the application was filed on 23/11/2022 while the execution has already been effected. The learned counsel prayed that, though there is no law prohibiting the applicant from pursuing this matter after execution but asked the court to dismiss it for being overtaken by events. He thus pressed for costs. In reply to the points of preliminary objection, the applicant who appeared in person and being a lay person had nothing much to submit but argued that, the application is within time and that there was no time limit set by the court through the Order by Hon. Ngwembe J in Misc. Land Revision no. 26/2021 for filing the present the application. As to the second ground, the applicant admitted that, the decision by DLHT was delivered in 2021. He further admitted to have been served with the application for execution application no 14/ 2022 and entered a replied, but the same was not heard and ruled accordingly. Finally he Page 4 of 10 submitted that he was given right to be heard and that there is no decision of the same, he thus prayed the preliminary objections to be overruled. By way of rejoinder, Mr. Chuwa reiterated to the substantive submission, regarding the second point of preliminary objection. He further submitted that, there was hearing of the Land Execution no 14/2022 and order was issued on 23/10/2022, further there was no application for stay of execution by the applicant. However, he confirmed to the court that, the DLHT is yet to deliver the ruling and order for execution proceedings and that neither party has such an order. Having heard the submission from both sides, I now turn to compose a ruling. However, before composing the ruling, I find indebted to point out issue for determination in this case. The gathered issue is whether the application is time barred and whether application is overtaken by event. The respondent contented that, the application is time barred based on item 21 of Part III of the schedule to the Law of Limitation Act, which provides that ''Application under the Civil Procedure Code^ the Magistrates'Courts Act or other written law for which no period oflimitation is provided in this Act or any other written iaw, the period ofiimitation shaii be sixty days." Page 5 of 10 It is evident that, the above cited provision of the law provides for time limit within which to file application where no period of limitation is set by the Civil Procedure Code,the Magistrates'Courts Act or other written law. The matter at hand emanates from land matters, thus the applicable law is the Land Disputes Courts Act, Cap.216 R.E.2019 which do not provide for time limit within which to prefer revision to the High Court. In the circumstances, we have to revert to the Law of Limitation Act Cap.89 R.E.2019, in particular item 21 of Part III of the schedule to the Law of Limitation Act which provide for time limit to all application where no period of limitation is provided under the Civil Procedure Code, the Magistrates' Courts Act or other written law. As the specific law do not provide for time limit within which to apply for revision then item 21 of Part III of the schedule to the Law of Limitation Act come into play. The application for revision was therefore, to be filed within sixty (60) days. The sixty (60) days has to be reckoned from 5^^ February, 2021 when Hon. C. P Kamugisha, Chairman of DLHT for Kilombero delivered the decision sought to revised. This means that counting of time limit cannot be reckoned Page 6 of 10 from 28/03/2022 when Hon. Justice Ngwembe, J struck out Misc. Land Revision no. 26/2021 for being time barred. As the ruling by Hon. Ngwembe J did strike out the application, then the applicant had to go back to the time limit to file application for revision. Since, the time to file application for revision had already lapsed, the applicant had no other way but to apply for extension of time. Had the Ruling by Hon. Justice Ngwembe, J in Misc. Land Revision no. 26/2021 delivered on 28/03/2022 set time limit for filing such an application in accordance with section 93ofthe Civil Procedure Code, Cap.33 R.E.2019 which provides that; "Where any period is fixed or granted by the court for the doing ofanyactprescribed or allowed by this Code,the court may, in its discretion, from time to time, eniarge much period, even though the period originaiiy fixed or granted may have expired." The applicant could have been bound for it but there was non in the present case. Therefore, the argument by Mr. Chuwa learned counsel that, time limit has to be reckoned from 28/03/2022 when Hon. Ngwembe, J delivered ruling in Misc. Land Revision no. 26/2021 is out of context and misleading one based on the afore stated reasons. Page 7 of 10 As such, I hold that the applicant acted correctly, regardless of the chosen remedy for revision. The first point of preliminary objection is therefore with no merits. As to the second point of preliminary objection that this application is overtaken by event, it is on records that, before lodging this application there was Land Execution no 141/2022. The learned counsel submitted that, the execution has already been done and the court broker submitted to DLHT a report on the execution. However, this court waS; firsts not shown any report on execution directed to the DLHT but a writing addressed to nobody, two, the respondent confirmed to court that, the DLHT had never released execution order for the court broker to act on, three, there was no absolute order issued by the DLHT, four, there was no order appointing the court broker to effect such execution. Furthermore, the fact that the execution has taken place, the same doesn't deprive this court to adjudicate this matter. The above position is echoed and confirmed by the court of appeal decision in the case of Ms. Sykes Insurance Consultants Co Ltd Vs. Sam Construction, Civil Revision no 08 of2010 the Court Page 8 of 10 when clarifying Order XXI Rule 57(2) of the Civil Procedure Code Cap.33 [R.E. 2019] referred to MULLA (op. cit) at page IS0S-5A held that: - "Whenever a claim is preferred under Order 21 ruie 58 against the attachment of immovable properties/ the fact that the properties are soid or the saie is confirmed, wiii not deprive the court of its jurisdiction to adjudicate on the claim. The inquiry into the claim can be proceeded with by the trial court... and in the event of the daim being allowed, the saie and confirmation of saie shaii to that extent, be treated as a nuiiity and of no effect. Thus, even if execution has been carried out, it doesn't ban the applicant from pursuing this matter after execution. From the afore stated legal position, this court therefore hold that, the second preliminary objection also lacks merits. Ali said and done and for the foregoing reasons, I hereby dismiss all the preliminary objections for lack of legal base. Each party to bear its own costs. It is so ordered. Page 9 of 10 DATED at MOROGORO this 25*^^ January, 2023 OF o 4- G ID G.P. MAiA A X uU -5: JUDG 25/1/2023 Page 10 of 10