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THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY

AT MBEYA MISC. LAND APPLICATION NO 16036 OF 2024 (Arising from the decision of the District Land and Housing Tribunal for Songwe at Mbozi in Land Appeal No. 14 of 2021 and Original Land Dispute No. 1 of 2021, Ndalambo Ward Tribunal) SELIVA JELASI SINGOI……………………………………………….………APPLICANT

VERSUS KINISON SINGOI….………..……………………………..……….…..1ST RESPONDENT JOHNSON SINGOI………...……………………………………..…….2ND RESPONDENT

RULING Date: 30 September 2024 & 13 December 2024 SINDA, J.: The applicant herein, brought this application under Section 14 (1) of the Law of Limitation Act (Cap 89 R.E 2019) (the LLA), praying for the following orders, to wit: 1. That, this Honourable Court be pleased to grant an order of extension of time within which the applicant to file an application for revision out of time against the decision of Ndalambo Ward Tribunal 1 in Land Dispute No. 1 of 2021 and the decision of the District Land and Housing Tribunal for Songwe in Land Appeal No. 14 of 2021.

2. Costs of this application to be provided for, 3. Any other relief (s) this honourable Court deem fit and just to grant. The second respondent filed his counter affidavit, but also raised Preliminary Objection (the P.O) on a point of law to the effect that: I. That in view of the judgment of this Honorable Court (Hon. Musa K. Pomo) delivered on 07/06/2024 in Misc. Land Appeal No. 08 of 2023 arising from the decision of the district land and housing tribunal for songwe at mbozi in Land Appeal No.14 of 2021 and has its origin from Land Dispute No. 01/2021 of Ndalambo ward tribunal on the same subject matter, this application is grossly incompetent, bad in law and the court is functus officio. II. That this honorable court lacks jurisdiction to entertain this application. It is thus upon this court to determine the P.O put forth, before deciding whether or not to continue deciding on the application. 2 At the hearing of the P.O, the applicant appeared in person, unrepresented. The second respondent was represented by Ms. Neema John Siwingwa, learned counsel. Submitting on the first P.O, Miss Siwingwa argued that this court has already dealt with the decision of the District Land and Housing Tribunal for Songwe at Mbozi (the DLHT), in Land Appeal No. 14 of 2021 which originated from Land Case No. 01 of 2021 of Ndalamba Ward Tribunal when it exercised its appellate jurisdiction in

Misc. Land Appeal No. 08 of 2023. She added that fact this court becomes functus officio because there is existing decision of this honorable court on the same matter. Supporting her argument, she cited the case of Kamundu vs. Republic (1973) EA 540 and that of Mohamed Enterprises (T) Limited vs Masoud Mohamed Nasser, Civil Application No. 33 Of 2012 (Unreported). On the second point, the counsel submitted that this court lacks jurisdiction to revise the decision of the ward tribunal, as those powers are vested to the DLHT. The same is provided under Section 36 of the Land Disputes Courts Act [Cap 216 R.E 2019] (the LDCA). That the applicant is trying to move this court to revise the decision of Ndalambo Ward Tribunal which is contrary to the provided section. She added, according to Section 41 of the 3 LDCA the High Court has jurisdiction to revise decisions of the DLHT. That, since the applicant jointly applied for revision of the decision of the ward tribunal and of the DLHT, this court lacks jurisdiction to determine the application. With regard to the above, the counsel cited the case of Michael Joachim Tumaini Ngalo vs Jitesh Jayantilal Ladwa, CIVIL CASE NO. 18 OF 2021, that cited the case of Commissioner General of Tanzania Revenue Authority vs JSC Atomredmetzoloto (ARMZ), consolidated civil appeal no 78 and 79 of 2018 CAT (unreported), also the case of Ujenzi Secondary

School vs. Suraiya Bofu & Another, Revision Application No. 850 of 2018 and that of Evance Agosti Mputa vs Emmy Mdegela, Land Appeal Case No. 380 of 2023 that cited the case of Shyam Thanki & Another vs New Paris Hotel Limited, (1972) HCD 90. In her reply submission, the first respondent was of the view that the P.O raised by the second respondent does not fit the standard in the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) E.A 696. She argued that the points of preliminary objection raised by the second respondent were not pleaded anywhere in the affidavit and 4 they remain to be facts known to the respondent only. That, they will therefore require further evidence in order to be determined. Addressing the first P.O raised, the applicant with assistance from the Black’s Law Dictionary, 8th Ediction, defined functus officio to mean: “having performed his or her office” or “an officer of officer of official body without further authority or legal competence because the duties and function have been fully accomplished.” She also cited the case of Bibi Kisoko Medard vs. Minister for Lands Housing and Urban Developments and another (1983) TLR 250. The applicant continued, that the present application has no relation to Misc. Land Appeal No. 08 of 2023, and the same was not communicated to her. She added, in this application she is just seeking

extension to time to file revision against the decision of the Ndalambo Ward Tribunal and that of the DLHT, which this court has power over them through revision power. She also submitted, that the matter has never been determined by this court on merit. She prayed for this court to grant the application, since she was not party at lower tribunals. That her rights of ownership are infringed and were taken by the decisions of the lower tribunals. 5 Arguing on the second limb of objection, the applicant submitted that the counsel for the second respondent was wrong to address the issue of power of revision of this court while the matter before this Honourable Court is extension of time. That means the objection raised by the counsel for the second respondent is premature. She also argued that the prayer contained in the chamber summons cover the decision of the DLHT and the decision of the Ndalambo ward tribunal, different from what was submitted by the counsel. Thus, all the authorities relied upon by the respondent’s counsel are irrelevant to the matter at hand. In her rejoinder, Miss Siwingwa went against the contention that the principle of functus officio needed to be pleaded or traced from the pleadings of the applicant in his affidavit, while this court has already adjudicated the matter to its finality in Misc. Land Appeal No. 92 of 2023. That if the application is

granted, it will amount to abuse of court process as it was stated in the case of Kamundu vs. Republic (Supra). The counsel insisted that the applicant should have made this application to the Court of Appeal, since this court has already determined the matter to it finality. 6 Rejoining on the second P.O raised, the counsel reiterated most of what she stated during her submission in chief. In addition, she stated that the applicant claims this court has powers to entertain the application. Ms. Siwingwa argued that such powers have been taken away by event, which make this application incompetent. I have carefully gone through submissions from both sides and records of the lower tribunals in relation to the P.O raised. Ms. Siwingwa argued that this court is functus officio since the matter had already been decided to its finality by this court and second, this court has no jurisdiction to revise the decision of ward tribunal. In respect of the first P.O, I took liberty to go through Misc. Land Appeal No. 92 of 2023 by my fellow High Court Judge, Musa K. Pomo that was delivered on 07 June 2024. Apparently, a preliminary objection was raised on the appeal being time barred. The court sustained the objection, and by his words Pomo, J stated: “The objection suffices to dispose of this appeal, and my hands are closed to determine the grounds of appeal in the time barred petition of

appeal. There is only one remedy for a time barred appeal which is to dismiss it. Consequently, I hereby dismiss this appeal for being time barred.” 7 Since that is what transpired, I completely disagree with Ms. Siwingwa that this court decided the matter to its finality. Because from the above the case was not heard on merit, just as how the applicant argued. Due to that fact, the decision of the DLHT remains unchallenged and this court is not functus officio. The applicant was therefore right to bring the application before this court, because it has jurisdiction. That brings me to the second limb of the P.O. It is trite law that the issue of jurisdiction can be raised at any time during the life of a case in court. As seen in a number of decided cases, such as that of ISAYA LINUS CHENGULA (as administrator of the Estate of the late LINUS CHENGULA) vs FRANK NYIKA (as Administrator of the Estate of the late ASHERI NYIKA), Civil Application No. 487/13 of 2020. In the matter at hand, the applicant seeks this court to extend time to file revision in both the DLHT and the Ndalambo Ward Tribunal. The counsel for the respondent raised the objection that this court has no jurisdiction to revise the decision or proceedings of the ward tribunal, as provided under Section 36 of the LDCA, that provides: 8 “36.-(1) A District Land and Housing Tribunal may call for and examine the record

of any proceedings of the Ward Tribunal for the purpose of satisfying itself as to whether in such proceedings the Tribunal's decision has- (a) not contravened any Act of Parliament, or subsidiary legislation; or (b) not conflicted with the rules of natural justice; and whether the Tribunal has been properly constituted or has exceeded its jurisdiction, and may revise any such proceedings. (2) In the exercise of its revisional jurisdiction, a District Land and Housing Tribunal shall have all the powers conferred upon it in the exercise of its appellate jurisdiction.” The above provision should be read together with Section 41 of the LDCA, that provides: “41.-(1) Subject to the provisions of any law for the time being in force, all appeals, revisions and similar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court.” From the foregoing, it goes without saying that this court lacks jurisdiction to revise records of any proceedings of the ward tribunal. Since those powers are exclusive to the DLHT. However, the high court has power to revise the decision and proceedings of the DLHT as seen in Section 41(1) of the LDCA. 9 Be that as it may, the DLHT was the first appellate tribunal. At this point, even if I order revision at the DLHT, it will by default extend to the

ward tribunal records and proceedings. For obvious reasons, that the matter did not move from the ward tribunal all the way to this court. It made a stop at the DLHT. Therefore, since this court has jurisdiction to revise the records and judgment of the DLHT, that would also include records from the ward tribunal. Consequently, both limbs of the preliminary objection are overruled. This honourable court will proceed to hear the application on extension time to file revision against the decisions of both lower tribunals. As the matter is between relatives, I will give no order as to costs. It is so ordered. DATED at MBEYA on this 13 Day December 2024. A. A. SINDA

JUDGE 10