sena bettery mtayo the administrator of the late bettery usalike dolfu vs ezebio msongo 2024 tzhc 2 3 january 2024

IN THE HIGH COURT OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY) AT SUMBAWANGA MISC. LAND APPLICATION NO. 33 OF 2022 (Arising from Misc. Land Appeal No. 30 of2020 in the High Court of Tanzania at Sumbawanga, Land Appeal No. 81 of2.019 from the'Decision of District Lar&and Housing Tribunal of Rukwa at Sumbawanga, Originated frdmtLandjCase.:No: 16 of 2019 APPLICANT VERSUS EZEBIO MSONGO. RESPONDENT ll:i! December, 2D23&. OS-Jammy, ?.0?A- MRISHAkJ. B Sena Bettery Wayo (The Administrator of Estate of late Better/ Usalike Dolfu) the applicant herein, filed this application before this court seeking for extension of time within which to lodge an application to set aside the dismissal order dated on 5th October, 2022 in Land Appeal No. 30 of 2020 i and for restoration of the said appeal so that the parties can be heard inter parties on merit. The application is made under section 14(1) of the Law of Limitation Act Cap 89 R.E. 2019 and Order XXXIX, Rule 19 and section 95 of the Civil In this application the applicant was represented By-^Ms. Neema Charles, hearing of the present appeal, bat he -refused^to receive the said summons. Besides, the^^meydTO^te^fbp^theyapplicant prayed to this court to proceedyWith ffie^earing^of Tier clients application ex parte by way of t-h written submissidn, whereby on the 05m day of September, 2023 the court granted the prayertwith a direction that the applicants counsel should file her rcspective witten submission on 19.09.2023. The applicants advocate complied with the order of the court by filing her written submission on 19th September, 2023. Hence, the present Ruling. 2 In her written submission, Ms. Neema Charles submitted that the applicant is seeking to this court for an order for extension time to file an Application to set aside a dismissal order dated on the 5th day of October, 2022 in respect of Land Appeal No. 30 of 2020 and restoration of the said appeal; she has also prayed to the court to adopt the contents of the Chamber summons and sworn affidavit of the applicantfjpwder toWorrn part of the applicant's submission. She further submftted tn^^^^^^ic^ht is the Administrator of estate of late Better^i:Usalike'Bolfu who was the Appellant in Misc. Land Appeal No. who demised on the 14th day of August, 2022 before the-determination of his Appeal. when the saidappeal :was called on for hearing; the administrator of estate of latelBettery^Usa’ike Dolfujwas not yet appointed which resulted to the dismissal of Misc/Land Appeal No. 30 2020 for want of prosecution. The learned counserfor the applicant also submitted that on the 15 day of November, 2022 the applicant was appointed by the Primary Court of Ifakala as the Administrator of estate of late Bettery Usalike Dolfu where after he filed the Misc. Land: Application No. 33 of 2022 before this Court in 3 order to seek for readmission of an appeal dismissed for a want of prosecution. It was also the submission of Ms. Neema Charles that nonetheless the application was made after expiration of thirty (30) days contrary to section 14(1) and Part III Item 9 Column 2 of the Law Limitations Act, Cap 89 R.E. 2019. She further added that, the administrator‘ oCthe deCeasectsnestate or being appointed as the Administrator, .of the estate of late Bettery Usalike Dolfu. To bolster,henargument,?shc cited the case of Hemed Said Amri v Ally^kmri|Said and Others, Civil Application No. 135 of '21/7/to be the legal representative of a deceased party or any other interested person may apply to revive the application; and, if it is proved that he was prevented by good cause from continuing the application, the Court shall revive, the application upon such terms as to costs or otherwise as it deems fit. " .4 Again, the learned counsel for the applicant submitted on the second ground of illegality that the ward tribunal was not properly constituted. She argued that on the 16th day of August, 2019 the Ward Tribunal of Miianzi was formed by eight (8) members; but only one woman seated on said case which is contrary to section 11 of the Land Dispute Court Act Cap 216 R.E. 2019 (the Land Dispute Court Act). She claimed that the members of the Miianzi WardiTribunahwho presided ' 'kia.' ' ' "’d?' Plukelia Damian(Female),^rapk Raphael (Male), AI^Kasolo(Male), Sangija Upule(Male), Siwezi Kipari^Male)^^^hj(^cidT4zyuhgu(Male). Likewise, the aD^rant^icpunset.submiftd that on the 27th day of August, x Varc||rribunal')was presided over by only five members namel^^^fe^Fanufel, Michael Sukare, Turuka Makanya, Charles Elias and Samweljogo (Clihlrma^f; however, the record of the said tribunal does not indicate^the^ender of the sitting members. To substantiate her stance, she cited the case of Christopher Wantora v Masero Meek Makura, Misc. Land Appeal 112 of 2021 HC Musoma. 5 She further submitted that one member of the trial Tribunal whose name is Ludovick Nzyungu, was not present on the 23rd day of August, 2020 when the case was being heard by the tribunal; however, he just participated during the delivering of the judgment and casted his vote in the course of making the decision of the trial tribunal. Again, the applicant's counsel submitted that another member ofThe said trial tribunal one John Mwalaba who was%mong the presidingmembers of the said trial tribunal, participated in 'themastingiyotelprocess, but he did Wk "W not hear the respondent ateliswhicniis contrary toThe provisions of section w ’Wk 14 of the Land Dispute Cdurt Act.xM. "W ® time due to-Two|points of law; one, locus standi and two, illegality, as indicated in her former submission in chief. Thus, due to the above reasons, the learned advocate prayed to this court to grant the applicant extension of time in order to enable her to apply for setting aside of the dismissal order and re-admission of Land Appeal No. 30 of 2020. 6 Section 14(1) of the Law of Limitation Act Cap 89 R.E. 2019 provides for extension of time for the doing of any act authorized or required by the law if there are sufficient reasons. In Benedict Mumello v Bank of Tanzania, Civil Appeal 12 Of 2002) [2006] TZ CA 12 (Uploaded on Tanzlii on 12 October 2006) the Court of Appeal held at page|227 as follows: "It is trite law that an application for extension of time Js entirely in the discretion of the Court to grantdprefusedf and^tdaUeXtension of time may only be granted whereJ^hast;been Sufficiently established that the delay was with suf^i^^^uSe'^^^^^. Extension of time is a matter for discretion of. the court and that applicant must put material beforeMhe court ?which?will persuade it to exercise its discretion in favour offeorRextensiori? of time. (See also Lyamuya Constructioiftcompany LTD vs Board of Registered Trustee of Your^gWornenJsChgstianAssociation of Tanzania, Civil Application No. 2 ctalO. > The question nowus whether the applicant has shown good and sufficient cause to warrant the grant of extension of time. I have carefully considered the arguments put forward by the learned counsel for the applicant and in 7 the end; I have reached to the conclusion that there is merit in the application. It was submitted and likely so in my view, that there is undisputed fact that the appellant in Wise. Land Appeal No. 30 of 2020 one Better/ Usalike Dolfu died on 14th August, 2022 and that his appeal%as dismissed by the court on the 05 day of October, 2022 for want^pfprosecutidrb It isalso an undisputed fact that at the time the Wise. Land AppeaW&^^pf .2020 was dismissed, the Administrator of the estate?pfjate|gettery Usalike Dolfu was In the circumstances, iU> is my; considered opinion that since, the Administrator of the estate ofMate Battery Usalike Dolfu was appointed by above|named deceased person may apply to the court to revive the appeal and death of thetappellant is in my view, a sufficient good cause of extension of ^imedor the Administrator to revive the appeal or application, as the case may be. It appears to me that the death of the appellant is a proof that the case could not be further prosecuted until the administrator of the estate of the 8 appellant could be appointed. Even if the late appellant had engaged an advocate to represent him in his case, still the advocate, could be barred under the law to proceed with the matter prior to the appointment of the administrator of the deceased's estate and be instructed by the administrator. For the court to entertain the case or action in^respect of'the deceaseds - w W W ■ estate, it has to satisfy itself as to whether|^^Iica^^^^|tezs standi or has interest in the case; See Gervalt^sawel^wa^s The. Returning Officer and Another [1996]£1’LR 320, as clted in thecase of Ally Ahmed Senyange vs Raza Hussein Ladha Damji and Others, Civil Application "Wk ‘ No. 525/17 0&OI6 (tinrepofted). % JU In them bove'’cases the Court insisted that locus standi is not the matter of ■ W-. evidence, but rather the matter of law as it goes to the jurisdiction of the court. Besidessthat/being a jurisdiction issue a person cannot maintain a suit or action unless he/she has shown an interest in the subject matter as well. 9 Likewise, the applicant in the case at hand cannot proceed with the Land Appeal No. 30 of 2020 unless he satisfies the court that he had been appointed to be administrator of the late Battery Usalike Dolfu. Having gone through the written submission filed with this court by his learned advocate, I have found that there is sufficient evidence to prove that the applicant herein was appointed by the Primaiwgourt of Ifakala to be the administrator of the estate of his late father one Battery.ysalikesDoIfu, the deceased person. W % ■ He has also proved to have-an interest irilthe estate of his iate father by gf filing the instant application so that helcan apply for readmission and father ended^fiefore passingway. Ministry Of Defence and National Service vs Devram Valambhia (1992) TLR 387 in which the Court of Appeal held that: ’7/7 our view, since the point at issue is one alleging illegality of the decision being challenged; the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and if the 10 alleged illegality be established, to take appropria te measures to put the matter and the record straight." Again, in the case of Ngao Godwin Losero vs Julius Mwarabu, Civil Application No. 10 of 2015(unreported) the Court of Appeal held that: "It is noteworthy that in Valambhia's case (supra),.the illegality of the impugned decision was clearly visible onthejace ofthe record." This reminds me to consider the allegations of iflGgaiit^&of tfejmpugned decision as a reason to find good cause for delay whin seeking extension of time, to exercise caution ancf consideispecifiOLCircumstances especially by taking time to consider^whether the illegalityjs visible on the face of the record. In Lyamuyafe; case^(supra), the Court of Appeal had the following ^^^^^^art^^itending to appeal seeks to challenge the ^decision either onpoints of law or facts, it cannot in my view, be said that in Valambhia's case, the court meant to draw a general rule that eveiyfappljpaht who demonstrates that his indented appeal raises points of law should, as of right, be granted extension of time if he applies for one. The Court there emphasized that such point of law must be that of sufficient importance and, I would add that it must also be apparent on the face of the record, such as the question of ii jurisdiction; not one that would be discovered by a long-drawn argument or process." I will apply the above holding to the present application. It is the assertion of the applicants counsel that the trial tribunal was not properly constituted when tribunal seated on 16th August, 2019^where the members of the Ward Tribunal were eight and among ofethe member seated, there was only one women, and she has furthep3ddedthatW-?27ttl August, 2019 the trial proceedings does not indicate.:gendercpf thwnembets and lastly, she contended that one of the membersiwhose oame isd_udovick Nzyungu, participated in the decision making^processcwhile he was not present during hearing of the ca£e. Thecom position of members of the Ward Tribunal is prescribed under sectiondlof the Land Disputes Courts Act, At AiA which provides that: ^£ach TrSinal shall consist of not less than four nor more than eight rne/nbers of%hom three shall be women who shall be elected by a Ward-Committee as provided for under section 4 of the Ward Tribunals Act." Also, section 4(l)(a) of the Ward Tribunal Act Cap 206 R.E. 2019 expressly provides for almost similar requirement. 12 As already pointed out above, the trial tribunal shall consist of not less than four nor more than eight members of whom three shall be women who shall be elected by a Ward Committee. In the present case, the presiding tribunal seated with one woman during hearing of the case. That was contrary to the directives under section 11 of the t§nd Dispute Court Act which governs the composition of the Ward Tribunals, requiring them to be IM, W A three women members in any particular siting. % Since only one female membe^^anfe^^^^^^teyal of the matter subject of this application ^afethel^/el of^Ward Tribunal, the trial court proceedings are tainted With irregularity, , thus become null and void. applicant whichwould in neither way prejudice the respondent. In such circumstances, thegapplicant has to lodge the intended application for readmisslori^o^isGr Land Appeal No. 30 of 2020 within fourteen (14) days of the date of this ruling. No order as to costs is made. I so order. 13 JUDGE 03.01.2024 14