attorney general vs stephen makombe and 15 others 2020 tzhclandd 4012 30 august 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND CASE APPLICATION No.613 OF 2020 THE ATTORNEY GENERAL..................................... APPLICANT

VERSUS STEPHEN MAKOMBE...................................... 1st RESPONDENT CHARLES BUNDALA............................. 2nd RESPONDENT HARRISON FUNGO.......................... 3rd RESPONDENT DISHON KAYUMBU......................................... 4th RESPONDENT LUCIAN M. WILLIAM......................................5th RESPONDENT GEORGE M. MAKUKE.................................... .6th RESPONDENT ISACK MKILYA......................... 7th RESPONDENT JOHN ONANI....................................... ...8th RESPONDENT CHARLES WIHENGE........................................ 9th RESPONDENT RICHARD LYATUU........................................ 10™ RESPONDENT

YUSUPH SULEIMAN (Administrator of the Estate of Saad Suleiman)........................................................... 11™ RESPONDENT ARON OLE MUNG'ANGA'RI...... ................... 12™ RESPONDENT JOHN N. LUSINDE......................................... 13™ RESPONDENT MWALIMU SANGO........................................ 14™ RESPONDENT MOSES M. AKYOO......................................... 15™ RESPONDENT

TANZANIA ZAMBIA RAILWAY AUTHORITY (TAZARA).............. 16™ RESPONDENT Date of last Order: 13.07,2021 Date of Ruling: 30.08.2021

RULING V.L, MAKANI, J The applicant has moved this court under section 14(1) of the Law of Limitation Act, Cap 89 RE 2019, Section 95 of the Civil Procedure Code RE 2019 (the CPC) and section 17 (1) (a) of the Office of Attorney General (Discharge of Duties) Act, CAP 268 RE 2019. The applicant is seeking for extension of time to file revision against the judgment and decree of the District Land and Housing Tribunal for Temeke (the Tribunal) in Application No. 102 of 2007. The applicant is also seeking any other order this Court may deem fit to grant. The application is supported by an affidavit sworn by Gabriel Pascal Malata, the Solicitor General of the Office of Solicitor General. With leave of the Court, the parties agreed to argue this application by way of oral submissions. Ms. Grace Lupondo, State Attorney, represented the applicant, while Mr. Armando Sweya and Mr. Mtui represented the respondents. Ms. Lupondo prayed to adopt the prayers and facts in the applicants affidavit and added that since the counter affidavit in respect of the 16 respondents was expunged from the records, they will have right to submit on matters of law only. She said that the Solicitor General on behalf of the Attorney General is the Legal Advisor of the Government and he is responsible for the protection of the properties of the Government which will be jeopardised if there is execution

in 2 Land Application No.102 of 2017. She said that the Tribunal pronounced the judgment on 16/05/2012 in favour of the 1st to 15 respondents, ordering the 16th respondent to sell the government houses and to execute its order for specific performance of the contract between the parties. She said that application for execution was granted but there is stay order by this court vide Misc. Land Application No. 174 of 2016. On extension of time, she said that the court has discretionary power to grant the prayer regard being that there are sufficient reasons. She said that the applicant was not party to the previous proceedings in favour of 1st to 15 respondents. That the applicant was also not a party to the execution proceedings therefore he had no opportunity of being heard. She cited section 17 (1) (a) of CAP 268 and added that the Attorney General has the right to seek audience to any proceedings with public interest. That the dispute involves public property for which the applicant is empowered to protect and that the only way is by extension of time to file revision so that the applicant can have audience. She relied in the case of Mbeya Rukwa Autoparts & Transport Limited vs. Jestina George Mwakyoma [2003] TLR 25. She said that the applicant became aware of the 3 proceedings on 23/10/2020 (Annexure SG-5 to the affidavit) and this application was filed 27/10/2020. Ms.

Lupondo further said that there was illegality in the impugned decision as the houses were intended to be sold without the consent of the partner countries and to cure that illegality the applicant must file application for revision. She prayed for this application to be granted to protect the public interest, specifically the houses from being sold. In reply Mr. Swenya said that the Attorney General can intervene at any matter of public interest but asked the question at what stage? He said that they are now at execution stage and that the 1st to 15 respondents wants to be given their houses as per the Tribunal's order. That the circumstances and position by the applicant was supposed to be in the execution process and not to pray for revision. He said that if there was any problem then the 16th respondent would have appealed, and the Attorney General would have so advised. He insisted that the application has been overtaken by events as they are now in the execution stage. He added that the applicant has not furnished sufficient reasons. That according to the affidavit there was inordinate delay. He said the 16th respondent (TAZARA) is a state organ and they were present when the decision was delivered and 4 there is in ordinate delay of about 8 years. He said that there was a lawful sale between TAZARA and the other respondents and therefore jeopardization of the properties

is not a plausible reason for extension of time. He said that the cited cases by the applicant are irrelevant as the circumstances are different. In rejoinder, Ms. Lupondo reiterated her main submissions and added that according to section 17(1) (a) of CAP 268, the Attorney General can intervene at any stage and therefore the issue that execution is ongoing has no merit. She further stressed that the Attorney General has no audience at the Tribunal and therefore could not be joined. Having gone through the affidavit by the applicant and submissions from both parties, the main issue for consideration is whether this application has merit. The settled principle of the law is that an application for extension of time is entirely the discretion of the court to grant or refuse it, and extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause. (See Mumello 5 vs. Bank of Tanzania Civil Appeal No. 12 of 2002 (CAT-Dar es Salaam (unreported), therefore The main reasons by the applicant for the delay in filing revision as contained in paragraph 13 and 16 of the affidavit is that the applicant became aware of the Tribunal's decision late, and further that the said decision was tainted with illegalities. Ms. Lupondo stated that on 23/10/2020 the applicant became aware of the existence of the Misc. Land Application No. 102 of

2007 and Execution Application No. 174 of 2016 through a letter with reference No.CCA.230/556/01/238 dated 23/10/2020. The fact which is not disputed is that the applicant was not a party to these applications at the Tribunal. Therefore, the remedy available for the applicant to pursue her rights is through revision. Now being out of time, the applicant had only one duty, to advance before this court sufficient reasons for the delay. Indeed, perusal from the records are to the effect that on 23/10/2020 the applicant though a letter with reference No.CCA.230/556/01/238 was informed of the existence of Misc. Land Application No. 102 of 2007 and the intended execution. This fact is obvious and undisputed too. Now after the said information how promptly did the applicant act? The records support the applicant's argument that the present 6 application was filed on 27/10/2020, three days after the Attorney General became aware of the decision. This, in my view is prompt and suffices extension of time to file an application for revision. On the issue of illegality as argued by Ms. Lupondo, I wish to depart from her observation. It is trite position that illegality must be apparent on the face of the record. In the present instance, lack of shareholders consent in the alleged sale as pleaded in paragraph 16 (a) of the affidavit, requires further details and this is not apparent on the

face of the record. This argument cannot therefore sustain reasons for the grant of the application. However, as earlier stated, the applicant was not part of the previous applications, and she used only three days to file this application upon knowledge of the impugned decisions. It is on that basis that I find this application to have merit and it is hereby granted. The applicant shall file the application for revision within 21 days counting from the date of this ruling. It is so ordered. V.L.

JUDGE 30/08/2021 7