Misc

THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM MISC.LAND CASE APPLICATION NO. 10245 OF 2024 fOriginating from the Judgment and Decree of the District Land and Housing Tribunal for liaia in Land Application No.81 of2022)) THE REGISTERED TRUSTEE OF THE FIYSABILIL-LAH TABLIGHT MARKAZ.................................................. APPLICANT VERSUS HARUNA RASHID FANI.....................................................................RESPONDENT RULING Date of last Order: 25/09/2024 Date of Ruling: 30/09/2024 LALTAIKA, J. The Applicant herein THE REGISTERED TRUSTEE OF THE FIYSABILIL-LAH TABLIGHT MARKAZ has moved this Court under section 41 (2)a of Land disputes Court Act Cap 216 [Re 2019], section 95 of the Civil Procedure Code, Chapter. 33 [Re 2019]. The prayers are as reproduced bellow Page 1 of 15 1. That this Honourable Court be pleased to grant extension of time to file Appeal against the Judgment and Decree of the District Land Housing Tribunal for Hala in Land Application No 81 of2022. 2. Costs follow the course. 3. That court to grant any relief which deem fit andjust. When the Application was called on for mention on the 17th day of September 2024, Mr. Yahya Omar Mgeni (Secretary to the Board of Trustees of the Applicant) appeared on for the Applicant. As for the Respondent Mr. Sypriano Silungwe, learned Advocate, appeared accompanied by the Respondent. Court records indicate however that the Applicant received drafting services of Mr. Innocent John Kisigiro - learned Advocate based in Mwanza. Mr. Silungwe prayed for extension of time to file a reply asserting that although the order was previously scheduled, his client was served late. There being no objection from the Applicant, the scheduled order was slightly varied. The next part of this Ruling is a summary of the rival submissions followed by my analysis and the verdict. The Applicant explained that the Respondent had filed Application No. 81 of 2020 on 27th March 2020, seeking a declaration of ownership over the Page 2 of 15 disputed property. However, the Respondent concealed the fact that the disputed land was a surveyed property, whereas the Applicant contended that the land in question was surveyed and had a title deed No. 50197 issued on 16th May 2000. The Applicant further stated that, throughout Application No. 81 of 2020, he was represented by his previous advocate, though the advocate did not file a reply to the application. As a result, the matter was heard ex parte, and judgment was delivered on 12th July 2022, with a copy of the judgment being supplied to him on 26th October 2022. Following this, the Applicant lodged an application for an extension of time in Misc. Land Application No. 333 of 2022, which the tribunal granted on 1st June 2023. He then filed Misc. Application No. 168 of 2023 to set aside the ex parte judgment, but the tribunal dismissed the application. Subsequently, the Applicant filed Land Appeal No. 410 of 2023, and the judgment was delivered on 19th April 2024 before Hon. L. Hemed J. However, this judgment pertained only to Misc. Land Application No. 168 of 2023. Page 3 of 15 The Applicant explained that from 26th October 2022, when he received the copy of the judgment, until 19th April 2024, he had continuously attended court proceedings, albeit in the wrong forum. This led to his inability to file his appeal within the required time frame. The delay in filing the appeal, the Applicant contended, was due to his efforts to pursue his right in court, although he was in the wrong forum, as detailed in paragraphs 10, 11, and 12 of his affidavit. He characterized this delay as a "technical delay" and cited the case of Fortunatus Masha v. William Shija and Another [1997] T.L.R 154, which distinguished between real and technical delays. The Applicant also referred to the case of Zahara Kitindi and Dominic B. Francis v. Juma Swalehe and 9 Others, Civil Application No. 4/05/2017 (TANZLII), where the court held that when a technical delay occurs, an extension of time should be granted. The Applicant further argued that there was illegality and errors on the face of the record in Application No. 81 of 2020. He pointed out that the Respondent did not comply with the requirement under Section 45(c) of the Written Laws (Miscellaneous Amendments) (No.3) Act of 2021, which mandates land disputes to pass through the Ward Tribunal for mediation. This, he claimed, was not done in the case, even though the amendment Page 4 of 15 had retrospective effect. He cited the case of Hassan Ahmed Kasuku v. Ramadhan Yahya, Land Appeal No. 72 of 2023 (TANZLII), in support of his submission that the trial tribunal lacked jurisdiction. On the second point of illegality, the Applicant argued that there was a misjoinder of necessary parties in Land Application No. 81 of 2020. He submitted that, since the land was surveyed and had a title deed, the Land Authorities and the Honourable Attorney General should have been joined as necessary parties. The Applicant cited the case of Tanzania Railway Corporation (TRC) v. GBP (T) Limited, Civil Appeal No. 218 of 2020 (TANZLII), where the court emphasized the duty of the court to ensure all necessary parties are joined to facilitate the complete adjudication of the matter. The Applicant concluded by stating that the above reasons regarding illegality in the tribunal's decision and decree in Land Application No. 81 of 2020 were sufficient grounds for the court to extend time for filing his appeal. He supported this argument by referring to the case of Cornel Naiman Materu v. Cordian Math Akar, Civil Appeal No. 115 of 2021 (TANZLII), which established that claims of illegality are sufficient reasons to extend Page 5 of 15 time, irrespective of whether a reasonable explanation for the delay is provided. Finally, the Applicant prayed for the court to grant an extension of time to allow him to file his appeal and be heard on the merits, so as to address the pointed illegalities. Mr. Silungwe, Counsel for the Respondent, began by stating that before opposing the application, the Respondent found it prudent to point out that they had thoroughly reviewed the Applicant's submission in chief. He noted that they would not dwell too much on the procedural details that transpired during the hearing and intended to respond as submitted below. He first requested that the counter-affidavit of the Respondent be adopted and form part of their submission. He highlighted that it was an undisputed fact that the Respondent had filed Application No. 81 of 2020, and for reasons known only to the Applicant, the latter had failed multiple times to appear in court. Despite the Tribunal giving the Applicant a chance to file a written statement of defense, he failed to do so and never showed up in the Tribunal chambers, leading to the matter being heard ex parte. Page 6 of 15 Mr. Silungwe then argued that the delay caused by an advocate pursuing a case in the wrong forum should not be considered a good cause for an extension of time. He characterized such a delay as self-inflicted, stating that knowingly pursuing a right in the wrong forum cannot be excused. To support this assertion, he referred to the case of Senoil Limited vs Mwanza City Council and Dolphin Tours and Safaris Limitedz Civil Case No. 4 of 2016, Court of Appeal of Tanzania at Mwanza (TANZLII), where it was emphasized on pages 6 to 11, particularly on page 8, that negligence does not constitute sufficient reason for a court to grant an extension of time. Additionally, he cited the case of Bahati M. Ngowi vs Paul Aidan Ulungi, Misc. Application No. 490/13 of 2020, Court of Appeal of Tanzania at Songea (TANZLII), where Kerefu J.A held on page 7 that an application for an extension of time should not be granted when the delay is due to indolence, inaction, or lack of vigilance on the part of the applicant or their counsel. Based on these precedents, Mr. Silungwe asserted that the Applicant's reasons did not constitute sufficient grounds for the Court to exercise its discretion to grant the extension of time. Page 7 of 15 Regarding the legal requirement under the Written Laws (Miscellaneous Amendment) (No.3) Act of 2021 for land disputes to pass through the Ward Tribunal, Mr. Silungwe pointed out that Application No. 81 of 2020 preceded the enactment of this law, and thus, the law could not have retrospective effect. He then addressed the issue of misjoinder, citing Order I, Rule 9 of the Civil Procedure Code, which states that misjoinder of parties does not vitiate proceedings. He argued that the Applicant had been given the opportunity to apply for the joinder of the Respondent through third-party procedures under Order I, Rule 14(1) of the Civil Procedure Code (R.E. 2019) but had failed to do so. Thus, he contended that it was improper for the Applicant to blame the Court for his failure to take appropriate action. Mr. Silungwe further referred to Section 33 of the Land Dispute Courts Act (Cap 216, R.E. 2019), which gives the District Land and Housing Tribunal jurisdiction over disputes involving registered land. He argued that joining the land authorities would only have been necessary if the dispute involved the registration of documents. He supported this by citing the case of The Registered Trustees of Fyisabilllah Tabligh Markaz vs Haruna Rashid Fani, Land Appeal No. 410 of 2023, High Court of Tanzania (Land Page 8 of 15 Division) at Dar es Salaam (TANZLII), where Hemed J. held on page 11 that joining land authorities would only be appropriate in cases involving the legality of document registration. In conclusion, Mr. Silungwe argued that the Applicant was attempting to use claims of illegality to cover for his own negligence and urged the Court not to fall into this trap. He prayed that, based on the reasons and arguments advanced, the application be dismissed with costs, as it lacked merit. In rejoinder Mr. Kisigiro emphasized that they had not filed a written statement of defense and had been unable to participate in the taking of evidence or defend themselves. As such, he contended that the accusation of negligence was unfounded, explaining that the time to file a defense had already lapsed. He then addressed the issue of illegality, submitting that they were not using claims of illegality to cover any faults but rather raising genuine points of law. He expressed the Applicant's desire for the Court, should the application be granted, to determine these legal issues on appeal. Regarding the non-joinder of necessary parties, Mr. Kisigiro submitted that if the application were granted, the Applicant would have the Page 9 of 15 opportunity to elaborate on this matter. However, for the time being, he pointed out that it was undisputed that the land in question was registered in the Applicant's name, with a granted right of occupancy. In contrast, the land claimed by the Respondent was not registered. Given this discrepancy, he argued that it was necessary to join the municipal land authority, the land allocation authority, and even the Registrar of Titles to ensure that any decree, if granted, could be executed by these authorities. To support this argument, he referred to the case of Christina Jalison Mwamlima and another vs Henry Jalison Mwamlima and another, Land Case No. 19 of 2017, High Court of Mbeya (TANZLII), where the suit had been struck out due to the failure to join necessary parties, as outlined on pages 13 to 16 of the ruling. Lastly, Mr. Kisigiro submitted that the issue of illegality concerning the case starting at the Ward Tribunal was also a point of law, arguing that this position was based on the legal interpretation made by the court, particularly before Hon. Judge Kamana. He maintained that the Written Laws (Miscellaneous Amendment) (No.3) Act of 2021 did not have retrospective effect, as previously submitted in chief. Page 10 of 15 In conclusion, Mr. Kisigiro prayed that the application be granted to allow the Court and the parties ample opportunity to expound on the illegalities raised in greater detail. I have dispassionately attended to the rival submissions. This is a ruling on an application for extension of time to set aside an ex parte judgment delivered in Application No. 81 of 2020. The application is supported by the affidavit of the Applicant, and the Respondent has filed a counter-affidavit opposing the application. The Applicants Counsel, Mr. Kisigiro, submitted that they were aggrieved by the ex parte judgment, as they were pursuing other civil proceedings, namely Miscellaneous Application No. 168 of 2023 and Land Appeal No. 410 of 2023, which concluded on 19th April 2024. Immediately after the conclusion of those cases, the Applicant filed this application. The Applicant could not file a written statement of defense in Application No. 81 of 2020 as the time had lapsed, and they were unable to participate in the proceedings, leading to the ex parte judgment. Counsel for the Applicant further argued that they have raised points of illegality, which they wish to be determined on appeal. The Applicant denied Page 11 of 15 the allegation of negligence raised by the Respondent and submitted that the issues they raised were genuine points of law, not an attempt to hide behind illegality. Regarding the non-joinder of necessary parties, the Applicant submitted that if this application is granted, they will have time to expound on this issue in detail. It was argued that the land in dispute is registered in the Applicants name, with a granted right of occupancy, whereas the Respondents claimed land is not registered. Therefore, it is necessary to join the municipal land authority, land allocation authority, and the Registrar of Titles to ensure that any decree, if granted, can be executed properly by these authorities. Counsel referred to the case of Christina Jalison Mwamlima and Another vs Henry Jalison Mwamlima and Another, (supra) where a suit was struck out for failure to join necessary parties. On the issue of the requirement to start at the Ward Tribunal, Counsel submitted that the amendment introduced by the Written Laws (Miscellaneous Amendment) (No. 3) Act of 2021 does not have a retrospective effect, and that this legal position was previously interpreted by Hon. Judge Kamana. Page 12 of 15 The Respondent's Counsel, Mr. Silungwe, opposed the application, arguing that the Applicant had failed several times to appear before the Tribunal, and despite being given the opportunity to file a written statement of defense, they did not do so. As a result, the Tribunal proceeded ex parte. Counsel contended that the Applicant's failure to act diligently could not constitute sufficient cause for extension of time, relying on the Court of Appeal decision in Senoil Limited vs Mwanza City Council and Dolphin Tours and Safaris Limited, (Supra) where it was held that negligence does not constitute sufficient reason for granting an extension of time. Having considered the submissions of both parties, the issue for determination is whether the Applicant has shown sufficient cause to warrant an extension of time. It is well-settled that an application for extension of time is within the discretion of the Court, and such discretion must be exercised judiciously based on the circumstances of each case. In this case, the Applicant has explained that the delay in filing the application was due to their involvement in other proceedings, namely Miscellaneous Application No. 168 of 2023 and Land Appeal No. 410 of 2023. These matters were concluded on 19th April 2024, and the present application was Page 13 of 15 filed immediately thereafter. In the circumstances, I am satisfied that the Applicant has provided a reasonable explanation for the delay. Further, the Applicant has raised issues of illegality, which they argue should be addressed on appeal. It is trite law that where there is an allegation of illegality, the Court may grant an extension of time to allow the matter to be addressed on its merits. In the case of Christina Jaiison Mwarniima and Another vs Henry Jaiison Mwamiima and Another (supra), the High Court struck out a suit for failure to join necessary parties. This supports the Applicant's contention that the issue of non-joinder of necessary parties is a matter that requires further consideration. Regarding the Respondent's argument that the delay was caused by the Applicant's negligence, I find that the circumstances of this case, including the ongoing litigation in other proceedings, do not amount to negligence or inaction on the part of the Applicant. The cases cited by the Respondent, Senoil Limited vs Mwanza City Council and Dolphin Tours and Safaris Limited (supra) and Bahati M. Ngowi vs Paul Aidan U/ungi (supra), are distinguishable from the present case, as the delay here was not due to indolence but rather a result of the Applicant being involved in other related proceedings. Page 14 of 15 In view of the foregoing, I find that the Applicant has demonstrated sufficient cause for the extension of time. Accordingly, the application is hereby granted. The Applicant is given 14 (fourteen) days, to be precise not later than 15/10/2024, to file an application to set aside the ex parte judgment. Costs shall be in the cause. It is so ordered. Court Ruling delivered this 30th day of September 2024 in the presence of the officers of the Applicants. Page 15 of 15