final ruling Elitetera Lema Tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI AT MOSHI MISC. CIVIL APPLICATION NO. 13749/2024 (Arising from the decision of the District Land and Housing Tribunal for Moshi at Moshi dated 5th November 2020 in Application no.160 of 2014) YUSUF ELITETERA LEMA…………………………………….…….1ST APPLICANT EMMANUEL LEMA………………………….………………….…….2ND APPLICANT VERSUS MARIA ELITETERA NKYA…………………………………….…..1ST RESPONDENT BONIFACE KINGA…………………………………………….……2ND RESPONDENT WILFRED ELITETERA……………………………………………..3RD RESPONDENT COHERENT COMPANY LIMITED………………………………..4TH RESPONDENT RULING 15th & 11th October 2024 A. P. KILIMI, J.: The applicants herein above filed the application at hand under certificate of urgency praying for extension of time to revise the decision of the District and Housing Tribunal for Moshi at Moshi in application No. 160 of 2014 dated 5th November 2020. This application is brought under section 14(1) of the Law of Limitation Act, Cap 89 R.E 2019 and section 95 of the Civil Procedure code, Cap 33 R.E 2019 and it has been supported by the affidavit of Mr. Elia Johnson Kiwia learned advocate for the applicants. To support the application at hand, in a sworn affidavit done by the applicant’s counsel Mr. Elia Johnson Kiwia on behalf of the applicants 1 generally stated that, the description of the suit land in Land case No. 160 of 2014 were neither described nor its neighboring owners were described thus the applicants were not aware of the Application No. 160 of 2014 until when they obtained information about the service of ruling to the 2nd and 3rd respondents. Before this application proceeded on merits, the 1st and 4th respondent herein raised a Preliminary Objection ‘the PO’ that this court lacked jurisdiction to entertain the present matter. The PO was overruled on a ruling delivered by this court on 31st day of July, 2024. In a chamber summons supporting the application, the applicants pray for the following orders that; a) This Honorable Court be pleased to extend time to revise the decision passed by District Land and Housing Tribunal for Moshi at Moshi by Hon. J.J. Silas in application No. 160 of 2014 dated 5th November 2020. b) Any other relief(s) the Honorable Tribunal may deem fit and just to grant. Briefly, the genesis of this application as gathered from the trial tribunal records are as follows; at the District Land and Housing Tribunal for Moshi at Moshi, ’the trial tribunal’, Maria Elitetera the 1st respondent herein vides Land Application No. 160 of 2014 sued one Boniface Kinga 2 and Wilfred Elitetera for trespassing on her land ‘Suitland’ estimated to be three (3) acres located at Kideco Ngumbaro Village within Siha District in Kilimanjaro Region. Among her prayers was to be declared the lawful owner of the suit land and the trial tribunal to issue eviction orders and costs of the suit. The trial tribunal allowed the application and declared her the lawful owner of the suit land and parties were permanently ordered to vacate and restrained from the suit land. After expiry of appeal period, the 1st respondent applied for execution in the same trial tribunal and execution No.16 of 2021 was registered. While the said execution was still pending, the 1st and 2nd applicants herein at the same trial tribunal filed an application for temporary injunction of execution No. 16 of 2021 (Misc. Application No. 293/2021) and at the same time filed the suit against the 1st respondent herein (Land Application No. 60 of 2021) claiming the ownership of the same suit land whereby their application was dismissed as it was res judicata to land application No. 160/2014. After dismissal orders of the trial Tribunal, on 22/06/2022 the applicants herein in this court and before my learned sister Simukwe, J successfully applied for extension of time to file revision against the DLHT decision in Land application No.60/2021. The records further 3 reveal that on 24.08.2023 in this court and before her ladyship Hon. Dr. Mongella, J; the applicants also succeeded to file land revision No.3/2022 for revision orders of the decisions of the District Land and Housing Tribunal in land Application No. 60/2021 and Misc. Application No. 293/2021. This court revised the decisions and ordered the application No.60/2021 and Misc. Application No. 293/2023 be tried de novo in the trial tribunal for Moshi. After such orders, the applicants are in this court applying for extension of time to file revision of Land case No. 160 of 2014 dated 5th November 2020. On 2nd October 2024, the matter was scheduled for hearing where the 1st, 2nd and 4th respondents failed to appear save for the 3rd respondent who appeared but stated to have no interest with the case. This court ordered the application to proceed in their absence (1st,2nd and 4th respondents) because they knew about the hearing and they had an advocate who argued an objection lodged earlier in this matter and overruled. Whilst Mr. Kiwia learned advocate appeared for the applicants. Arguing in support of the application, Mr. Kiwia submitted that the decision annexed as ‘A2’ in the applicant affidavit contained illegality to warrant this court to grant extension of time. He submitted that the 4 impugned decision Land case No. 160 of 2014 at the trial tribunal did not describe the suitland making it to be married with illegality. He referred to the decision of Laurent Simon Assenga vs. Joseph Magoso and 2 others, Civil Application No 50 of 2016 at page 3 and 4 and the decision of Martin Fredric Rajab vs. Ilemela Municipal Council and 1 other, Civil Appeal No. 197 of 2019 at page 13. Mr. Kiwia further submitted that in the decision expected to be revised, the applicants were not parties to the suit, thus they were denied right to be heard. He stated that such denial was a reason for this court to grant extension of time. He supported his assertion with the decision of V.I.P Engineering and Marketing Ltd and two others vs. Citibank Tanzania Ltd consolidated Civil Reference No. 6, 7 and 8 of 2006. He submitted further that such reason were enough even if there were inordinate delays as per the decision of Registered Trustees of Shadhily vs. Muhfudh Salim Omary bin Zagar, Civil Application No. 512/01 of 2018 and the decision of Nahdi vs. Elizabeth Jeremiah, Civil Reference No. 14 of 2017. In response, the third respondent who fended himself submitted that he had no objection on what Mr. Kiwia stated and said that he left for this court to consider the circumstances of the case and decide. 5 Having considered the submission above and the reply thereto by the 3rd defendant, the main contention by the applicants as per the affidavit attached is that the decision (Land case No. 160/2014) was married with illegalities as the applicants were not informed about the existence of application filed by the 1st respondent at the trial tribunal, thus they were denied right to be heard. They added that the said decision did not describe the Suitland properly by showing its neighbours and or boarders and or its boarders. Their contention further is that such illegality amounts to ground for extension of time. It is trite law in order illegality to be useful in extension of time it must be that of sufficient importance and the same must be apparent on the face of record and the one that would be discovered not by a long- drawn argument or process. I am also fortified by the Court in Principal Secretary, Ministry of Defence vs Devram Valambhia [1992] T.L.R. 182 at page 189 when observed that: ” where 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 purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record straight. " 6 (See Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported); African Marble Company Limited (AMC) vs Tanzania Saruji Corporation (TSC), Civil Application No. 8 of 2005 [2005] TZCA 87 and Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218. To mention just a few. Having seen the decision delivered on 5/11/2020 before Hon. Silas learned chairman for the Land and Housing Tribunal of Moshi, at the first paragraph 1 where the illegality can be seen on the face of record where the trial learned chairman failed to describe the suit property. For reference, I hereby quote what the impugned decision stated; “On 23th November, 2014 an applicant one MARIA ELITETERA sued the respondents namely BONIFACE KINGA and FRED ELITETERA for trespassing on her land estim ated to be three (3) acres situated or lacated at K ideco Ngum baro village w ithin Siha District K ilim anjaro region…” [Emphasis added] 7 From the above quoted, the illegality can be seen on the face of record where the trial tribunal chairman failed to describe the suit property by generally describing that the Suitland is located at Kideco Ngumbaro Village within Siha District. This is a vague description of the suit land which warrants for this court to extend time to the applicants which I hereby do so. I find this anomaly sufficient for disposing this matter. For that reason, the application is granted and applicants should file their application for revision within 30 days from the date of this ruling. It is so ordered. DATED at MOSHI this 11th October, 2024. X JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 11th day of October, 2024 in the presence of the third respondent, other parties absent. Sgd; A. P. KILIMI JUDGE 11/10/2024 8