Aloyce Kisenga vs Ghalib Ahmed Hamoud & Others (Civil Application No. 760/17 of 2022) [2024] TZCA 851 (4 September 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 760/17 OF 2022 ALOYCE KISENGA................................................................ APPLICANT VERSUS GHALIB AHMED HAMOUD .............................................. 1s t RESPONDENT RAMADHANI KITENGE (Administrator of Estate of the late HAMADI RAMADHANI MANARA)...................2n d RESPONDENT KITENA RAMADHANI MANARA...................................... 3rd RESPONDENT SUNDAY RAMADHANI MANARA..................................... 4th RESPONDENT MGENI RAMADHANI MANARA....................................... 5th RESPONDENT KASSIM RAMADHANI MANARA...................................... 6th RESPONDENT MANARA HAMRANI MANARA .......... . ............................. 7th RESPONDENT MOEZ JAFERALI MORBIWALLA ....... .............................. 8th RESPONDENT (Application for Extension of Time to File Revision out of Time against the Judgment and Decree of the High Court of Tanzania) fNdika, J.) dated the 4th day of June, 2020 in Land Case No. 271 of 2013 RULING 9thJuly & 4th September, 2024 FIKIRINI. J.A.: The applicant, Aloyce Assenga found himself locked out in the cold after he was dispossessed of his landed property known as Plot No. 12 Block "21" Kiungani Street, Kariakoo Area, Dar Es Salaam City in Certificate of Title (CT) No. 120564 which was originally CT No. 77978. Through a consent judgment in Land Case No. 271 of 2013 i

without him being joined as a party, his fate was determined. In so doing, his right to be heard before any adverse decision is made against the property he claimed to have a colour of right was infringed. By way of a notice of motion predicated under rules 10 and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and supported by the applicant's affidavit and written submissions filed in terms of rule 106 (1) of the Rules, the applicant moved this Court for grant of extension of time to file revision out of time. Only the 8th respondent, Moez Jaferali Morbiwalla contested the application by lodging an affidavit in reply and a list of authorities. In the absence of the 1s t - 7th respondents, who failed to enter appearance even after effecting service by publication in Mwanachi and Citizen Newspapers dated 21s t May, 2024, the hearing proceeded in terms of rule 63 (2) of the Rules. During the hearing, Mr. Kasaizi Andrew Kasaizi learned Advocate appeared for the applicant whereas Mr. Godwin Musa Mwapongo also learned Advocate appeared for the 8th respondent. Mr. Kasaizi apart from adopting the notice of motion, affidavit in support of the application, and written submissions lodged on 20th

February, 2023, he contended that the applicant was dispossessed of his landed property he was issued on 31s t October, 2007. However, this, CT No. 77978, changed later with no reason given, explained the learned Advocate, to CT No. 120564 with L.O No. 456074 registered in the name of the 1s t respondent, Ghalib Ahmed Hamoud, after a court ruling in Miscellaneous Civil Application No. 25 of 2006 in which the second respondent, Hamida Ramadhani Manara (now deceased) was the applicant. The decision in Miscellaneous Civil Application No. 25 of 2006 was reversed and quashed and the court ordered parties to revert to their respective positions. The learned Advocate continued to submit that the saga did not end there. Another case registered as Civil Case No. 271 of 2013 was instituted without the applicant's knowledge. It is against that decision; the applicant, who was not made a party nor informed while he had an interest in the property, is now seeking an extension of time so that he can lodge a revision. Since he was not a party to the instituted case, the applicant was not aware of the decision to make him act timely and appropriately. The applicant complains that he was not heard on the issue involving his rights. He thus urged me to grant his application for an extension of time. 3

Mr. Mwapongo, as intimated earlier, contested the application and prayed for it to be dismissed as it was filed in bad faith. He further challenged the applicant's averment in the affidavit to support the application as utter lies, citing paragraphs 2, 3, 5, 8, 11 and 14. Supporting his submission on the aspect he referred me to the case of Bashiru Ally v. Angelite Andendekisye Mwamakula & 2 Others, Civil Appeal No. 49 of 2021, p.9, that an affidavit full of lies cannot support the application before the court. Mr. Mwapongo also attacked the written submissions that were marred with lies. His assigned reason is that the applicant has never been registered as the owner of the landed property. This was because the alleged title was revoked. Hence, the applicant had no right to be joined and heard. In addition, he contended that the landed property involved in Civil Case No. 271 of 2013 was completely different from what the applicant was claiming. The genesis of Civil Case No. 271 of 2013 was a dispute between the 1s t and 2n d respondents, whereby the 1s t respondent failed to pay the full amount, resulting in the 8th respondent intervening and purchasing the property.

Disputing the applicant's competence through the intended revision to challenge the illegality claimed, the learned Advocate contended that the applicant needs to restore the ownership of the property in question first, to establish his colour of right. Supporting his assertion, he cited the case Selemani Juma Masala v. Sylvester Paul Mosha & Another, Civil Reference No. 13 of 2018, that each day of the delay must be accounted for, for the extension of time to be granted. The applicant had been inactive for 13 years without challenging the Registrar of Titles' Notice. Moreover, even after filing a caveat, no case has been filed in that regard, nor has any action been taken against the 8th respondent as a result of the search conducted. He thus urged me to dismiss the application for lack of merits with costs. In rejoinder, Mr. Kasaizi reiterated his earlier submissions. From there he proceeded to challenge Mr. Mwapongo's submission. Paramount was the submission that the ianded property in question was acquired in 2007, as averred in paragraph 2 of the affidavit in support of the application, and not that the Registrar of Title sold him the property. It was after buying the property that its Certificate of Title was changed without his knowledge or reason assigned. Further

to that, he challenged Mr. Mwapongo's submission coming from the bar since the affidavit in reply had only five (5) paragraphs, mostly noting the contents of the applicant's affidavit, and nowhere did the 8th respondent avow that the applicant lied in his affidavit. He contended that if what the counsel submitted was true, he should have let it feature in the filed affidavit in reply. Responding to the claim of fraud in acquiring the title to the disputed landed property, he submitted that the issue had already been dealt with in Miscellaneous Civil Application No. 25 of 2006; therefore, since no appeal has been preferred against the said ruling, it remains valid. Moreover, the present application was not in regard to any other decision but only to that in Land Case No. 271 of 2013, in which the applicant despite having interest, has not been heard, stressed the learned counsel. In light of his submission, he urged me to grant the application. It is evident that the application before me is premised under the provisions of Rule 10 of the Rules. The said rule empowers the Court to exercise its discretion to grant an application for extension of time, if the applicant adduces good cause to justify the delay. The said rule is reproduced for ease of reference that:-

" The Court may, upon good cause shown, extend the time limited by these Ruies or by any decision of the High Court or tribunal, for the doing o f any act authorized or required by these Rules, whether before or after the expiration o f that time and whether before or after the doing o f the act; and any reference in these Rules to any such time shad be construed as a reference to that time as so extended." [Emphasis added] The applicant is, therefore, tasked with the obligation to satisfy me by complying with the requirement of the law stipulated under the above cited provision, which is to show good cause for the delay in filing the application. There are numerous authorities to this effect, which include, Kalunga & Company Advocates Ltd v. National Bank of Commerce Ltd [2006] T.L.R 235; Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, (Civil Application No. 02 of 2010) [2011] TZCA 4 (3r d October, 2011; TANZLii) to mention, but a few. The Court has also considered illegality, which, once raised as a ground, could constitute a good cause for extending time. Among the

decisions include Principal Secretary Ministry of Defence and National Service v. Devram P. Valambhia [1992] T.L.R 387 and Kalunga & Company Advocates Ltd (supra). In Principal Secretary Ministry of Defence and National Service, (supra) the Court stated that: - " ... our view when 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 alleged illegality be established, to take appropriate measures to put the matter and the record right". [Emphasis added] The main issue to be considered is whether or not the applicant has advanced good cause to warrant the grant of this application. I have reviewed the notice of motion, affidavits for and against, and a list of authorities and submissions. My reading through the affidavits filed it is evident that the disputed landed property registered as Plot No. 12 Block "21" Kiungani Street, Kariakoo Area, Dar Es Salaam City in Certificate of Title No. 120564, which was initially CT No. 77978, is one and the same and not as submitted by Mr. Mwapongo that they are two different landed properties and that the landed property 8

referenced in Land Case No. 271 of 2013 had nothing to do with the applicant, he, therefore, cannot claim that his right to be heard was infringed. A review of the record reveals that the landed property at issue in Civil Revision No. 33 of 2013, decided on 4th December, 2015, is the same as the one referenced in Land Case No. 271 of 2013, which ended in settlement dated 25th October, 2016 as depicted in NCA-5, a copy of the decree in settlement dated 25th October, 2016. In that case and later settlement, parties were Ghalib Ahmed Hamoud, 1s t respondent, the then plaintiff against the 2n d to 7th defendants, current respondents in the present application. The applicant was not a party to the said case. The applicant's claim can be traced from the decision in Miscellaneous Civil Application No. 25 of 2006, where the Commissioner of Lands was ordered to rectify the landed property's registration in the name of the applicant. After the decision in the above application, it came to light that the District court had no jurisdiction to entertain the matter and made the orders it made. The High Court had to intervene and revise the District court decision in Civil Revision No. 33 of 2013. This is what was said to quote verbatim 9

"The application succeeds only to the extent that the proceedings the [Misc] '! 'Application Case"No. 25 o f2006 o f the Iiala District Court, were a nullity and therefore quashed and all orders made therein set aside. The parties revert to their respective positions as they were prior to the orders made in that cause." Therefore, without mincing words, the landed property involved in Miscellaneous Civil Application No. 25 of 2006 and Land Case No. 271 of 2013 registered as Plot No. 12, Block No. "21", Kiungani Street, Kariakoo Area, Ilala Municipality, comprised under Certificate of Title Number 120564, is one and the same. And it is the same landed property the applicant claimed to have a right to. It was, therefore, improper for him not to be a party, regardless of the outcome. His right to be heard was essentially infringed by leaving him out. The Court has, in a number of its decisions, upheld and stressed observing the principle, such as Lengai Ole Sabaya & Others v. The Director of Public Prosecutions (Criminal Application No. 3/02 of 2023) [2024] TZCA 72 (20th February, 2024; TANZLii); Hamisi Rajabu Dibagula v. Republic [2004] T.L.R. 181. All these decisions echo what was stated in Abbas Sherally & Another v. Abdul S. H. 10

M. Fazalboy, Civil Application No. 33 (unreported), where the Court emphasized: "The right to be heard before adverse action or decision is taken against such a party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach o f naturaljustice." In the present application, I believe the applicant deserves the right to be heard. This is more so since the decision in Civil Revision No. 33 of 2013 has not been challenged and is, therefore, still valid. Mr. Mwapongo's submission that paragraphs 2, 3, 5, 8, 11 and 14 of the affidavit in support contained lies ought to have been countered in the affidavit in reply rather than doing it from the bar. Without an affidavit refuting the contents of those paragraphs, Bashiru Ally's case (supra) becomes difficult to apply. Apart from the above, it is an uncontroverted fact that the applicant was not a party in Land Case No. 271 of 2013. The chances that he was not aware of the decision for him to make a timely l i

decision or take prompt action is likely. Of course, it has been quite a long time since the deed of settlement was entered on 25th October 2016; however, considering the illegality pointed out, it is important to give opportunity to the party making such an allegation to have his claim considered. Guided by the stance taken by the Principal Secretary of the Ministry of Defence and National Service (supra), I find the application is with merit. In light of the above, I grant the application and orderthe applicant to lodge his application for revision within sixty (60) days. It is so ordered. DATED at DAR ES SALAAM this 2n d day of September, 2024. P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 4th day of September, 2024 in the presence of the Mr. Kasaizi Andrew Kasaizi, learned counsel for the applicant and Mr. Godwin Musa Mwapongo, learned counsel for the 8th respondent, in the absence of the 1s t, 2n d , 3rd , 4th , 5th , 6th and 7 respondents, is hereby certified as a true copy of the original.