Samson Akyoo vs Nickson Abdalla Mziray and 3 Others (Misc Land Application No. 24101 of 2025) [2025] TZHC 8546 (19 December 2025)

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC LAND APPLICATION NO. 24101 OF 2025 SAMSON AKYOO .................................................................................... APPLICANT VERSUS NICKSON ABDALLA MZIRAY ................................................................................ 1 st R N JUDICA MREMA ............................................ 2 nd RESPONDENT AGRICOLA DOMINIC ........................................................................................... 3 rd RE MSOLOPA INVESTMENT LIMITED ....................................................................... 4 TH RES RULING S'" to 16® December, 2025 E.B. LUVANDA, J This application is made by way of chamber summons under the enabling provisions of section 14(l)and (2) of The Law of Limitation Act, Cap 89 R.E. 2023, supported by an affidavit deposed of the Applicant above named along his advocate Mr. Robert R. Rutaihwa learned Counsel. The Applicant is seeking for extension of time within which to file revision against the decision of the Tribunal delivered on 20/07/2023 in Application No. 309 of 2012. In the affidavit in support of the application, the Applicant stated that he purchased the suit land from the Third Respondent above mentioned on 7/04/2012 (as er the sale agreement annexure A) and have been in possession up to 20/08/2025 when he learned that there was eviction order issued against i

the Third Respondent. That top his surprise the said notice was affixed in the structure built on his land. That a notice directed the land to be handed over to the First Respondent vide an exercise which ought to be done on 21/08/2025. That he had never been sued or involved in any court proceedings although he is physical possession of the suit land. That on 20/08/2025 he engaged Mr. Robert Rutaihwa Advocarte who on 21/08/2025 conducted perusal of the Tribunal's file. That he was outside Dar es Salaam, until on 16/09/2025 when he resumed back, and realized that he was not impleaded in Application No. 309 of 2012 which was filed on 27/08/2012 being four months after his purchase and taking possession since 7/04/2012. He pleaded that he was denied the right to be heard for reason that he was not joined in the proceedings; the application was res-judicata to the earlier proceedings at Ward Tribunal raised by the Second and Third Respondent; the Respondents in Application No. 309 of 2012 its judgment was delivered on 20/07/2023 without notice to them. In the affidavit by the learned Counsel for Applicant, supported facts relating to his engagement on 20/08/2025 onwards, along grounds on illegality pleaded by the Applicant. That in Land Application No. 309 of 2012 contravened principles of pleadings and evidence including the fact there was no description of the land given in the application and there was failure to call material witnesses 2

including the seller to the First Respondent and one Asia Said whose affidavit was tendered as an exhibit. That the Tribunal proceeded to grant reliefs which were not prayed for by the First Respondent. That the decree by the Tribunal is incompatible with the judgment and not executable. In the counter affidavit, the First Respondent stated that the Applicant never purchased the said suit property from the Third Respondent on the purported date of 7/04/2012. He stated that from 2009, the suit property was still under the occupation of the First Respondent and there was a wired fence built around the suit land and no one ever brought any disturbance except the Third and Fourth Respondent who tried to evict the First Respondent on 28/06/2011 in execution processes of Application No. 451 of 2010 between the Third Respondent and Joseph Mgweno, after the First Respondent filed objection proceedings before the Tribunal (Application No. 92 of 2011), but failed. That the fence built by the First Respondent continued to stand over the suit land until sometime in June, 2024 when the Applicant trespassed and built a small room therein and when the First Respondent confronted the Applicant, the Applicant informed him that he had just bought the land from the Third Respondent sometime in May, 2024 and, that is when the First Respondent informed the Applicant that he bought the land since 2009 and he was in the suit dispute against the Third Respondent since 2012 over the suit land and 3

won the said case before the Tribunal on the 20/07/2023. That the said copy of the said sale agreement relied by the Applicant is a forgery done by the Applicant based on the information obtained from the First Respondent and the Tribunal to make it seem like he bought the suit land in 2012 while he really bought in in 2024 after the First Respondent was declared a lawful owner of the suit land by the Tribunal on 20/07/2023. That the Applicant knew about the case since June, 2024 for explanation that was summoned before the local authority to explain why he had built a small room over the suit land after the Tribunal had already declared the First Respondent as the lawful owner. That there was never a suit between the Respondents before (except for application for execution between the Third Respondent and one Joseph Mgweno which lead to the attachment of suit land against the Second Respondent above, which lead to the filing of objection proceedings by the First Respondent against the Second, Third and Fourth Respondent (Application No. 92 of 2011) and after it was refused, the First Respondent filed a fresh suit (Application No. 309 of 2012) to which he was declared a lawful owner of the suit land whose decree is the subject of Application No. 332 of 2024. In reply thereto, the Applicant stated that no charge for forgery have been leveled against him. That the Second Respondent admit to have been sued in the Ward Tribunal alone without the First Respondent which in law makes the 4

subsequent claim res-judicata. That the First Respondent admits that, there was Land Application No. 451 of 2010 before he filed Application No. 92 of 2011. That the First Respondent is concealing the attachment of the relevant decisions, citing the statement of defence of the Second Respondent in Application No. 309 of 2012 (annexure SAI). In the counter affidavit by the Second Respondent stated that the suit property was wrongfully attached by the Third Respondent in attempt to execute the decree of the Tribunal in execution processes for Application No. 451 of 2010 between the Third Respondent and Joseph Mgweno. That the said execution could not proceed because the First Respondent filed objection proceedings (Application No. 92 of 2011) and later filed Application No. 309 of 2012 and all this time, the suit property was under occupation of the First and Second Respondent. That the Applicant is a liar and fraudster and all the purported purchase agreement between him and the Third Respondent are forgery. The learned Counsel for Applicant submitted that, the first critical and important point is the denial of the Applicant's right to be heard. He submitted that the Applicant was not made a party in proceedings which stayed in Tribunal for more than (11) eleven years. He submitted that in law a decision which is arrived at the expense of denying a person the right to be heard is but a nullity. 5

He submitted that through the counter affidavits by the First and Second Respondents who though are affirming the affidavits in commonness were adversaries at the trial Tribunal proceedings, argued that the First Respondent was the applicant while the Second Respondent herein was also the respondent. That the Second Respondent is not challenging the ex-parte decision issued against him, instead ratifying that the decision and proceedings which stalled for about eleven years are now correct. He submitted that the Second Respondent has lost his suit making the subsequent suit on the same land res judicata. He submitted that this signifies another important point to be considered by the court as a serious illegality of the decision during revisional proceedings. He submitted that the jurisprudence governing extension of time is now abundant and exhaustive, argued it lingers on mainly two aspects explaining the delay or demonstrating point of sufficient importance. He cited Laurent Simon Assenga vs Joseph Magoso & Two Others Civil Application No. 50 of 2016, CAT. In reply, Mr. Charles G. Lugaila learned Advocate for the First Respondent, submitted that for the ground of illegality to be considered as a factor to grant extension of time, then such illegality must be on the face of the record something that the applicant in the present matter has failed to do. He 6

submitted that illegality based on non-joinder of Applicant in the suit cannot be entertained, for reason that nowhere in the said WSD where the Third Respondent mentioned that she had sold the suit land to the Applicant in April, 2012, argued that the Third Respondent was still insisting that the suit land was hers during that period (October, 2012). He submitted that the Applicant was nowhere in the picture until sometime in May, 2024 after the trial Tribunal's decision had already been delivered. Regarding illegality on issue of res judicata. He submitted that this has been misconceived for reason that no proof was ever provided in the early stages or during trial showing that the First Respondent or the Second Respondent was aver sued by the Third Respondent to call the trial proceedings res-judicata. He submitted that the principles of objection proceedings forbid the filing of appeal to the losing party but allows the filing of fresh suit which is exactly the First Respondent did after Application No. 92 of 2011 had failed in 2012, argued it is not res judicata. He cited Order XXI rule 64 of the Civil Procedure Code, Cap 33 RE 2023; Hamis Bushiri Pazi And 5 Others vs Saul Henry Amon and Five Others, Civil Appeal No. 166/2019 (CAT) www.tanzlii.org ) In reply, the Second Respondent, submitted that, the issue of res-judicata, has been misconceived for reason that no proof was ever provided in the early stages or during trial showing that the First Respondent or the Second 7

Respondent was aver sued by the Third Respondent to call the trial proceedings res-judicata. He submitted that the principles of objection proceedings as per Order XXI rule 64 Cap 33 (supra), directs the losing party to file a fresh suit not to appeal which is exactly the First Respondent did after Application No. 92 of 2011 had failed in 2012, argued that the suit is not res-judicata. No rejoinder submission was filed. Going by the affidavit in support of the application and the counter affidavit by the First and Second Respondent, suggest that the Third and Fourth Respondent tried to evict the First Respondent on 28/06/2011 vide execution processes of Application No. 451 of 2010 between the Third Respondent and Joseph Mgweno. It is when First Respondent filed objection proceedings before the Tribunal (Application No. 92 of 2011), which was unsuccessful. Hence filed Application No. 309 of 2012, where the First Respondent was decreed a winner of the same suit land which was subject for execution between the Third Respondent and Joseph Mgweno. Meaning that there is a valid decree between the Third Respondent and Joseph Mgweno whose execution was mounted vide Application No. 451 of 2010 and an award in Application No. 309 of 2012 where the First Respondent sued the Second and Third Respondent. To my view, this constitute an illegality. 8

The argument by the First and Second Respondent, that a recourse after dismissal of objection proceedings in Application No. 92 of 2011, was to sue vide a fresh suit, citing Order XXI rule 64 Cap 33 (supra). To my view, that is a genal rule, and in most cases it is applicable and relevant in execution of decree relating to attachment and sale, as opposed to eviction and delivery of vacant possession in landed property. The rationale behind, in execution by attachment and sale, it involve monetary award, where it is possible to initiate a fresh suit and recover any right appertaining to that attachment and sale. Unlike in t decree for delivery of vacant possession and eviction, where, upon initiation of fresh suit, it end up producing two decrees or award declaring two different people with different interest, each, a winner over the same property. It is where illegality comes in. In law, there cannot exist two decrees by the competent court/tribunal over the same subject matter, where two people are declared winners. It is settled law, that illegality if successful pleaded and established, constitute good grounds for extending time. In Laurent Simon Assenga (supra), at page 3 and 4, the apex Court ruled, 9

'I am certain however that, a claim of illegality or otherwise of an impugned decision has, all along, constitute a good cause for extension of time... ' Therefore, the application is merited. The Applicant is granted extension of twenty-one days to lodge the intended revision. The same will start running from the date of extraction of the drawn order. The application is granted. No order for costs. E.E. LUVANDA JUDGE J/12/2025 ’ O/yiS^ 5 ^ // I Ruling delivered in the presence/of/Theodory Primus Advocate for the Applicant, Ms. Anna Hango Advocate for the First Respondent, in the absence of the Second, Third, Third and Fourth Respondent. E.B. LUVANp JUDGE 19/12/2025 10