[2005] KEHC 2474 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA

AT NYERI

Civil Appeal 78 of 2001

JOHN MUNGAI TAMA…………………………..…..……APPELLANT

Versus

ANJELICA MUTHONI TAMA……………………….….RESPONDENT

Issues: The Land Disputes Tribunal Act 1990.

(a) Whether To Appeal To The Provincial Land Disputes Appeals Committee when the Decision of The Land Disputes Tribunal Being challenged is Adopted As Judgment of a Court of Law.

(b) What Is The Legal Effect of A Decision of the Provincial Land Disputes Appeals Committee In Those Circumstances? (Being appeal from the decision of the Provincial Land Disputes Appeals Committee, Central Province, delivered on 30th May 2001 In Appeal No. 7 of 2001)

JUDGMENT

Although this appeal has been handled, for the Appellant, by advocates throughout, I wish to point out, with due respect, that it is surprising that the appeal has a number of short-comings which ought not to have been there. The Respondent appears to have been handling her case in person and does not appear to have been responsible for any serious short-comings I am noticing. The following are some of them:-

Firstly, the appeal is against the decision of “Nyeri Provincial Land Disputes Tribunal”, an institution or body which does not exist in law. The Appellant would have been understood had the Memorandum of Appeal stated that the appeal was against the decision of the “Provincial Land Disputes Appeals Committee, Central Province” as stated in the head notes framed by me at the top of this judgment. That is the institution or body which exists under the provisions of the Land Disputes Tribunals Act 1990 at the provincial level.

Secondly, the decision appealed from was in Appeal No. 7 of 2001 said to have been delivered on 30th May 2001 and though grounds in the Memorandum of Appeal seem to have been confined to what happened in that appeal, during the hearing of the appeal Counsel for the Appellant went on mixing those grounds with what he said happened in Mweiga Civil Case No. 27 of 2000 in the Land Disputes Tribunal at Mweiga.

Thirdly, although parties took this case to a Magistrate’s Court at some stage and there exists an executed Magistrate Court’s judgment, the parties, particularly the Appellant, are not bothered by the existence of that court judgment even though the record of appeal filed by the Appellant includes the relevant court proceedings. As a result the Appellant has not filed certified copies of land register for parcel of land NYERI/ENDARASHA/2310 and of land register for parcel NYERI/ENDARASHA/2311 to enable this court see the state of the two affected titles which the Appellant is asking this court to cancel with a view to having each title closed to revert to the mother title NYERI/ENDARASHA/155.

Those are the more important short-comings in this appeal and others may be seen as I write this judgment further. The points of law identified as justifying the filing of this appeal were that the Provincial Land Disputes Appeals Committee, also herein referred to as the Appeals Committee, erred in law in flouting the “Rules of Land Dispute Tribunal” by failing to allow the Applicant to call all his witnesses who were present and ready to give evidence; that the “appeal tribunal” erred in law in ordering the transfer of L.R. NO. NYERI/ENDARASHA/155 to the Respondent which the “tribunal” had no jurisdiction to do”; that “right of Registered Land Act Cap. 300, Sections 27 and 28 gives exclusive right of any registered proprietor to have any alienable right over this proprietorship. This fact was not considered in the Appeal Tribunal.” That the “Appeal Tribunal” entertained a matter that was not in its jurisdiction as the issue revolved around adverse possession which issue “appeal tribunal” ought not have entertained.

An appeal to the High Court from a decision of a Provincial Land Disputes Appeals Committee lies on a question of law only. Not on a question of fact. When dealing with a claim Section 3(7) of the Land Disputes Tribunals Act says that:

“The Tribunal shall adjudicate

upon the claim and reach a decision

in accordance with recognized

customary law,-----------”

and, unfortunately that applies even where the land affected, like in the instant case, is registered under the Registered Land Act, Cap. 300 Laws of Kenya, where the correct and prevailing legal opinion is that Customary Law is ousted by the Registered Land Act upon registration of the land in question under the Registered Land Act. In those circumstances, how does the Land Disputes Tribunal and subsequently the Provincial Land Disputes Appeals Committee lawfully apply Customary Law?

Properly, where a dispute concerns land registered under the Registered Land Act, the Tribunals and Land Disputes Appeals Committees handling such disputes under the Land Disputes Tribunals Act 1990 should have been given jurisdiction to handle cases specifically covered by Section 30 paragraphs (a), (b) and (g) only and empowered to adjudicate upon those disputes only in accordance with provisions of the Registered Land Act and any other enabling legislative provisions. Otherwise it is a conflict of law or a contradiction for one Section of the administration of justice to be saying that the Registered Land Act ousted the application of Customary Law in land registered under the Registered Land Act and therefore refusing to apply Customary Law on that land, while another Section of the administration of justice is told by the Land Disputes Tribunal Act 1990 to apply Customary Law on land registered under the Registered Land Act and goes on applying Customary Law, so that in the prevailing circumstances, it is no wonder that in a case such as this one Mr. H. K. Ndirangu learned counsel for the Appellant, like many other reasonable people, could not see how and why the Tribunal and the Land Disputes Appeals Committee failed to consider the rights of the Appellant under Sections 27 and 28 of the Registered Land Act and failed to see the limit to their jurisdiction.

This is not a problem in this appeal but it is a problem in many other appeals in that Tribunals and Land Disputes Appeals Committees, would for the same reason, oust the power of the Land Registrar under Sections 21 to 24 (inclusive) of the Registered Land Act. Generally therefore, no one is making the Tribunals and Land Disputes Appeals Committees all over Kenya confine themselves within the limits of their lawful jurisdiction and the conduct of litigants makes the situation hopeless.

This case is an example. A litigant who knew wanted a portion of a parcel of land registered under the Registered Land Act, a claim which could lawfully be entertained by a court of law only, decided to go and make her claim at Mweiga in that area’s Land Disputes Tribunal instead of coming to Nyeri town to file her suit in the Chief Magistrate’s Court or in the High Court. She was Anjelica Muthoni Tama, the Respondent before me in this appeal. In the Tribunal at Mweiga she was the Plaintiff

The Defendant was John Mungai Tama, now the Appellant before me, who knew very well he was the absolute registered proprietor of parcel of land No. NYERI/ENDARASHA/155 measuring approximately 8. 3 hectares – from which the Plaintiff wanted a portion measuring approximately 2. 025 hectares.

The Respondent having filed the case in the Tribunal at Mweiga, the Appellant was summoned, his counsel says the Appellant was not served but that is a question of procedure I think this court should not go into. In any case, it is apparent each party knew exactly why she or he was in that Tribunal and seriously put up a furious fight on the merits of the Respondent’s claim, until the Appellant lost the battle. He had not contested the jurisdiction of the Land Disputes Tribunal and in its decision the Tribunal ordered him to sub-divide his land aforesaid into two portions 2. 025 hectares and 6. 275 hectares and transfer the portion measuring 2. 025 hectares to the Respondent. That decision was dated 7th December 2000 and by 14th February, 2001 the Respondent was already in the Chief Magistrate’s Court Nyeri filing her application dated 14th February 2001 praying for the adoption of the decision of Mweiga Land Disputes Tribunal dated 7th December 2000.

On 14th February, 2001, the Appellant had just completed more than two months after the date 7th December 2000. Section 8(1) of the Land Tribunals Act 1990 (the Act) gives a party who is aggrieved thirty days within which to appeal to the Provincial Land Disputes Appeals Committee. But Section 7(1) says that:

“The Chairman of the Tribunal shall cause the decision of the Tribunal to be filed inthe magistrate’s court-----------”

and subsection (2) says that

“The court shall enter judgment in accordance with the decision of theTribunal and upon judgment being entereda decree shall issue and shall be enforceable in the manner provided forunder the Civil Procedure Act.”

Rule 20 of The Land Disputes Tribunals (Forms And Procedure) Rules, 1993 elaborates

stating:

“At the conclusion of every dispute the Tribunal shall make a determination to be served on the person affected by the decision and such determination shall be filed in the magistrate’s court and the court shall enter judgment in accordance with the decision of the Tribunal and upon judgment being entered a decree shall issue and be enforceable in the manner provided for under the Civil Procedure Act.”

Rule 23 of the same rules reiterates Section 8 (1) adding:

“A person aggrieved by the decision of a Tribunal may appeal to the AppealsCommittee as provided under Section 3 ofthe Act.”

Section 7 of the Act and Rule 20 thereof make no reference to the right given by Section 8(1) of the Act and Rule 23 thereof to an aggrieved person to appeal to the Provincial Land Disputes Appeals Committee and therefore in this case, the Mweiga Land Disputes Tribunal decision was taken to the Chief Magistrate’s Court before the Appellant filed his appeal in the Provincial Land Disputes Appeals Committee and that was done before the period of thirty days allowed for the aggrieved party to appeal expired.

The parties have not revealed everything to this court but if by 14th February, 2001 the Respondent was filing, in the Chief Magistrate’s Court, her application for adoption of the Mweiga Tribunal’s decision, that decision must have been filed in the Chief Magistrate’s Court much earlier. Reading Rule 20, it is clear that once a Land Disputes Tribunal has completed hearing evidence from the parties, the Tribunal proceeds to make “a determination to be served on the person affected by the decision---- -------”. It means determination of the case is made by the Tribunal in the absence of the parties thereby making service of the Tribunal’s decision to the parties necessary. The words

“the person affected by the decision”

should mean all parties in a case. The chairman will then cause the decision of the Tribunal be filed in a magistrate’s court and the court is required to enter judgment in accordance with that decision without any option, apparently even without having to wait to see the parties or to hear what they say. The Legislature does not seem to have thought any such a decision could, for some reason, be a bad decision

“and upon judgment being entered a

decree shall issue and be enforceable in the

manner provided for under the Civil Procedure Act.”

The Land Disputes Tribunals Act and its rules is therefore giving the aggrieved party the opportunity to appeal to the Provincial Land Disputes Appeals Committee within thirty days without staying for any period, the execution of the decision appealed from and it is not clear how the Legislature thought this would smoothly work

I think it is commendable that in those circumstances, some magistrates' courts such as the one which handled this case, have been considerate to the parties by rightly or wrongly, relaxing the procedure. In this case therefore after the decision of Mweiga Land Disputes Tribunal had been filed, it appears the court indicated it required and the Respondent had to file an application asking the court to adopt that decision and that gave the court the opportunity to see the parties and at least hear something from them before the court adopted the decision of the Tribunal.

On 14th February, 2001 therefore the court fixed the Respondent’s application for hearing and directed that the Appellant be served to be present at the hearing. He was served and was able to be present on the 9th March 2001, for interpartes hearing to point out to the magistrate that, he – the present Appellant, was not aware when the award was read to the parties and that he needed time to appeal to the Provincial Land Disputes Appeals Committee. By then he was already late to file the appeal by a good three months.

From what hasalready been stated in this judgment, the Land Disputes Tribunals Act and its rules do not make provisions for the reading of the Tribunal’s decision to the parties, either by the Tribunal itself or by the Magistrate’s Court. The Appellant’s contention on that issue could not therefore be sustainable and the learned magistrate rejected it. Noting that the Appellant had by then not appealed to the Provincial Land Disputes Appeals Committee, the magistrate refused the Appellant’s plea and adopted the Mweiga Land Disputes Tribunal’s decision on 16th March, 2001. He added authorizing the Court’s Executive Officer

“to sign all the necessary documents to effect” the “order”.

He correctly foresaw that the Appellant could refuse to sign those documents. The learned magistrate gave the Appellant thirty days to appeal, apparently from his ruling of that day 16th March, 2001.

Later on the same date the Appellant filed in that court his application praying for a stay of execution of the adoption judgment and that application was fixed for hearing on 23rd March 2001. At that interpartes hearing, on that day it emerged that the Appellant had not yet filed his intended appeal to the Provincial Land Disputes Appeals Committee and that he was seeking that stay to enable him file the appeal.

The learned Resident Magistrate, W. K. Korir, obliged and granted the Appellant a stay of execution for thirty days with effect from that day 23rd March, 2001 “to give the Respondent time to file an appeal.”

By that time the Appellant had been “the Respondent” before the magistrate in Anjelica Muthoni Tama’s application for the Court to adopt the decision of the Tribunal and, although on 23rd March, 2001 John Mungai Tama was before the magistrate as the Applicant in the application for a stay, the learned magistrate still referred to John Mungai Tama as the Respondent.

It was at the mention of 20th April, 2001 that the Appellant told the magistrate that he had filed the appeal to the Provincial Land Disputes Appeals Committee and some clarification is required here which the parties in the appeal before me have not cared to do.

I said earlier that by 9th March, 2001 the Appellant was already late to file his appeal to the Provincial Land Disputes Appeals Committee by a full three months. By 20th April, 2001 therefore a fourth month had been added. Unfortunately in this appeal this court is dealing with documents whose authors care very little about dates especially dates other than ending or final dates. Hence the record from the Provincial Land Disputes Appeals Committee does not show the date on which the Appellant filed appeal Case No. Nyeri 7/2001 in that office and how he was permitted to file that appeal out of time. That record, however, shows the date of determination of the appeal.

The Land Disputes Tribunals Act and its rules make no provisions for extension of time by a Land Disputes Tribunal or a Provincial Land Disputes Appeals Committee or by a Court of Law or anybody else to appeal to a Provincial Land Disputes Appeals Committee. In any case, there had to be evidence of the existence of the relevant proceedings granting the extension of time to appeal. This court has been given no such evidence.

What this court has is the thirty days stay of execution Resident Magistrate W. K. Korir gave the Appellant with effect from 23rd March 2001 –

“to give the Respondent (now Appellant) time to file an appeal.”

That was a stay of execution and not an order granting leave to the Appellant to file appeal out of time. But even if that were taken to be an order granting leave to appeal out of time, a magistrate’s court had not been given power by provisions of the Land Disputes Tribunals Act to grant such orders and therefore such an order from the trial magistrate would not have been a valid order. It must not be forgotten that this is an Act which by the time it was passed, Parliament was anxious to remove the service by then offered by courts of law under other statutes as far as possible and to oust the application of other statutory law by the application of Customary Law in land disputes and consequently mentions the Civil Procedure Act only when it comes to the question of enforcement of judgments and decrees of courts of law emanating from adopted decisions of Tribunals. In those circumstances, it is even difficult to imagine that anyone could revert to provisions of the Civil Procedure Act to grant extension of time to file appeal under the Land Disputes Tribunals Act.

Moreover, when the learned Resident Magistrate granted to the Appellant a stay of execution of the order dated 16th March, 2001 for thirty days to give the Appellant

“time to file an appeal”,

it is not clear from that statement whether the magistrate was thinking of “an appeal” against the order the execution to which he was staying dated 16th March, 2001 or “an appeal” against the decision of Mweiga Land Disputes Tribunal. If he was thinking about “an appeal” against the latter, then having adopted that decision as a judgment of the court, I do not see the propriety of having stayed execution of his judgment which the Provincial Land disputes Appeals Committee was going to leave intact whether or not that Committee allowed the appeal which the Appellant was going to file before that Appeals Committee. That is because a Provincial Land Disputes Appeals Committee is not authorized by any law to interfere with a judgment already entered by a magistrate adopting a decision of a Land Disputes Tribunal. It is a High Court which can, on a proper appeal, lawfully interfere with such a judgment and that makes it more likely that when he granted a stay of execution of his order dated 16th March, 2001, the learned magistrate was thinking of “an appeal” to the High Court against the order dated 16th March, 2001.

I have no evidence that when the Appellant appealed to the Provincial Land Disputes Appeals Committee against the decision of Mweiga Land Disputes Tribunal, he also appealed against the adopted judgment entered by the Resident Magistrate on 16th March, 2001. Indeed there was no law permitting the Appellant to appeal to the Provincial Land Disputes Appeals Committee against such a court judgment. The Land Disputes Tribunals Act makes no provision for such an appeal and I have said a Provincial Land Disputes Appeals Committee has no legal authority to interfere with such an adoption court judgment. However, when on 20th April, 2001 the Appellant told the magistrate that he had filed an appeal in the Provincial Land Disputes Appeals Committee, Central Province, the learned magistrate ordered that the stay of execution he had granted be in force until determination of the appeal.

That appeal was determined on 30th May 2001 by a dismissal which upheld the decision of Mweiga Land Disputes Tribunal. On 19th October, 2001 when the Appellant was struggling with his appeal in this High Court, the learned Resident Magistrate purported to lift the stay of execution he had issued on 20th April, 2001. The Respondent was showing the Resident Magistrate a copy of the decision of the Provincial Land Disputes Appeals Committee which dismissed the Appellant’s appeal. The Appellant had filed this appeal on 11th July, 2001.

Since parties in this matter have been filing several applications, it is not easy to get everything they did. For example there are mention of application dated 18th June, 2001, application dated 24th October, 2001, application dated 24th December, 2001 and many more.

The stay for execution issued on 20th April, 2001 was to remain until the appeal was determined by the Appeals Committee. That appeal having been determined on 30th May, 2001, that was the end of the stay and therefore nothing remained to be lifted on 19th October, 2001. Some people may have been confused, however, things did not come to a stand still as concerns dealings with the suit parcel of land. The Respondent got the suit parcel of land sub-divided into two portions in accordance with the decision of Mweiga Land Disputes Tribunal as adopted by the Magistrate’s Court on 16th March 2001. Parcel of land NYERI/ENDARASHA/155 was sub-divided intoNYERI/ENDARASHA/2310and NYERI/ENDARASHA/2311. Details of the registration process are not disclosed but some evidence indicates completion was on 2nd October, 2002 though could have been on 28th May, 2002.

Some documents which should be in the record of appeal such as certified copies of the two land registers resulting from the sub-division of the suit parcel of land have not been filed and the intention here may be to mislead the court in believing that the two titles do not exist to-day. The correct position is that lawfully the mother title could not be closed on sub-division as title NO. NYERI/ENDARASHA/155has been without the resulting titles having been registered or opened on the same date 2nd October, 2001 or subsequently. Their surveyed boundaries may have been interfered with on the ground but at the District Land Registry Nyeri, the land register for each title must be there intact each showing the present registered proprietor, and may be the Appellant would not like that be seen by the court.

Another thing to note is that between the record dated 23rd November, 2001 and the record dated 25th January, 2002 of proceedings in the Chief Magistrate’s Court there were record of proceedings which record has not been included in this appeal. There appears to have been proceedings the result of which a second adoption court judgment was entered on 4th December, 2001. That record is missing although the adoption court, judgment extracted is in the appeal record as can be seen at page 21 in the smaller booklet. But looking at the extracted order, there is a mistake on the face of it making it necessary to see the application, which prayed for the orders thus extracted at page 21. This is because the order is Resident Magistrate W. K. Korir’s judgment said to be adopting the decision of the Provincial Land Disputes Appeals Committee dated 30th May, 2001 in the Land Disputes Appeals Committee’s Appeal case No. Nyeri 7/2001. But the opening paragraph says

“THIS matter coming up for hearing of an application dated 14th February, 2001. ”

That cannot be correct in relation to the decision of the Provincial Land Disputes Appeals Committee which is dated 30th May, 2001 because as at the 14th day of February, 2001 that decision was not in existence. Indeed the appeal itself at the Province had not been filed.

The date 14th February, 2001 was the first date for hearing of Anjelica Muthoni Tama’s application dated 14th February, 2001 for the court’s adoption of the decision of Mweiga Land Disputes Tribunal dated 7th December, 2000 and adopted on 16th March, 2001 as seen earlier.

It follows that if truly there was a Resident Magistrate’s order granted on 4th December, 2001 adopting the Provincial Land Disputes Appeals Committee’s decision dated 30th May, 2001 the extracted correct court order has not been filed in this appeal. In any case I fail to see the need for the Chief Magistrate Court’s adoption of that decision in December, 2001 after Mweiga Land Disputes Tribunal decision was already a court judgment and was even being executed under the Registered Land Act. Otherwise since the Appellant’s Counsel did not file in his bundle of record of appeal, the court order adopting the decision of the Provincial Land Disputes Appeals Committee, it would appear that Anjelica Muthoni Tama’s Chamber Summons dated 18th June, 2001 at page 58 of the record of appeal filed by the Appellant’s Counsel was not prosecuted. It be noted that the order at page 21 in the small bundle is in a bundle which was compiled and filed by the Respondent and contains documents the Appellant’s Counsel had omitted from the record of appeal – he filed in the big bundle.

However, proceedings show that there was an application dated 28th February, 2002 by the Appellant, for a stay of execution of the court orders dated 4th December, 2001 – pending determination of this High Court Civil Appeal No. 78 of 2001. I have said I have not seen the correct court orders dated 4th December, 2001. But Senior Resident Magistrate C. D. Nyamweya granted that application on 14th March, 2002 exparte the Respondent being said to have been served but absent. From what I have said above, even if there is a good and correct court order dated 4th December, 2001 to stay, that was a useless stay of a useless court order.

By 17th May, 2002 the parties were engaged in the hearing of the Respondent’s application raising the issue whether or not the Appellant should surrender his title deed for NYERI/ENDARASHA/155 to the Land Registrar. The Appellant had refused to voluntarily do so. On 24th May, 2002 another Resident Magistrate M. N. Omosa, made a ruling ordering the Land Registrar to issue new title deeds even if the Appellant refused to surrender the one he was in possession of and the parties have not told this court what subsequently happened.

I think I should stop here in my endeavour to summarise the facts of this case from the quagmire the parties have so far accumulated as revealed to this court to-date. Having said all that, the question to be decided now is what is the merit of this appeal before me?

Firstly, the appeal before me is against the decision of “Nyeri Provincial Land Disputes Tribunal”, an institution or body which does not exist in law in relation to the Land Disputes Tribunals Act. That makes this appeal incompetent.

Secondly, being lenient and therefore assuming that this appeal is against the decision of the right body known as Provincial Land Disputes Appeals Committee, Central Province, that decision was, in the first place, null and void because it was a decision in an appeal filed out of time. It was an appeal which ought not to have been filed because the Appellant was late to file it within the prescribed period of thirty days. It was an incompetent appeal.

Thirdly, this appealis against the decision of the Provincial Land Disputes Appeals Committee dated 30th May, 2001 in that Appeals Committee Appeal No. 7 of 2001 only. Although during the hearing in this court, Counsel for the Appellant was making it appear as if he was appealing against the decision of Mweiga Land Disputes Tribunal, the grounds of appeal clearly show that this appeal is against the decision of the Provincial Land Disputes Appeals Committee only and, with due respect, I must point out that Counsel for the Appellant was contravening Civil Procedure Rules O.XLI(2) when he was including in his submissions grounds of appeal which were not in the Memorandum of Appeal, without leave of the court.

Since from the record of appeal filed in this court it is doubtful if the decision of the Provincial Land Disputes Appeals Committee dated 30th May, 2001 was adopted by the chief Magistrate’s Court as judgment of that court, and even if there was such an adoption, the said adoption was done subsequent to the adoption done by the same Chief Magistrate’s Court on 16th March, 2001, the said decision of the Provincial Land Disputes Appeals Committee dated 30th May, 2001 and the Court’s judgment adopting it are irregular and of no legal effect because they came too late after the same Chief Magistrate’s Court had adopted the Mweiga Land Disputes Tribunal decision dated 7th December, 2000 as the Court’s judgment on 16th March, 2001 and gone ahead to execute the judgment dated 16th March, 2001. The decision of Mweiga Land Disputes Tribunal having been adopted as a judgment of the Chief Magistrate’s Court, there was no way the Provincial Land Disputes Appeals Committee and the Magistrate’s Court could reverse the process and indeed the Land Disputes Appeals Committee did not attempt to reverse the process and neither did the Chief Magistrate’s Court try. The Appellant having been aware of what they had done in the Chief Magistrate’s Court prior to his appeal to the Provincial Land Disputes Appeals Committee, it was futile for him to have gone to appeal to the Provincial Land Disputes Appeals Committee instead of going to the High Court with an appropriate court process.

In law once a decision of a Land Disputes Tribunal has been adopted by a court of law as a judgment of that court, it is unsound for a party thereof to ignore that judgment of the court and file an appeal in the Provincial Land Tribunals Appeals Committee. That judgment in the court is a judgment of a court law and, in the words of Section 7(2) of the Land Disputes Tribunals Act and Rule 20 of the Land Disputes Tribunals (Forms And Procedure) Rules, 1993, is

“enforceable in the manner provided for under the Civil Procedure Act”,

and I add, it must be recognized, respected and handled just like any other court judgment so long as it exists like the judgment of the Chief Magistrate’s Court dated 16th March, 2001 exists in this suit.

The Provincial Land Disputes Appeals Committee in its proceedings resulting into its decision dated 30th May, 2001 herein may have committed all the vices leveled against it in the Memorandum of Appeal in this appeal but since the proceedings before me have left the Chief Magistrate’s Court judgment dated 16th March, 2001 intact, and from what I have been saying generally, the Appellant’s appeal before me must fail.

It follows therefore that I need not go further than this. Accordingly the Appellant’s appeal is hereby dismissed with costs to the Respondent.

Dated this 10th day of June, 2005.

J. M. KHAMONI

JUDGE