adamson mkondya vs awadhi komba 2018 tzhclandd 421 20 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 32 OF 2017 ADAMSON MKONDYA 1st APPELLANT AWADHI KOMBA 2nd APPELLANT VERSUS ANGELIKA KOKUTONA WAGWA (As an Administrix of the Estate of the Late STEPHEN ANGELO RUMANYIKA)........ RESPONDENT Date of Last Order: 04/ 06/2018 Date of Ruling: 20/ 07/2018 RULING MGONYA, J At the commencement of hearing the Appeal, the Respondent raised a preliminary Objection on the point of law that the Appeal is incompetent for being time barred. In support of the preliminary objection, the Respondent submitted that, the Appeal was filed on 13th day of February, 2017 and the Judgment intended to be appealed was delivered on 29th day of December, 2016. Respondent further submitted that, the Law governing this scenario is the Provision of Section 41(2) of the Land Dispute Courts Act, 2002 as amended by the Written Laws (Miscellaneous) Amendment Act (No. 2) of 2016. The Respondent further contended that, counting from the date the judgment was delivered to the date the Appeal was filed the number of days are 47 and no extension of time was sought and obtained by the Appellants before filing the said Appeal which could only be granted upon good cause were shown, hence the Appeal was filed out of time for delay. The Respondent also submitted that, it is the trite Law that every day of delay has to be accounted for and that one day delay makes no difference with 100 days delay. Finally the Respondent submitted that, the consequence of an Appeal filed out of time under Section 3 (1) of the Law of Limitation Act, Cap 33 [R. E. 2002] as dismissal of an Appeal, and prayed the same remedy with costs. The Appellants failed to comply with the scheduling order of this Court dated on 4/6/2018 which availed them with 14 days to reply to the preliminary objection on or before 2/7/2018 and serve the Respondent as directed. Having gone through Court records, I find that both Appellants were present in Court on the day when the scheduling order to written submissions was fixed for disposing the Preliminary Objection. From the same, I take it failure to reply to the point of objection means the Appellants have decided to sleep on their right. Despite of this, I have decided to proceed determining the preliminary objection before me. In the circumstances, the question before the Court is whether the Appeal at hand is time barred. Indeed, the relevant Provision for appeal from District Land and Housing Tribunal to the High Court is under the Provision of Section 41(2) of the Land Dispute Courts Act, 2002 as amended by the Written Laws (Miscellaneous) Amendment Act (No. 2) of 2016 which came to force on 8th July 2016. Sub Rule (2) of the said section 41 provides clear terms that an Appeal shall be instituted within forty five (45) days after the date of the decision or order. For purpose of clarity and reference the provision of Section 41(2) as amended by Act No. (2) of 2016 reads: "An Appeal under Subsection (1) may be lodged within Forty Five days after the date o f the decision or order. Provided that the High Court may for good causef on extend the time for filing an Appeal either before or after the expiration o f such period of forty five days." The records reveals that the decision appealed was delivered on 29/12/2016, the Memorandum of Appeal was filed was filed on 13 /2/2017 as per Exchequer Receipt No 135929733, that is 46 days had passed from the date the of the decision against which it is desired to appeal was delivered. Thus, it goes without saying that the appeal is out of statutory time for one day. From the above, I join hands with the submission advanced by the Respondent in support of the preliminary objection that the appeal before this Court was filed out of time and without leave of the Court to file an appeal out of time. In the light of the above, I am satisfied that the instant Appeal is time barred as it was filed one day beyond the prescribed period of 45 days as per Section 41 (2) (Supra). Consequently, I hereby uphold the preliminary objection and Strike out the Appeal with costs. It is so ordered. i/hr^ L. E. MGONYA JUDGE 20/7/2018 COURT: Ruling delivered in the presence of 2nd Appellant and Respondent and Ms. Theresia B/C on this 20th day of July, 2018 in chamber No. 16. L. E. MGONYA JUDGE 20/7/2018