20100714 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA (LAND DIVISiON) ATMBEYA LAND CASE APPEAL NO.1 OF 2009 (From the Decision of the District Land and Housing Tribunal of Rungwe District at Rungwe. In Land case No.........of 200....... ADENI MWAIPUNGU & 6 OTHERS ...........APPELLANTS VERSUS GODON MWANGWALA..........................RESPONDENT JUDGEMENT 26.5.2010 & 14.07.2010 LUKELELWA, J. The appellants Adeni Mwaipungu and Six others are appealing against the whole decision of the District Land and Housing Tribunal of Rungwe at Tukuyu in Application Number 3 of 2008 at Mbeya dated 23.07.2008. According to the proceedings in the District Land and Housing Tribunal for Rungwe at Tukuyu in Application number 3 of 2008, the Respondent Godon Mwangwala presented an application on 19 t1 day of February 2008 against Ageni Mwaipungu. Samora Mwakasanga. Gilbert Mwakatundu .4. Willy Mwabeleko. Dan Mwailafu Solomon Mwalukuta William Mwakalukwa Maning Mwasilonda Jag Mwasilonda, Then referred to as the first respondent to nineth respondent respectively. At paragraph 13 (a) of the application it was averred that all the Respondents in August 2000 purporting to buy the clan lands without the consent of the clan did trespass into the clan land and constructed houses and destroyed ancestors 24 graves and permanent Crops I.e. Cocoa 200, mango.trees 10, palm trees 25, mivule 6 and others in the disputed land. It was further averred under paragraph 14 as follows:- Reliefs claimed. (a) Vacant possession of the trespassed land. 2 An order that the disputed land belonged to the Applicant's Clan. Compensation of the damaged graves and trees to the tune of Tshs.6,000,000/=. Costs of the application to be paid by all Respondents. Any other relief this tribunal deems fit and just to grant. On 11.03.2008 the appellants speaking through the first appellant Ageni Mwaipungu raised an objection that they did not recognize the respondent Godon Mwangwala, who had earlier sued them at Mbeya District Land and Housing Tribunal Appeal No.108/2006 which had quashed the proceeding in the Ward Tribunal for conducting the proceedings in the absence of the Ward Tribunal Secretary. An order for a trial de novo was issued. The applicant had also disputed being sued at Busale Ward instead of Mwaya Ward where the dispute arose. The appellants had told the trial District Land and Housing Tribunal for Rungwe that they were not ready to file a reply to the application as they were waiting the case to start at the Ward Tribunal as ordered. 3 The trial tribunal over ruled the objection on the grounds that the respondent had engaged the services of an advocate who is not allowed to appear before a Ward Tribunal, further that the estimated value of the suit matter which was Tshs.6,000,000/= exceeded by far the pecuniary jurisdiction of the Ward Tribunal. The applicants were ordered to file a reply within 21 days. The case was adjourned for mention on 03.04.2008. The respondents appeared to have stuck to their guns, they did not file a reply to the application and they did not appear before the Court on 03/04/2008 as ordered. The applicant prayed for an ex-parte hearing of the case. The ex-parte proof was heard on 27/05/23008 where the respondent Godon Kasema Mwangwala gave evidence. On 25.06.2008 PW2 Simon Mwangasa gave evidence, and the ex-parte proof was closed. The ex-parte judgement was pronounced in the trial tribunal on 23rd day of Julay 2008. On 8th January 2009 the appellants presented a memorandum of appeal challenging the ex-parte judgement. ru The memorandum of appeal was drawn and filed by Mary Laurent Mgaya advocate. The memorandum of appeal was accompanied by a copy of the proceedings and judgement of the District Land and housing Tribunal for Rungwe but there was no copy of the decree appealed from which was attached to the memorandum of appeal. It is surprising though, instead of the appellants lodging an application in the same Rungwe District Land and Housing Tribunal to have the ex-parte judgernent dated 23' July 2008 set aside, the appellants have filed a memorandum of appeal raising grounds of appeal raising grounds of appeal essentially touching on issues which should have been raised with the trial tribunal if they have minded to enter appearance and defend the application. They want to defend the case at the appellate level, instead of the trial tribunal. All the same on 15th1 April 2010, it was agreed that the appeal be argued by way of written submissions, on the following schedule:- Appellant by 30.4.20 10 Respondent by 13.5.2010. Rejoinder if any by 20.5.20 10 Mention on 26.5.2010. The appellant failed to present the written submission by 30.4.2010 as ordered, but instead presented the same on 4.05.2010, accompanied with a letter of apology that they could not file the written submission on 30th April 2010 as ordered owing to electricity problem. As it can easily be seen the appeal is riddled with several problems. The first problem is that the memorandum of appeal was time-barred. The judgement of the trial District Tribunal was delivered on 23/07/2008, limitation period of ninety days within to lodge an appeal expired on 24/10/2008. The memorandum of appeal was filed on 8/1/2009 more than two months late. This alone is a sufficient reason for dismissing the memorandum of appeal as I hereby do, for being time-barred. Another defect is that the memorandum of appeal was not accompanied by a copy of the, decree thereby offending the n. mandatory provisions of Order XXXIX rule I of the Civil Procedure Code. This again is sufficient ground to struck out the memorandum of appeal as I hereby do for being in competent. Another problem is the failure of the appellant to present written submission on 30.4.20 10 as ordered by this Court. In Godfrey Chawe Versus Nathaniel K. Chawe MISC. Civil Application No.22 of 1998 (High Court of Tanzania, Mbeya registry (unreported), it was held that, "Failure to file the written arguments on the part of the learned Counsel for the applicant is an omission which constitutes want OF Prosecution." On that ground again, I dismiss this appeal for want of Prosecution. Having so adumbrated, this appeal is dismissed with Costs. Order accordingly. S.B. Luke Judge 14.07.2010 7