ahmad hamisi mkwamba vs sevarine koronel nachihangu 2023 tzhc 21552 29 september 2023

IN THE HIWtOURTW TANZANIA (MTWARA DISTRICT REGISTRY) . ATMTWARA LAND .APPEAL NO.21 OF 2022 (Originating from District Land and Housing Tribunal for Mtwara. in Misc. Land .Application- No.62 of2022) AHMAD HAMISI MKWAMBA...................... ....APPELLANT VERSUS SEVARINE KOROiMB. N ACHIHANGU.......................... .RESPONDENT JUDGMENT 2&/&/2023' LALTAIKA, J. The Appellant, AHMAD HAMISI MKWAMBA. moved this court via a Petition of Appeal dated December 8, 2022, and filed on December 14, 2022, against the Respondent. The Appellant is challenging the Ruling of the District Land and Housing Tribunal for Mtwara in Miscellaneous Land Application No. 62 of 2022. delivered on November 11, 2022. The Respondent fifed an application seeking an extension of time to file an appeal out of time against the decision of the Ward Tribunal! of Nangoo in Land Case No. 25 of 2021. The Respondent filed this Page 1 of 10 application after the DLHT had dismissed Land Appeal No, 133 of 2021 for being filed out of time. With a vested interest in pursuing this matter, the Respondent fifed the impugned Miscellaneous Land Application No. 62 of 2022. The District Land and Housing Tribunal for Mtwara granted the application and afforded the Respondent thirty (30) days to file his appeal out of time. Dissatisfied with this decision, the Appellant filed the present Petition of Appeal, in which he raised two grounds of appeal; 1, That, the that Chairman erred in law and fact by granting an order for extension of time to the respondent without the respondent to adduced good cause enough to be extended time and hence the trial chairman misused the discretionary power of granting an order for extension of time to the respondent, 2, that,. the trial Chairman erredin law and fact by granting an order for extension of time to the. respondent without the respondent to prove his case on the standard required by the la w. The necessary factual backdrop to understand the gist of the appeal is as follows. The appellant instituted Land Dispute/Case No. 25 of 2021 before the .Nangoo' Ward TnbunaL After due proceedings, the Ward Tribunal delivered its decision in favor of the Appellant on July 19, 2021. However, dissatisfied with this decision, the Respondent filed Land Appeal No. 133 of 2021 on December 28, 2021, which was subsequently dismissed as being time-barred. In light of these events, the Appellant filed Miscellaneous Land Application No. 621 of 2021 on November 4, 2021, seeking an order for the execution of the decision in Land Case No, 25 of 2021. This application was heard on its merits and decided in favor of the Appellant. Consequently, the Respondent and his representatives were ordered to vacate the disputed ■Page 2. 1.0 land within fourteen (14) days and refrain from any trespassing or activity on the said land. This ruling and order were delivered on January 11, 2022. On July 18, 2022, the Respondent filed Miscellaneous Land Application No. 62 of 2022, requesting an extension of time to appeal out of time against Land Case No. 25 of 2021, On November 11 j 2022, the DLHTissued: a ruling in favor of the Respondent, which is the subject of the present appeal. The matter was brought before me for hearing on April 25, 2023, with both parties appearing in person and without legal representation. The Appellant asserted that he had won the case at the District Land and Housing Tribunal. He argued that the Respondent had sought intervention from the Katibu Tarafa (Ward Executive Officer). The Appellant, in turn, lodged a complaint with the DLHT, where he emerged victorious once again. He further contended that the Respondent did not appeal within a year and did not comply with the court orders. The Respondent maintained that the Appellant's claims were entirely untrue and that the dispute had originated in 2020. He emphasized that he was unable to appeal at that time, and his reasons were found credible by the trial Tribunal. Having dispassionately considered the grounds of appeal in the light of the court records before me, I am inclined, first .and foremost, to determine whether the appeal before me ins competent. Initially, there was an inclination to categorize this matter as interlocutory proceedings. This was based on the provisions of RegiiSatsoh Page 3 of 10 22 of the Land Dispute Courts (District Land and Housing Tribunal) Regulations, 2003,..'G.hL'No. 174 of 20.03, The proviso to Regulation 22 precludes an appeal based on a ruling on a preliminary point of law or on any interlocutory application that does not finally decide the case. For reference, the said provision reads as follows: "22. The Chairman shall have powers to determine:- : (a) Preliminary Objections based on points of law; fb) Applications for executioncforders, and decrees; (c) Objections arising out of execution of birders and decrees; (d) Interlocutor/ orders; Provided that a ruling bn a preliminary point of law or on any interlocutory application which have no effect of finaily ■-deciding the case shall not be appeilabie, ■' [Emphasis suppliedj In light of the above legal provisions, the critical issue is whether the order granted by the District Land and Housing Tribunal in Miscellaneous Land Application No. 62 or 2022 had the effect of finally determining the rights of the parties. To answer this issue, the Court of Appeal of Tanzania, in the case of Zanzibar 'Electricity Corporation v$-Infratech .Limited & Another (Civil Appeal 100 of 2021) [2022] TZCA 365 (June 16, 2022), established a: test for determining the above issue. The Court relied on its previous: decision in the case of Tanzani a Motor Services Ltd. and Another vs. Mehar.Sinqh t/'a Thaker Singh, Ci vil Appeal No, 115 of 2005 (unreported). In this context, the Court quoted with approval from the decision in?Bbzson vs'Altrincham Urtw District Council [1903] 1 KB 547 at p. 549, which stated: "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, Page 4of 10 then 1 think itought to be treated as a final order; but if it does not; it is then, in my opinion, an interlocutory order." Therefore/ in. accordance with the test articulated by the Court and based on my examination of the records of the Tribunals, it is clear that what the Appellant has appealed before this court is the ruling that allowed the Respondent to file an appeal out of time at the DLHT. The impugned ruling effectively finalized the rights of the parties and is thus amenable to appeai. Consequently, I find that the present appeai is competent before this court because it does not fall within the categories defined by Regulation 22 of the Land Dispute: Courts (District Land and Housing Tribunal) Regulations (supra). Having established competency of the appeal, my next task is to find out whether in exercising its discretion to grant...anextensionof time to appeal out of time, the DLHT made any errors warranting interference by this Court in this appeal. As alluded to earlier, the present appear arises from the decision to grant an extension of time to file an appeai beyond the statutory time limit, a matter that falls within the discretion of the lower court or tribunal. It is a well-established legal principle that the superior courts may intervene in the exercise of discretion by lower courts or tribunals; under certain circumstances. InYetje s/o Gawe vs Republic Criminal Appeal 45 of 2019 [2022] TZCA 134 (March 23, 2022), Tanzlii at pages 5-6, the Court of Appeal of Tanzania, sitting at Tabora, referred to its earlier decision in Sarno AHy Issack & Others Criminal Appeal No. 136 of 2021 Page 5 of 10 (unreported) and cited Mbbgo Bs Another v. Shah [1968] mA. 93. In its ruling, the Court stated: "Discussing parameters on which ah appellate court can act in interfering with the exercise ofdiscretion by a lower court or tribunal, that is to say; one, if the inferior courtmisdirected itself, or; two, it has acted on matters on which it should not have acted, or three, it has failed to take into Consideration matters which it should not have considered thereby arriving at a wrong conclusion,. Jt may not entirely be irrelevant to draw inspiration from the Supreme Court of Colorado which has held that the improper exercise of jurisdiction is regarded as an abuse of it which occurs when the exercise of jurisdiction is regarded as an abuse of it which occurs when the impugned decision is manifestly arbitrary, unreasonable or unfair. See: Marcia- Pinkstaff v. Black & Decker (US) Inc., And Baldwin Hardware Corporation 211 P.2d. 698 (2009), " In addition, the Court of Appeal of Tanzania, in Bmmanuei Runhafi St Another vs. Janas Mrem.a (Civil Appeal 314 of 2019) [2021] TZCA 332 : (July 28, 2021), ■ Tanzlii at pages 5-6, stated: "We understand that the appeal at hand arises from a Decision refusing an extension of time, which falls within the discretion of the lower court. While we are aware that a lower court enjoys a widerjurisdiction to grant or deny an extension of time, our understanding of the law is that for a decision arising therefrom to be valid, the discretion must have been exercised reasonably, judiciously, and on sound legal principles. It goes without saying therefore that, although as a general rule, an appellate court would hot interfere with the discretion of the Sower court, where the discretion is exercised in violation of the principles mentioned above, the appellate court may,: where the result thereof leads to a Pag >' 6 of 1 [) miscarriage of justice, intervener There are many decisions supporting this view. See for instance, in Swabaha. .M6h3med’d:Sh0sUyy:Sa^Hha Mohamed Shoss, Civil Appeal No. 98 of 2018 (uhr^^rtedj^ncljTtis^kile Dancan v. Republic, Crimina! Appeai No. 202 of 2009 (unreported), Given the principles outlined above and the grounds of appeal raised by the Appellant, the central issue before this court is whether the DLHT exercised its discretion judiciously, reasonably, and on sound legal principles when it granted an extension of time for the Respondent to file an appeal that had already been executed. It is widely recognized that the granting or refusal of an extension of time to file an appeal or lodge an application for revision or review is within the discretion of the lower court or. tribunal, guided by whether sufficient or good reasons for the delay have been presented. The DLHT granted an extension of time to the Respondent, allovying him to file his Petition of Appeal beyond the statutory limit, affording him thirty (30) days from the date of the impugned ruling, The DLHT cited the reason for this extension as the delayed supply of the judgment copy from the Nangoo Ward Tribunal to the Respondent. For clarity^ I quote the relevant passage "Kwa kuyva mkta maombi analalamikia baraza ia kata kumche/eweshea kumpa naka/a ya hukumi;, naona m/eta maombi amekujana sababu ya msingiya kuhshawishi baraza hili kumuongezea muda wa kukata nje ya muda. Huo ukiwandio msimamo wangu nayaru'nusu maombihaya. Mlcta maombi anapewa siku theiathini (30) tangu tarche ya uamuzi huu.Hi aweze kuieta sababu zake za rufaa nje ya mudaf' Page 7 of 10 In addition to the above clearly articulated reason of the DLHT, it is essentia! to consider what the parties submitted before the DL.HT. The Respondent (the applicant) submitted: '’-Nacmba niongezewe muda wa kukata rufaa. Jinsi kesi ilivybendeshwa kwenye baraza /a kata sikubaiiani nayo, Nihicheiewa kukata rufaa kwa kuwa baraza la kata lib-polos hukumu. mimi sikuwa na taarifa wao Walienda. shambani mimi sikuwa na taarifa. Taarifa nimeipata tamhe 08/10/2021 ya kuitwa Mtwara, j'kiwa imeambatariishwa na nakaia yahukumu kutoka baraza la kata la Nangoo. Hukumu inasema mimi ningbe mikorosho.” Furthermore, the Appellant stated: "Shaun hili Ulianza mwaka 2019, mimi riikiwa mmilikl wa miaka 32 wa eneo hilo. Baadae mieta maombi alipeieka shauri baraza la kata mimi nikashinda. Mieta maambi a/ikata rufaa baraza la Wilaya maamuzi yalifutwa.. Mieta maombi alirudi hakupeka shauri . baraza ia kata. Mimi nikapeleka maombi baraza- la kata na mimi riikashinda. Nimekazia hukumu na mieta maombi akaamriwa aondoke kwenye eneo la mgogoro ndani ya siku 14. Amekaa baada ya m waka mmoja ndipo akaleta maombi haya, mieta maombi aninisumbua tn. fngawa mieta maombi ameshindwa kesi lakirii bado anendelea kutumia eneo fa mgogoro.'' Of utmost importance, the Respondent/ through an affidavit under paragraphs 5, 6? and 7, averred: ”9. kwamba naleta maombi haya ya kuongeze.wa muda wa kukata rufaa kwa kuwa zipo hojaria kisheria zi'izckiukwa na uendeshaji wa 'kesi ya ardhi Na. 25/2021 katika baraza fa. kata ya Nangoo ambayo kama baraza hili halltayatatua Pag-r; 8 Of 10 yatasababisha ukiukwaji wa haki zangu za msingi kwa sababu taratibu hizo zinapaswa kubatiHshwa. 6. Kwamba wajumbe wa baraza la ardhi la kata ya Nangoo waHkuwa zaidi ya wajumbe wanaotajwa kisheria kusikiliza mgogoro, kitu ambacho kikibakia kama kilivyo katika hukumu kitakuwa ni kinyume na utaratibu uliowekwa kwa mujibu wa sheria Sura ya Na. 216 ya Mahakama za Migogoro ya Ardhi. Hivyo, ikiwa hukumu ya kesi ya ardhi Na. 25/2021 itaendelea kuwepo bita kurekebishwa katika rufaa, inaweza kuweka msimamo usio sawia katika uendeshaji wa mashauriya ardhi. Hivyo, naliomba baraza hili tukufu kuniongezea muda Hi niweze kuleta rufaa yangu Hi baraza hili Hjiridhishe au uhalali, usahihi au utaratibu na mwenendo wa kesi Na. 25/2021 kutoka katika baraza !a ardhi la kata ya Nangoo." In light of the reasons presented, it can he read between the lines that the learned Chairman considered the allegations of illegality. More importantly, it is my finding that the DLHT exercised its discretion judiciously, reasonably, and on sound legal principles when it granted the extension of time for the Respondent to file his appeal. Consequently, this appeal fails. The parties are advised to accord the trial Tribunal uttermost cooperation to ensure the matter is determined on merit. Appeals to this Court should be reserved to those issues that no longer fall under the trial Tribunal's jurisdiction having been finally determined or are tainted with outright illegality and/or abuse of discretion. It is so or JUDGE 29/09/2023 Page 9 of 10 Court Ruling delivered under my hand and the seal of this court: this 29;h day of September 2023 in the presence of the parties who have appeared in person, unrepresented. JUDGE 29/09/2.023 Page 10 of 10