alex vs sambagi vs ernest daudi nicholaus 2018 tzhclandd 409 23 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPEAL NO. 110 OF 2016 (From the decision o f the District Land and Housing Tribunal o f Kinondoni in Land Appeal No. 19 o f 2015 and original Ward Tribunal o f Msigani in Application No 187 o f 2014) ALEX V. SAMBAGI........................................................ APPELLANT VERSUS ERNEST DAUDI NICHOLAUS..................................... RESPONDENT Date of last order; 09/07/2018 Date o f Ruling: 23/07/2018 RULING Makuru, J.: This appeal originates from the Ward Tribunal of Msigani in Application No. 187 of 2014. In the Ward Tribunal the Respondent sued the Appellant for trespass of a piece of land located at Temboni Msingwa within Kinondoni District, Dar es Salaam Region. The Appellant and one Veronica Kathibeti were ordered to find an alternative piece of land for the Respondent within three months from the date of the decision. The Respondent was dissatisfied with that decision. Thus, he successfully appealed to the District Land and Housing Tribunal for Kinondoni at Mwananyamala whereby it was held that the record shows that the Respondent was the first to purchase the suit land from Veronica Kathibeti. The Appellant was aggrieved by the said decision. Hence, he lodged this appeal on the following grounds: 1. That the District Land and Housing Tribunal of Kinondoni at Mwananyamala erred in law and in fact in declaring that the lawful owner of the suit land is the Respondent without considering that the disputed land is the property of the Appellant and not the Respondent as ordered by the first appellate Tribunal. 2. That, the District Land and Housing Tribunal of Kinondoni at Mwananyamala erred in law and in fact in not considering the nature of the suit land and finally reached at the wrong decision. While the Appellant was unrepresented, Mr. Mgare learned counsel appeared for the Respondent. When the matter came up for hearing on 06/06/2018, the court observed that judgment was delivered on 12/04/2016 and the appeal was filed on 05/08/2016. Thus, it was ordered that parties address it on whether the appeal is within the time prescribed under section 38(1) of the Land Disputes Courts Act, Cap 216 RE 2002 (herein after referred to as "the Act"). The Appellant submitted that, he could not file the appeal in time because he was not furnished with copies of judgment and decree in time. In reply thereto Mr. Mgare argued that, by virtue of section 38(1) of the Act the appeal has been filed out of time. According to him, the proviso to section 38(1) of the Act allows the Applicant to apply for extension of time. In determining this issue, I seek guidance from section 38(1) of the Act which provides that: (1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise o f its appellate or revisional jurisdiction, may within sixty days after the date, o f the decision or order, appeal to the High Court (Land Division). Provided that the High Court (Land Division) may for good and sufficient cause extend the time for filing an appeal either before or after such period o f sixty days has expired From the above provision of law, the time limit for filing an appeal is 60 days. The decision subject of this appeal was delivered on 12/4/2016 and the present appeal was presented for filing on 05/08/2016 which is more than 90 days. Thus, it goes without saying that the appeal is hopelessly time barred. The Appellant has alleged that, he delayed to file the appeal because copies of judgment and decree were not supplied to him in time. Reading between the lines of section 38(1) of the Act there is no requirement of attaching copies of judgment and decree to the petition of appeal. Therefore, the applicant's allegation does not hold water. From the foregoing, I find the appeal to have been filed out of time without leave of the court. Consequently, the appeal is dismissed with costs. C.W. Makuru JUDGE 23/07/2018 3 Court: Ruling delivered in court this 23rd day of July, 2018 in the presence of Mr. Mgare, learned counsel for the Respondent and in the absence of the Appellant. C.W. Makuru JUDGE 23/07/2018