20140811 TZHC Tanga

'··1. ~- .-- 't' ., . ~~· iN THE HIGH COURT OF TANZANIA [LAND DIVTON] AT TANG/.1., I LAl"'.JD CASE APFUCAT!<DN hf:O. 3 OF 2013 [From ihe Decision of High Court of Tanla at Tonga in Land Appeal Ne. 5 ,. 'ln. • f· i one.-t an dJ Hou~1no -. Trt1. I I o.f 7·an0a o· f • f a t Tanca m . \ 01 /. I l0 . .... rY1s,nr _,,.~.nc 1 - - , ·- l ·i.. uran 1 . - . - i ond Apr::ieo! No. J 62. oi 2009 one' Origin a{ Tribunal or Bun1bu/i]. All Y SAIDI KIJAZI. ................... .................................... .. APPUCANT VERSUS I MARIAM KIJAZI .................................... : ................... .. RESPONDENT RULING U. Msuya, J. This ruling is based on the fact that the Respondent initiated proceedings in the Bumbuli Ward Tribunal. 1 1n that tribunal, the Respondent claimed against the )pplicant for encroaching her parcel of land. Considering the !vidence, on the balance of I probabiHty, the Ward Tribunal determined the matter in favour of the Resp~ndent. Dissatisfied, the applic6nt uns~ccessfully preferred an I . appeal to the District Land and Housing Tribunal. Still aggrieved, he . • ' fried the second appeal in this court. His appeal was struck out for being irnproper before this court, as it did not comply vvith the provisions of section 38 (2) of Act No.2 of 2002, requiring an appeal to the High Cou1·1· relating to a rnai"ier originating fron1 a Ward Fol!c'-ving +hot deci::cn, the opplicont decided to file this oppiicat1on under ihe provisions of seciion 38 { l) 01 ihe Land Disputes Courts Act [Cap. 216 R. E. 2002] seeking for extension of time. This application is supported by the affidavit of the applicant. . . l ·> The application is opposed by the Counter Affidavit of the Respondent who also raised preliminary points of objection as follows:- 1. That, the aforesaid application is hopelessly prepared and it is time barred since t·he High Court Judgment issued on 12/10/2012 and the Applicant !has not fiied a notice of Appeal and yet filed the chamber summons on l 0/l 0/2013 which is bad in law. 1t is Malum inse. 2. That, the applicant was required to file Notice of intention to appeal within 14 days prior to the date of judgment. (The law of Limitation Act Cap. 89 R. E. 2002 refers). 3. That, the Applicant,- Application has no locus standi. Reasons given for condonation whatever in paras 4 and 5 of the AppHc-ant's Affidavit have no weight of justice. 2 I \ •. The patties agreed and were allowed to argued the raised preliminary points of objection by of written submissions. But, they did not con1ply with the schedu·led orders. Tirnes out of numbers this couri has held that ihe practice of filing subrnissions is ion1on1oun1 likened to non-appearance or want_ Of prosecution. This is viewed in ihc case of buyc;rd::>o .John \lersu::. /J,difi Lenk Corporctic,)n Lid and Anof-her, Civil Case No. T46 of 2000 (Dar es Salaam - Unreporfed). In the present matter, the parties did not prosecute the raised preliminary points of objection. The preliminary point of objections are dismissed for want of prosecution. 3 .. ..,..___:__._ .· - ·. ___,__' __ Date: 11/8/2014 Coram: P.C. Mkeha 1 DR /--\pplicant: Present Respondent: Present Court th Ruling is delivered in the presence of the parties on this 11 day of August, 2014. The parties are present. 17 ./7 // . /_. ,. ·.- _,,J;✓/'L, .! // P. C. M'KEHJ.i,, DR 11/08/2014 Order: Mention on 16/10/2014 P.C. MKEHA, DR __ :.: \ 11/08/2014 , :-, ·: ~- .l !