20130717 TZHC Dodoma

' · . >(LAND DIVISION) AT·.DODOMA .. MISCELLANEOUS LAND C-ASE APPEAL NO. 20 OF 201 i . . (FROM THE DECISION OF THE DISTRICT LAN_D AND HOUSING TRIBUNAL OF SINGIDA DISTRICT AT SINGIDA IN LAND CASE APPEAL NO. 91 OF 2010 AND ORIGINAL . WARD TRIBUNAL OF IKUNGI WARD IN APPLICTION NO. 21 OF 2009) · ANDREA JOSEPH NKUWI ............... APPELLANT Versus JOSEPH MKUKI ............................ RESPONDENt 16/07/2013 & 17/07/2013 JUDGEMENT HON. MADAM,.MAKURU, J. This is a second appeal. The matter originates from lkungr Ward Tribunal, Singida. Aggrieved by the decision of the said . Ward Tribunal the appellant preferred an appe_al to tbe District Ldhd and Housing Tribunal of Singida. The appeal could not be . determined on .-merits as ·the respondent--H:rised a ·.,,·preliminary objection to the effect that the appeal was filed out of time. The preliminary objection was sustained by the District Land and •·', - :-. . • : .= • .. ·', 2 · Housing· Trib'una_L.-·hence ·. the appeql was aismissed.. Again, the . ' . . : ) ' ' . '~ . . appellant was dissatisfied: . . ' . . .(:onseqUently, ~. . . he filed this : . appeal. . ' .. , . ·.·,r:,_ ·"·--~ ;; ; ' :~ ' He has filed two grounds of appeal as follows: 1. That the Honourable District Land and Housing Tribunal erred in law and in fact in holding . that the appellant's original appeal was time-barred even though the appellant aforesaid was furnished with copies of the proceedings and judgement of the Ward Tribuna(_·against which the original appeal was preferred on or about 30th July, 2010 and the appeal with Tribunal on 27 th August, 2010. 2. That the Ruling and Order of-the District Land and Housing Tribunal are otherwise wrong and/or improper." \A/hen the appeal was called for hearing or-1 04/06/2013, Mr. Lissu learned counsel for the appellant prayed that .the matter proce.ed ex-parte under order XXXIX- Rule 17 (2) of the c·ivil Proce-oure . Gode;_ .. . .... ... ..~3 R.E. qqp --~ 2002. He argued that the matter : ~~ has~ bee~-- p·J~ding 1n···court ·for a long time and the·-respondent -:•: . ~ ... . was aware , ofthe hearing date. Yet, he ~ . was absent without good cause. The application was granted and the matter proceeded ex-parte. ·--'• Arguing the appeal ei<~porte >Mr. Lissu submitted }hat. the ruling and order -· of Districf :.~pnd •j~ ..:. and·. ~ousing .• . Tr.ib0:~ql.,of . . ., .. •... .. . Singida, . which are·· the suqject matter of this qpp~aL ,w~re delivered on 26/10/2010. He contended thaia 2e;tffi~d c~py of the ruling was made available· to the appellah{:/8rt,,OJl;12/2010. He was of the view that the appeal was filed 12 days later, that is on 20/12/2012 R.E. 2002. According to him, the appeal is in time under section 38 (1} of the Land Disputes Courts Act, Cap 216 R.E. 2002. As regards the first appeal, he submitted that Judgement of the Ward Tribunal against whose appeal was preferred to the District Land and Housing Tribunal was delivered on 12/03/2010. It was his· contention that on 22/03/2010 the current appellant. informed the Ward Tribunal that he wished to appeal. He. told this court that the appellant was not furnished with a copy· of Judgem.ent and proceedings until on 30/07/2010. He filed his .. appeal on 27/08/2010. According to him, the appeal was filed. 28 days after the appellant was furnished with a copy of proceedings and judgement of the Ward Tribunal. • " I ,• He further submitted that section 2Q (}). Qf the Land Disputes ·,,.,,. ',1,•t·<' • Courts Act, Cap 216 R.E. 2002 provides for the period of Limitation for appeals originating from the Ward Tribunals to be 45 days from the date of the decision or order against which an appeal is preferred. .. ,__ __ .,......:_. He was of the'Yiew·that . -· '· the isSµe .. for consideration is when , the period of limitation ~tarts to 'run. He alleged that the first appellate Tribunal, that is the District Land and Housing Tribunal believed that the period begins to run from the date of the decision or order appealed against. He was of the view that the date of delivery of copies of proceedings and judgement is important in computing the period of Limitation. To substantiate his argument he cited the cases of Mrs. Kamiz Abdullah Kermal v. The Registrar of Buildings and Another {1988) TLR 199 and DT Dobie Tanzania Ltd. v. Mwalebele (1992) TLR 152 whereby it was held in both cases that the period of Limitation starts to run after being furnished with a copy of judgement and proceedings. He concluded by submitting that the decision of the District Land and Housing Tribunal which ignored the period spent in the preparation of proceedings and judgement was wrong. Thus, he prayed that the appeal be allowed. •. In the. alternative"' • he argued that given the foct the •.. > - appellant -hod~ 1~_.d.L~ate·d· his desire tcf appeal 1O days afterihe ~· . , , .. ,·.::.. ... ... _,,,. ._ decisiqn,af lkungi · Ward Tribunal but failed to file ·the appeal within . 45 · days in a honest but mistaken belief, the District Land and Housing Tribunal should have exercised its discretion under section 20 (2) of the Land Disputes Act to extend time. He was of the view . ·~· .:... '. -~- : '· .;• ·. 5 that failure of the District Lci:hd gnd Housing Trib0qdfto·:~xtend the .'·. '<!•:,.· . -:~·~. ,: -.... -'.~-: ., ...~-, •• ,· • •• • time occasioned a misca~riqSe of ju.sticEJ _ds \Jh.e:" appeal was • :----· •.. , .• ·., .,-_ • ,t•· •. dismissed without hearing the:¢dse 'brf m~rits·.. l<s this Honourable court is empowered to intervene. u~der section 38 { 1) of the Land Dispute~ Courts Act, by extending time, he prayed the first ground of appeal be allowed. have considered the submissions by counsel for the appellant. With due respect, I am of the considered opinion that the provisions and cases cited are not relevant to support his appeal. He unjustifiably cited section 20 ( 1) (2) of the Land Disputes Courts Act. The section clearly states.as follows: "20 - (1) Every appeal to a District Land and Hou~ing Tribunal shall be fileq in the District Land and Housing Tribunal within forty five days after . . the date of the decision or order against which - the appeal is brought (Emphasis s·upplied). ·- (2) Notwithstanding the provisions of subsection ( 1), the District Land and Housing Tribunal may . for good and sufficient cause extend the time for filing an appeal either before or after the expiration of forty - five days." I am off~~- view that secti9n . . ~9.Jl) ..',· and (2) are applicable . ,- ._ if two things have been met. First, ·the appeal to the Land and Housing Tribunal must be filed in District Land and Housing Tribunal within forty five days after the date of the decision or order against which the appeal is brought. The word used is "shall" that means it is mandatory that the appeal must be filed within forty five days. The time required for the preparation and delivery of copy of proceedings in the Ward Tribunal is not excluded in computing the time within w-hich an appeal to the District Land and Housing Tribunal is to be filed~ Mr. Lissu admits that the appeal was filed after forty five days on allegation that the date of delivery of copies of proceedings and judgement is important in computing the period of limitation. I am of the view. that, his argument is misconceived as it is contrary to the above cited provision of the . ~ ' . law. I have no grudge with the authorities cited by Mr. Usu where::··.'':·:;~;· -. • ·:.:ii. ... ,... • • ~ -·. .• • .. ~- -· •••• the provisions of the law_ clearly provides for the. exclusion of tim~:. _ . ' . . .. . ...... ·--· • .. '!..: ~ in computing the time within which an appeal to the Court of ..·.;, Appeal is to be instituted if an application of a copy of 1: proceedings has been made in accordance with the Court of Appeal Rules. The cited authorities can be distinguished from the present case. In the present case the law applicable is Land Disputes Courts Act and noflh$ . . C:6tfrtor°Appeal •. . : . . ·.~u!e:s;;,-1979 . .. ·. which .. ~·. ,_. . . . - unambiguously stipulate thotJirne · _starts lb ru.n ··ofter re.2eiving a copy of proceedings. Jn fact:+he r~le✓d~t br~v'ision referred to in . ·•·:·' /.· ~. ;~:~.. ~- ':_ ·. • . . . L . the two cited. cases is Rule 83· (l) ·of the Tanzania Court of Appeal · Rules, 1979 which provides: "83 (1) subject to provisions of Rule 122, an appeal shall be instituted by-lodging in the appropriate registry, within 60 days of the date when the notice of appeal was lodged: (a) A memorandum of appeal, In quint.uplicate; (b) The record of appeal, the quintuplic;ate; (c) The prescribed fee; and (d) Security for the costs of the appeal, Save that where an application for a copy of the proceedings in the High Court has been made within 30 days of the decision against which it is desired to appeal, there shalt in computing the time within which the appeal is to be instituted, be excluded such time . as may be certified by the Registrar of the High Court '. .. as having been required for the preparation and · delivery of that copy to the appellant." ·:•.'",.,. ·1n the _case under conskiJ~8'ti;A,;'. f.he cited provision does not apply as it applies to appeals to the Court of Appeal from the High Court. Second, a party applying for extension of time must assign good ,end sufficient cause for the delay to file the intended appeal in time. Order 43 Rule 2 of the Civil Procedure Code, Cap 33 R.E. 2002 provides as follows:- "Every application to the court under this code shall, unless otheiwise provided, be made by a chamber summons supported by affidavit. Provided that the court may where it - considers fit to do so, enteltdin ·- dn b application mode_ orally _or, where all the parties to the ·suit consent to the order applied for be · made, by a memorandum." .. ---:,, _- --~~-,-~'-_.;;~.~~f- I' 1· · .. · ,:) ' ~ ,· 9 1: -.: :·. / ~- ' ..~, . . ,_·· .-·•' '•~-~ Going through the -Proceeding/· . i~'\:°th_~ District ~and and :·}:: _-_ .. Housing Tribunal there is no appUcaJjpri"Jo the said Tribunal by way of. Chamber Summons sup;bir~~d< by .affidavit or orally for extension of time. In fact, the issue of the· alleged g_enuine reason, that is the delay by the Ward Tribunal furnishing the appellant witt°' a copy of judgement was raised when he was responding to the preliminary objection raised by the respondent. I am of the view that as there was no application for extension of time the issue of good and sufficient cause was an afterthought intended to pre- empt the preliminary objection. Hence, Mr. Tundu Lissu alternative submission that the District Land and Housing Tribunal or this court can exercise its discretion· under section 20 (2) and section 38 ( 1) of The Land Disputes · Courts Act does . not hold water. As indicated above, there was no proper application before the District Land and Housing Tribunal for extension of time. In my considered view-therefore, I find nothing wrong with the District Land and Housing Tribunal in holding that- the appellant's original appeal was tim•e barred when the law is very clear that the appeal was to be filed within 45 days and there was ..-. . no application for extension of time.·~-- As the first ground disposes of this appeal I won't dwell on the second ground. ...,.... I ··. ·-~·-~--.---~.· _:c,,~--- to::__. ~-~··- 7-,'__ .... __·_·~·- The qppeal is therefor~ tjismiss~d. C.W. MAKURU JUDGE 17/07/2013 Date:- 17 /07/20123 Coram:- Hon. C.W.-Makuru, J. Appellant:- Present in person. Respondent:- Absent. C/Clerk:- R. Mahmoud. COURT:- Judgement delivered in court this 17th day of July, 2013 in .. - the presence of the appellant.. in person and in the absence· of the .. - respondent. C.W. MAKURU JUDGE 17/07/2013