Asia Shaban v Juma Rajabu

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI MISC. CIVIL APPLICATION NO. 25864 OF 2024 (Arising from Land Appeal No. 234 of 2024 of the High Court of United Republic of Tanzania, In the Sub Registry of Manyara at Babati) BETWEEN ASIA SHABANI ………………………………………………….………APPLICANT VERSUS JUMA RAJABU ………………………………………………….……. RESPONDENT RULING 11th Dec, 2024 & 17th Jan, 2025 MWIHAMBI, J. This matter has a somehow long history. To put it briefly, it started in Kijungu Ward Tribunal where the applicant, Asia Shabani, initiated a complaint (Land Application No. 20 of 2022) that the respondent, Juma Rajabu, had invaded 4 acres in her 10-acres farm located at Kijungu Village within Kiteto District in Manyara Region (the suit land). The Ward Tribunal failed to reconcile the parties and on 14th December, 2022 issued a certificate to that effect, stating SULUHU IMESHINDIKANA. The applicant then instituted a matter in the District Land and Housing Tribunal for Kiteto at Kibaya in Land Application No. 9 of 2023 seeking, 1 among other things, a declaration that she is the lawful owner of the suit land. The application was dismissed on 17th November, 2023 as the applicant failed to prove that the suit land was allocated to her by Kijungu Village Council. Dissatisfied by decision of the District Land and Housing Tribunal for Kiteto, the applicant unsuccessfully filed an appeal in the High Court at Babati through Land Appeal No. 234 of 2024. The applicant did not rest, rather she filed for revision in the same Court via Land Revision No. 10778 of 2024 seeking the Court to revise its decision in Land Appeal No. 234 of 2024, the application was found to be incompetent as it was filed by lodging a memorandum of revision instead of chamber summons supported by an affidavit as per Order XLIII Rule 2 of the Civil Procedure Code [Cap. 33 R.E. 2019] and therefore on 9th August, 2024 it was dismissed with costs. Still persistent, the applicant filed a Miscellaneous Land Application No. 20502 of 2024 applying for extension of time to file an appeal against decision in the aforementioned Land Appeal No. 234 of 2024, this application was however withdrawn on 11th October, 2024 with leave to refile. The applicant has now filed this application seeking for an extension time to file an appeal to the Court of Appeal. In the hearing both parties were 2 in attendance and each appeared in person. Before going into details of the application, I found it pertinent to ascertain the accuracy of this application. When asked to address the Court on the provisions used in the application, both parties had nothing useful to reply. The application is made under section 14 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019] and section 11 (1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019]. It is by way of chamber summons supported by affidavit of the applicant. The application, among other things, seeks for the following: “That, This Honourable Court may be pleased to extend time to the Applicant file (sic) an Appeal to the Court of Appeal against the Decision of the High Court of United Republic of Tanzania, in the Sub-Registry of Babati at Babati via Land Appeal No. 234 of 2024.” (emphasis is mine) Section 11 (1) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2019] provides that: “11.-(1) Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit 3 case for appeal, notwithstanding that the time for giving the notice or making the application has already expired.” (emphasis is mine) The enabling provision stated and the subject matter of the application differ. The application is for extension of time to file an appeal to the Court of Appeal while the provision applied is for extension of time to submit notice of intention to appeal. It may also be necessary to mention at this juncture that this Court does not have jurisdiction to grant extension of time for appeals intended to be lodged to the Court of Appeal. That is within the powers of the Court of Appeal itself as it is provided for in the Tanzania Court of Appeal Rules, 2009 in which Rule 10 states: “10. The Court may, upon good cause shown, extend the time limited by these Rules or by any decision of the High Court or tribunal, for the doing of any act authorized or required by these Rules, whether before or after the expiration of that time and whether before or after the doing of the act; and any reference in these Rules to any such time shall be construed as a reference to that time as so extended.” “The Court” is defined in Rule 3 as the Court of Appeal of the United Republic of Tanzania established by the Constitution and any division of that Court and a single Judge exercising any power vested in him sitting alone. 4 Therefore, the matter before this Court is misplaced and I have no option rather than to strike it out. Each part will bear their own costs. It is so ordered. DATED at BABATI this 17th Day of January, 2025. N. J. MWIHAMBI JUDGE COURT: Ruling delivered today, 17th Day of January, 2025, in the presence of the applicant and the respondent. B/C Ms. Fatina R. Haymale (RMA) present. N. J. MWIHAMBI JUDGE 17.01.2025 5