binignis mpishi vs veronika lipande 2018 tzhclandd 4 15 february 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPEAL NO. 142 OF 2016 (from the decision of the District Land and Housing Tribunal of KILOMBERO/ULANGA in Land Case Appeal No. 76 of 2016 and original Ward Tribunal of MINEPA in case No. 27 of 2015) BINIGNIS MPISHI........................................................................ APPELLANT VERSUS VERONIKA LIPANDE................................................................. RESPONDENT RULING P.M. Kente, J: The respondent Veronika Lipande has raised in his reply to the petition of appeal a notice of preliminary objection on two points of law that:- 1. The appellant's appeal is hopelessly time barred. 2. The appellant’sappeal has notbeenattended and or impugned (sic) withthe decree of thedecision of Land Appeal No. 76 of 2016. i Both parties are unrepresented and the court upon realizing that they could not make any meaningful oral submissions, ordered that the preliminary objections be argued by way of written submissions. On the first preliminary objection the respondent argued that, the decision of the District Land and Housing Tribunal which is subject to this appeal was delivered on 21st April, 2016 and the present appeal was filed on 15th July, 2016. According to him, the appeal is time barred because appeals of the present nature ought to be filed within 60 days from the date of the judgment. On the second preliminary objection the respondent contended that the appeal is in contravention of Order XXXIX Rule 1(1) of the Civil Procedure Code Cap 33 RE 2002. It is the respondent's argument that, the appeal is irregular and hopelessly filed without annexing a copy of the Judgment and decree which is appealed against. The case of Stanley Kalawa Maliki v Chichiyo Kwisiye W/O Nderingpo Ngumuo (1997) TLR 288 was cited in support of this point. In reply, the appellant argued that, the law applicable so far as the procedure of filing appeals from the District Land and Housing Tribunal as the first appellate court to the High Court for matters originating in the Ward Tribunal is not Order XXXIX Rule 1 of the Civil Procedure Code, Cap 33 RE 2002. According to him, the procedure is well stipulated under section 38 of the Land Disputes Courts Act Cap 216 RE 2002 which does not require the attachment of a decree. On the point that the appeal is time barred, it is submitted that, the appeal was timely filed at the District Land and Housing Tribunal. According to the appellant, counting from the day when he was supplied with copies of judgment to the date of filing the appeal, he was still in time. In rejoinder the respondent essentially reiterated his submission in-chief. Having considered the rival submissions made by both parties and also having gone through the entire record of this case, I will now, determine the preliminary objections raised seriatim. On the first preliminary objection, the law under section 38(1) of the Land Disputes Courts Act Cap 216 RE 2002 requires appeals from 3 the District Land and Housing Tribunal, in its appellate or revisional jurisdiction, to be filed within 30 days of the date of judgment. In the instant case the decision subject of this appeal was delivered in 21st April, 2016 and the present appeal was lodged on 15th July, 2016. Counting from the date of judgment to the date of filing this appeal, it is more 70 days. This is contrary to the provisions of the law cited hereinabove. Therefore, this appeal has been filed out of time without leave of the court. The first preliminary objection is therefore meritorious and is hereby sustained. As for the second point of preliminary objection, I must state that appeals of the present nature are governed by section 38 of the Land Disputes Court’s Act 216 RE 2002. Subsection 2 of section 38 provides interalia that; “(2) Every appeal to the High Court (Land Division) shall be by way of petition and shall be filed in the District Land and , Housing Tribunal from the decision or order of which the appeal is brought. ” Reading this provision of the law, it is apparent that appeals originating from the ward tribunal are preferred by way of petitions and nowhere has it been stated that there is a requirement of attaching a copy of the decree. Hence, save for being out of time, this appeal has been properly filed and the second point of preliminary objection is devoid of merits and is accordingly dismissed. In the upshot, having found that this appeal has been filed out of time, I hereby strike it out with costs. Dated at Dar es salaam this 15th day of February, 2018 JUDGE 5