20190821 TZHC Dar es Salaam1

-·- ·· ;/ te:. · IN THE UNIJ:ED IEfUBLI~. •;:: ·t '!, ol\l , OF TANZANIA . ', ••·• • _· Tt'E HIGH COAJRT OF TANZANI~ ' (DAR ES SAL~AM DISTRICT REGISTRY) AT DAR ES SALAAM MISC. LAND APPLICATION NO. :' OF 20·17 · (Arising from the Ruling and Drawn Order of the District Land and Housing Tribunal for Kinondoni No. 69 of 2015, originating from Land Dispute No. 46 of 2009 of Makuburi Ward Tribunal) CESILIA SENTALA ----------------------------------------------- APPLICANT VERSUS . ' PANCRAS LUGEIYAMU------------------------------------- RESPONDENT RULING MUTUNGI, J. The applicant having filed a Chamber Summons made under Section 14 (1) of the Law of Limitation Act and Sections 95 and 68 (e) of the Civil Procedure Code, Cap. 33 R.E 2002 to the effect that: - (1) This honourable court be pleased to extend the time for filing an appeal. (2) This honourable court be pleased to grant any other relief it may deem fit to grant. 1 • ·.. _f ! I:_. The respondent in reply thereto raised a preliminary objection . e:: on a point of law that "the application is fatally defective for _ . being brought under wrong citation of the enabling provision ·. of law". The court proceeded to grant the parties to have the preliminary objection dispose of by way · of written ·submissions. The court only received the respondent's written submission· in support thereof. It would seem the applicant had lost interest in the application, hence the court proceeded Ex-parte against her. In the submission, the respondent has contended that, this matter being a landed dispute had originated fro"m the Ward Tribunal and up to the District Land and Housing Tribunal where the applicant applied for extension of time to file a revision. The applicant was dissatisfied with the decision of the tribunal and has now come seeking for extension of time to file her appeal. The respondent further elaborated that, when the District Land and Housing Tribunal was sitting, it was exercising its revisional jurisdiction hence the proper provision of law to move this court should have been Section 38 {1) of the Land Disputes Court Act and not Section 14 {1) of the Law of 2 ·' . ):-'.-: Limitation (supra). Given such circumstances the only . remedy is to strike out the application. The respondent further submitted, the _foregoing · notwithstanding, even section 95 and 68 (e) of the Civil Procedure Code cited are inapplicable,· section 95 (Supra) : is only useful if there is no provision or any circumstances · supporting the application, whereas Section 95 calls upon the court to exercise its inherent powers, in order to prevent the abuse of the court process. In this application none of these situations is apparent. In the upshot the respondent prayed, the application be struck out with costs. The issue is whether the applicant had cited the wrong provision of law. As properly submitted the applicant is moving the court on a matter that has originated from the Makuburi Ward Tribunal. The District Land and Housing Tribunal was being asked to call for and examine the record of the proceedings of Land Dispute No. 46 of 2009 of Makuburi Ward Tribunal and satisfy itself as to whether the Ward Tribunal's decision has not conflicted with the rules of natural justice and whether the Ward Tribunal was properly 3 . -1 . •'<:: ·- . ' ~ _- · constituted or did not exceed its jurisdiction and in those ' ·,:,. '.. -_ -< :_..·:.':-/.·. respects to revise the said proceedings. ·- .. • .. -<·· What then is the enabling provision, once again as properly •submitted by the respondent. Section 38 (1) -of ·the Land Disputes Courts Act, Cap. 216 would come into play. The said -. ;, Section 38 (1) is coached in the following words: - "Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction -may within sixty days after the date of the decision order, appeal to the High Court" For the sake of the instant application the proviso thereto is of relevance. The same reads: - "Provided that the High Court may for good and sufficient cause extend the time for filing an· appeal either before or after such period of sixty days has expired". In view thereof the provisions cited by the applicant are obviously not applicable in this application. To be specific Section 95 of the Civil Procedure Code is enacted to confer 4 .... . . inherent powers to the court to make necessary orders where the court thinks necessary to do so for the ends of justice or · . to prevent the abuse of the court process and if there is no provision under the law supporting the application. · · · All said, it is apparent that the applicant has cited the wrong .·provision of law. In view thereof the preliminary objection raised is upheld and the application struck out with costs. ~ d,. B. R. Mutungi JUDGE 21/08/2019 .. - Read this day of 21/08/2019 in presence of the respondent, Miss Edna Henry holding brief of Rweyemamu for the respondent. }.-: . B. R. Mutu~gi JUDGE i 21/08/2019 Right of-a'ppeal explained. r ~ B. R. Mutung1 / .· JUDGE .~.- . . ;~\,>'. ·,:' / ·. 21/08/2019 5