20111207 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA A. (LAND DIVISION)

ATDODOMA MISCELLANEOUS LAND CASE APPEAL NO. 32 OF 2010 CONSOLIDATED WITH MISC. LAND CASE APPEAL NO. 29 OF 2010 (From the Decision of the District Land and Housing Tribunal of Singida District at Singida - In Land Case Appeal No. 33 of 2009 - Original Ward Tribunal of Ulemo Ward in Application No. 9 of 2008 and District Land and Housing Tribunal of Singida Land Case Appeal No. 32 of 2009 - Original Ward Tribunal of Ulemo Ward Application No. 8 of 2009) CLEMENT TONOLA ................. APPELLANT Versus SOLOMON KEPHASON .......... RESPONDENT 20.09.2011 & 7.12.2011

RULING HON. MADAM, SHANGALI, J. This is a consolidated appeal Misc. Land Case Appeal No. 29 of 2010 from decision of the Singida District Land and Housing Tribunal, Land Appeal Case No. 32 of 2009 originating from Ulemo Ward Land Tribunal No. 9 of 2008 and Misc. Land 14, Case Appeal No. 32 of 2010 from the decision of the Singida District Land and Housing Tribunal, Land Appeal Case No. 33 of 2009 originating from Ulemo Ward Land Tribunal No. 8 of 2009. The two applications or rather appeals were consolidated because that subject matter and claims by the appellant one substantially the same. The back ground to the matter before the ward tribunal in land application No. 8 of 2009 shows that the appellant, Clement Tonola was alleged to have invaded a piece of land alleged to be 28 paces in length and two paces - width. However, it would appear that, the appellant was the one who first filed his application before the Ward Tribunal in Land Application No. 9 of 2008, claiming that the respondent, Solomon Kephason had invaded his piece of land, which application was dismissed for lack of proof. Having failed before the Ward Tribunal, still the appellant proceeded to deprive the respondent from quiet enjoyment of his piece of land by tempering with boundary conduit and digging a hillock claiming the same to be part of his land when in fact the conduit and the hillock were used to

identify the boundaries of their respective piece of land. As the matter could not be settled amicably, the respondent sought it prudent to file his application before the ward tribunal to stop the 3 invasion by the appellant. That was the origin of the Land Application No. 8 of 2009. The records of proceedings of the Ward Tribunal show that the appellant conceded to have found the existence of the boundary conduit and the hillock which were established prior to his ownership of that land. Suffice it to say that, the ward tribunal considered this piece of evidence in favour of the respondent on the ground that the appellant knew the conduit or ditch he tempered with separated his piece of land and that of the respondent and for - that reason it was used to identify the two different pieces of land to have been of two different people, that is to say the appellant and respondent but still the appellant proceeded to temper with it on the allegation that the conduit is within his land. The Ward Tribunal found that the appellant had ill motive to deprive the respondent of his right to own and enjoy his piece of land. Thus, the Ward Tribunal decided in favour of the respondent. It appears that the appellant was aggrieved by both decisions of the trial Ward Tribunal in the dismissal of his 4 application No. 9 of 2008 and the decision against him in the Application No. 8 of 2009.

However, at the time he decided to appeal against those decisions he realized that he was out of time to file the appeals. Consequently he filed two separate applications before the Singida District Land and Housing Tribunal seeking for extension of time to file his appeal out of time. The application for extension of time were filed under the provision of section 14 of the Law of Limitation Act, (Cap 89 R.E. 2002) henceforth, "Cap 89." Although the applications were dismissed for lack of sufficient reasons for the delay, it must be noted from the outset that the appellant was wrong to invoke the provisions of section 14 of "Cap 89" in filing his application for extension of time before the District Tribunal to appeal against the decision of the trial ward tribunal. It is that so, because "Cap 89" does not apply to proceedings before the Ward Tribunals. It is a pity that the Chairman of the District Tribunal entertained the application as though the matter was properly before him. The proper provision to have been invoked in the circumstances woUld have been section 20 (2) of the Land Disputes Courts Act, 2001 hereinafter "Act No. 2" which read as follows: 5 - "Not withstanding 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 or forty

five days." "Cap 89" is applicable to proceedings in the District Land and housing Tribunal and the High Court in the exercise of their respective original jurisdiction. Section 52 (2) of the "Act No. 2" is relevant to that effect. It provides as hereunder; "The law of Limitation Act, 1971 shall apply to proceedings in the District Land and Housing Tribunal and the High Court (Land Division) in the exercise of their respective original jurisdiction." Therefore the appellant's application were wrong for the reason that "Cap 89" is applicable to proceedings in the District Land and Housing Tribunal and the High Court in the exercise of their respective original jurisdiction. It is on the same basis, I am obliged to say there was no competent application before the District Tribunal to be entertained and determined. Consequently there is no competent appeal before this court emanating from the purported ruling of the District Tribunal. The application/appeals are hereby dismissed with costs for being incompetent. It is so ordered. M.S. SHkiALI

JUDGE 7/12/2011 7th Ruling delivered to-date December, 2011 in the na &both parties in person. / N \ I M.S. SI.1ANfALI

JUDG 7/12/ 2011