concepta liganga vs patrick kifyoga and 2 others 2020 tzhclandd 2322 16 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM MISC. LAND APPLICATION NO. Ill OF 2020 (Arising from a judgment of this Court in Land Appeal No. 64 of 2018) CONCEPTA LIGAGALA............................................ APPLICANT

VERSUS PATRICK KIFYOGA........................................1st RESPONDENT TENITA MASASI............................................ 2nd RESPONDENT RAJABU MGWALU......................................... 3rd RESPONDENT

RULING I. MAIGE, J This is an omnibus application for extension of time to apply for leave to appeal to the Court of Appeal and the substantive application. The application for extension of time, it would appear to me, has been preferred under section 14(1) of the Law of Limitation Act, R.E., 2019 while the application for leave to appeal under section 47(1) of the Land Disputes Court Act, Cap. 216, R.E., 2019. i The applicant has deposed an affidavit in support of the application. In paragraph 1 of the affidavit, he has represented himself as an advocate for the applicant the fact which has been vehemently refuted in the joint counter affidavit of the first and second respondents in as much as it is for the counter affidavit of the third respondent. In the submissions in support of the application through his counsel Augustine Kisarika, there has not been made any comment to clarify on the apparent misrepresentation therein. In page 3 of his written submissions, Mr. Kusarika has submitted with all forces that, the enabling provisions of the law cited in the chamber summons are capable of moving the Court for the orders sought. At page 2 of their joint written submissions, the respondents appear to support the counsel for the applicant. The concurrent submissions from both sides notwithstanding, I think this Court is duty bound to determine whether the submissions represent the

correct position of law. Regard being had on the fact that parties cannot by agreement make what is improper in law to be proper. As I understand the law, the power of the High Court to extend time within which to apply for leave to appeal to the Court of Appeal is provided for under section 11(1) of t ellant Jurisdiction Act which provides as follows:- ll-(l) Subject to subsection (2), the High Court or, or where the appeal lies from a subordinate court exercising extended powers, the subordinate court concerned, may extend time for giving notice of intention to appeal from a judgment of the High Court or of a subordinate court concerned, for making an application for leave to appeal or for a certificate that a case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired. Therefore, since the matter is absolutely covered by the provision just referred, under sections 46 of the LLA read together with section 43 (f) thereof, the provision of section 14(1) relied upon by the applicant is inapplicable. On that account therefore, the Court has not been properly moved for the application for extension of time which is a condition precedent for the substantive appHcation for leave to appeal to the Court of Appeal. The application is therefore struck out for being brought under a wrong provision of the law. I will not give an order as to costs in the circumstance. It is so ordered. 16/10/2020 3 Date: 16/10/2020 Coram: Hon. I. Maige, J For the Applicant For the 1st Respondent: Present For the 2nd Respondent Absent For the 3rd Respondent RMA: Bukuku 4