delfina s kaduma vs zackaria 2021 tzhc 9215 23 november 2021

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA (IRINGA DISTRICT REGISTRY)

ATIRINGA LAND APPEAL NO. 03 OF 2021 (Originating from Appeal Case No. 53 of2020 of the District Land and Housing Tribunal at Iringa as Land Case No. 04 of 2018 at Kiyoweia Ward Tribunal) DELFINA S. KADUMA......................... APPELLANT

VERSUS ZACKARIA SUGAULI ...................... RESPONDENT 21/10 & 23/11/2021

JUDGMENT MATOGOLO, J. This judgment emanates from an appeal by one Delfina S. Kaduma herein referred as the appellant against the ruling of the District Land and Housing Tribunal for Iringa in appeal No. 53 of 2020 which was decided on 29/01/2021 in favour of Zacharia Sugauli Respondent in this appeal. The matter originated from the decision of the Ward Tribunal of Kiyoweia Ward in Land Case No. 4 of 2018. The Ward Tribunal finding was in favour of the Respondent. The appellant's appeal to the District Land and Housing Tribunal was not successful as it was dismissed on preliminary objection which was raised by the present Respondent that the appeal was time 1 | Page barred as it was filed after a lapse of more than two years. The objection was sustained and the appeal was dismissed with costs. Still dissatisfied, the appellant has appealed to this court in which she filed petition of appeal as follows:- l.That, the honourable Trial chairman erred in law and facts by failing to analyse records and proceedings of the Ward Tribunal in respect of the date when judgment pronounced to both parties and hence dismissed the appeal. The appellant therefore prayed to this court to quash the decision of the appellate Tribunal and allow this appeal. The parties were represented in this appeal while Mr. Hafidhi Mbinjika learned advocate appeared for the appellant, Ms. Gladness Fungo appeared

for the Respondent. At the request of the learned advocates, the appeal was argued by way of written submissions. It is the submission by Mr. Mbinjika that the proceedings of the Kiyowela Ward Tribunal in Case No. 04 of 2018 that on 24th April 2018 at the last paragraph it was written that they pronounced the judgment and the appellants was not present and the records is silent as to whether both parties were present or not. On 14th April, 2020 the judgment was pronounced again in the presence of the appellant and right of appeal explained to her within 45 days as from 14/07/2020. It is the contention by Mr. Mbinjika that the contention by the Ward Tribunal that they pronounced again the said judgment on the reasons that the appellant was absent is not true as the judgment was pronounced on 24th April, 2018 but 2 ] Page on 14th July, 2020 and it is when the right of appeal was explained and insisted that the same started to run on 14th July, 2020. Mr. Mbinjika quoted the order by the Ward Tribunal which reads: "Hukumu hii imerudiwa kusomwa tarehe 14/07/2020 baada ya wadaawa(mlalamikaji) kuomba copy za Uamuzi (Hukumu). RUFAA

IKO WAZI KWA ASIYERIDHIKA NA HUKUMU NDANI YA SIKU 45 AROBAINI NA TANO TANGU T.R 14/07/2020" He said the appellant denied the fact that the judgment was first pronounced on 24th April, 2018 but on 14th July, 2020 it is when the right of appeal was explained. It is on that date the quoram was showing names of members of the Tribunal who sat on that date was indicated. He said according to Section 20(1) of the Land Disputes Court Act [Cap 216 R.E. 2019] an appeal shall be lodged in the District Land and Housing Tribunal within 45 days after the date of the decision, and the appellant managed to file her appeal within 45 days from the date of judgment hence her appeal was within time which was lodged in the District Land and Housing Tribunal for Iringa on 4th August, 2020 which was 22 days from the date the judgment was pronounced and right of appeal explained to them. Mr. Mbinjika prayed to this court to allow the appeal and order the case to be tried on merit. 3 | Page On her part Gladness Fungo learned advocate contended that the appeal was hopelessly time barred. She said per the Ward Tribunal records which they believe were carefully eye balled by the District Land and Housing Tribunal clearly show that the judgment was pronounced on 24th day of April 2018 and the appellant filed her appeal on 4th day of August, 2020 that is after two years and four months. But the appellant

chose to appeal automatically without seeking leave of the appellate Tribunal basing on the wording appearing on the trial Tribunal judgment that "Hukumu imerudiwa kusomwa tarehe 14/07/2020' The learned advocate submitted that the said statement speaks for itself that the judgment has been re­ read on the material date following the demand of the appellant for the same to be read and handed to her as worded "... baada ya wadaawa (miaiamikaji) kuomba copy za Uamuzi (HUKUMU). Ms. Gladness submitted further that the appellant misdirected herself into believing that she could manipulate the Ward Tribunal to re-read the judgment and avail her a chance to overtake the form and settled provision of the Land Disputes Court Act, under Section 20(2) which requires the appellant to seek leave of the appellate Tribunal so as to appeal out of time she said the allegation in the appellant submission that the appellant was not present during the reading of the judgment in 2018 and whether the respondent was present is not an excuse for her not to follow proper appeal procedure where the appeal is time barred. She argued that the respondent was present during delivery of the judgment in 2018. But strangely the appellant did not show any interest within a reasonable time 4| Page but sought a copy of the judgment and for a judgment to be re-read two years and four months later as she was backed

up with pressure to the Ward Tribunal from the District Commissioner's office while the tribunal had to be independent. She submitted quoting latin mazims that ignorantia Juris non excusat' and "ignorantia iuris nocet' that is "ignorance of law excuses no one" and "not knowing the law harmful" Ms. Gladness Fungo prayed for the appeal to be dismissed with costs. There was no rejoinder by the appellant. Having carefully considered the parties rival submissions and examined the record I will now look at the merit of this appeal. Apparently the appeal hinges on the date when the judgment of the Ward Tribunal of Kiyowela was delivered. The advocates of the parties are divided on when the judgment was delivered. While Mr. Mbinjika contending that it was delivered on 14th July, 2020, Gladness Fungo on her part argued that it was delivered on 24th April, 2018. Both learned advocates had their reference to the copy of judgment by the Ward Tribunal. The relevant part of that judgment reads as follows:- "Hivyo tangu leo tarehe 24/04/2018 ENEO (SHAMBA) HILO Hnabaki kuwa chini ya Zacharia SugauH kama aiivyoiwakiiisha fami/ia ya mzee Lukombeso SugauH. Hukumu hii imerudiwa kusomwa tarehe 5 | Page 14/07/2020 baada ya wadaawa (mlalamikaji)kuomba copy za uamuzi (HUKUMU) RUFAA IKO WAZI KWA

ASIYE RIDHIKA NA HUKUMU HII NDANI YA SIKU 45 AROBAINI NA TANO TANGU T.R. 14/07/2020". It is under such order of the Ward Tribunal the dispute arise. The District Land and Housing Tribunal was of the decision that the judgment of the Ward Tribunal was pronounced on 24/04/2018 the position which is supported by the Respondent's counsel. But on the other hand the Appellant's counsel has argued that the judgment was pronounced on 14/07/2020 the date when the parties were informed their rights to appeal for whoever is dissatisfied with the decision. Going through the Ward Tribunal record, there is no dispute that the proceedings before it was concluded in 2018. The respondent argues that judgment was delivered on 24/04/2018. This date is more likely to be the correct date judgment to have been delivered. This is a matter of fact as there is no any explanation given as to why if not delivered on 24/04/2018 it takes such long for it to be delivered on 14/07/2020. But in the judgment itself it is recorded "Hukumu hii inarudiwa kusomwa tarehe 14/07/2020 which implied that it was previously pronounced. And the reason was given as to why it was repeated to be pronounced. That is "... baada ya wadaawa (miaiamikaji) kuomba copy za Uamuzi (Hukumuy. The author of the judgment who is the 6 ] Page secretary of the Tribunal qualified as to why the judgment was pronounced again. It is because the

complaint now appellant has requested for copies of that judgment. So it is not correct to argue that the judgment was pronounced for the first time on 14/07/2020. This is because had the same pronounced on 14/07/2020 for the first time the word "Hukumu hi! imerudiwa kusomwa tarehe 14/07/2020' would not feature. That being the position, and as it was correctly submitted by Ms. Gladness Fungo that the words speak by themselves as to when the judgment was delivered. I am of the settled view that the judgment of the Ward Tribunal was delivered on 24/04/2018. As to why appellant requested to be supplied with a copy in 17/07/2020 that could be well explained by the appellant herself. But either deliberately or by design, she did not want to disclose that. The appellant is relying on the words at the bottom of the judgment that "RUFAA IKO WAZIKWA ASIYERIDHIKA NA HUKUMU HIINDANI YA SIKU 45 AROBAINI NA TANO TANGU TR14/07/2020' Those words, as it was correctly submitted by the respondent's counsel are misleading and do not render the judgment to have been delivered on that date. But the judgment itself is very clear that from 24/04/2018 the land to remain under Zacharia Sugauli. The order is couched in the following words:- 7 | Page Hivyo tangu leo tarehe 24/04/2018 ENEO (SHAMBA) HILO Unabaki kuwa chini ya Zacharia Sugauli" (Emphasis supplied) For the above reasons, I find this appeal without merit it is accordingly dismissed with costs. DATED at IRINGA, This 23rd day of November, 2021. N. TQGOLO

JUDGE 23/11/2021 8 1 Page Date: 23/11/2021 Coram: Hon. S. R. Ding'ohi - DR Applicant: Mr. Hafidhi Mbinjika Advocate Respondent: Present in persons C/C: Grace Mr. Afidhi Mbinjika: The appeal is coming for judgment. COURT; Judgment delivered this 23"1 day of November, 2021. S. R. DING

DEPUTY REGISTRAR 23/11/2021 9 | Page