dina cosmas vs rajabu shanai kiwamba 2018 tzhclandd 115 12 may 2018

IN THE HIGH COURT OF TANZANIA LAND DIVISION AT DAR ES SALAAM LAND APPEAL NO. 38 OF 2016 (Arising from District Land and Housing Tribunal for Kibaha in Land Case No. 76 of 2014) DINA COSMAS............................................. APPELLANT VERSUS RAJABU SHANAI KIWAMBA.......................RESPONDENT Date o f last Order: 21/3/2017 Date o f Ruling: 12/5/2017 RULING MGONYA, J. The Appellant who was aggrieved by the whole of the decision of the District Land and Housing Tribunal (hereinafter referred as the Tribunal) lodged this appeal listing down there grounds appeal. The grounds are as follows:- 1. That, the trial court erred in law and facts for not rooting to the really lawful ownership of the Plot of land and disputes and existence of the really ownership and dependence for life in the Plot of land in dispute rather it invested in so several mere stories which are contrary with the situation of the disputed Plot of land (sic). 2. That, the trial court Ward Tribunal erred in law for not elaborating the raised issue evidence relate them to the legal situation of the Plot in dispute rather it supported its finding with obtainment of the documents for evidence for one side without relating with the lawful ownership and development of the plot of land in dispute between two parties as individual and timing to the correct situation (sic). 3. That, the trial court erred in law and facts for misleading itself by relief on the exaggerated stories low the documentary was obtain, fraud, cooked document claimed to be wrote by the appellant and its legality and not the rally evidence how the appellant found in the plot ofland in dispute, whatjurisdiction and administrative granted her that plot of land and its lawfulness, time and development of land, but court disregarded all the very relevant document. When the appeal was called on for hearing, Mr. Saiwello Kumwenda, learned advocate for the respondent, rose to argue four points of preliminary objection notice of which had been filed by the reply to the Memorandum of Appeal. The points of objection are to the effect that:- 1. That, the petition of appeal is bad in law by including the name of a new Respondent. 2. That, the petition of appeal is unamaintable and defective for being attached with a good number ofannexures as evidence. 3. That, the petition of appeal is bad in law for being contrary to section 34 of the land dispute courts Act Cap. 216. 4. The petition ofappeal is bad in law for not being attached with the decree orjudgment. Submitting in elaboration of the points of objection, Mr. Kumwenda was brief and to the point. Firstly, he argued that, the appeal is time barred as per Section 38 (1) supra as it has been filed after expiry of 60 days. Second, Mr. Kumwenda submitted that the appeal was filed to this court instead of District Land and Housing Tribunal hence the same is in violation of Section 38 (2) Land Dispute Courts Act. Surprisingly, Mr. Kumwenda has introduced a new points of objection in the written submission which was not pleaded in the notice of preliminary objection. He wrong said, the appellant did not abide with Section 44 (2) of the Advocate Act Cap. 341 R.E 2002 as the name of drawer has not been indicated. He accordingly urged me to dismiss the appeal with costs and confirm the decision of the trial Tribunal of Kibaha. I shall story my observation that, the appellant either deliberately or accidently in absence of any explanation has failed to file the reply by written submission opposing the preliminary object. The order of code dated 21/3/2017 pressed appellant to file reply by 18/4/2017. However to date no reply by 18/4/2017. However to date no reply has been filed in that regard I will consequently I proceed to give a ruling on the basis of the Respondent's submission. For the 1st point of objection, straight forward has no merit as according to the proceedings, judgment and decree of the first Tribunal, the Respondent was one RAJABU SHABANI KIWAMBA who is also the Respondent in the present matter and appeared as RAJABU SHANAI KIWAMBA. The objection is meritless and is hereby dismissed. As regards to the second objection I wish to reproduce the wording of section 38 (2) of the Land disputes court Act, it read:- "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 which the appeal is brought". 4 The above Section does not indicate whether the appeal should be filed with annexures hence the annexures found in support of "Memorandum of Appeal"\s not found in law. The objection has merit. As for the 3rd objection, it has been pointed that the appeal is time barred as per Section 38 (1) Supra as it has been filed after expiry of 60 days. The appeal before this court through wrongly titled "Memorandum o f Appeal") Instead of "Petition of Appeal " Is emanated from the decision of District Land and Housing Tribunal of Kibaha in exercise of its appellate jurisdiction originated from Bagamoyo Ward Tribunal in Application No. 16 of 2014. The wisdom of Parliament under Section 38 (1) supra provides that the said appeal should be file to this court within sixty days after the date of the decision or order. The date of decision of District Land and Housing Tribunal which the judgment was delivered is 28th day of January, 2016 and this date when the appeal was filed though wrongly is 29th day of March, 2016. Counting actual days from 29th day of January, 2016 after the date of judgment and the date when appeal was filed that is 29th day of May, 2016, the computation of time, and arithmetic, total 60 days. At this finding, therefore the appeal is within 60 days prescribed by the law. The only glaring procedural flaw violated by Appellant is this appeal is when he has filed the present appeal to this court instead of District Land and Housing Tribunal. What does the law demands Section 38 (2) Supra, provides, I quote "Every appeal to the High Court (Land Division) shall be by way of Petition and shall filed in the District Land and Housing Tribunal from the decision, or order of which the appeal is brought". The provision above requires court to interpret the same by reading together with the Section 53(2) of the Interpretation of Laws Act Cap. 1 R. E (2002) the provides:- ”Where in a written la the ward shall is used in conferring a function such word shall be interpreted to mean that the functions so conferred must be performed." And this is exactly what was said in the case of AHMED MABRUKI AND ANOTHER VS RAFIKI HAWA MOHAMED SADIKI, Civil Reference No. 20 of 2005 Court of Appeal stated "....with the coming into tone of R.E 2002 which come into force on 1st September, 2004 vide Proclamation number 312 o f2004 the law on the point has charged dramatically Section 53 (2) of this Act is categories that where the word "shall" is used in confirming a function the word shall be interpreted to means that the function so conferred must be performed." In the light of the above the phrase "Shall"be filed in the District Land and Housing Tribunal" in imperative for the appellant to file the appeal in the District Land and Housing Tribunal and not High Court. Unfortunately, the function was not performed by appellant hence the appeal is incompetent for that reason. The last objection has no merit as Section 38 (2) supra requires only filing of petition of appeal in absence of copy of judgment and decree. In the upshot I uphold the Respondent on his part of the third point of preliminary objection that the appeal is incompent for being violated the provisions of Section 38 (2) dictates for an appeal to be filed to the District Land and Housing Tribunal. In view of this, hereby struck out the appeal, to be filed to the Kibaha District Land and Housing Tribunal tribunal in which the appeal should have been filed in which the appeal should have been filed. Consequently I really find no valid reason to discuss the merits or otherwise of the objection that appellant did not abide with by Section 44 (2) of the Advocate Act as the same was not pleaded in the Notice of Preliminary Objection. The Appellant shall pay the costs. JUDGE 12/5/2017 COURT: Ruling delivered in absence of both sides and Adventina B/c on this day 12th May, 2017 in chamber No. 18 JUDGE 12/5/2017 8