20141031 TZHC Iringa

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT IRINGA MISCELLANEOUS LAND CASE APPEAL NO. 8 OF 2011 (From the decision of the District Land and Housing Tribunal of Njombe District at Njombe in Land Case Appeal No. 44 of 2010 and Original Ward Tribunal of Mlondwe Ward Application No. 8 of 2010) ENELISE SANGA .................................... APPELLANT VERSUS FAINES NZELU .............................. RESPONDENT 30/10/2014 & 31/10/2014 RULING Kihwelo J. This is a ruling on the prayer by the appellant to withdraw the appeal on the grounds that the same was not properly before the court since the copy of the Decree subject to appeal was not accompanied with the Petition of Appeal. 1 ----,----- ---- - ------ The brief backgrounds to this. matter is that on 12 th May, 2011 the appellant filed· the Petition of Appeal before this hondurable court seeking to challenge the decision of the District Land and Housing Tribunal for Njombe Hono.urable G. Kagaruki,' Chairperson dated 5/4/2011. Initially the appellant was repres.~nted by Mr. Kingwe while the respondent was represented by the late Mr. Mkwata. However when this matter came for hearing Mr. John Owegi, learned counsel appeared for the appellant while fy.Ir. Edward Kenyunko, learned counsel appeared for the respondent. It is imperative to point out that on 12/7/2012 when the matter came for hearing Mr. Kingwe prayed to amend the Petition of Appeal the· prayer which was granted by the honourable court and ordered that Mr. Kingwe was to file- the amended app~al on _ 19 / 07/2012 and the matter was fixed for hearing ·on 4/10/2012. Surprisingly the Amended Petition of Appeal was filed on 24 / 07/2012 contrary to the courts order of 12/07/2012. Subsequently when this matter was fixed for hearing during the special session Mr. Owegi, learned counsel made his submission in the fallowing wording; , \. "This matter was fixed for hearing today. --· - . - - . . . However, -- ' I have come to notice that this appeal is not properly before 2 _, r .. • this court since the copy' of the Decree was not attached and it took me time to notice that but when I realized that I could not pray for any order as .the matter was fvced before the District Registrar but since this matter today is before you My· Lord we therefore pray to withdraw the appeal because its improper so that we can file the proper appeal before this court." On his part, Mr. Kenyunko the counsel for the respondent did not object to the prayer. It is a long established principle of law that the court can not reject the prayer for a party from withdrawing from the conduct of the matter since that is the prerogative of the party who filed the matter. However, the issue is whether this court can allow the appellant to withdraw the appeal in the current circumstances. While it is not in dispute that this matter can not proceed before this honourable court I should hastly make two observations. One . the appellant did not file the Amended Petition as per the court order of 12/07/2012 and this by itself m~es the current appeal incompetent before the court as it was filed out of the time set by the court and without leave. In the case of Ivan Mankobrad V. Miroslav Katik and Another HC Civil Case 'No. 321 of 1997 Dar es Salaam Registry (unreported) the court held that court orders are 3 ------------ made with the purpose which is to regulate proceedings. The court went on to say; "They are meant to command parties to act within a time frame fixed by the court. If the parties are to cict in total disregard to those orders then court business will be rendered uncertain; and that will not be good for the efficient administration ofjustice." Needless to say, it has been borne in mind that anything filed out of time ordered by the court and, without lea~e, is to be disregarded. This by itself makes this'matter incompet~nt before the court hence not worth of withdrawing. Turning· to the .second observation the counsel for- the appellant admittedly, stated. that the appeal is not properly before the court but went ahead to pray for·-withdrawal of the appeal. It appears, however that the prayer for withdrawal by the learned counsel for the appellant is with due respect misguided and misconceived as one can not withdrawal an incompetent appeal which is an empty shell not worth of acting upon. In the circumstances and for the reasons advanc~d above the appeal is struck out: Each party to bear its own costs. ,_ 4 It is so ordered. P.F~ KIHWELO JUDGE 31/10/2014 Ruling delivered on 31 st October, 2014 in the presence of Mr. John Owegi for Appellant and Mr. Edward Kenyunko for Respondent. P.F. KIHWELO JUDGE 31/10/2014 5