Ezekiel Hema Mjie vs Ibrahim Hema Mjie

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF DODOMA AT DODOMA LAND APPEAL NO. 58 OF 2023 (Originating from the decision of the District Land and Housing Tribunal for Singida in Land Application No. 68 of 2017) EZEKIEL HEMA MJIE (Administrator of the estate of the late HEMA MJIE)............................................................................. APPELLANT VERSUS IBRAHIM HEMA MJIE 1st RESPONDENT SOMBI GODA SOMBI 2nd RESPONDENT ROSE VICENT KAZURI 3rd RESPONDENT VODACOM TANZANIA LTD 4th RESPONDENT HTT INFRANCO LTD 5th RESPONDENT RULING Date of last Order: 2/7/2024 Date of the Ruling: 30/7/2024 KHALFAN, J. Before the district land and housing tribunal for Singida (hereinafter referred to as the trial tribunal), the appellant sued the respondents for recovery of a piece of land measuring about 34 meters to 24 meters length and width respectively situated at Unyianga village, Singida municipality, Singida region (hereinafter referred to as the suit land). According to the appellant, the suit land was previously owned by the late Hema Mjie and the 1st and 2nd respondents illegally sold the same to the 3rd respondent who later sold or leased the same to the 4th respondent. The respondents disputed the appellant's claim. After hearing the parties, the trial tribunal dismissed the appellant's application for lack of merits and proceeded to declare the 3rd respondent as lawful owner of the suit land. The appellant was aggrieved by the trial tribunal's decision hence he preferred the instant appeal with five grounds of appeal which I will not reproduce them here for the reason that will be apparent shortly. It is on record that when the appeal was called for hearing, the court suo motu raised a legal point whether the appeal was filed in time. Thus, it invited the parties to address it on the point raised. The parties opted to file written submission in response to the point raised. In their submission, the respondents argued that the instant appeal was filed beyond the prescribed period of 45 days stipulated under section 41 of the Land Disputes Courts [CAP 216 R.E 2019], (hereinafter referred to as the LDCA). According to the respondents, the impugned decision was delivered on 20/3/2023 while the instant appeal was filed in court on 10/5/2023 after lapse of 52 days without seeking an extension of time. The respondents referred to the case of Nicodemus Lusambo (the administrator of the estate of the late Julius Lusambo vs. Gerada Zacharia (the administrator of the estate of the late Zakaria Lusambo Civil Appeal No. 486 of 2022, the Court of Appeal of Tanzania at Kigoma (unreported). The respondents therefore urged the court to dismiss the appeal for being filed out of time. Responding to the above issue, the appellant argued that the impugned decision was delivered on 20/3/2023 but the decree shows that it was prepared on 27/3/2023. He argued that counting from the date the judgment was delivered to the date the appeal was filed that is 10/5/2023, the appeal would be definitely time barred. He argued that section 19 (2) of the Law of Limitation [CAP 89 R.E 2019], (hereinafter referred to as the LLA) excludes the days which were used to obtain copies of judgment and decree. He submitted further that in terms of Order XXXIX Rule 1 of the Civil Procedure Code [CAP 33 R.E 2019], (hereinafter referred to as the 3 CPC), an appeal must be accompanied by a copy of the impugned judgment and decree. The appellant submitted that the exclusion of time envisaged by section 19(2) and (3) is automatic and no extension of time is required. To buttress his argument the appellant referred the case of Alex Senkoro and 3 others vs. Eliambuya Lyimo (as administrator of the estate of Frederick Lyimo deceased) Civil Appeal No. 16 of 2017 and Bukoba Municipal Council vs. New Metro Merchandise Civil Appeal No. 374 of 2021 (both unreported). The appellant therefore argued that the appeal was not time barred and it was filed within 45 days. Having gone through the parties' arguments, it is not in dispute that the impugned decision was delivered on 20/3/2023. In terms of section 41(1) of the LDCA, an appeal from the decision of the district land and housing tribunal in the exercise of its original jurisdiction has to be filed within 45 days. Hence, counting from the date the impugned decision was delivered, an appeal to this court should have been filed on or before 4/5/2023. Therefore, by filing the appeal on 10/5/2023, the same was filed beyond 45 days prescribed by the law. I have considered the appellant's arguments that the time within which he was waiting for the copies of judgment, decree and proceedings, is excluded in terms of section 19(2) of the LLA. For purposes of clarity the said provision reads: 19(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review ofjudgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded. It follows therefore that the period for obtaining the copy of the judgment, decree or order appealed against is excluded. The provision of section 19(2) has been interpreted in several decisions that such exclusion is automatic without seeking extension of time but subject to several conditions. Hence while I agree with the appellant's submission in view of the authorities he has referred to, the exclusion 5 of time is automatic without seeking an extension of time but there are conditions to be met. For instance, in the case of Valerie McGivern vs. Salim Farkrudin Balal Civil Appeal No. 386 of 2019, the Court of Appeal of Tanzania at Tanga (unreported), on page 11 observed that: '"Suffice to say, section 19(2) of LLA and the holding in the decision cited above reinforce the principle that computation of the period of limitation prescribed for an appeal, is reckoned from the day on which the impugned judgment is pronounced the appellant obtains a copy of the decree or order appealed by excluding the time spent in obtaining such decree or order. However, it must be understood that section 19(2) of LLA can only apply if the intended appellant made a written request for the supply of the requisite copies for the purpose of an appeal." [Emphasis added]. Also, in the case of Alex Senkoro and 3 others vs. Eliambuka Lyimo (as administrator of the estate of Fredrick Lyimo deceased) (supra) cited by the appellant, the Court of Appeal illustrated that: "We need to stress what we stated in the above case that the exclusion is automatic as long as there is proof on the record of the dates of the critical events for the reckoning of the prescribed limitation period. For the purpose of section 19 (2) and (3) of LLA these dates are the date of the impugned decision, the date on which a copy of the decree or judgment was requested and the date of the supply of the requested document" [Emphasis added]. Guided by the above authorities, the appellant would have a benefit of exclusion of time in terms of section 19(2) of the LLA upon showing and supplying a proof as to when he requested the copy of the impugned decision and decree and when the same were supplied to him. Going by the arguments of the appellant, he just pointed out that the decree was prepared on 27/3/2023 and it was the date on which he collected the said copy. 7 However, he did not state to the court if he had ever requested the said copy and supplied a written request to the effect as proof. Since he neither told the court as to when he requested for the said copy nor supplied a letter requesting for the same, he cannot benefit from the automatic exclusion of time under section 19(2) of the LLA. Consequently, the appellant's appeal is time barred and it is accordingly struck out. In the circumstances, since the point was raised by the court suo motu, I will not make an order as to the costs. It is so ordered. Dated at Dodoma this 30th July 2024. JUDGE 30/7/2024 8