20060420 TZCA Dar es Salaam2

(,,,,. . , l '~ t~ IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 178 OF 2005 FATMA ALI SALIM DHIYEBI .......................... APPLICANT VERSUS HAN IF ENTERPRISES LIMITED ................. RESPONDENT (Application for striking out Notice of Appeal from the decision of the High Court of Tanzania Land Division, at Dar es Salaam) . (Kileo, J.) dated the 16th day of September, 2005 in Land Case No. 99 of 2004 3 & 20 April 2006 RULING MUNUO, J.A.: The applicant, Fatuma Ali Salim Dhiyebi, through the services of Dr. Twalib, learned advocate, filed a Notice of Motion under Rule 45 and 82 of the Tanzania Court of Appeal Rules, 1979, Cap 141 of the Tanzania Revised Laws, 2002 seeking to strike out a Notice of Appeal filed by the respondent, Hanif Enterprises Limited, on the ground that the said respondent has not applied for leave to appeal in the High Curt and time to apply for such leave and file the 2 intended appeal has lapsed rendering the intended appeal incompetent. Mr. Mfalila, learned advocate for the respondent, conceded that the respondent has not applied for leave to appeal to this Court. He contended, however, that since Section 47 (1) of the Land Disputes Courts Act, Cap 216 of the Revised Laws, 2002 require appeals from the Land Division of the High Court to this Court to be in accordance with the provisions of the Appellate Jurisdiction Act, 1979, and because the present appeal arises from a decision of the Lan9 Division in exercise of its original jurisdiction, the intended appeal falls under the provisions of Section 5 (1) of the Appellate Jurisdiction Act, 1979 so it requires no leave for appeal. This, counsel for the respondent further observed, must be so because appeals from decisions of the High Court including the Commercial Division of the High Court in exercise of original jurisdiction, require no leave to appeal to this Court. There is no basis for treating appeals from the Land Division of the High Court differently, counsel for the respondent urged. Counsel for the applicant, on the other hand, maintained that Parliament in its wisdom enacted different rules of ., .. 3 procedure for appeals from the Land Division of the High Court, making leave of the said High Court, mandatory under the provisions of Section 47 (1) of the Land Disputes Courts Act, Cap 216 which is why the respondent had to apply for leave to appeal. Failure to apply for leave to appeal, counsel for the applicant argued, renders the intended appeal incompetent so it should be struck out under Rule 82 of the Court Rules for failing to take an essential step. A similar issue arose in the case of Dero Investment Limited versus Heykel Berete, Civil Appeal No. 92 of 2004 (CA) (Unreported) in a preliminary objection. In the said case, the Court considered the provisions of Section 47 (1) of the Land Disputes Courts Act, Cap 216 which state, inter a/ia. 47. (1) Any person who is aggrieved by the decision of the High Court (Land Division) in the exercise of its original revisional or appellate jurisdiction, may with leave from the High Court (Land Division) appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. 4 The Court considered the above provision and observed: It is apparent from this provision that all appeals to the Court of Appeal from decisions of the Land Division of the High Court are by leave of the Land Division of the High Court. As submitted by both· counsel, this is a marked departure from what is provided in Section 5 (1) (a) of the Appellate Jurisdiction Act, 1979 as regards civil proceedings:- 5 (1) In civil proceedings, except where any other written law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal - (a) against every decree, including an ex parte or preliminary decree made by the High Court in a suit under the Civil Procedure Code, 1966, in the exercise of its original jurisdiction; The Court further observed: It is clear, therefore, that unless any other written law for the time being in force 5 provides to the contrary, a decision of the High Court is its original jurisdiction and under the Civil Procedure Code, 1966 is appellable to the Court of Appeal as of right. The Court continued: Our reading of Section 47 (1) of the Act gives us a firm conviction that Parliament, curiously, intended every word of that provision. In other words it intended the departure from the provisions of Section 5 (1) (a), of the Appellate Jurisdiction Act, 1979 ................. . It may well be that in restricting appeals to the Court of Appeal from decisions of the High Court (Land Division) in its original jurisdiction Parliament was curtailing the constitutional rights of the litigants. If it is thought so however, an aggrieved party or parties may wish to argue it before the High Court in a constitutional case .................. .. From the above, it is clear that the legislature enacted Section 47 (1) of the Land Disputes Courts Act, Cap 216 requiring that leave be obtained in appeals from the Land Division of the High Court to the 6 Court of Appeal. That remains the I aw until the legislature repeals the said provision. Under the circumstances, the application has merit. The Notice of Appeal is accordingly struck out under Rule 82 of the Tanzania Court of Appeal Rules, 1979. Costs to the applicant. DATED at DAR ES SALAAM this 20 th day of April, 2006. E.N.MUNUO JUSTICE OF APPEAL I certify that this is a true copy of the original. ) R