20161216 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA ATDODOMA LAND APPEAL NO. 68 OF 2015 (From the decision of the District Land and Housing Tribunal of • Dodoma District at Dodoma in Land Case No. 39 of 2015) 1.GERALD KIMARO 1st APPELLANT 2. MARCO JOB 2nd APPELLANT VERSUS SELEMANI MATEKE RESPONDENT RULING 17/11/2016&16/12/2016 SEHEL,J. This is a ruling in respect of a preliminary objection raised by Mr. Wasonga, learned advocate for the respondent against an appeal lodged by the appellants. The objection raised is in respect of time limitation. At the hearing of the preliminary objection, Mr. Wasonga, learned advocate appeared to represent the respondent while the appellants had the services of Mr. Kusekwa, learned advocate. Mr. Wasonga submitted that the decision of the District Land and Housing Tribunal for Dodoma was delivered on 29th September, 2015 and the appeal was lodged on 14th day of December, 2015 after the expiration of 45 days. He said since item 2 of Part II of the 1 Law of Limitation Act, Cap. 89 provides for 45 days then the filing of the appeal after the expiration of the period prescribed makes the appeal out of time. He therefore prayed for the appeal to be strike out with costs. In reply, Mr. Kusekwa submitted that the appeal was lodged in time. He conceded that the memorandum of appeal was filed before this Court on 14th December, 2015 but he said the copy of judgment was supplied to them on 3rd November, 2015. He argued that in terms of Section 19 of the Law of Limitation Act, Cap. 89 excludes the period of securing the copy of judgment. He further submitted that in terms of Order XXXIX Rule 1 (1) of the Civil Procedure Act, Cap. 33 it is a mandatory requirement that a copy of the decree has to be attached to the memorandum of appeal. Therefore they were waiting to be supplied with the copy before filing it. Mr. Wasonga simply re-joined by submitting that the Civil Procedure Act, Cap. 33 is not applicable to the present appeal as there is specific law which is the Land Disputes Courts Act, Cap. 21 6. 2 Let me start with an argument that the Civil Procedure Act is not applicable. I do not subscribe to such an argument since Section 51(2) of the Land Disputes Courts Act, Cap. 216 is patently clear that where there is inadequacy then the Civil Procedure Act is applicable. The Land Disputes Courts Act, Cap. 216 does not prescribe the method of lodging an appeal to the High Court as such Order XXXIX Rule 1 (1) of the Civil Procedure Act, Cap. 33 has to be invoked. I now revert back to the central issue, that is, whether the appeal is within time in terms of Section 3 (1) read together with item 2 of Part II of the Law of Limitation Act, 89. The provisions provide for a limitation period of forty five days. I have keenly gone through the Court records and noted that the appeal was lodged on 14th day of December, 2015 as per the exchequer receipt. The decision of the District Land and Housing Tribunal for Dodoma was delivered on 29th day of September, 2015. As correctly submitted by Mr. Kusekwa, it is necessary for the appellants to obtain a copy of decree so that they can attach if to their memorandum of appeal as provided for under 3 be Order XXXIX Rule 1 (1) of the Civil Procedure Act, Cap. 33. In computing the period of limitation for appeal, the time requisite for obtaining a copy of the judgment and decree appealed from and the day on which the judgment was delivered, shall be excluded (See section 19 of the Law of Limitation Act, Cap. 89). Counting from 4th day of November, 2015, a day after the date when the copy of judgment was secured to 14th day of December, 2015 when the appeal was lodged, only forty one days have lapsed. This means that the appeal was lodged within the forty five days period as such the appeal is in time. The present objection therefore has no merit. Accordingly, the preliminary objection is overruled. Costs shall depend on the outcome of the appeal. DATED at Dodoma this 16th day of December, 2016. B.M.A Sehel JUDGE 4 Ruling delivered in open court at Dodoma under my hand and seal of the court, this 16th day of December, 2016 in the presence of the appellants and respondent. Sehel JUDGE 16th December, 2016 5