gregory tasiano oscar vs domitira kachira 2006 tzhc 113 10 march 2006

IN THE HIGH COURT OF THE UNITED REPUBLIC TANZANIA IN THE SUB REGISTRY OF KIGOMA AT KIGOMA MISC. LAND APPEAL NO.46 OF 2022 (ARISING FROM THE DECISION OF THE DLHT IN LAND APPEAL NO110 OF 2020 AND ORIGINATING FROM MABAMBA WARD TRIBUNAL LAND DISPUTE NO.4 OF 2020) GREGORY TASIANO OSCAR................................. APPELLANT VERSUS DOMITIRA KACHIRA........................................ RESPONDENT Date of Last Order: 08/02/2023 Date of Judgement: 10/03/2023 JUDGEMENT MAGOIGA, J. The appellant, GREGORY TASIANO OSCAR aggrieved by the decision of the District Land and Housing Tribunal of Kigoma in its appellate jurisdiction has preferred this second appeal against the abovenamed respondent. The facts as depicted from the record of appeal in the Mabamba Ward Tribunal are that, the appellant successfully sued the respondent for piece of land and eviction from the house that was constructed in 1966 by his late father and was matrimonial house of the respondent in which she has been living in her entire life. Aggrieved by the Ward Tribunal decision, the respondent successfully appealed to the District Land and Housing Tribunal which declared the respondent lawful owner of the disputed land , i by adverse possession and overturned the decision of the trial Ward Tribunal, hence, this appeal, challenging the decision of the first appellate Tribunal. When this appeal was called on for hearing the appellant appeared in person and unrepresented, while the respondent appeared in person and was represented by Ms. Victoria Nyembea, learned advocate. Both were ready for oral hearing of the appeal. However, Ms. Nyambea informed the court that the instant appeal was hopelessly filed out of time and without court's leave to do so. I directed that the substantive appeal to proceed with hearing by the appellant starting and reply by the respondent's advocate start with preliminary objection, and then, reply to the substantive appeal and rejoinder will follow suit in the like manner. In determining this appeal I will start with the preliminary objection which if succeed will put the matter to rest and if it survives will proceed to determine the merits or otherwise of the grounds of appeal. Ms. Nyambea arguing the preliminary objection told the Court that, an appeal to this court to a landed suit which originates from the Ward Tribunal has to be filed within 60 days from the date of the decision to be appealed against as amply provided for under 4 2 section 38(1) of the Land Courts Disputes Act, [Cap 216 R.E.2019]. According to the learned advocate for the respondent, the impugned decision subject of this appeal was delivered on 08/02/2022 but the said appeal was filed on 12/04/2022 hopelessly out of time by four days. Much as the appellant did not seek and obtain an extension of time to file the said apneal, the learned advocate insisted and humbly urged this court to dismiss this appeal with costs. The appellant was not moved with the submissions by learned advocate for respondent and in reply to the preliminary objection told the court that he presented the petition of appeal on 08/04/2022 and the same was stamped but because the Tribunal officials were not present, he could not pay for it until on 12/04/2022 when someone (not mentioned) came to pay for the same. According to the appellant, much as he presented the petition of appeal in time but failed to pay for the same on that day because the Tribunal officials were not around, then, he concluded and forcefully argued that his appeal was filed in time. He therefore, prayed that this court dismiss the preliminary objection and proceed with determining the merits of the appeal. In rejoinder on the preliminary objection, the learned advocate for the respondent reiterated her earlier on submissions and insisted that the appeal was filed out of time and deserves to be dismissed. This marked the end of hearing of the preliminary objection, and now, the noble task of this court is to determine the merits or otherwise of the preliminary objection. However, before going into the same and after hearing parties rivaling arguments, I noted some facts not in dispute which will assist me in disposing this point. These are; One, there is no dispute that the impugned decision subject of this appeal was delivered on 08/02/2022 in the presence of the appellant and the advocate for the respondent. Two, there is equally no dispute that the appeal from the District Land and Housing Tribunal in exercise of its appellate or revision jurisdiction to the High Court is to be filed mandatorily within sixty days from the date of the decision. This is as per wording of section 38(1) of the Land Courts Disputes Act, [Cap 216 R.E.2019]. The said section provides as follows: Section 38(1)- Any party who is aggrieved by the decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisionai jurisdiction, may 4 within sixty days after the date of the decision or order, appeal to the High Court. Three, there is no dispute as well that the payment for the filing of petition of appeal was done on 12/04/2022. However, what is in serious dispute is whether in the circumstances, the appeal is in time or out of time. I have carefully considered the rivaling arguments of the parties and revisited the petition of appeal filed in this court and I am of the firm considered opinion that the preliminary objection is merited and the instant appeal was filed out of time. I will explain. One, as rightly argued by Ms. Nyambea advocate going by the petition itself which speaks of itself it was presented for filing on 12/04/2022 and not on 08/04/2022 and it is the very day that it bears Tribunal's stamp as opposed to what was submitted by the appellant. Two, the arguments by the appellant that the Tribunal officials were not present is bare argument not supported by no proof and are rejected on their face value. Further scrutiny of the petition shows that what was done on 08/04/2022 was signed by the appellant and not filed nor presented for filing. Three, A mere presentation of the documents without paying for them, amounts to no filing unless and until paid for. In this appeal, payment for 5 the petition of appeal, no doubt was done on 12/04/2022, hence, making the instant appeal out of time. Four, I have gone further to see the receipt subject of the payment was printed on 11.04.2022 when he got the control number which date was already out of statutory time for filing of the petition of appeal. In the totality of the above reasons, I find the preliminary objection raised and argued merited and consequently dismiss this appeal with costs for being filed out of time without leave of the Court. The above findings suffice to rest this matter and no need to go to the merits of the appeal. It is so ordered. Dated at Kigoma this 10th day of March, 2023. S. M.MAGOIGA JUDGE 10/03/2023 6