20131213 TZCA Dar es Salaam

... ...,;.I' IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: BWANA, J.A., MANDIA J.A., And ORIYO, J.A.) ' . j CIVIL APPEAL NO. 70 OF 2013 HALIMA RAMADHANI KOBA {as Administratrix of the estate of the Late Salum Ramadhan Kavitenda ................. APPELLANT VERSUS SHABAN! RAMADHANI KAVITENDA ........................................ RESPONDENT ' ' {Appeal from the decision of the High Court of Tanzania at Dar es Salaam) {Ngwala, J.) Dated the 23 rd day of July, 2013 in Land Appeal No. 58 of 2010 RULING OF THE COURT 11 th & 19th December, 2013 BWANA, J.A.: The dispute which forms the basis of this appeal is a product of a suit premises originally owned by one Salum Ramadhani Kavitenda, now deceased. The trial court, the District Land and Housing Tribunal of. Kinondoni District, entered judgment in favour of the late Salum Ramadhani Kavitenda. Dissatisfied, the present respondent appealed to the High Court, Land Division. He emerged the winner. ( I Salum Ramadhani Kavitenda, undaunted, filed a Notice of Appeal to this Court, moving it under Rule 45 of the Court of Appeal Rules, 2009 (the Rules). Before he could proceed further with his appeal, he died. His wife, the present appellant, took over as the administratrix of the estate of her late husband. When the appeal came before us, the Court, suo motu, raised two issues namely:- • The alleged Notice of Appeal was lodged under a wrong provision of the Rules - Rule 45, instead of Rule 83 of the Rules. • The appeal was lodged in this Court without first seeking and obtaining leave of the High Court, Land Division, contrary to section 47 (1) of the Courts (Land Disputes Settlements) Act No. 2 of 2002, Cap 216. What then are the consequences of these glaring errors of law? We will consider them now. We start with the first issue. Rule 45 of the Rules applies to applications for leave to appeal in civil matters while Rule 83 governs Notices of Appeal. The former is applicable in applications while 2 the latter applies in appeals in civil matters. The matter before us is a civil appeal. Therefore the Notice of Appeal should have been brought under Rule 83, not Rule 45 of the Rules, a fatal error. The consequence of such an error is that the said motion or notice of appeal is incompetently before the Court. The end result is to have the said matter struck out for being incompetent. The second point is non compliance with the requirements of section 47 (1) of Cap 216. It is provided thereunder as follows:- ·~ 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 1979. "(Emphasis provided). 3 The present matter came before the High Court, Land Division, under its appellate jurisdiction. It is settled that from the above quoted provision, all appeals to the Court of Appeal from decision of the Land Division of the High Court, are by leave of the Land Division of the High Court (See: Dero Investment Ltd. Vs Heykel Berete, Civil Appeal No. 92 of 2004 CAT, unreported). The provisions of section 5 (1) (a) of the Appellate Jurisdiction Act, 1979 (as amended) come into operation only after the party intending to appeal, has first complied with Section 47 (1) of cap. 261. Thereafter, the procedure for such an appeal shall be governed by the Court of Appeal Rules (See: Section 47 (3) of Cap 216). We have perused through the court record and satisfied ourselves that the administratrix herein did not seek and obtain leave of the High Court, Land Division, to appeal to this Court. In our considered view, this was a fatal omission. In view of the fact that leave was not sought and obtained prior to lodging this appeal, the purported appeal is incompetently before us. The best we can therefore say and without deference to the appellant is that she made some visible efforts to reach this stage of her case. However, the two points above, so considered, leave us with only 4 one decision: that since the purported appeal is incompetently before this Court, it should be struck out, as we hereby do. We order no costs. DATED at DAR ES SALAAM, this 13th day of December, 2013. S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ --- E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 5