hassan hiari pagari vs sokoine maitel katemo 2020 tzhclandd 3983 6 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM (Originating from Land Appeal No. 21 of 2016 District Land and Housing Tribunal at Kibaha (Njiwa) MISC. LAND CASE APPLICATION NO. 585 OF 2019 HASSAN HIARI PAGARI............................................... APPLICANT VERSUS SOKOINE MAITEL KATEMO................................... RESPONDENT RULING I. MAIGE, J The application at hand is for extension of time to appeal against the decision of the District Land and Housing Tribunal on appeal. It has however been preferred under section 41 (2) of the Land Dispute Courts Act Cap 216 R. E 2002. The Application is supported by the Affidavit of the Applicant. He has justified the delay on account that he was awaiting for copies of the judgment and decree. On his part, the respondent deposed a counter affidavit to oppose the facts in the affidavit. He denied the alleged ground for the delay. He 1 claimed instead that, the delay was due to the respondent’s negligence. The application was argued by way of written submissions. The applicant filed his written submissions in person. Advocate Domonicus Nkwera filed the same for the Respondent. In his submissions, the Applicant adopted the facts in the Affidavit to form part of his submissions and blamed the first appellate tribunal to be the cause of the delay. He submitted that, while he requested for the copies of the judgment and decree on 15th November 2016, it was not until on 12th June 2018 when he was supplied with the same. Before the institution of the instant application, it is first contended, the applicant initiated a similar application vide Misc. land application No. 363 of 2018. It was however withdrawn with a leave to refile. In his rebuttal submissions, Mr. Nkwera wondered if this Court has been properly moved. The intended appeal being a second appeal, submit the counsel, the proper enabling provision of law was section 38 and not section 42 (2) of the Land Disputes Courts Act as incorrectly cited in the instant application. The counsel places reliance on the authority of the Court of Appeal in Jimmy Lugendo Vs. CRDB Bank Ltd, Civil Application No. 171 /01 of 2017. 2 In his rejoinder submissions, the applicant has an opportunity to address the Court on the legal issue. While he appeared to agree that the cited provision is incorrect, it was his contention that the omission was a minor curable defect. As a matter of law, I am expected to consider the legal issue first. It appears to be simple and straightforward. Parties appear not to be in dispute that the proper enabling provision for extension of time to appeal against a decision of the DLHT on appeal is section 38 of Land Disputes Courts Act Cap 216 R. E 2019 which provides as follows:- 38. -(1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction, may within sixty days after the date of the decision or order, appeal to the High Court: Provided that, the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired. (Emphasis applied) This application has been preferred under section 41 (2) of LCD which is a relevant enabling provision where the intended appeal is the first appeal. In the premise, the respondent and his counsel are quite correct that the application has been brought under a wrong provision of the law. The respondent invites the Court to hold that the omission is curable defect. I cannot agree with him. The position of law on citation of a wrong provision of law is settled. It is an incurable defect which render the application incompetent. For instance, in Hussein 3 Mgonja Vs the Trustees of the Tanzania Episcopal Conference, civil revision no 2 of 2002, the Court said; "If a party cites a wrong provision of the law the matter becomes incompetent as the Court will not have been properly moved" In the light of the stated position of the law above, the application is at hand is incompetently before the Court for being brought under a wrong provision of law. It is accordingly struck out with costs. Order accordingly. Dated at Dar Es Salaam this 06th day of November, 2020 I. Maige JUDGE 06/11/2020 Date: 06/11/2020 Coram: Hon. C. Tengwa - DR For the Applicant ■ Present For the Respondent- Kalunde, Advocate & Nkevela, Advocate for the Respondent RMA: Bukuku COURT: Ruling delivered today in the presence of both parties. C. Tengwa DEPUTY REGISTRAR 06/11/2020 5