RULING HONGERA DEREFA POMBE VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MWANZA AT MWANZA LAND APPEAL NO. 23725 OF 2024 (Arising from Land Application No. 195 of 2023 at Mwanza District and Housing Tribunal) HONGERA DEREFA POMBE (Administratrix of the Estate Of the Late Habi Tinika Mabula) ……………………………………………… APPELLANT VERSUS MAYALA POMBE ……….……………….……………….………….……… RESPONDENT RULING 24th & 28th March 2025 E. L. NGIGWANA, J. This is a ruling in respect of a preliminary objection (P.O.) raised by the respondent’s advocate, Mr. Innocent Kisigiro, against the appeal filed by the appellant through her advocate, Mr. Milumbe Juakali Milumbe. The appellant aimed to challenge the decision of the District Land and Housing Tribunal for Mwanza at Mwanza in Land Application No. 195 of 2023, delivered on 10/11/2023. In her petition of appeal, she raised five (5) grounds of appeal, which I see no need to reproduce them here. Upon being served with the petition of appeal, the respondent, through his advocate, filed a reply to the petition of appeal followed by a notice of 1 preliminary objection on the point of law that the appeal is hopelessly time- barred. It is a settled law that once a preliminary objection is raised, it must be determined before the substantive case is heard and determined. See Deonisia Onesmo Muyoga & Others Vs. Emmanuel Jumanne Luhahula (Civil Appeal No. 219 of 2020) [2023] TZCA 124 (20th March 2023) Tanzlii, and Daudi Kulwa Vs. Marco Petro & Others (Civil Appeal No. 220 of 2017) [2018] TZCA 226 (5 October 2018) Tanzlii. The same procedure was observed in this matter, whereas the P.O. was argued viva voce. The respondent had the legal service of Mr. Innocent Kisigiro, learned counsel, while the appellant had the legal service of Mr. Milumbe Juakali Melumbe. Taking the floor, Mr. Innocent Kisigiro submitted that, according to section 41(2) of the Land Disputes Courts Act, [Cap. 216 R.E 2019], any party aggrieved by the decision of the District Land and Housing Tribunal exercising its original jurisdiction has to appeal to the High Court within 45 days from the date of the decision or order He further elaborated that in the matter at hand, the judgment of the District Land and Housing Tribunal for Mwanza was delivered on 10/11/2023, 2 but this appeal was filed electronically on 23/09/2024, and the appellant did so without first seeking and obtaining an extension of time. He added that in that premise, this appeal was filed out of time. He concluded his submission by praying for the dismissal of this appeal with costs. In reply, Mr. Juakali started his submission by conceding that the judgment of the District Land and Housing Tribunal for Mwanza was delivered on 10/11/2023. However, he disagreed with the respondent’s advocate that the appeal was filed out of time. He explained that the Appeal was filed within 45 days, that is to say, on 13/11/2023, but it was filed in the District Land and Housing Tribunal for Mwanza instead of being filed in the High Court. According to him, the same deserves to be struck out. In his rejoinder submission, Mr. Kisingiro explained that this appeal was filed electronically on 23/09/2024 to this court; therefore, it goes without saying that it was filed out of time. He added that the argument that the same was filed in the District Land and Housing Tribunal cannot stand under the circumstances of this case. He reiterated that the matter filed out of time deserves to be struck out. I have keenly examined the appeal documents and considered the rival submission. The issue for determination is whether this appeal is time-barred 3 or not. Section 41(1) and (2) of the Land Disputes Courts Act, [Cap. 216 R.E 2019] provides as follows; “41. -(1) Subject to the provisions of any law for the time being in force, all appeals, revisions, and similar proceedings from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court. (2) An appeal under subsection (1) may be lodged within forty- five days after the date of the decision or order: Provided that, the High Court may, for a good cause, extend the time for filing an appeal either before or after the expiration of such period of forty-five days”. As correctly submitted by Mr. Kisigiro and conceded by Mr. Juakali, the judgment of the District Land and Housing Tribunal for Mwanza in Land Application was delivered on 10/11/2023. In that matter, the DLHT was exercising its original jurisdiction, therefore, an appeal ought to have been filed to this Court within 45 days from the date of the decision from DLHT. I am aware of section 19 (2) of the Law of Limitation Act, [Cap 89 R.E 2019] which requires exclusion of the time requisite for obtaining a copy of the decree or order sought to be appealed. For easy reference, I reproduce the said provision hereunder: - 4 “19. Exclusion of certain periods: (1) In computing the period of limitation for any proceeding, the day from which such period is to be computed shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of Judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be review ed, shall be excluded.” However, submission by the appellant’s advocate was not based on the said provision of law to show that when time for waiting for copies of judgment and decree is excluded from computation, and shows that the present appeal was filed within time. He stressed that it was filed within 45 days, that is to say, on 13/11/2023, but it was filed at the District Land and Housing Tribunal for Mwanza instead of being filed in the High Court. I am also aware of section 38 of the Land Disputes Courts Act, [Cap 216 R.E2019] which regulates appeals of matters originating from Ward Tribunals. The same provides that: - “ 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 5 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. (2) Every appeal to the High Court shall be by way of petition and shall be filed in the District Land and Housing Tribunal from the decision or order of which the appeal is brought. (3) Upon receipt of a petition under this section, the District Land and Housing Tribunal shall, within fourteen days, dispatch the petition together with the record of the proceedings in the Ward Tribunal and the District Land and Housing Tribunal to the High Court.” Again, the matter at hand does not fall within the meaning of the above provision of the law because the matter did not emanate from the decision of the Ward Tribunal. In other words, Application No. 195 of 2023 was not an appeal arising from the decision of the Ward Tribunal. Indeed, I have gone through the judiciary Electronic Case Management System(e-CMS) and found that, as correctly pointed out by Mr. Kisigiro, this appeal was filed on 23/09/2024, hence, the same was time barred. 6 By filing her appeal without considering the time limitation, it is obvious that the appellant had volunteered the risk of having it dismissed under Section 3 (1) of the Law of Limitation Act, [Cap. 89 R.E 2019]. This is because courts have no jurisdiction to determine a matter that is time-barred. This position was articulated in the case of NBC Limited & Another Vs. Bruno Vitus Swalo (Civil Appeal 331 of 2019) [2021] TZCA 122 (20 April 2021) Tanzlii, where the Court held that; “Courts are enjoined not to entertain matters which are time barred. Limitation period has an impact on jurisdiction. Courts lack jurisdiction to entertain matters for which litigation period has expired” See further Monica Alex Vs. Serengeti District Council (Civil Appeal No. 306 of 2021) [2024] TZCA 283 (30 April 2024) Tanzlii; CRDB Bank PLC Vs. Lusekelo Mwakapala (Civil Appeal No. 143 of 2021) [2023] TZCA 17637 (22 September 2023) Tanzlii and; Sarbjit Singh Bharya & Another Vs. Nic Bank Tanzania Ltd & Another (Civil Appeal 94 of 2017) [2021] TZCA 212 (25 May 2021) Tanzlii. In the event, I uphold the P.O. raised by counsel for the respondent. The appellant's appeal deserves to be dismissed as I hereby do in terms of 7 Section 3 (1) of the Law of Limitation Act, [Cap. 89 R.E. 2019]. The costs of this appeal shall be borne by the appellant. It is so ordered. DATED at MWANZA this 28th day of March, 2025. E. L. NGIGWANA JUDGE 8 Delivered this 28th day of March, 2025 in the presence of Mr. Milumbe Juakali Milumbe, advocate for the appellant, respondent in person and his advocate Mr. Innocent Kisigiro and Ms. Jackline Samwel B/C. E. L. NGIGWANA JUDGE. 9