ibrahim rehani vs director iringa municipal council 2014 tzhc 2311 16 october 2014

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT IRINGA LAND APPEAL NO. 12 OF 2014 IBRAHIM REHANI .................... ............ APPLICANT VERSUS THE DIRECTOR IRINGA MUNICIPAL C O U N C IL ................................ RESPONDENT 13/10/2014 & 16/10/2014 RULING KIHWELO, J . The Appellant herein above has filed an Amended Memorandum of Appeal seeking to challenge the decision of the District Land and Housing Tribunal Hon. Rugarabamu dated the 10th February, 2009. Mr. Onesmo Francis, learned Counsel appeared for the appellant and Mr. Charles Lawisso solicitor appeared for the respondent. l i When this matter came for hearing of the purpoted appeal this court expressed concern that the purpoted Memorandum of Appeal although were in the court file they were neither signed by the counsel for the appellant nor the Registry Officer as such this court ordered that in order to do justice the counsel for the appellant should take the appropriate steps so that this matter could proceed for hearing hence the matter was adjourned. Unfortunately, when this matter came for hearing in the subsequent date the counsel for the appellant did not appear to have taken any appropriate steps to ensure that this matter comes for hearing of the purpoted appeal. In the contrary the counsel for the appellant sought to move this court to struck out the Amended Chamber Summons which to my view was the basis of the Amended Appeal before this court. The counsel for the appellant further tried to put up a spirited argument that they were issued with summons for Land Case Appeal No. 12 of 2014 instead of Land Case Appeal No. 3 of 2009. The counsel for the appellant therefore prayed for more time to enable them rectify the problems with the Amended Memorandum of Appeal. In rebuttal the counsel for the respondent stated that the applicant had earlier on following the order of this court dated the 13th October, 2014 attempted to serve them with the Petition of Appeal which unfortunately was earlier on stuck out by Nchimbi J. on 9th October, 2009 on account of being incompetent. The counsel for the respondent, argued further that since the appellant was obliged to file the proper appeal and did not do so within the time given by the court the appeal should be dismissed with costs. Having carefully perused the records of the court and after thorough scrutiny of the oral submissions by both the counsel for the appellant and the counsel for the respondent I have no hesitation to state that there seems to be some mix up of records between Land Appeal No. 12 of 2014, which appears in the summons that were served to parties and Land Appeal No. 3 of 2009 which is the purported Amended Memorandum of Appeal subject of this hearing. However, it goes without saying that the appellant was laxity enough not to pursue his appeal with the requisite vigour and seriousness it deserved that is why he lodged the Memorandum of Appeal since May, 2010 without even signing and there is no record of proper filing. Worse still the appellant did not heed to the court order obliging him to file the proper appeal so that the matter could be determined timely and on merits. The mandatory requirement to comply to court orders have been stated by this court in numerous occasions. One of these is in the case of Ivan Mankobrad Versus Miroslav Katik and Another- HC Civil Case No. 321 of 1997 Dar es Salaam District Registry (unreported) where it was held that court order are made with purpose which is to regulate proceedings. The court in this case of Ivan stated in part:- “— They are meant to command parties to act within a time fram e fixed by the court. I f the parties are to act in total disregard to those orders then court business will be rendered uncertain; and that will not be good fo r the efficient administration o f justice — * Needless to say, the appellant has failed to obey to the command of the court and therefore defeat the smooth administration of justice which this court can not tolerate by any stretch of imagination. The counsel for the respondent has prayed for this court to dismiss this appeal with costs and this takes me to another observation worthy mentioning at this juncture the difference and effect of “striking o u f and ''Dismissing.’’ A cursory perusal of the records in this appeal clearly reveals that in essence the purported Memorandum of Appeal despite the notable defects mentioned above is an empty shell not worth of 4 consideration. This assertion is supported by the chronology of events explained below. On 9th October, 2009 my learned brother Nchimbi while striking out Land Case Appeal No. 3 of 2009 had the following to say in part:- “In the final analysis since, the appeal is incompetent before the court, it is hereby ordered struck out with c o s ts ” Subsequent to this the appellant moved the court in Misc. Land Application No. 9 of 2009 seeking to restore and amend Memorandum of Appeal in Land Case Appeal No. 3 of 2009 to which my late brother Uzia J. had the following to say in part:- “I therefore restore the appeal. The appellant is hereby ordered to file a proper appeal within 21 days from the date o f this ruling.” In the circumstances above and based upon a string of authorities such as Ngoni Matengo Co-operative Marketing Union Ltd Versus Alimahomed Osman [1959] 1 EA 577^Harman Singh Bhogal Versus Jadwa Karsan (1953) 20 E.A.C.A 17 as well as the recent Court of Appeal Decision in Emmanuel Luoga Versus The Republic, Criminal Appeal No 281 of 2013 where a clear distinction between the phrases “striking o u f and “dismissing” is made there can not be an amended appeal before this court sincc 5 i © the earlier appeal was struck out by Nchimbi J. and therefore what is before this court is abortive and not a properly constituted appeal. It is worth to note that whereas the remedy for an appeal which is struck out is to re-file a fresh appeal the remedy for an appeal which is Dismissed is restoration. Since this present appeal emenates from a restored non existing appeal I strongly feel that my hands are tied up to consider a non existing appeal in the first place even if the first limb of the failure to comply to the court order was not an issue. In conclusion, for the reasons discussed above, I proceed to ;i 1- r. JUDGE 16/10/2014