inocensia isdory ngajuma vs mathias williamu daraja 2021 tzhclandd 523 31 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND APPEAL NO. 138 OF 2020 INOSENSIA ISDORY NGAJUMA ...................................... APPELLANT VERSUS MATHIASI WILLIAMU DA RAJA ..................................... RESPONDENT (Arising from the decision of The District Land and Housing Tribunal for Ulanga in Appeal No. 03 of 2020, originated from the Decision of Mtimbira Ward Tribunal in Land Case No. 141 of 2019) RULING T.N. MWENEGQHA, J.: The appeal traces its origin from a land action that was filed by the appellant against the respondent at the trial Ward Tribunal of Mtimbira, Mahenge via Land Case No.141 of 2019. The essence of the claim was that, the applicant claimed he was the lawful owner of the two disputed land which has been trespassed by the respondent without her Consent, the Ward Tribunal favoured the respondent. She later appealed to the District Land and Housing Tribunal for Ulanga in Land Appeal No. 03 of 2020. The District Tribunal was against the appellant expectations, the respondent was declared to be a lawful owner for possessing a good tittle for being allocated the suit property on year 2001 by the Madibira Village government earlier than the appellant. Now the appellant approached this Court as her second appeal so as to overturn the decisions of Ward and District Tribunal by filing six grounds of appeal on the petition of appeal. In response to petition of 11 P a g e Appeal, the respondent raised a point of preliminary objection that the Appeal is time barred. The merit of the legal point of preliminary objection raised was argued by way of written submissions. Mr. Albert Mulokozi Mukoyogo, learned advocate, presented the submissions for the respondent whereas the applicant drew and file reply to preliminary objection in person. I thank both parties for their very instructive submissions. They have been given due consideration in this Ruling. In his submission in support of the preliminary objection raised, Mr. Mukoyogo stated, that, the current appeal is time barred as it was required to be filed on 25th July 2020 the date marked the end of 60 days according to the law, if the appellant had intention to file it against the Judgement and Decree of the District Tribunal and that is according to Section 38 (1) of the Land Disputes Courts Act Cap. 216 R.E 2019 and was his further submissions that since 25th July was Saturday the applicant could have filed the same on 24th July 2020 or 27th July 2020. Unfortunately he did not do so and he was out of time to file the current appeal without filing Application of Extension of time. He cited the case of Isamito Plaza Co, Another Vs. Mwajuma Mussa Land Appeal No. 30 of2019 High court of Tanzania at Mwanza. In reply the applicant submitted that, the respondent Counsel is misleading the Court since the matter was filed at the District Tribunal within 31 days before the expiration of 60 days in the sense that the decision was extracted of 15th day of October 2020 and the matter was admitted by District Chairman on 16/11/2020. Even so the delay was caused by the Court for failure to extract the Judgment I decree within time. 2 | Page In Rejoinder the respondents Counsel insisted that, time on appeal start to count after the pronunciation of the Judgment and not otherwise. I have considered the rival submissions and reviewed the law and ~the cited authorities in line with the affidavit and counter affidavit. I am in agreement with the counsel for the respondent that, the intended appeal being a second appeal it fall within the requirement of section 38 (1) of the Land Disputes Courts Act, Cap. 216 R.E 2019 and it goes without saying the exclusion of the period within which the applicants were waiting for a copy of judgment is not a defence. "38-VX2 Any party who is aggrieved by a decision or order ofthe District Landand Housing Tribunal in the exercise of its appellate or revisiona! 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." In this matter, the provision of section 38(1) of the LDCA (supra) upon which the intended appeal Is preferred, does not impose such a requirement. Therefore I borrowed wisdom of my fellow Judge on what he said In the Case of Msafiri Idd Diiunaa vs. Mariam Idd Diiunqa and Others. Land Appeal No. 38, (High Court, Land Division- unreported) it was held that, the automatic exclusion of the days in which the Appellant was awaiting for a copy of a judgment in counting the period of limitation is only available where a copy of judgment is a mandatory requirement in the respective appeal. Section 38 (1) supra doesn't impose j I rage the mandatory requirement for a petition of appeal to be accompanied by the certified copy of the Judgement and decree. In the instant matter the Judgement of the District Tribunal subject to this appeal was delivered on 27th day of May 2020 and the petition of appeal was filed before District Tribunal by the appellant on 16th day of November 2020 almost about (120 days) four months lapsed before the present appeal came to existence, therefore the sixty (60) days has already expired without any justification. I agree with the respondent that extraction dates cannot be relied for appeals but for extension of times. It goes without saying that truly this appeal is time bared for being brought after the expiration of 60 days from the date of the delivery of the Judgement by the District Tribunal in Appeal No. 03 of 2020. In upshot the present appeal is devoid for being brought out of time, the Court is hereby dismissing it accordingly. It is so ordered. DATED at DAR ES SALAAM this 31st day of August, 2021. 4| Page