Josephat Ludago vs

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA LAND DIVISION AT IRINGA LAND APPEAL NO. 32 OF 2023 JOSEPHAT LUDAGO .................. APPELLANT VERSUS EVARISTO M WIPOPO (As Administrator of the Estate Of the Late SADIKI KIHALANGA) ...... RESPONDENT (Appeal from the decision of the District Land and Housing Tribunal for Iringa) (Hon, A. J. Maienqo (Chairperson)) Dated the 19th day of January 2022 in Land Appiication No. 96 of 2Q18. JUDGMENT 05/11/2024 & 02/12/2024. S.M, KALUNDE, J.: This ruling resolves two preliminary objections raised by the responding concerning the appeal filed by the appellant. The points of law raised by the learned counsel for the respondent are that; one, the appeal is misconceived and overtaken by events; and two, that the appeal violate the provisions of Order XXXIX Rule 1(1) and (.2) of the Civil Procedure Code [Cap. 33 R.E. 2019]. The background to the matter is that in 2018, in his capacity as the administrator of the estate of the late Sadiki Kihalanga, the respondent filed Land Application No. 96 of 2018 against the appellant. The suit was lodged before the District Land and Housing Tribunal for Iringa (Henceforth "the trial tribunal"). The suit at the trial tribunal concerned a piece of land located at Kinyanambo, Kinyanambo Ward, Mafinga in Mufindi District, Iringa Region (Henceforth "the suit property"). At the trial tribunal, the appellant sought for a declaratory order that the suit property is the property of the late Sadiki Kihalanga and therefore under his administration. In response, the appellant filed a written statement of defense resisting the application. He alleged that the suit property was the property of Francis Ludago having been allocated by the village Land Committee in 1974 during "Operesheni Sogeza". He contended that the land remained in his family until around 2003 when Francis Ludago passed away. Thereafter, he was appointed an administrator of the estate of the late Francis Ludago. After full trial, the trial tribunal was satisfied that the suit property was the property of the late Sadiki Kihalanga and therefore within the administration of the respondent. The decision of the trial tribunal was delivered on the 19th day of January 2022. Aggrieved by the decision of the trial tribunal, on the 21st day of March 2022, the appellant lodged to this court, Land Appeal No. 09 of 2022. Before commencement of hearing, the competence of the appeal was questioned. Subsequently, on the 21st day of September 2022, the appeal was struck out for being filed by an incompetent person. Being out of time, and still eager to prosecute the appeal, on the 05th day of October 2022, the appellant filed to this court Miscellaneous Land Application No. 30 of 2022 requesting for extension of time to lodge the appeal out of time. On the 31st day of July 2023, this court granted the appellant 21 days to lodge the present appeal. According to the records, the present appeal was lodged on the 27th day of August 2023. Upon being served with the memorandum of appeal, the respondent filed a notice of preliminary objection on points of law that the appeal is overtaken by events and that the appeal has been filed 2 in violation of Order XXXIX Rule 1(1) arid (2) of the Civil Procedure Code. As practice requires, the court directed the preliminary objections to be disposed of before proceeding to the case's merits. At the hearing, the parties agreed to argue the preliminary objections in writing. Mr. Shaba Mtung'e, learned advocate, prepared, and filed submissions of the respondent while Ms. Prisca Mussa Mtanga learned advocate drew and lodged submissions of the appellant. In respect of the first point, Mr. Mtung'e submitted that the present appeal was misconceived On three fronts; one, that the appeal was filed out of time in contravention of the orders of this court dated 31st day of July 2023. The learned counsel argued that the ruling in Miscellaneous Land Application No. 30 of 2022 granted the appellant 21 days calculated from the 31st day of July 2023, when this court delivered its ruling. According to him, the 21 days expired on the 21st day of August 2023. He argued further that, in accordance with the Judiciary of Tanzania Electronic Case Management System (JoT-eCMS), the present appeal was lodged on the 27th day of August 2023, outside the prescribed time and without orders of the court. Two, the learned counsel argued further that the appellant has wrongly appealed against the respondent who has since ceased to be an administrator having surrendered the letters of administration. Three, that the decision of the trial tribunal in Land Application NO. 96 of 2018 was executed on the 12th day of July 2023, through Execution Application No. 07 of 2022. The learned counsel contended that upon closure of execution proceedings, the matter was closed and cannot be reopened. To support this, he cited the case of Juto Ally vs Lukas Komba & Another (Civil Appeal 84 of 2017) [20201 TZCA 1829 (2 November 2020) TanzLII and Felix Emmanuel 3 Mkongwa vs Andrew Kimwaga (Civil Application No. 249 of 2016) [20201 TZCA 333 (9 June 2020) TanZLII. In respect of the second limb, Mr. Mtung'e argued that the present appeal violated the provisions of Order XXXIX Rule 1(1) and (2) of the Civil Procedure Code which requires that: an appeal be accompanied by a decree. The [earned counsel argued that failure to attach the decree sought to be challenged rendered the appeal incompetent. Having said that, the learned counsel prayed that the appeal be struck out. Replying to the first preliminary objection, Ms. Mtanga argued that the present appeal was lodged on the 16th day of August 2023 and not on the 27th day of August 2023 as argued by the learned counsel for the respondent. The learned counsel implored that the appeal was lodged within the time ordered by the court. Turning to the status of execution of the case. Ms. Mtanga argued that by the time the appeal was filed the matter had not been closed. She added that through Application No. 100 of 2023 lodged at the trial tribunal, the appellant applied for and was granted an order for stay of execution. She thus contended that Land Application No. 96 of 2018 has not been executed or closed. Regarding the second limb of the objection, Ms. Mtanga conceded that the present appeal was lodged without a decree contrary to the dictates of Order XXXIX Rule 1(1) and (2) of the Civil Procedure Code. In justifying her actions, the learned advocate argued that the appellant applied for certified copies of the decree but the same was not supplied on time. As such, the appellant resorted to lodging the appeal without appending the decree. Having said that, the learned counsel concluded that the respondents' preliminary objections ought to be dismissed for being devoid of merits. 4 In rejoinder, Mr. Mtung'e insisted that the present appeal was lodged out of the 21 days granted by this court in Miscellaneous Land Application No, 30 of 2022. He also contended that upon closure of probate proceedings, the respondent cannot be sued as the court becomes fanctus officio. While reciting the cases of Juto Ally vs Lukas Komba & Another (supra) and Felix Emmanuel Mkongwa vs Andrew Kimwaga (supra) Mr. Mtung'e restated his initial stance that once an execution of the matter is carried out a matter cannot be re-opened by way of an appeal. The learned counsel argued further that the application for stay of execution was filed after execution had been carried out. He insisted that the present appeal is misconceived. As for the second limb, Mr. Mtung'e reproduced his submission in chief. I have carefully considered the rival arguments made by learned counsels for both parties. The issue I must confront now is whether the respondent's preliminary objections are merited. Considering the circumstances, I think a good point to start my determination is to highlight the law on preliminary objections. It is a settled principle of law that a preliminary objection must be that of the point of law and not that of the facts or the mixture of the two. The same tends to serve the time of the court and that of the parties by not adjudicating the matters in its merits while there are some legal problems. It is also common knowledge that a point of preliminary objection cannot be raised if any fact must be ascertained in deciding it. The guiding authority on this is the famous case of Mukisa Biscuits Manufacturing Company LTD vs. West End Distributors LTD [1969] E.A. 696, where (Law, J,A) at page 700 observed as follows: - "So far as I am aware, a preliminary objection .5 consists of a point of law which has been pleaded or which arises by clear implication but of the pleadings, and which, if argued as a preliminary objection may dispose of the suit Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to arbitration." [Emphasis is mine] In the same case, at page 701 Sir Charles Newbold P. made comments about the same subjected and stated thus: - "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued bn the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is the exercise of judicial discretion." [Emphasis is mine] Guided by the above authority I am content that the question whether Land Application No. 96 of 2018 was executed is not a preliminary objection properly called. I say so because resolving this question would require evidence like proof of the proceedings and orders made in Execution Application No. 07 of 2022 if the application subsists. It is also on record that the learned counsel for the appellant contended that, through Application No. 100 of 2023, the appellant applied for and was granted an order staying the execution of Land Application No. 96 of 2018. This also requires evidence or proof of subsistence of those proceedings. Similarly, whether the respondent has ceased his administrative role also requires proof. In the circumstances, I shall not address these two points in this ruling. 6 This leaves me with two issues; first, whether the appeal was lodged on time; and whether the appeal violated the provisions of Order XXXIX Rule 1(1) and (2) of the Civil Procedure Code. In respect of the first issue, there is no dispute that through Miscellaneous Land Application No. 30 of 2022, the appellant applied for extension of time to lodge the appeal out of time. The records show further that on the 31st day of July 2023, this court granted the appellant 21 days to lodge the present appeal. There is also no dispute that the 21 days extended by the court expired on the 21st day of August 2023. The respondent alleges that according to the JpT-eCMS, the present appeal was filed on the 27 th day of August 2023, outside the 21 days granted by the court and without an order for enlargement of the extension. The appellant argued that the appeal was lodged on the 16th day of August 2023 and thus within the period extended by the court. To resolve this, it is instructive to point out that the JoT-eCMS is an electronic case management system established by the Chief Justice through rule 4(1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, G.N. No. 148 of 2018 ("the Rules). Under the said rule the Chief Justice has powers to establish an electronic filing system and make provision for specified documents to be filed, served, delivered, or otherwise conveyed using that system. Rule 8 of the Rules provides that all pleadings, petitions, applications, appeals and such other documents must be filed electronically through an electronic management system. In accordance with rule 9, the official records shall be those contained in the JoT-eC.MS. 7 Regarding the manner of reckoning the date and time for filing online pleadings, petitions, applications, appeals and such other documents, rule 21 of the Rules provides: "21. - (1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, oh the date it. is submitted, unless a specific time is set by the court or it is rejected. (2) A document submitted at or a fter midnight or on a Saturday, Sunday, or public holiday shall, unless it is rejected by the court, be considered filed the next working day." In accordance with rule 21(1) above, a document filed online is deemed to have been filed on a particular date if it is filed before midnight on that particular date or day unless there are specific orders to the contrary. In accordance with rule 8, read together with rules 10, 12,17, 19, 20 and 25 the current practice is that, upon filing the electronic records, a litigant would be required to print hard copies and file the same with the court. However, prior to the implementation of the current version of the JoT-eCMS, in which this appeal was lodged, parties could file physical copies of documents before filing an electronic version. In the case under consideration the records contained in the JoT-eCMS demonstrates that this appeal was filed on the 27th day of August 2023 at 22:03:57 Hours, East African Time. However, the physical records show that the appeal was lodged and received by the court on the 16th day of August 2023. This is evidenced by a stamp affixed on the memorandum of appeal. I have also noted that payments of court fees relating to the filing of the memorandum of appeal were made through control number 991400947150 on the 16th 8 day of August 2023, by Ms. Prisca Mtanga the learned counsel for the appellant. For these reasons, I am satisfied that the appeal was lodged on time as ordered by the court. The first limb of the preliminary objections is thus without merits. The non-compliance of Order XXXIX Rule 1(1) and (2) Of the Civil Procedure Code should not detain me much. The respective provision reads: ”1.- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded. (2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively. " [Emphasis is mine] From the above section attaching an accompanying a decree appealed from is mandatory and not optional, failure to do so renders the appeal incompetent. This view was also articulated by the Court of Appeal in the case of Mohamed Salimini vs Jumanne Omary Mapesa (Civil Appeal No. 345 of 2019) [20201 TZCA 1825 (22 October 2020) TanzLII, where the Court (Korosso, J.A) stated: "Undoubtedly, by virtue of Order XXXIX Rule 1(1) of the CPC, for such an appeal to be heard in the High Court from the District Court the record of appeal must have included the decree and judgment of the District Court belt defective or not. This is a mandatory requirement and this 9 stance has been cemented in various decisions of this Court such as Mariam Abdallah Fundi vs Kassim Abdallah Farsi [1991 ], TLR 196" In her submissions, Ms, Mtanga argued that she wrote a letter requesting copies of the proceedings, judgment and decree of the trialtribunal and was only served with copies of the judgment without a decree on the ground that the decree was not: ready. This is more than a year after the trial tribunal had delivered its decision and several months after the appellant's initial appeal was struck out for being incompetent. It is thus unfathomable that the counsel would not procure a decree after such a long time. It must be noted that an appellant has a duty to apply for a decree within the time prescribed for appeal. This view was articulated by the Privy Council in the case of Rozenda Ayres Ribeiro vs Olivia DA Ritta Siquera E. Facho arid Another (1936) 3 EACAI when dealing with a decision of the defunct East African Court of Appeal originating from Kenya. In the said case, the Court held that: ''There can be no doubt that the appellant had an opportunity, if not a duty, in the event of desiring to appeal, to take steps to have the judgment of 19 th August 1932, drawn up in the form of a decree: Having said that the Council added that once the judgment was delivered, the appellant could and should have taken steps to ensure his appeal is lodged within time. In the present case, Ms. Mtanga conceded that the decree was not appended when lodging the appeal because the same had not been supplied. In view of this concession there was violation of Order XXXIX Rule 1(1) and (2) of the Civil Procedure Code. As for the consequences guidance is provided for in the case of Said Salim io Bak hr ess a vs Ally A. Ngume (Civil Appeal 31 of 1997) [1997] TZCA 48 (12 December 1997) Lubuva, J.A "From the record it is apparent that the learned judge dismissed the appeal because of what he described as incurable defect in that the memorandum of appeal was not accompanied by a copy of the extract of the decree. This is provided for under Order XXXIX, Rule 1(1) of the Civil Procedure Code, 1966. However, with respect we think the learned judge invoked a course of action 'which is not provided in the Civil Procedure by dismissing the appeal when he found the memorandum of appeal did not conform with the requirement of Order XXXIX Rule 2, Instead of dismissing the appeal the proper course is to reject or strike out the appeal or return it to the appellant for amendment. Rule 3(1) of Order XXXIX of the Civil Procedure Code provides to this effect. ” Thus, since the present appeal is incompetent for failure to attach the decree and considering the stage, the only available remedy is to strike it out. For the above reason, I uphold the second limb of the preliminary objection. The appeal is struck out for being incompetent. The respondent shall have costs. It is so ordered. DATED at IRINGA this 02nd day of DECEMBER, 2024. S.M. KALUNDE JUDGE 11