josephine lumuli kassimu vs nyange hamis nyange 2022 tzhclandd 305 21 april 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 635 OF 2021 (Arising from judgment of the High Court (Land Division) at Dar es Salaam in Land Appeal No. 73 of2021) JOSEPHINE LUMULI KASSIMU..................................... APPLICANT VERSUS NYANGE HAMISI NYANGE ................................... RESPONDENT RULING 01/4/2022 & 21/4/2022 A. MSAFIRI, J This Ruling pertains to the preliminary objection raised by the respondent to the effect that; 1. The Application filed by the applicant lacks quality to suit and be termed (sic) the application for leave to appeal to the Court of Appeal for non-compliant with attachment mandatonly for whoever apply for this (sic) contravene Rule 46 (1) of the Court of Appeal Rules. The preliminary objection was raised in objection to Misc. Land Application No. 635 of 2021 whereby the applicant is praying for this Court to grant her leave to file appeal to the Court of Appeal of Tanzania against the judgment of this Court in Land Appeal No. 73 of 2021 dated Ml By leave of the court, the preliminary objection was heard by way of written submissions. The submission in chief by the respondent was drawn and filed by Ubaidi Hamidu, advocate, while the applicant's reply submission was drawn and filed by himself under the legal assistance of Social Welfare Organization of Tanzania. Mr. Hamidu for the applicant submitted that, the applicant has violated the provisions of Rule 46(1) of the Court of Appeal Rules which states as follows; 46(1): "Where an application for a certificate or for leave is necessary, it shall be made after the notice of appeal is lodged". Mr. Hamidu Said that, under Rule 83(1), (4) of the Court of Appeal Rules, the notice of appeal is necessary before seeking leave to appeal. That the cited provisions are mandatory on filing a notice of appeal before the application for leave to appeal, and omission of that is fatal. He submitted further that, the application before this Court is premature because there is no notice of appeal filed by applicant in the present application. That, the consequence of premature application is dismissal with costs. In reply, the applicant submitted that, the application at hand is brought under Section 47(2) of the Land Disputes Courts Act, Cap 216 R.E 2019, whereby the law requires the person aggrieved with the decision of the High Court to seek leave before the same court before appealing in the Court of Appeal of Tanzania. rw- 2 She argued that, it will be injustice to dismiss this application at this level because the cited provision does not restrict this Court to determine this application. She argued further that, since the applicant is a layperson who is not familiar with legal procedures, it is fair for the Court to continue with determination of this application and at the same time, the applicant may apply for leave of this court to file notice of appeal out of time. She cited the case of Ramadhani Nyoni vs. M/s Haule & Company Advocates [1996] T.LR. 72. She concluded by praying for the court to overrule the preliminary objection. There was no rejoinder. Having gone through the submissions by both parties in support and against the raised preliminary objection, I am satisfied that the preliminary objection is on pure point of law and therefore suffices the standard set in the celebrated case of Mukisa Biscuits Co. Ltd Vs. West End Distributors Ltd (1969) EA 696. I say so because it is a requirement of law that any person who intends to appeal to the Court of Appeal against a decision or order of the High Court should first lodge notice of intention to appeal. It is the notice of appeal which institutes an appeal. This imperative requirement for the purpose of a person who intends to appeal to the court of Appeal in Civil matters as the applicant in this matter, is provided under Rule 83 of the Tanzania Court of Appeal Rules, 2019 which states as hereunder; 3 83(1): "Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the Registrar of the High Court". The provisions of Rule 83(1) as correctly pointed by the counsel for the respondent are mandatory, hence failure to adhere to the same is fatal. Furthermore, the provisions of Rule 46(1) of the Court of Appeal Rules (supra), provides that, an application for a certificate or for leave shall be made after the notice of appeal. This provision is also couched in mandatory terms. The applicant has not denied the fact that she has not lodged a notice of appeal but argued that this application is brought under Section 47(2) of the Land Disputes Court Act which does not restrict this Court to determine this application. However, I don't agree with this position as I have already pointed herein above, it is the notice of appeal which institute an appeal, therefore this Court cannot determine and grant leave to appeal where there is no appeal. In absence of the Notice of Intention to appeal, this application has no legs to stand upon and it surely must collapse. Filing an application for leave to appeal under Section 47(2) of the Land Disputes Act does not preclude the applicant from complying with mandatory provisions of the Court of Appeal Rules. In fact, Section 47(4) of the same Act provides that the procedure for the appeal to the Court of Appeal under the said Section shall be governed by the Court of Appeal Rules. Such is the importance of a notice of appeal that this Court, in the case of DPP vs. A.M. Swai (1989) TLR 37 held that; 4 "/Is no notice of intention to appeal was given in case in the first place, the application for leave to appeal out of time cannot be entertained". From this analysis, I have no reason to depart from the findings of this court and the Court of Appeal in numerous authorities which are cemented on the mandatory provisions cited herein above that no application for leave shall be determined in absence of a notice of appeal. I have considered the applicant's plea of being a layperson who is not familiar with the legal procedures. However, the lodging of an appeal is a requirement of law which is mandatory. It is a principle of law that ignorant of law has never been an excuse. In the upshot, I find that the preliminary objection raised by the respondent is meritorious and I sustain it. I hereby struck out the application with no order as to costs. It is so ordered. 5