julius stephen tindwa vs abdallah swazi 2022 tzhclandd 12688 30 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 619 OF 2022 (Arising from the Judgment of this Court in Misc. Land Appeal No. 123 of 202, Judgment of the Kinondoni District Land and Housing Tribunal in Land Appeal No. 64 of 2020 and originated from the decision of Kwembe Ward Tribunal in Shauri Na. 13 of 2020) JULIUS STEPHEN TINDWA.................................................... APPLICANT VERSUS ABDALLAH SWAZI................................................................. RESPONDENT RULING lffh & 3(fh November, 2022 L. HEMED, J. JULIUS STEPHEN TINDWA the applicant in this matter lodged the present application under Section 5 (1) (c) of the Appellate jurisdiction Act, Cap 141 RE 2019 and Rule 45 (a) of the Court of Appeal Rules, 2009 praying for the following orders. "(i). That, the Applicant be granted leave, to appeal to the Court of Appeal of Tanzania upon certifying a point of law, worth for the consideration by the Court ofAppeal of Tanzania. (ii). ..." i The Respondent one ABDALLAH SHWAZI countered the application. He also raised the preliminary objection on two point of law that: "1. ... the applicant's application is time barred. 2. ....the applicant's application is barred in law for being brought under a wrong citation". The preliminary objection was argued orally. The Applicant was represented by Ms. Martina Lazaro, learned advocate while the respondent appeared in person. The respondent argued briefly that the application was filed after three months from the date of judgment. He stated that the applicant was not keen enough to follow up for the copies of judgment and Decree because the same were ready by 13th June, 2022. The respondent could not argue on the second limb of his preliminary objection. In reply to the respondent's arguments, Ms. Lazaro, learned advocate for the applicant stated that the impugned judgment was delivered on 6th June, 2022 and they filed the present application on 26th September, 2022. She ended up conceding to the preliminary objection that the application was filed out of time. She prayed to withdraw the application so that she could come with the proper one. Having heard from the parties, let me now turn to decide on whether the preliminary objection has merit. In the first place, let me clearly state that the 2nd limb of the preliminary objection will not be the subject of this ruling because the respondent abandoned it as he did not argue on it. Secondly, the learned advocate who appeared for the applicant while conceding to the 1st limb of objection that the application is time barred, she prayed to withdraw the application. I am of the firm view that the prayer to withdraw the application is also time barred because already there is an objection against the said application. It is a trite law that once a preliminary objection has been raised against a plaint, memorandum or petition of appeal and or application, the only option available to the person whose pleading has been objected is to concede the objection or argue it. In the present case the learned advocate has prayed to withdraw the application while the respondent had already made his submissions, though in a layman way. She also made the 3 prayer to withdraw while she has already conceded to the preliminary objection. In the circumstance, the prayer to withdraw the application cannot be entertained. I have gone through Rule 45 (a) of the Court of Appeal Rules, of 2009 GN. 344 of 2019 it provides thus: - " (a) Not withstanding the provisions of rule 46 (1), where an appeal lies with the leave of the High Court, application for leave may be made informally, when the decision against which it is desired to appeal is given, or by chamber summons according to the practice of the High Court, within thirty days of the decision..." (emphasis ours) From the above provision, the present application ought to have been lodged in this Court within 30 days from the day when the judgment was delivered (on 6/6/2022). Unfortunately, it was lodge after three months (90 days) and without the leave of this Court. According to the practice in the High Court, proceedings instituted after the period of limitation deserves dismissal pursuant to Section 3 4 (1) of the Law of Limitation Act, [ Cap. 89 RE 2019]. I thus proceed to dismiss the entire application with costs. It is so ordered. DATED at DAR ES SALAAM this 30th November, 2022. COURT: Ruling is delivered in the presence of Ms. Martine Lazaro, learned, advocate for the Applicant and the Respondent appearing in the person. Right of appeal explained. L. HEME JUDGE 30/11/2022 5