20170525 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ! , AT DAR ES SALAAM MISC.LAND APPLICATION NO. 41 OF 2016 (Originating from Kinondoni District Land and Housing Tribunal Land Appeal No. 128 of 2014, Original Gaba Ward Tribunal Application No. 157 of 2014) LAZARO GERVAS SOKO ------------------------------------- APPLICANT VERSUS LAURA TIMOTHEO MAEMBE ------------------------------RESPONDENT RULING MUTUNGL J. The applicant who enjoys the legal services of Mohamed Mkali (Advocate) has applied for the following orders: (1) That this Honourable Court be pleased to grant leave to the applicant to file an appeal in respect of the decision of the Kinondoni Land and Housing Tribunal (Land Appeal No. 128 of 2016). ... (2) Costs be provided for. (3) Any other reliefs this Honourable Court may deem fit and for just to grant. When the matter was called up for hearing the parties prayed for the same be urgued by way of written submission. The court readily granted them the prayer and the following are the relevant submissions by the parties. · The applicant's counsel submitted that originally the respondent has instituted a complaint with the Goba Ward Tribunal claiming for a piece of land purported to have been purchased from the applicant. The trial tribunal having heard from both sides entered judgment in favour of the respondent. The appellant went through the window of appeal to the Kinondoni District Land and Housing Tribunal which like the trial tribunal held in favour of the respondent. It is now that he intends to come to this court on a second bite. The reason seeking for this leave is that, soon after the ruling of the District Land and Housing Tribunal, the applicant's advocate applied for copies of proceedings, 2 judgment and or drawn order which was not availed to them until 22 nd March, 2016. It is the submission of the learned counsel that without these appeal documents they could not lodge their intended appeal. Further, it is the submission of the applicant's counsel that the whole dispute was brought by a party who is not privy to the purported Sale Agreement the subject matter of the case. There being legal anomalies then the decision made is founded on illegalities. This in itself is a good and sufficient ground of extension of time to appeal. To hammer this point home the learned counsel cited the findings in the case of Veronica Fubili V. National Insurance Corporation and Two Others, Civil Application No. 168 of 2008 (CAD Dar es Salaam-(Unreported). It was the conclusion and prayer of the applicant's counsel that the court should consider their prayers and subsequent submissions and proceed to grant their application with costs. On the other side of the coin, the respondent dully represented by Elibahati Akyoo, Advocate responded that, what the applicant's counsel had submitted was out of 3 context, he was to concentrate on the reasons for delay in filing his intended appeal and not narrating the history of the dispute. The foregoing notwithstanding, the respondent's counsel submitted that the applicant has not told the court the mode of the application he used in applying for appeal documents. He has not shown any · proof of the filed application or receipt for the same to the District Land and Housing Tribunal. To put salt to the wound, it has taken the applicant more than six months to come to this court to seek for his rights. It was the settled opinion of the respondent's counsel that the delay in filing his intended appeal was occasioned by the inaction on the part of the applicant himself. The respondent's counsel further faultered the way the applicant is prosecuting this application. He is discussing the validity of the Sale Agreement between the applicant and the respondent, the non-existence of the locus standi of the respondent and the illegal decision made by the chairman of the District Land and Housing Tribunal. In view thereof the respondent urgued that the applicant has not advanced any sufficient reason to support the extension 4 • prayer consequently in the given circumstances it be dismissed with costs. The· court has right away considered the enabling provisions · of the law that have been cited by the applicant in support of the application. The court has observed that the same had been made under Section 52 ( 1) of the courts (Land Disputes Settlement) Act, No. 2 of 2002 read together with Rule 3 (4) of the Magistrates Courts (Limitation of Proceedings under Customary Law Rules) Rules 1964 GN 311 of 1964. Glancing through the cited Provisions, it is obvious these leave a lot to be desired. The applicant is moving the court on a "dead law". The court (Land Disputed Settlement, Act (Supra) has long been repealed and replaced by the Land Dispute's Courts Act [Cap. 216 R.E 2002]. That not being enough, the provisions referred to in the Magistrate's Courts Rules G.N. 311 of 1964 relate to matters concerning Primary Courts. The record is very clear in that the present matter is a landed matter which has its genesis springing from the 5 •• Land Ward Tribunal (Goba Ward) which 1n itself 1s not a Primary Court. Speaking for myself, in view of the cited provisions the court has not been moved to do that which it is asked to do. As already noted it would seem the applicant was in actual fact seeking for the extension of time to file his intended appeal out of time. This stand observed by the court was also highlighted by the Supreme Court of this land in the case of Edward Bachwa and 3 · Others V. The Attorney General and Another, Civil Application No. 128 of 2006 (CAT) Unreported where it held; "-----wrong citation of the law, Section, subsection and/no paragraphs of the law or non-citation of the law will not move the court to do what it is asked and renders the application incompetent". Borrowing the above words, the application in the eyes of this court is found to be incompetent and should be sanctioned to a striking out. The court need not go into the merits of the application itself. 6 In the upshot the application is accordingly struck out with costs. ..t 0 B. R. Mutungi JUDGE 25/05/2017 Read this day of 25/05/2017 in presence of applicant and respondent in person. ~ . B. R. Mutuggi JUDGE 25/05/2017 Right of appeal explained. B. ~. Mutu~gT JUDGE 25/05/2017 7