lucas philipo vs the trustees of kanisa la pentekoste tanzania 2011 tzhclandd 11 5 august 2011

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) * LAND CASE APPEAL NO. 10 OF 2010 (From the Decision of the District Land and Housing Tribunal of Tanga District at Tanga in Land Application No. 1 of 2009) LUCAS PHILIPO...........................................APPELLANT VERSUS THE REG.TRUSTEES OF KANISA LA PENTEKOSTE TANZANIA....................... RESPONDENT Date of last order: 30/06/2011 Date of ruling: 5/08/2011 RULING Teemba, J; The Respondent successfully lodged an application at Tanga District Land and Housing Tribunal seeking for orders to compel the Appellant to return and hand over the Church building. The said Church building is situated at Plot No.l Block "A" Magomeni Area in Tanga City. Aggrieved with the decision of the trial tribunal, the Appellant has decided to challenge the same by way of a petition of appeal containing seven grounds. Since there is preliminary objection touching on the format and wording of the grounds of appeal, they are reproduced hereunder: "1. That the Honourable Chairperson grossly misdirected herself in holding the 1st ground positively to the effect that, all Applicants witness Sufficiently testified to that effect, without critically holding to the balance of probabilities 2. The Honourable Chairman erred in fact in relying on the contradicting evidence of AW 2 one OMBENI MNZAVA, Land officer, in that the offer dated 3rd September, 2001 hod not been legally transferred to the * Respondent herein, but, neither the Appellant applied to be granted it. 3. That the Honourable Chairperson erred in law and fact in holding that the suit plot belonged to the Respondent, herein, while the AW 2's evidence, a Land officer, has already testified that no any transfer has been made in respect of suit plot. 4. That the Honourable chairperson erred in fact by granting ownership to the Respondent, without labouring on the back of events as to how the suit plot became under the ownership of the Respondent, herein. 5. That the Honourable Chairperson grossly erred in law and fact when she deliberately ignored the evidence of AW3, one ANDREW PARK, RW2, one MARTIN KITEGO, RW 3,one, DONALD STEPHAN and RW 4 one, SYLVESTER P. NGOMA who, ally, corroborated to the effect that they had an upper hand of knowledge how the Appellant, herein, managed to get ownership of the suit Land. 6. That the Honourable Chairperson erred in fact by critically relying on concrete evidence of the Appellant to the effect that the suit plot had already been valuated and compensated to the post owners. 7. That the Honourable chairperson erred in law by not observing as to the legality of the purported Respondents' consent letter dated 9th April, 2001 so as to lead the Tribunal to the proper decision in favour of the Appellant." Before the hearing of this appeal, Mr. Mramba, the learned counsel for the Respondent, filed a notice of preliminary objection that: (i) This Appeal was filed in a non existing court and therefore that, there is no appeal, at all. (ii) This Appeal is bad and incompetent in law in that the Memorandum of Appeal does not set forth concisely the grounds of objection to the decree appealed from. 2 (iii) That this appeal is hopeless by time barred. At the hearing of these preliminary objections on point of law, Mr. Mramba appeared for the Respondent and Mrs. Kabwanga represented the Appellant. Submitting on the first preliminary objection, Mr. Mramba stated that the petition of appeal is headed "In the High Court of Tanzania (Land Division)". He ciaimed that, by virtue of the Written Laws (Misc. Amendments) Act No.2 of 2010 Under section 19, the "Land Division" is ’repealed and that it is non­ existing since March 2010. He further contended that this appeal was filed in July, 2010. Moverover, the learned counsel stated that several Land Acts! including the Land Disputes Courts Act Cap.216 R.E 2002 have been amended to the effect of deleting the "Land Division" As to the second preliminary objection, the learned counsel submitted that this appeal is bad and incompetent in law as the memorandum of Appeal does not set forth concisely the grounds of appeal/objections to the decree appealed from. The learned counsel cited the previsions of Order 39 Rule 1 of the Civil Procedure Code (Cap.33 R.E. 2002) and submitted that it is mandatory for every appeal to be preferred in the form of memorandum signed by the appellant or his advocate and presented to the High court. That, the memorandum should set forth concisely and in distinct grounds of appeal. He argued that the grounds of appeal in the memorandum of appeal preferred by the appellant are vague, unclear and not understood which is contrary to Order 39 Rule 1 (Supra). The learned counsel also stated that this appeal ought to have been filed by way of a memorandum of appeal and not a Petition of appeal as it originates from the District Land and Housing Tribunal. He concluded by urging the Court to strike out this appeal. As to the third preliminary objection, Mr. Mramba contended that the appeal is hopelessly time barred. He added that the judgment was delivered on 15/4/2010 and this appeal was lodged on 5/7/2010 and that 80 days had expired from the date of judgment. The learned counsel submitted that the Law of 3 .. ^ . ,— .^ — V-*w Z S,I — .. —^ ^ ^ I ^w » fi. «*.— . ILCi Ii 1{jr 45 days as the time limit for matters originating from the District Land and Housing Tribunal. Mr. Mramba also contended that there is no evidence as to * whether the appellant applied for the copies of judgment and decree and whether he was delayed by the tribunal for the purpose of excluding such time as guided by the provisions of section 19 of the Law of Limitation (supra). He concluded that the appeal is incompetent before the court and it should be struck out. In reply, Mrs. Kabwanga submitted that the appeal is properly before the court. She added that the judgment was delivered on 14/4/2010 and that after two days, on 16/4/2010 the Appellant wrote a letter to the Tribunal's chairman ’ requesting for copies of a judgment and proceedings for the purposes of lodging his appeal. Mrs. Kabwanga added that the letter is in the court file. The learned counsel further stated that the copies of judgment and proceedings was supplied and received by the appellant on 24/6/2010. She concluded that as the appeal was filed on 5/7/2010 and as the appellant was delayed by the tribunal then, the appeal falls squarely under section 19 of the Law of Limitation Act (supra)and therefore it is within time. I agree with the learned counsel for appellant that the appeal was filed within time. The record in the case file reveals that a letter requesting for copies of judgment, decree and proceedings was written on 16/4/2010. It was received by the Tribunal on the same day. This was followed by a Notice of Appeal dated 18/6/2010. The copies applied were supplied to the appellant on 21/6/2010 and he lodged the appeal on 5/7/2010. On the basis of section 19 of the Law of Limitation Act, [Cap.89 R.E. 2007], the period of time requisite for obtaining a copy of the decree or order appealed from or to be reviewed is excluded. Only fifteen (15) days had elapsed since the appellant received the copies and when he filed the appeal. The appeal from the District Land and Housing Tribunal has to be filed to the High Court within 45 days from the date of judgment. Thus if the period between 14/4/2010 and 21/6/2010 is excluded, then the appeal was 4 lodged within the prescribed time limit. The preliminary objection ori this point of law is dismissed. As to the first preliminary objection, Mrs. Kabwanga stated that although the title "Land Division" appears in the heading, such heading does not cause any injustice to the Respondent. She urged this court Words to delete the Words "Land Division'' from the heading of the appeal. In the alternative, she urged this court to strike out the appeal with the leave to refile it. I agree with Mr. Mramba that the W ritten Laws (M iscellaneous Am endm ents) Act, 2010 amended the Land Act, Cap.ll3;The village Land Act, Cap.114; and the Land Dispute Courts Act, Ca.216. The words "Land Division" were deleted wherever they appear in the three Acts. These amendments came into operation in March 2010 but in my considered view, they did not waive the existence and operation of the Land Division of the High Court. The High court - Land Division is a creature of a Statute. The High Court Registries are established under the High court Registries Rules made under section 4 of the Judicature and Application of Laws Act (JALA) Cap.453. The Land Division cf the High Court and its Sub-Registries in every High Court Centre were legally established under Rule 5(e) of High Court Registries Rules through Government Notice No.63 of 4/5/2001. The Principal Rules were therefore amended by the High Court Registries Amendment Rules 2001. So, the Written Laws Miscellaneous Amendments) Act, No.2 OF 2010 did not affect the existence of the Land Division and its sub-registries. As to the second preliminary objection that the appeal is vague and is against the provisions of Order 39 Rule 1 of the Civil procedure Code (Supra), the learned Counsel submitted that the grounds of appeal are not vague and that they are clear. She argued that they make sence if one reads them clearly. The learned counsel further stated that it is a matter of language and she will advance them during the hearing of this appeal. In addition, she submitted-that the petition and Memorandum of Appeal are the same. The learned counsel urged this court that, if it finds out that the heading of the appeal is supposed to be a memorandum of Appeal then it may allow her to amend, the appeal so that the appeal will be heard and determined. In rejoinder, Mr. further insisted that this court may go through the grounds of appeal and decide whether they are clear or not. He added that, if the grounds are not clear in their wording, then the respondent will be taken by surprise and will not be well prepared to answer the appeal. The second preliminary objection has merit. I have tried to read the grounds of appeal and I agree with Mr. Mramba that some of them are not clear. They have arguments and some are backed up with evidence. This is contrary to the law/Rules of pleadings and they offend the provisions of Order XXXIX Rule 2 o f the ChsU Procedure code, [Cap. 33 R.E. 2002] which states thus: "The memorandum shall set forth concisely and under distinct heads, the grounds o f objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively." Whether the appeal should be presented as a Petition or Memorandum is a question of what the law says. Section 38 of the Land Disputes Courts Act (supra) provides that an appeal originating from the Ward Tribunal has to be presented/filed in the High Court by way of a Petition. However, the law is silent in respect of appeals originating from the District Land and Housing Tribunals. The law is not adequate on this issue. Section 20 of the Written Laws (Misceslaneous Am endm ents) A ct No.2 o f 2010 provides that where the Regulations governing the Tribunal are inadequate, then the Civil Procedure Code comes to play. Order X X X IX of the Civil Procedure Code deals with appeals from original decrees. Rule 1 provides: "Every appeal shall be preferred in the form o f a memorandum signed by the appellant or his advocate and presented to the High Court "(emphasis added) 6 It is common ground that the appeal is against the original dccrec passed by the trial District Land and Housing Tribunal. According to Order XXXIX Rule 1 of the CPC as cited above, the appeal should be in the form of a Memorandum and not a Petition. Having sustained the two preliminary objections, the question posed here • is, what next? Mrs. Kabwanga made a request in her submission that, if the objections are found to have merit, then the court may be pleased to strike out the appeal and allow the appellant to refile it again subject to the law of limitation. In the circumstances of this case, I am of strong opinion that the best way to rectify the errors pointed out is to file the appeal afresh. Therefore, the second preliminary objection is hereby sustained. The appeal is struck out with leave to refile it subject to the law of limitation. The respondent is awarded costs. It is so ordered. R.A. T l EM b a , 3; 05/08/2011 Court:1 Thq: Ruling j^^ldlivered in the presence of both learned counsel - Mrs. fcrbvtenga for the^ppo'flant and Mr. Mramba for the respondent. R.A. TEEMSA; 05/08/2011 7