20110805 TZHC Tanga

Ii\! THE HIG.H COURT Of TANZANIA (LAND DIVISION) , LAND CASE APPEAL NO .. 10 OF 2010 (From the Decis~on of the District Land and Housing Tribunal of TaDga District at_ Tang~ in Land Application No. 1 _of 2009) 'LU~H ',,... "·S ..... ,vLrno •••••••••••••••••••••••••·,.••••••••••••• i"'t1,.i -P:""i . . J\ ,......,,E·LL.AP·'T. •• :""""t.t'E" l'f - VERSUS THE REG.lRUSTEES OF KANISA LA PENTEKOSTE TAI\IZANIA ....................... 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 Tr.ibunal seeking for orders to· compel the Appellant to return and . . hand over the Church building. The said Church building is situated at Plot No.1 Block "A" Magomeni Area in Tanga City. Aggrieved with the decision of the trial tribunal, the Appellant has decided to challenge the same by w"ay 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 wi'tn~ss 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 J dated 3rd September, 2001 hc:id not been legally transferred to the ,: Responde~t-herein, but, n<:!ither·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 chairpE;'!rson 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 fo_r 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 appear at all. (ii) This Appeal is bad and incompetent ih law in .that the Memorandum of · Appeal does not set forth concisely the groi:fr1ds 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. Mramb.a appeared for the Respondent and Mrs. Kabwanga represented the Appellant. -Submitting on the first preliminary objection;. Mr. Mramba stated that the petition of appeaHs. headed "In the High Court of Tanzania {Land' Divisiqn)" . ~e:·. claimed that, by vi_rtue 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 Man::h 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 conciseiy 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 th_e 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 hope_lessly time barred. He added that the judgment was delivered on 15/4/2010 and~~~his appeal was lodged on 5/7/2010 and that 80:~"ays had expired from the date. of judgment. The learned counsel submitted that the law of 3 • J ...... •-•=~•'-'°•ll ,-l..._,,.,_ 45 days as the time limit- for matte~s 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 stru~k 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 alter 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 2416/2010. 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 I: 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 or9er appealed from or to be reviewed is excluded. Only filteen ( 15) days ha_d elapsed since the appella.nt received the copies and whe-n I he filed the appeal. The appeal from the District Land and Housing Tribunal has ! :, to be filed to the High Court within 4.5 days from the date of judgment: Thus if the period between 14/4/2010 and 21/6/2010 is exclude_d, then the appeal was 4 -· ··---····-······ lodged within the prescribed time limit. The preliminary objection on this point of law is dismissed. . . As to the first preliminary objection, Mrs. l<abwanga _stated that although the title "Land Division" app.ears ln the heading, such heading· do'es not cause any injustice to the Respondent. She urged- thls court Words .to delete. the . Words "Land 'Division 1' from the heading. of- the appeai. In' the. alternative~ sl_J.e , •- urged this court to strike out the appeal· with the leave to refile it. I agree with ·Mr. Mramba that the VJ·ritten Laws (Miscellaneous Amendments) Act, 201G amended the Land Act, Cap.113;The village La·nd 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 R·egistries are established under the High court Registries Rwles made under section 4 of the Judicature and Application of Laws Act (JALA) Cap.453. The Land.Division of the High Court and its Sub-Registries in every High Court Centre were legally established under Rule S(e) of High Court Registries Rules through Government Notice No.63 of 4/5/2001. The Principal Rules were therefore amended by the Hlgh 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 p_reliminary objection that the appeal is vague. and is against the provisions of Order 39 Rule 1 of the Civil procedure Code (Supra), the learned . Cour'i'sel submitted that the grounds . of appeal are. not vague . and ti1at they are clear. She argued that they make sence if one reads them clearly. The leari:ied 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 5 be a memorandum of Appeal then il 1nay ·c111ow lx~i" .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 th~y are clear or not. He added that, if ~he grounds are not clear ·in their_ wording, th_en the respondent will be taken by surprise and will not be well prepared to answer the ~ppea_l. . ·.·!!· • . ·_ The second preliminary objection has ·merit. · 1 have. tried_· to . read• the l • •• ·• • • • • . • . •, • .. .": !" . . • • . • •• ·, • • • • ., • ,. • •••, • • •· ·•. > • • • • ,.• : • ·• • • ...... : ~ l _::'" • • • • • •. : • ' ground~ 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/RLdes of pieadingsand they offend the .provisions ofOrderJC:XXix' ~ . Ru!~ 2 of the C:vii Procedure code, [Cap. 33 R.E. 2002] which states thus: "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." 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 (Mlsce!!anem15 Amendments) Act No.2 of 2010 provides that where the Regulations governing the Tribunal are inadequate, then the Civil Procedure Code comes to play. Order XXXIX of the Civil Procedure Code deals with appeals from original decrees. Rule 1 provides: - "Every appeal shal/-be preferred in the form of a memorandum signed by the appellant or his advocate and presented to _the High Court. " ( emphasis added) 6 • ..,I It is common ground that the appeal i~; against th(~ original decree passed by the trial District Land a,nd Housing Tribunal. According to Orcler 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 r:17ay be pleased to strike out the appeal and allow the appellant to refile it agaln subject to the law of limitation. In the circumstances of this case, I am of strong opinion that thebest 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 \Nith leave to refile it subject to the law of limitation. The respondent is awarded costs. It is so ordered. 05/08/2011 7