lusekelo andwele mwambalaswa vs shaka juma samat 2020 tzhclandd 3838 5 october 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION N0.39 OF 2019 (Arising from MiscLand Appeai No. 129 of 2015) LUSEKELO ANDWELE MWAMBALASWA APPLICANT VERSUS SHAKA JUMA SAMATA RESPONDENT Date of Last Order: 13.08.2020 Date of Ruling: 05.10.2020 RULING V.L.MAKANL J The applicant is LUSEKELO ANDWELE MWAMBALASWA and he is appiying for the foiiowing orders that: 1. The honourable court may be pleased to Issue an order for setting aside dismissal order dated October 2016. 2. Costs for this application. 3. Any other reliefthat the court may deem fitand equitable to grant The application is made under section 95 of the Civil Procedure Code CAP 33 RE 2002 (the CPC) and any other enabling provision of the law and is supported by the affidavit sworn by James Mwenda, Advocate for the applicant. Simultaneous with the filing of the counter affidavit the respondent raised two points of preliminary objection: 1. That there Is wrong citation In the applicant's affidavit Z That the applicants application is time barred. 1 Hearing of the preliminary objections was by way of written submissions. The submissions by the respondent were drawn and fiied gratis by Irene Feiix Nambuo, Advocate from Legai and Human Rights Centre. The submissions by the appiicant were drawn and fiied by Mr. James Mwenda, Advocate. Submitting for the first ground of objection Ms. Nambuo said that, previously the appiicant fiied in this court Land Appeal No.129 of 2015 whereby it was dismissed for want of prosecution and he applied for extension of time in Misc. Land Appeal No.730 of 2018 which was granted. She said that being an application for restoration of an appeal, the same was supposed to be under Order XXXIX, Rule 19 of the CPC. She said that wrong citation of the law renders the application incompetent and the same ought to be struck out. On the second point of preliminary objection Ms. Nambuo said that, the application has been filed after the expiry of 30 days contrary to the order of this court. She insisted that as per the Limitation Act, the proceedings instituted out of the prescribed time ought to be dismissed with costs. In reply Mr. Mwenda said that. Order XXXIX, Rule 19 of the CPC cited by the respondent is not the proper provision to deal with the second appeal rather deals with appeals from the decisions of the subordinate Court in exercise of their original jurisdiction. He added that there is no provision in the Land Disputes Courts Act nor in its regulations that caters for this kind of application and therefore section 95 of the CPC "l Is relevant in the event there is no prescribed provision in any other law. On the second point of objection he said that this application was lodged within 30 days as per order of this court and section 21 (1) of the Judicature and appiication of Laws (Electronic Filling) Rules, 2018, GN No.148.He added that this application was filed online on 17/01/ 2020, that was the 29^^ day, therefore within 30 days per the court's order. She insisted that the preliminary objections raised by the respondent have no merits and therefore should be dismissed. In rejoinder Ms. Nambuo insisted that the way to restore the dismissed appeal is through readmission regardless of whether it is the first or second appeal. She added that the filing document was signed by the Court registry on 28/01/2020 which is the proper date of filling. She said that registering a document does not amount to filing the same and that the relevant document to prove the filing of the document is the payment receipt. She prayed for the application be dismissed in its entirety. Having gone through the rivalry submissions from the parties, the issue for determination is whether the preliminary points of objections raised by the respondent have merit. I wish to start with the second point of objection that the application is time barred. It was the courts order in Misc. Application No.730 of 2018 that the intended application for restoration of the appeal No.129 of 2015 be filed within 30 days from the date of the ruling. The ruling thereto was delivered on 20/12/2019, and the applicant was expected to file this application on or before 19/01/2020. The record, to be specific. Exchequer Receipt No.24792984 which is the evidence of the filing of this application shows that this application was filed on 28/01/2020, about 9 days out of the time ordered by the court. On his side, Mr. Mwenda, the applicant's Advocate contended that he filed the same through electronic filing on 17/01/2020 and he even referred the court to unmarked E-Case Registration System Form which he had appended. But with due respect to Mr. Mwenda, the said E- Case Registration System Form is only the evidence of the date on which the application was submitted. The only proper proof for filing date of any document in court, inclusive of this application is the Exchequer Receipt. This position was made by Hon. Ramadhani, G (as he then was) in John Chuwa vs. Anthony Ciza [1992]TLR 233 where it was stated: ''The notice of appeal was filed in time on 25/6/1990 which was within time. However, the receipt for the fees was issued On 29/6/1990 which date was out by two days. According to the learnedjudge, the date offiiina the aooiication is the date of the payment of the fees and not that ofthe receipt ofthe relevant documents in the registry. Mr. Akaro, learned advocate for the applicant, conceded that before me and I cannot fauit the learnedjudge there." Therefore, as already established earlier, payment of the filing fees in respect of this application was made on 28/01/2020 vide Exchequer Receipt No.24792984, which is 9 days out of time without obtaining the leave of the court. Consequently, the application was filed out of time and without leave of this court, (see also Athumani Kungubaya & Another vs. PSRC & TTCL, Misc. Civil Appeal No.9 of 2001(HC-DSM)(unreported). As for the first point of preliminary objection Ms. Nambuo pointed out that there was wrong citation of the provision of the law; that instead of Section 95 of the CPC the proper provision ought to be Order XXXIX Rule 19(1) of the CPC for re-admission of the appeal. Indeed, when the appeal is dismissed for want of prosecution as the case at hand, the proper provision is Order XXXIX Rule 19 of the CPC. The said provision does not distinguish between a first appeal or a second appeal. Therefore, the court was improperly moved and citing the wrong provision is as if no application has been brought before this court. In the case of Alfonce Nikas Buhatwa T/A Coco Enterprises vs. DCB Commercial Bank PLC, Misc. Commercial Application No. 187 Of 2018 (HC-DSM) Hon. B.K Philip, J held that: "...from the foregoing, as correctly submitted by the Mr. Mzikiia, wrong citation ofthe law renders the application incompetent, therefore this application deserves to be dismissed and I hereby dismiss it with costs. In the result, the preliminary objections have merit and they are upheld. The application is therefore dismissed with costs. It is so ordered. o V.L. MAKANI .AX JUDGB N 05/10/2020 0 >4