Madaraka Fundi vs Projestus Kamugisha

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY AT BUKOBA LAND APPEAL NO. 80 OF 2023 (Arising from Application No. 12 of2020 District Land and Housing Tribunal for Muieba) MADARAKA FUNDI.................................................. ............. APPELLANT VERSUS PROJESTUS KAMUGISHA...................................................... RESPONDENT RULING 2nd and 20th September, 2024 BANZL J.: The appellant is before this Court challenging the decision of the District Land and Housing Tribunal for Muieba (the Tribunal) which declared the respondent as lawful owner of a piece of land located at Bisole village, Muhutwe ward in Muieba district. However, the respondent through Mr. Zedy Ally, learned counsel filed a notice of preliminary objection on point of law to the effect that: "This appeal is misconceived and bad in law for being filed out of time." At the hearing of preliminary objection, the appellant was represented by Mr. Pereus Mutasingwa, learned counsel whereas, Mr. Zedy Ally, learned counsel appeared for the respondent. Page 1 of 7 In his submission, Mr. Ally contended that, the judgment subject of this appeal was delivered and certified on 11/10/2023 but the memorandum of appeal was filed on 30/11/2023 which was more than 45 days prescribed under section 41 (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] ("the Land Disputes Courts Act"). According to him, any document is properly filed in court after payment of appropriate fees. He supported his argument citing the case of Mpale Kaba Mpoki vs The Advocates Committee (Civil Appeal No. 6438 of 2024) [2024] TZHC 5522. Therefore, he prayed for the appeal to be dismissed with costs pursuant to section 3 of the Law of Limitation Act [Cap.89 R.E. 2019] for being time barred. In his reply, Mr. Mutasingwa submitted that, the appeal was filed within time considering that, the judgment was certified on 11/10/2023 and, according to the details in the system, the appeal was filed on 24/11/2023. He added that, as per the law, the appeal was supposed to be filed within 45 days; in which case therefore, 45 days expired on 24/11/2023. According to rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, GN No. 148 of 2018, ("the Electronic Filing Rules") the date of submission in the system is the date of filing the document. In that regard, the contention that, the date of payment of court fees is the date of filing, has no basis. Thus, the Judicature and Application of Laws (Court Fees) Rules Page 2 of 7 GN No. 247 of 2018 ("the Court Fees Rules'7) is not applicable as they have no such provision concerning date of payment being the date of filing. In his view, rule 21 of the Electronic Filing Rules is very clear on this position, therefore it does not require purposive interpretation. He supported his view by citing the cases of National Bank of Commerce vs Jackson Mahinawa Sinzobakwila [1978] LRT 39 and Yeromino Athanas vs Mukamulani Benedicto [1983] TLR 374. He concluded that, the appeal was filed within the prescribed time. He therefore prayed for the preliminary objection to be overruled and the appeal be heard on merit. In a short rejoinder, Mr. Ally insisted that, the submission of the learned counsel should be disregarded for being misconceived. According to him, the Electronic Filing Rules cannot be interpreted in isolation with the Court Fees Rules as it was stated in the case of Mpale Kaba Mpoki vs The Advocates Committee (supra); hence, this court should uphold the objection that the appeal was filed out of time. Having carefully considered the rival submissions of both sides, the main issue for determination is whether the appeal was filed out of time. It is important to underscore that, pursuant to section 41 (2) of the Land Disputes Courts Act, an appeal of this nature is required to be filed Page 3 of 7 within forty-five (45) days after the date of the decision or order. It is also important to note with emphasis that, rule 21(1) of the Electronic Filing Rules provides that: "A document shall be considered to have been filed if it is submitted through the electronic filing system before midnight, East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected. "(Emphasis supplied). According to records of the trial Tribunal, it is clear that, the impugned judgment was delivered and certified on 11/10/2023, therefore the appeal ought to have been filed by 25/11/2023. Besides, the record from the eCase Management System indicates that, the appellant submitted the appeal on the system on 24/11/2023. It is also on record that, upon being admitted on 27/11/2023 by the Court, a control number for purposes of payment of court fees was generated on 28/11/2023. The fees were paid two days later, on 30/11/2023. There is no dispute that, this appeal was submitted through the electronic filing system, which according to the position of the law cited above, a document is considered to be duly filed when the same is submitted through electronic filing system. That being the case, on 24/11/2023 when the appellant submitted his appeal through electronic filing system as Page 4 of 7 required under the Electronic Filing Rules, that was the date when the appeal was duly filed, and it was within time. I am aware that, payment of court fees pursuant to the Court Fees Rules completes the process of filing as it was stated in the case of Mpale Kaba Mpoki vs The Advocates Committee, but that administrative process cannot be interpreted to deny one's substantive right to access to justice (access to the court), where he or she files his or her documents through the electronic filing system within the prescribed time. Furthermore, it is worthwhile noting here that, after the actual filling of a document in the electronic filing system, what follows are administrative actions by court officials, like admitting the document in question, generating a control number for purpose of payment of requisite fees, which fees are finally to be paid by a party. In this case for example, the appellant had no control over the actions of the court officials after he filed the appeal on 24/11/2023. This scenario would apply to any other person using the electronic filing system. It is also a known fact that, sometimes the actual filing of documents in the electronic filing system is done just before midnights (as allowed under the rules cited above) when the court officials responsible for generating control numbers etc. are asleep (not at work). Under these circumstances, Page 5 of 7 a party to a case cannot be blamed for delay in paying court fees, considering that, after the court officials generating the bill, control number etc. and informing the party of that bill, payment of the required fees is done. Therefore, it is considered view that, the case of Mpale Kaba Mpoki vs The Advocates Committee (supra) is distinguishable because, in that case, the records are silent on whether the appellant was availed with the bill on the same date when he submitted the appeal in the system or some days after. In this case, records are clear that the appeal was submitted electronically on 24/11/2023 before midnight and the bill with a control number was generated on 28/11/2023. Therefore, the appellant cannot be blamed for making payment of fees beyond 45 days because the delay was beyond his capacity. Besides, he paid the fees anyway, as obliged. That being said, it is the finding of this Court that, the appeal was filed within time. Thus, I find no speck of merit on the preliminary objection, which I accordingly dismiss. Each party shall bear own costs. It is so ordered. x I. K. BANZI JUDGE 20/09/2024 Page 6 of 7 Delivered this 20th day of September, 2024 in the presence of Mr. Derick Zephurine, learned counsel for the appellant who is holding brief of Mr. Pereus Mutasingwa, learned counsel for appellant, Mr. Zedy Ally, learned counsel for the respondent who is also present and Ms. Mwashabani Bundala, RMA. I. K. BANZI JUDGE 20/09/2024 Page 7 of 7