CIV

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA ( CORAM: LILA. 3.A.. KENTE. J.A.. And MGONYA. J.A.^ CIVIL APPEAL NO. 421 OF 2020 MAGANDERA SWAGARYA........................................................... APPELLANT VERSUS YOSHUA WARYOBA............................................................. RESPONDENT (Appeal from Judgment of the Resident Magistrates' Court of Musoma at Musoma) ( Ruiwahuka. SRM Ext. Jurist dated the 23rd day of March, 2021 in Misc. Land Appeal No. 17 of 2020 RULING OF THE COURT 09th & 17th July, 2024 LILA. JA: The parties to this appeal are relatives. They are brothers in-law. They are litigating over ownership of a piece of land the size of which was not immediately disclosed by the appellant. The matter has a protracted background as we shall demonstrate it later. However, suffice it to say that, having lost an appeal before the Senior Resident Magistrate with Extended Jurisdiction in Misc. Land Appeal No. 17 of 2020, on second appeal, the appellant is before this Court on third appeal to try his luck. l This brief background articulates the essence of this appeal before us. According to the appellant, out of good will to his in-law who had family problems with his relatives, he gave part of his land to the respondent for building a residential house retaining a part of it. That, in June 2015, the respondent invaded the remaining part of the land claiming that he bought it from the appellant at TZS 370,000.00. The claims were strongly disputed by the respondent maintaining that he bought the piece of land from the appellant at that amount after selling his three cows. After an attempt to settle the dispute amicably had failed, the appellant saw no other option but to institute a suit, Land Application No. 04 of 2015, before Nyamuswa Ward Tribunal (the trial Tribunal). In its decision and as a way of resolving the matter, the trial Tribunal appeared to have divided the disputed land between the parties. The respondent was aggrieved hence appealed to the District Land and Housing Tribunal for Mara at Musoma in Appeal No. 138 of 2015. The respondent lost. Aggrieved, he appealed to the High Court of Tanzania Mwanza District Registry in Misc. Land Appeal No. 91 of 2020 but the appeal was transferred to the Resident Magistrates' Court of Musoma to be heard and determined by a magistrate with Extended Jurisdiction (Hon. E. Rujwahuka, SRM) and was registered as Misc. Land Appeal No. 17 of 2 2020. This time, the respondent emerged a winner and was declared the lawful owner of the suit land. The appellant was thereby ordered to give vacant possession forthwith. He is aggrieved, hence this third appeal. Unfortunately, the appeal before the Court was not well received as the respondent has raised two points of objection in a notice of preliminary objection lodged on 24/11/2022 predicated under Rule 107(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The said points are couched thus: - i. The appeal is incompetent before this Court as the respondent was not served with notice appeal according to Rule 84(1) o f the Tanzania Court o f Appeal Rules. //’ The appeal is incompetent as the respondent was not served with the letter requesting to be supplied with copy o fproceedings under Rule 90(1) and (3) o f the Tanzania Court o fAppeal Rules. Before us for hearing was the appellant who was present in Court and was represented by Mr. Daud John Mahemba, learned advocate. The respondent entered appearance in person and unrepresented. 3 Paying homage to the settled practice, that points of preliminary objection should first be determined, we invited the parties to address us on the two points raised. The respondent, a layperson not conversant with legal matters even those reflected in the points of objection, appeared like a soldier who was armed with a heavy weapon but unable to blast it to his enemy as he could not elaborate the points of objection apart from just pointing out that such missiles existed. Luckily though, despite his lamentation in Court that neither himself nor his client was served with the notice of preliminary objection, Mr. Mahemba accepted service in Court and was ready to proceed. That followed the respondent's earlier information to the Court that his attempt to serve the appellant physically through his immediate area leader proved futile because he vigorously refused service and the area leader refused to indorse so on the notice of preliminary objection. We accordingly proceeded with the hearing of the points of objection. Exhibiting professionalism and maturity in the legal carrier, Mr. Mahemba would not afford not to admit the stated infractions having 4 perused the record of appeal in his verge to find out copies of the complained documents unsuccessfully so as disprove the respondent's contentions. He readily conceded to both points of objection but pleaded to the Court that the appeal be struck out without an order for costs he having learnt of the points of objection in Court. He added that had he been aware, he would have had taken appropriate legal steps long before the scheduled hearing date. Following concession by Mr. Mahemba, in rejoining, the respondent had nothing substantial to submit but heartily pressed for payment of costs. We, indeed, agree with Mr. Mahemba that the two contraventions seriously affect the tenability of the appeal subjecting it to the wrath of being struck out. Starting with failure to serve the other party a copy of the notice of appeal, Rule 84(1) of the Rules, in clear words puts it a mandatory requirement that an intending appellant should, within fourteen days after lodging it, serve copies of a notice of appeal to all persons who would be affected by the appeal. The said Rule provides: - 84. -(1) An intended appellant shall, before, or within fourteen days after lodging a notice of appeal, serve copies of it on all persons who 5 seem to him to be directly affected by the appeal; but the Court may, on an ex parte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court. There can be no controversy that the Rule is intended to put on guard those interested in the appeal that the decision they emergedwinners is being impugned by the losing party. The record of appeal, intheinstant appeal, bears out at page 74, that a notice of appeal was filed in Court on 22/4/2021 but there is no indication that it was served on the respondent. This is a clear violation of the law which renders the appeal incompetent and should be struck out. [See. Bank of India (Tanzania) Limited vs Y. P. Road Haulage Limited and Two Others, Civil Appeal No. 322 of 2019 (unreported) cited and followed in Raphael Ologi Andrea vs Musoma Urban Water Supply & Sanitation Authority (Civil Appeal 468 of 2020) [2022] TZCA 344 (14 June 2022)] and Grumeti Reserves Limited vs Morice Akiri [(Civil Appeal No. 334 of 2019) [2021] TZCA 636; (03 November 2021)]. Consistent with the Court's pronouncements in the cited cases, we strike out the appeal. 6 We, next, proceed to consider the second point of objection that the appellant failed to serve a copy of a letter requesting for records of appeal as per Rule 90(1) and 90(3) of the Rules. An aggrieved party intending to appeal is, pursuant to Rule 90(1) of the Rules, imperatively obligated to institute his appeal within sixty days of the date when the notice of appeal was lodged. The only exception available is when the Registrar of the High Court, by a certificate, certifies that the documents requisite for appeal as requested by the intending party were delayed for a certified period of time in being served to such party. The Certificate of Delay (the certificate) issued by the Registrar specifies days he spent in preparing the requested documents which have to be excluded in calculating the sixty days of lodging an appeal. However, such right of exclusion is only available to an intending appellant whose request for copies of appeal documents was made in writing and a copy of it served to the other interested parties within fourteen days (see Rule 90(2) of the Rules). Rule 90(3) of the Rules explicitly provides: - "(3) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and a copy o f it was served on the respondent" 7 The import of the above provision is that failure to serve a copy of the letter requesting for appeal documents has serious consequences to the period of lodging an appeal in that, the appellant will not be entitled to the exclusion of the time specified in the certificate of delay. The Court had an occasion to pronounce itself so in Mondorosi Village Council and Two Others vs Tanzania Breweries Limited and Four Others (Civil Appeal No. 66 of 2018) [2018] TZCA 303 (14 December 2018) that failure to supply a copy of the said letter on the respondent disentitles the appellant from exclusion of time under the certificate of delay hence obligate an intending appellant to file an appeal within sixty days. Otherwise, lodging an appeal beyond such time, renders the appeal time barred. Unfortunately, in our case, a letter requesting for appeal documents found at page 104 of the record of appeal is silent on whether or not a copy of it was served on the respondent. As the respondent complained of not being served and Mr. Mahemba has admitted so, it is obvious that the appellant cannot benefit with the Certificate of Delay issued by the Registrar of the High Court excluding the period of time he spent in preparing the appeal documents. This means, the appellant was thereby required to lodge an appeal within sixty days from the date he lodged a notice of appeal [See 8 Rule 90(1) of the Rules]. As stated above, the notice of appeal was lodged on 22/4/2021 while the appeal was lodged on 9/9/2022. It needs no mathematical calculator to find that the appeal was lodged long beyond the statutory period of sixty days, hence time barred subject to being struck out. We are certain that Mr. Mahemba was aware of this obtaining outcome when he conceded to the second point of objection. Once again, we commend him for his brilliant, though painful, decision to concede to the point of objection. We have, lastly, to considered Mr. Mahemba's plea that his client be exempted from payment of costs for reasons he advanced. Settled position is that costs follow the event, that is to say, a winning party is entitled to being paid costs unless there are good reasons to hold otherwise [See Palvis Gulamali Fazal vs National Housing Corporation, Civil Appeal No. 166 of 2018 (unreported)]. In this case, the plea for waiver to pay costs was based on Mr. Mahemba being served and accepting a notice of preliminary points of objections in Court and readily conceding to them without wasting time. We do not think if this reason would outweigh the fact that, the respondent appeared in court and so as to raise the two points of objection, the respondent must have had spent time and energy in perusing the record. 9 These resources need be remedied not by any other way but by payment of costs. In fine, we sustain the two points of abjection and hereby strike out the appeal with costs. DATED at MUSOMA this 16th day of July, 2024. S. A. LILA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Ruling delivered this 17th day of July, 2024 in the presence of Mr. Daud John Mahemba, counsel for the Appellant and the Respondent who appeared in person via Teleconferencing is hereby certified as a true copy of the original.