20120223 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ATARUSHA LAND APPEAL NO. 39 OF 2009 (Originating from Arusha District Land and Housing Tribunal at Arusha in Land Application No. 27 of 2005) 11! MARGWE ERO 1111 ■■ 1 ■■■■■ 1111 ■■ 1 ■ 1 ■••·······~·-················ 1 T APPELLANT 5 2. BENJAMIN MARGWE .................................... 2ND APPELLANT · RD 3PJ PETER MARGWE ■■■■■ a11 ■■■■ n ■■■■■■■■ 11 ■■ 11 ■■■■■■■■■■■■■ 11 ■■■■■ 3 APPELLANT VERSUS MOSHI BAHALULU II • • • ■■ •••• ■• ■■■■■ ••• ■ II ■ •••••• II ■■■••··.■■■ R ■ II ■■ •••• RESPONDENT (From Judgment of the District Land and Housing Tribunal of Arusha) (D.W. Mangure, Chairperson) JUDGMENT MUGASHA, J. In the District Land and Housing Tribunal of Arusha, the respondent; successfully sued the appellants for trespass over eight (8) acres piece of land allocated to the respondent by Kilimamoja village land committee in 1987. The appellants are alleged to have trespassed on the suit land by ; building a house on 17th January, 2005. The respondents were also ordered to vacate the suit land and pay damages for trespass and loss of income for cultivating the disputed land, to be quantified later. Aggrieved, the appellants filed an appeal with five (5) grounds namely; 1. That; the trial Tribunal misdirected .itself and consequently erred in fact and in law by declaring the respondent to be the • 1 lawful owner of the disputed land while there is ample evidence on record to the contrary. 2. That; the trial Tribunal erred in fact and in law by failure to consider the appellants' documentary evidence and as a result arrived at unfair decision. 3. That, the trial Tribunal misdirected itself and consequently erred in fact and in law by declaring the respondent to be the lawful owner of the disputed land while there is ample evidence on record to the contrary. 4., That, the trial Tribunal erred in law and in fact in not finding that the disputed land is property of the appellants as the first appellant inherited the said land from his father. 5. That, the trial Tribunal erred in law and in fact in awarding the respondent un-quantified amount of damages. The hearing of the appeal was conducted by written submissions in which the appellants had services of Materu & Co. Advocates while the respondent was represented by M/S Duncan J. Oola & Co. Advocates. · The appellants' counsel abandoned 2nd and 3rd grounds of appeal. When composing Judgment, this Court has observed the following availed on record. Judgment of the District Land and Housing Tribunal was 2 ··• delivered on 6th August, 2009 while the present appeal was filed on 5th October, 2009, that is, after lapse of 60 days from the date of Judgment. In the first place, unlike appeals originating from the Ward Tribunals where section 38(1) of the Land Courts Disputes Act, [CAP. 216 R.E, 2002] specifies the limitation period within which an appeal may be filed, in appeals originating from District Land and Housing Tribunal, limitation period is not specifically stated. That brings into play item 2 of Part II of the schedule to the Law of Limitation Act (supra) which categorically provides:- ''2. An appeal for which no period of limitation is prescribed by this Act or any other written law ...................................... forty-five days'~ It is not in dispute that, the law requires exclusion of period of obtaining copies of Judgment and Decree in computing the time limitation period. Judgment of the District Land and Housing Tribunal was certified on 4th September, 2009. The law excludes the time used to obtain copies of Judgment and Decree in terms of section 19(2) of the Law of Limitation Act (supra) which provides:- "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review ofJudgment, the day on which the Judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded'~ 3 But the question to be answered is whether the exclusion of period of obtaining the Decree can be dealt in the appeal. Section 14(1) of the Law of Limitation Act (supra) provides:- "(1) Notwithstanding the provisions of this Act the court may, for any reasonable or sufficient cause, extend the period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed for such appeal or application'~ In a summary, the law avails discretionary powers to Court to enlarge time to appeal either before or after expiry of the period of limitation. Enlargement of time can only be sought in a requisite application as the Court cannot in an appeal automatically exclude the time used to obtain copies of Judgment and Decree. In the event law provides room for one to seek enlargement of time after expiry of limitation period, that accommodates the fate of late appeals where one can lodge an application to seek enlargement and avail reasonable or sufficient cause for the delay. In the matter under scrutiny, the appellant before lodging the appeal ought to have lodged an application to seek enlargement of time where the ground for delay would be late supply of the Judgment and Decree despite applying for the same as evidenced by letter addressed to the District Land and Housing Tribunal received on ih August, 2009 where the appellant sought to be supplied with copies of Judgment and Decree for the 4 • '' purposes of preparing an appeal. However, it is very unfortunate that the appellants rushed to lodge an appeal which was already late. In view of the aforesaid, this appeal is time barred and it is dismissed in terms of section 3(1) of the Law of Limitation Act (supra) with costs. Right of appeal is explained. _Order accordingly. S.E. MUG~n,a- JUDGE 11/10/2013 ···Judgment delivered in chambers this 11 th day of October, 2013 in presence of Mr. Koisenge learned counsel holding brief of Mr. Materu learned counsel for the appellants also holding brief of Mr. Oola learned counsel for the respondent. The 2nd and 3rd appellants also appeared in person. 5 ·:. ' · -~1 th reg a:t:d:\t/ . - !?••?acci.1sed ····persons, it is ordered as ., . .-, ,. ,follows:· .·{~i[J~$t. ,•:. 1. The· ,·: ,persons to -be given · back their .'• pass,· 2. The/· mFE!d, through the Attorney General to arra·: ~~- -·6:~ of the acquitted persons; the 9 HSU . . ~ . th Sh' •,);bo:ng Li and 34 th Chen Rui Hai, to their -:.~ :~:.··;~:'" . :• h ,. ,;. :Q'qn as practicable. t~il\~. ·:·':-.· Gr~~arija JUDGE 23/2/2012 _.- :.>'i{1:tS1i~E" .•.; .. .. ,·. ·,·\.::;-pl?YF·f?:1:2-:.'~ 39 I