MARIAM MAUNGU

IN THE HIGH COURT OF TANZANIA DODOMA SUB- REGISTRY AT DODOMA LAND APPEAL NO. 3044 OF 2024 (Arising from Misc. Land Application No. 38 o f2023 in the High Court o f Tanzania, Dodoma Sub-Registry at Dodoma, originating from Land Application No. 34 o f 2019 in the District Land and Housing Tribunal for Singida at Singida) MARIAM MAUNGU MUKUKURI..................................... APPELLANT VERSUS DAUDI AMOS (As Administrator of the Estate of the late Amos Omary Kiula)...............................................RESPONDENT RULING 6thJune & 12^uly, 2024. MUSOKWA, J. The appellant herein was the applicant in Land Application No. 34 of 2019 in the District Land and Housing Tribunal for Singida (DLHT). Before the DLHT, the records indicate that the appellant sued Amosi Omary Kiula and Ayubu Ibrahimu Kilume being the 1st and 2nd respondents respectively. The appellant's suit against the said respondents was for trespass to the suit land located at Unyankhae area, in Singida region. In -the course of the proceedings, the DLHT entered a judgment on admission against the 2nd respondent, Ayubu Ibrahimu Kilume. Therefore, the matter proceeded on merits against the 1st respondent only, which was heard ex parte, whereby the judgment was entered in favour of the 1st respondent. Being aggrieved with the decision thereof, the appellant preferred the present appeal whose grounds I shall not reproduce for reasons that will be evident in the ensuing paragraphs. Before the date which was scheduled for the hearing of the appeal on merits, the court suo motu directed parties to address it on two issues. The first issue was on the competency of the appeal, specifically on whether or not the appeal had been filed within the prescribed time by law. The second issue was on the variation of the names of the parties as they appeared in the proceedings and judgment of the DLHT, and the appeal before this court. Mr. Lucas Komba, counsel for the appellant was the first to address this court. With regard to whether the appeal was filed within time, the learned counsel for the appellant referred to the records of the electronic filing system of the judiciary (e-filing system). Mr. Komba submitted that the said records indicate that the petition of appeal was lodged on 10th December, 2023. In support of his submission, the appellant's advocate prayed to submit print outs of the efiling system for the reference by the court. In emphasis, the learned counsel for the appellant asserted that the petition of appeal was filed within time and invited the court to determine the appeal on merits. The counsel for the appellant proceeded to address the second issue on the discrepancies in the names of the parties, as they appear in the records of the DHLT, and before this court. Mr. Komba explained that in the matter before the DLHT, the 1st respondent passed away after delivery of the judgment. The counsel for the appellant further asserted that an application for extension of time was filed before this court, to wit, Misc. Application No. 38 of 2023. Further, that at the time of filing the said application, the administrator of the estate of the 1st respondent had already been duly appointed. On the basis of the foregoing, Misc. Land Application No. 38 of 2023 had the name of the appointed administrator. Mr. Lucas averred that subsequently, the present appeal maintained the name of the administrator of the estate of the 1st respondent, namely Daudi Amos. Accordingly, the appellant restated that the appeal before this court is competent and prayed that the court should hold so. Mr. Jackson Mayeka, learned counsel, appeared for the respondent. In reply, the counsel for the respondent submitted on the competency of the present appeal. Mr. Mayeka concurred with the counsel for the appellant on the grant of extension of time to file the present appeal, through Misc. Application No. 38 of 2023 filed in this court by the appellant. That indeed the application was granted and the appellant was given 30 days within which to lodge the present appeal. However, Mr. Mayeka argued that the mere filing of the document electronically does not suffice for the document to be considered to have been duly filed. The counsel for the respondent proceeded to state that a court document is deemed to be filed when the necessary fee is paid. The respondent's counsel averred that the counsel for the appellant failed to satisfy the court that the necessary fee was duly paid. Further, that the appellant has not supplied the court with the necessary information on when the appeal was registered. It was the submission of the respondent that failure by the appellant to satisfy the court on these two paramount issues, renders the appeal to be hopelessly time-barred. On the second issue on the variation of the names of the parties at the DLHT and before this court, the counsel for the respondent submitted that Mr. Mayeka did not dispute the fact that Amos Kiula is now deceased, and that Daudi Amos was duly appointed to be the administrator of the estate of the late Amos Kiula. However, Mr. Mayeka contended the submission by the appellant's counsel that Amos Kiula passed away after the delivery of the judgment of the DLHT. Mr. Mayeka argued that the late Amos Kiula passed away on 10th April, 2022 whereby the judgment was delivered on 27th September, 2022. Proceeding further, Mr. Mayeka stated that the judgment was delivered after the lapse of five (5) months since the demise of the 1st respondent. The respondent contended that in the DLHT, while the matter was heard ex-parte, the proceedings do not indicate whether a notice of judgment was issued to the respondent or his relatives thereof, to be present at the date of delivery of the judgment. Due to those reasons, it was the submission of the respondent that the appeal before this court is incompetent. In rejoining, the appellant reiterated that the appeal was filed within time. In support of his position, Mr. Komba referred to Rule 21 of the Judicature and Application of Laws (JALA), Electronic Filing Rules, G.N No. 148 of 2018. The provision provides that the time of filing shall be considered to be the date the document was filed electronically. On that basis, the counsel for the appellant re-stated that the appeal was competent before this court as it was filed within time. Under the circumstances, the court sought clarification from the appellant as to when the requisite court fee was paid in respect of the present appeal. In response thereof, Mr. Komba counsel for the appellant submitted that he could not recall when payment of the court fee was made. The court will now proceed to determine the issues before it. The first issue concerns the competency of the present appeal on whether or not the same was filed within time. In order to have a chronological background to the matter before this court, I will refer to a prior application that was filed before this court, therefore Misc. Application No. 38 of 2023, before Khalfan J. The said application was for extension of time, in order to pave way for the proper filing of the present appeal. The said application was successful. By a ruling dated 5th December 2023, the applicant was granted thirty (30) days from the date of the ruling within which to lodge the appeal. Counting from the date of the order, the 30 days lapsed on 4th January, 2024. In determining whether a document has been duly filed in court before the expiration of the time limited by law; two different schools of thought exist. The first school of thought places emphasis on the date of filing the document electronically; whereas the second school of thought emphasizes on the date of payment of court fee. In the case of Maliselino B. Mbipi vs Ostina Martine Hyera, Misc. Civil Application No. 08 of 2022, this court (Mlyambina J.), deliberated extensively on this subject matter. The laws governing the electronic filing of documents, and payment of court fees, are the Electronic Filing Rules of 2018, G.N. No. 148 of 2018; and the Court Fees Rules of 2018, G.N. No. 247 of 2018. The aforementioned subsidiary legislations are both made under the Judicature and Application of Laws Act, Cap. 358, R.E. 2019. In the case of Maliselino (supra), this court held that the two laws must be read together. Notably, Hon. Mlyambina J., at pages 19 to 20 stated as follows: - "As alluded at the beginning part of this Ruling, Electronic filing system is guided by two Regulations: The Judicature and Application of Laws (Electronic filing) Rules GN No. 148 of 2018 and The Judicature and Application of Laws Act (The Court Fees) Rules, G. N. No. 247 of 2018. Rule21 (1) of the Electronic filing Rules provides inter alia that: A document shall be considered to have been filed if it is submitted through the electronic filing system before mid-night, East African time, on the date it is submitted, unless a specific time is set by the Court or it is rejected... After scrutinizing Rules 21 and 22 (supra), this Court maintains; for the filing to be complete, paym ent of the appropriate fees must be made within the time limit stipulated by the law ..... Rule 3 and 5 (1) of the Judicature and application of Laws Act (Court Fees) Rules, G. N. No, 247 of 2018 which provides inter alia that: 3. The fees for any matter shall unless otherwise expressly provided, be paid in accordance with these Rules. 5.-(l) for the purpose of this Part, fees specified in the first schedule to this Rules shall be paid to the High Court, a Court of Resident Magistrate and District Court in respect of proceedings and matter other than those for which specified fees are prescribed under any other law. Rule 3 as well as Rule 5 (1) (supra) which provides for the requirement of payment of fee are enacted in mandatory terms. The word "shall" used in the quoted Rules compel any person who wants to file a document to the Court has to pay fees. Failure to pay the fees required as provided by the law render the process incomplete", [emphasis added] As correctly submitted by the respondent's counsel, and being guided by the aforementioned decision, the date of filing this appeal electronically and the date of payment of the requisite court fees must be considered in determining whether or not the appeal was timely filed. The counsel for the appellant in his submissions asserted that the document was filed electronically on 10th December, 2023. However, the appellant's counsel omitted to state when the court fee was paid; even after being probed by the court. This court conducted an inquiry and retrieved records from the electronic filing system in order to ascertain the date when payment of court fee was made. According to the records, payment of court fee for filing this appeal was effected on 16th February 2024. In the circumstances, this appeal is timebarred as payment was effected 43 days after the expiry of the time that had been extended by this court, (Khalfan J.) In view of the foregoing, and having found that this appeal is time-barred, I find no need to address the second issue concerning the variation in the names of the parties in the records of DLHT and this court. Accordingly, the appeal is hereby dismissed with costs for being time barred. Order accordingly. Right of appeal is explained. DATED at DODOMA this 12th day of July, 2024. 8 Ruling delivered in the presence of Mr. Dennis Odhiambo, learned counsel holding brief for Mr. Jackson Mayeka, counsel for the respondent; and in the absence of the appellant. 9