MECKTILDA V RIMOY VS DONATHA PATRICK RIMOY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI LAND APPEAL NO. 354 OF 2024 (Originating from Land Application No. 116 of 2018 of the District Land and Housing Tribunal for Moshi at Moshi) MECKTILDA V. RIMOY …………................................. APPELLANT VERSUS DONATHA PATRICK RIMOY ….……………............... RESPONDENT RULING 03/09/2024 & 13/09/2024 SIMFUKWE, J. The appellant in this appeal is challenging the decision of the District Land and Housing Tribunal for Moshi at Moshi, which was delivered in favour of the respondent on 13th November 2023. However, the respondent's counsel raised a preliminary objection on point of law to the effect that: “The land appeal is bad in law and incompetent since it has been filed out of time.” 1 When the preliminary objection was called for hearing, the appellant was represented by Mr. Hassan Herith, learned counsel while the respondent was represented by Mr. Julius Semali, learned counsel. The preliminary objection was argued orally. In his submission in chief, Mr. Semali argued that the judgment of the trial tribunal was delivered on 13th November 2023. Copy of judgment was supplied on the same date. However, the appellant filed the instant appeal on 8th January 2024, sixty-six days after delivery of the judgment. The learned counsel continued to submit that after being instructed by his client, he made follow up and discovered that the appeal was filed in this court online and physically on 08th January 2024. That, Section 41(2) of the Land Disputes Courts Act, Cap 216 R.E 2019, provides clearly that an appeal from the District Land and Housing Tribunal should be filed within 45 days from the date of the judgment. Thus, from 13th November 2023, 45 days ended on 28th December 2023. Eleven days later, the appellant filed the instant appeal. They made follow up and confirmed that the appeal was filed out of time for eleven days. The learned counsel noted that, section 41(2) of the Land Disputes Courts Act (supra), provides that if one is out of time, he should apply 2 for extension of time which will be granted upon the discretion of the court. In conclusion, Mr. Semali prayed that the appeal be strike out with costs for being filed out of time. In rebuttal, Mr. Hassan did not dispute that the time limit for filing an appeal from the District Land and Housing Tribunal to this court is 45 days. However, he contended that Mr. Semali should have stated how they made follow up and substantiated it, as mere words do not suffice in a court of law. He elaborated that they filed the instant appeal on 06th December 2023 within the prescribed time. That, they were informed by this court after some days that their appeal had some comments from the Deputy Registrar. Copies of documents were not returned to them. He claimed the comments from the Deputy Registrar were to the effect that some copies had no copy of judgment. Thus, after complying with the directives of the Deputy Registrar, the appeal was admitted on 08th January 2024. Mr. Hassan submitted further that counting from 13th November 2023 to 08th January 2024, only 56 days had elapsed, and not 66 days as alleged by Mr. Semali. 3 Regarding the allegations that the judgment was endorsed and supplied on the same day, Mr. Hassan argued that such allegations were not substantiated as endorsement and supply of the judgment are two different things. He said that they had proof that the appellant was supplied with a copy of judgment on 21st November 2023 and payment receipts are available to that effect. Moreover, the learned counsel for the appellant urged this court to consider the issue administratively, as the dispute is between relatives (the appellant is the sister-in-law of the respondent). In that sense, he prayed that the raised preliminary objection be dismissed without costs. Rejoining on the issue of costs, Mr. Semali reiterated that the appeal should be strike out with costs to reimburse the costs of his client. Also, he stated that, according to the documents which they were supplied with, the appeal was filed on 08th January 2024 as indicated by the stamp of the court. Thus, saying that the respondent did not produce any evidence is not true as the court's records is proof of the same. Mr. Semali went on to state that they were not disputing the fact that the appeal was dated at Arusha on 6th December 2023. Rather, after noting that date, they made follow up to the Deputy Registrar, who replied that 4 dating a document does not mean that it was filed on that date. The Deputy Registrar went further by checking in the electronic case management system. It was verified that the appeal was filed on 08th January 2024. After confirming that the appeal was filed eleven days after expiry of the prescribed time, they filed the instant objection. Mr. Semali faulted the appellant for failing to produce the document which was rejected as proof that the appeal was rejected. Concerning late supply of the judgment, Mr. Semali submitted that there is no proof and that on 21st November 2023, the appellant was within time to lodge her appeal. It was also submitted that the learned counsel for the appellant has not accounted for the days from 13th November 2023 and 21st November 2023 to 28th December 2023, as they could have filed the appeal within that last week. Moreover, they have not proved that they requested to be supplied with a copy of judgment within time. Regarding the issue of administration, Mr. Semali was of the view that there was no administrative issue. He insisted that the appeal was filed out of time. On the issue of costs, Mr. Semali stressed his submission in chief and added that the appellant has never appeared, while his client has been 5 appearing on each scheduled date. That, the respondent is a widow and has been incurring costs by paying their firm. He prayed that this appeal be strike out with costs. Having considered the parties' rival submissions, the question is whether the raised preliminary objection has merit? Mr. Semali centred his objection on the ground that the appeal was filed beyond the prescribed time of 45 days. The appellant's counsel stated that he lodged the instant appeal on 06/12/2023 within the prescribed time. However, there were comments from the Deputy Registrar that some copies had no copy of judgment. Then, the appellant complied with the directives and their appeal was admitted on 08/01/2024. As rightly submitted by the learned counsels, in terms of section 41(2) of the Land Disputes Courts Act, the appellant was supposed to file her appeal within forty-five (45) days from the date of the impugned judgment of the trial Tribunal. In determining whether the instant appeal was filed within the prescribed time, the pleadings will guide us as it is an established principle of law that any preliminary objection must be a pure point of law and it must emanate from the pleadings. 6 The record reveals that the memorandum of appeal was lodged and presented for filing on 08th January 2024. The appeal was filed 56 days after the impugned decision was delivered on 13th November 2023, exceeding 45 days prescribed by law. The appellant’s counsel asserted that the appeal was filed on time through case management system. I acknowledge that currently cases are filed online through electronic case management system. I have checked the pleadings filed online and discovered that the memorandum of appeal was filed on 08th January 2024, not 06th December 2023. There are no pleadings supporting Mr. Hassan’s assertion that the appeal was filed on 06th December 2023. Mr. Hassan for the appellant contended that they were supplied with copy of judgment on 21st November 2023, meaning that time should be counted from that date. I am aware that time spent for obtaining a copy of judgment must be excluded. Much as I am aware of this legal requirement, in the present matter, even if it is assumed that the copy of judgment was supplied to the appellant on 21st November 2023, it cannot rescue the appellant. Counting from 21st November 2023, when the alleged judgment is purported to have been supplied to the 7 appellant, to 08th January 2024, when the appellant filed the instant appeal, it is 48 days which is more than the prescribed 45 days. Hence, the appeal was filed out of time. It is trite law that delay even of a single day must be accounted for as it was held in the case of Bashir Ally vs Anyegile Andendekisye Mwamaluka & Others (Civil Appeal No. 49 of 2021) [2024] TZCA 47 (16 February 2024) Tanzlii at page 9 where the Court of Appeal stated that: “With regard to the 4th point of grievance, we wish to reiterate our longstanding proposition that the threshold for granting an extension of time is that the applicant has to account for each day of the delay however slight the delay may be. See- for instance, our decisions in Juma Shomari v. Kabwere Mambo (Civil Application No. 330/17 of 2020) [2021] TZCA 63 (4 March 2021: TanzLii) and Sebastian Ndaula v. Grace Rwamafa, Civil Application No. 04 of 2014 (unreported).” Emphasis added In the alternative, I am of the opinion that after complying to the directives of the Deputy Registrar, the appellant should have applied for extension 8 to file her appeal. In the application for extension of time, she should have raised the issue of rejection of her former documents which were filed previously in time as the reason for the delay. In that way she could have been in the right track. Otherwise, considering the fact that the appeal was filed beyond the prescribed time, the only option is dismissal of the appeal and not striking it out as suggested by the learned counsels. On the last contentious issue of costs, I have considered the fact that according to the impugned judgment and names of the parties, it is true that the parties herein are related. That being the case, I hereby dismiss this appeal without costs. It is so ordered. Dated and delivered at Moshi this 13th day of September 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 13/09/2024 9