mwanja o mkamba vs mohamed s msuya 2021 tzhclandd 461 27 august 2021

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL NO. 142 OF 2020 (Originating from the decision of the District Land and Housing Tribunal for Kilombero/Ulanga District in Land Case No.26 of 2019) MWAIJA OMARY MKAMBA....................................... .. APPELLANT VERSUS 1. MOHAMED SAID MSUYA RESPONDENTS 2. ZAITUNI OMARY KONDO 3. ZAINA OMARY KONDO RULING Date of last Order: 19.072021 Date of Ruling: 27.08.2021 A.Z.MGEYEKWA, J At the centre of controversy between the parties to this appeal is a parcel of land. The appellant lodged a suit before the District Land and Housing Tribunal for Kilombero in Land Case No. 26 of 2019 was unsuccessful, hence this appeal. Undeterred, the appellant decided to i file the instant appeal which raises three grounds of appeal that constitute the gravamen of this complaint. The appeal has hit a snag. On 21st October, 2020 the respondent, through Mr. Augustine Kusalika, learned Advocate lodged a preliminary objection against the appeal which sought to impugn the decision of the tribunal on one point of preliminary objection which read:- " The appeal is hopelessly time barred." As the practice of the Court, I had to determine the preliminary objection first before going into the merits or demerits of the appeal. That is the practice of the Court founded upon prudence which I could not overlook. When the matter was called for hearing on 07th October, 2020 by the court order parties argued the preliminary objection by way of written submission. The respondent filed his submission in chief on 21st October, 2021, the appellant filed a reply on 4th November, 2020 and the respondent filed his rejoinder on 11th November, 2020. In arguing for the preliminary objection, the learned counsel for the respondent started with a brief background of the facts which led to the instant application which I am not going to reproduce in this application. Mr. Kusalika was brief but focused. He submitted that the appeal before 2 this court is hopeless time barred. He stated that the District Land and Housing Tribunal decision was delivered on 10th June, 2020 and the appellant lodged his appeal before this court on 27th July, 2020 without leave of this court to appeal out of time. He added that the appellant has delayed for 3 days from the date when the judgment was delivered. The learned counsel for the respondent went on to submit that section 41 (2) of the Land Disputes Courts Act prescribed the period to file an appeal is 45 days. To support his position he cited the case of Hemed Ramdhani and 15 others v Tanzania Habour Authority, Civil Appeal No. 43 of 1999 (unreported) HC and the case of Pearl International Commodities Ltd v Tanzania Harbour Authority, Civil Case No. 281 of 1996 (unreported) HC. He added that the appeal was filed after 48 days, 3 days lapsed thus the appeal is hopeless time barred. He cited section 3 (1) of the Limitation Act, Cap. 89 [R.E 2019] which provides that every proceeding described in the first column of the Schedule to this Act and which is instituted after the period of limitation prescribed therefore opposite thereto in the second column, shall be dismissed whether or not limitation has been put up as defence. 3 On the strength of the above submission, the learned counsel for the respondent beckoned upon this court to find that the appeal is time barred, the same be dismissed with costs. In reply thereto, the appellant's Advocate claimed that the appeal is not time barred. He claimed that the appeal has been filed on 23rd July, 2020 via Electronic filing which is 43 days from the date of which the judgment was delivered by the trial tribunal hence the same is within time. To buttress his position he referred thus court to Rule 21 (1) of Judicature and Application of Laws (Electronic Filing) Rules, 2018 which 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." The learned counsel for the appellant also referred this court to Rule 22 (a) of Judicature and Application of Laws (Electronic Filing) Rules, 2018. Insisting, he submitted that the appellant lodged his appeal on 23rd July, 2020. To fortify his submission he referred this court to the attached extract of JSDS/eCase Registration. He added that the hard copy of the Memorandum of Appeal was presented for filing in court physically on 27th 4 July, 2020. He went on to state that the judgment was delivered on 10th June, 2020 , counting the days the 45 days lapsed on 25th July, 2020 on Saturday thus the appellant filed the same 27th July, 2020 on the working days. He differentiated the cited case of Peari International (supra). On the strength of the above submission, the learned counsel for the appellant beckoned upon this court to find that the appeal is lodged within time and proceed to overrule the preliminary objection with costs. In his rejoinder, Mr. Kusalika reiterated his submission in chief. He urged this court to dismiss the appeal. I have given careful deliberation to the arguments for and against the preliminary objection herein advanced by both learned counsels. Having done so, it should be now opportune to determine the preliminary objection raised by the respondent's Advocate and the main issue for determination is whether the preliminary objection is meritorious. To begin with, from the factual setting, it is beyond question that having heard the respondent's Advocate submission that the appeal is time- barred, I had to go through the court records to find out whether the appellant lodged the instant appeal within time. The time limit in filing the instant appeal is prescribed under section 41 (2) of the Land Disputes 5 Courts Act, Cap. 216 [R.E 2019]. I wish to reproduce it hereunder for ease of reference :- " (2) An appeal under subsection (1) maybe lodged within forty five days after the date of the decision or order: Provided that, the High Court may, for the good cause, extend the time for filing an appeal either before or after the expiration of such period offorty five days. "[Emphasis added]. Applying the above provision of law, the prescribed period in filing an appeal or revisions and similar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction is 45 days. Counting the days the last date of filing the appeal was 25th July, 2020. The learned counsel for the appellant's line of argument is basically that the appeal was filed on 23rd July, 2020 at 12:03:48 via electronic filing. The procedure in filing documents through electronic filing is governed by the Judicature and Application of Laws (Electronic Filing) Rules, 2018 specifically Rule 21 and 22. Rule 22 (a) provides that:- " Where a document is filled with, served on delivered or otherwise conveyed to the Registrar or Magistrate in charge using the electronic filing service and is subsequently accepted by the 6 Registrar or Magistrate in charge, it shall be deemed to be filed served, deliver or conveyed." The above provision of the law provides the procedure to file documents online. There is no dispute that the appellant filed the memorandum of appeal through e filing on 23rd July, 2020. The issue on which the two learned counsel have, locked horns, is whether or not the appellant filing the memorandum of appeal via e-filing was within time. The respondent's Advocate is in the view that the appeal was filed out of time basing on the manual filing. It is noteworthy that the electronic filing Rules have not completely substituted the manual filing of documents. The electronic filing Rules are guiding procedures in registering a document online. Therefore, the same cannot diminish the fact that a document is deemed filed upon payment of court fees. The appellant's Advocate tried to convince this court that the appellant lodged his appeal within time basing on the date when he filed his Memorandum of Appeal online. However, he also tried to move this court to find that the appellant was not able to file the document on the following day since it was a weekend. With due respect, the learned counsel for the appellant is trying to hoodwink 7 this court. As rightly pointed out by the learned counsel for the respondent the appellant was in a position to file the memorandum of appeal on Friday, 24th July, 2020 but he filed the same on Monday, 27th July, 2020, and obvious he was out of time. For reasons canvassed above, I find the appeal before this court was filed out of the prescribed time and in terms of section 3 of the Law of Limitation Act, Cap. 89 [R.E 2019] the remedy is to dismiss the appeal. Thus, I proceed to dismiss the Land Appeal No. 142 of 2020 for being time barred. Each party to shoulder his own costs. Order accordingly. Dated at Dar es Salaam this date 27th August, 2021. A.Z.MGEYEKWA JUDGE 27.08.2021 Ruling delivered on 27th August, 2021 via audio teleconference whereby Mr. Michael Lucas, learned counsel for the appellant and Mr. Kusalika, learned counsel for the respondents were remotely present. A.Z.MGEYEKWA JUDGE 27.08.2021 8