mwanahamisi mganga vs amour abdallah 2009 tzhc 224 11 september 2009

IN THE HIGH COURT OF TANZANIA (DC) CIVIL APPEAL NO. 11 OF 2004 (ORIGINATING FROM THE RULING TO SET ASIDE EX-PARTE JUDGEMENT IN CIV.35 OF 1996 - TANGA MWANAHAMISI MGANGA (AS A LEGAL REPRESENTIVE OF THE LATE NIBUNU MALUMBO................... APPELLANT VERSUS AMOUR ABDALLAH...................................... RESPONDENT RULING 24/07/09 & 11/09/09 TEEMBA, 3. This is a ruling on preliminary objections raised by the respondents defence counsel, Mr. Mramba, against the appeal filed by the appellant. The appellant, Mwanahamisi Mganga filed this appeal as a legal representative of the late NIBUNU - MALUMBO who was the defendant in Civil Case No. 35 of 1996 before the District Court of Tanga. The respondent had services of Mr. Msakamari but later on he was dropped and Mr. Mramba advocate took over. The preliminary objections, the subject of this ruling, were filed by Mr. Mramba. In his notice of preliminary objections, he filed four points of law, namely. (a) That as the Ruling and Extract Order being appealed against were delivered on March 31st, 1999 and this appeal preferred on July 23rd 2004, this appeal is hopelessly time barred. (b)That as no Application was made praying for the appellant to be made a (c) That as the respondent has died and his administrator has not been enjoined as a party, this matter against him has abated. (d)That as the subject matter of this case is landed property; ttyS'Honourable Court does not have jurisdiction to entertain the same. The counsel for the respondent therefore, prays that the appeal be dismissed with costs. On the other hand, the appellant is of the views that the preliminary objections are misconceived and misinformed as they were filed more that four years after the filing of the memorandum of appeal. I allowed the parties to argue these preliminary points of law by way of written submissions. Before I consider the merits or demerits of these four points as raised, it is important to look at the submissions made by the appellant that the objections were filed late. Indeed I do agree with her that the objections came up* inordinately delayed. This was some how admitted by the counsel for the respondent but gave reasons for that delay. I must say that this case has a long history and is one of the oldest cases in courts. Initially , parties had advocates but as time went on, the appellant found herself without while the respondent had to engage a new advocate. The respondent engaged/instructed the present learned counsel, who appeared in court for the first time on 13th August 2008.The learned defence counsel, made an oral request to file a preliminary objection to this appeal. It is my considered view, that, as an advocate, he has the right and duty to defend his client on any point of law at any time as he did in this case. I do not think that there Is any injustice caused to the appellant because the preliminary points were filed as ordered and the appellant was not taken by surprise on the matters raised. I now turn to the points of law as filed by the respondent I will start to consider the second point, that is, the appellant has no locus standi in the case. the court record and noted that this appeal no. 11 of 2004 is the sixth matter involving the same parties. One of them is Misc. Application No.22 of 2001 which was filed by Mwanahamisi Mganga (the appellant in this appeal) applying to be made a party as a legal representative in Misc.Application N o.l of 2000. It is not irrelevant for the parties to note that Application No. 1/2000 was filed by the late Nibunu Malumbo for an order to allow him file an appeal against a Ruling of the District Court. The appellant, 'Mwanahamisi Mganga was granted with the orders as prayed, and the Ruling was granted on 24th May 2001/ Following this Order, she was joined in the Misc. Application n o.l of 2000. The Ruling was delivered in her favour on 28th June 2001. With this historical background, it is obvious that Mr. Mramba is not informed of the status of the present appellant, as far as the parties are concerned. The appellant therefore, is a legal representative and she has locus standi. She compiled with Order XXII Rule 4 of the Civil Procedure Code Cap.33 RE. 2002. This objection is dismissed. The third objection is moveor less related to the second objection. The same grounds are applicable but the respondent's counsel decided to drop it. The fourth objection is that this court has no jurisdiction to entertain the appeal because the subject matter of this case is landed property. Let me point out that the Civil case no.35 of 1996 was filed in the District Court and all other Applications including the instant appeal arose from the same case. This suit was filed before the enactment of the new Land Laws and during the time when the District Court had jurisdiction on the matter. In addition, this court is now dealing with an appeal arising from a decision of the District Court. There is no dispute that according to section 37 of the Land Disputes Courts Act, Cap. 216 (RE 2002) which came into force vide Government Notice no.223 of 8/8/2003 it is only the Land Division of the High Court of Tanzania that has jurisdiction to deal with land matters. Section 54 (1) of the same Act, a Tribunal, Customary Land Tribunal and the Customary Land Appeals Tribunal to be continued and concluded as if this new Act had not been passed. I am aware, as correctly submitted by the defence counsel, that all proceedings and appeals should be concluded within the period of two years from the date of commencement of this Act (section 54(3) of the Act). Taking into account a big number of cases that were pending at the time this Act came into force, the Honourable Chief Justice has extended the period -and all the pending cases and proceedings before these Courts and Tribunals have to be concluded by the same organs. The Honourable Chief Justice, acting under section 54 (4) of the Land Disputes Act, Cap.216 RE: 2002, extended the time for all cases pending in this Registry Court's to be concluded. The instant appeal is one of those cases. This court, therefore, has jurisdiction to entertain the appeal. The last point for consideration is whether or not the appeal is time barred. I have noted that the appellant applied for extension of time to file this appeal vide Miscellaneous Civil Application n o.l of 2000. The application was granted by this court (Mkwawa J,) on 28/6/2001; The record shows that the* appellant did not file an appeal against the Ruling of the District Court dated 31/3/1999. Instead the appeal no. 130 of 2001 was preferred against the exparte judgment. It is obvious that the leave granted on 28/6/2001 for the appellant to file appeal out of time was not extended to the time of filing the instant appeal on 15th July 2004. It is for this reason I agree with Mr. Mramba, the learned counsel for the respondent, that the appeal is time barred. I am aware that the appellant, is a lay person, who is not legally represented and possibly the reasons for all these irregularities. However, the ignorance of law is no defence. Thus the, first point of objection is sustained. The appeal is hereby struck out. Each party to bear own costs. Coram: R.A. Teemba,J. Appellant: Present Respondent: Mr. Mramba Court: The Ruling delivered in court today in the presence of parties. . R A. TEEMBA,3. m/ v11/9/09