NASSORO OMARI SIKUZI SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.27029 OF 2024 fOriginating from the Judgment and Decree of the District Land and Housing Tribunal for Kibaha in Misc. Application No. 40 of2023 delivered on 0Sh October2023) NASSORO OMARI SIKUZI................................................ APPELLANT VERSUS PROCHES MARANDU.................................................... RESPONDENT RULING 1st & 10h January,2025 L.HEMEDJ At the District Land and Housing Tribunal for Kibaha at Kibaha, NASORO OMARI SIKUZI, the Appellant herein, instituted Application No. 40 of 2023 claiming ownership of the suit piece of land measuring two (2) acres located at Saeni, Misugusugu Ward, Kibaha in Coastal Regional against PROCHES MARANDU. The Appellant claimed that the Respondent had trespassed into it. The Respondent resisted the claims and raised the counter claim praying to be declared owner of the landed property and for an order that the Appellant herein is the trespasser into it. Having heard testimonies and i scrutinized evidence thereof, on 5th September, 2024 the trial Tribunal delivered judgment in favour of the Respondent herein. Aggrieved by the said decision, on 25th October, 2024, the Appellant presented for filing the instantaneous appeal on the following grounds which are reproduced verbatim thus: - "1. Kwamba, Baraza la Ardhi na Nyumba la WHaya lilijielekeza vibaya kisheria kwa kutoa hukumu isiyokuwa na maoniya wajumbe"Assessors". 2. Kwamba, Baraza la Ardhi na Nyumba !a WHaya lilijielekeza vibaya kisheria kwa kutoa hukumu ambayo haina na waia haioneshi wajumbe "Assessors" waiioshiriki katika kusikiiiza kesi na kufikia kutoa hukumu hiyo. 3. Kwamba, Baraza ia Ardhi na Nyumba ia WHaya lilijielekeza vibaya kisheria kwa kutoa hukumu ambayo haijazingatia na haina maswaii ya Dodoso "cross examination"yaliyoulizwa Pamoja na majibu yanayotokana na maswaii hayo ya Dodoso kutoka kwa pande zote mbHI. 4. Kwamba, Hukumu iliyotolewa ni batiii kwani inaonyesha wakati utoaji wa hukumu idadi ya akidi Hikuwa haijakam'Hika. 5. Kwamba, Baraza la Ardhi na Nyumba la WHaya lilijielekeza vibaya kisheria kwa kusema kwamba lilipo enda eneo la tukio watu walioulizwa walikiri eneo ni la Mrufaniwa. 6. Kwamba, Baraza la Ardhi na Nyumba !a WHaya lilijielekeza vibaya kisheria kwa kutoa hukumu ambayo ina Ushahidi tofauti na u/e uiiotoiewa na Mrufani na Mrufaniwa Pamoja na mashahidi zake." On 6th November, 2024, the learned counsel for the Respondent raised a preliminary objection in limine //Zzsthus:- "In terms ofSection 41 (2) of Land Disputes Courts Act, Cap. 216 RE 2019 this Appeal is hopelessly time barred since the last day (45th day) to file it was 20/10/2024 (25days ofSeptember + 20 of October) since while the Judgment of District Land and Housing Tribunal was delivered on 5/9/2024, this Appeal was filed electronically on 28/10/2024 and hard copy on 25/10/2024and all these dates are out of time." 3 Hearing of the preliminary objection was done by way of written submissions. Mr.R.B Shirima, learned advocate acted for the Respondent while the Appellant was in person. All submissions were filed promptly as per the filing schedule directed by the court. Submitting in favour of the preliminary objection, Mr. Shirima, learned advocate asserted that the matter is hopelessly time barred for being filed out of time without the leave of this court contrary to section 41 of the Land Disputes Courts Act[Cap.216 R.E 2019]. The learned counsel was of the opinion that the law requires the appeal to be preferred to the High Court within the period of 45 days but the present appeal was preferred after the lapse said period. He ended praying for the dismissal of the appeal pursuant to section 3 of the Law of Limitation Act [Cap.89 R.E 2019]. In his response, the Appellant contended that the copies of judgment were not supplied to him timely that he could not file his appeal within 45 days. According to him, the copy of judgment was already for collection on 15th October, 2024. The Respondent relied on section 19(1)(2)(3) of the Law of Limitation Act(supra) insisting that the time wasted in looking for supply of copies of judgment must be excluded in computing time limitation. He 4 fortified his argument by the decision in Bukoba Municipal Council vs New Metro Merchandise, Appeal No. 374 of 2021. He ended praying the preliminary objection be overruled. In his rejoinder submissions, the learned counsel for the Respondent reiterated his submission in chief stating that the appeal is time barred. He distinguished the decision in Bukoba Municipal Council vs Metro Merchandise(supra) arguing that in the said case the copy of judgment was stamped the date on which it was certified while in the present matter there is no such certification date. Having gone through the rival submissions, it is due time to determine the merit of the preliminary objection. It is very clear from the provision of section 41(1) & (2) of the Land Disputes Court Act [Cap.216 R.E 2019] as it provides thus: - "41. -(1) Subject to the provisions of any law for the time being in force, all appeals, revisions and simitar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in exercise of its originaljurisdiction shall be heard by the High Court. (2) An appeal under subsection (1) may be 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 ofsuch period of forty- five days. "[Emphasis added] In view of the above provision appeal from the decision of the District Land and Housing Tribunal has to be preferred to the High Court within forty- five days after the date of the decision or order. In the instant case, judgment of the trial Tribunal was delivered on 5th September, 2024 while the instant appeal was presented for filing on 25th October, 2024, that is after 50 days. In his reply submission, the Appellant has asserted that copies of judgment were supplied to him late that he could not manage to present his appeal timely. I am aware of section 19(2) of the Law of Limitation Act(supra) which provides thus: - 6 "In computing the period of limitation prescribed for an appeal...the day on which the judgment complained of was delivered, and the period- of time regufcite for, obtaining, a copy. Qf_ the decree or order appealed from.. .shall be excluded." [Emphasis added] From the above provision, it is unequivocally clear that time spent in applying for supply of copy of the decree has to be excluded during computation of the period of limitation. In the instant case however, the Appellant has averred that he was supplied late with the copies of the judgment. Upon perusal of the record of the trial Tribunal I found a copy of the typed judgment which was signed on 5th September,2024 by the trial chairperson. This implies that by 5th of September 2024, the copies of judgment were ready for collection by the parties. I have also noted that the Appellant applied for copies of judgment on 19th September,2024, that is after the lapse of 13 days. The copies which were supplied to the parties do not have the date on which they were supplied to parties. They only bear the date on which the i. judgment was delivered to the parties. The Appellant has tried to rely on the decision in Bukoba Municipal Council vs New Metro Merchandise(supra) urging the court to exclude the time he wasted in obtaining copies of judgment. I have reviewed the cited decision and found it distinguishable from the circumstance of this case in the sense that in the previous (cited) case, the copy bore the date of certification while in the instant case the copy of judgment appears to be typed and signed on the date on which it was delivered. In this case, even the decree was extracted on the date of delivering the judgment, that is on 5th September, 2024 in that regard the time within which to appeal is computed from the date of the judgment. Additionally, if at ail the Appellant thought to have good reason for the delay, he ought to have applied for extension of time under the proviso to section 41(2) of the Land Disputes Courts Act(supra). It is unfortunately that the Appellant chose to file the instant appeal without going through the route of leave of the court to lodge the appeal out of time. In the end I find merit in the preliminary objection. The instant appeal was filed out of time without the leave of this court. In view of section 3 of 8 the Law of Limitation hc(supra), I proceed to dismiss the entire appeal with costs on account of being time barred. Order accordingly. DATED at SALAAM this IQP'Yianuary 2025 ■. > LTHEIMED JUDGE, 9