CIVIL APPEAL NO 17 OF 2022 NKWABI FIKIRINI VS UPENDO MHINDI

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MUGASHA. 3.A.. MASHAKA. J.A., AND NGWEMBE. J.A.) CIVIL APPEAL NO. 17 OF 2022 NKWABI FIKIRINI (administrator of the estate of RAJABU SWEDI NKWABI) ................................. APPELLANT VERSUS UPENDO MHINDI................... .......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania [Land Division] at Dar es Salaam) (Sambo. J.1 ) dated the 15thday of April, 2013 in Land Appeal No. 66 of 2007 JUDGMENT OF THE COURT 18th & 26th February, 2025 NGWEMBE. J.A.: Parties have been in a constant struggle over ownership of a registered piece of land titled Plot No. 101 Block "K" Mbezi in Kinondoni District Dar es Salaam Region, bearing CT No. 48741. The struggle was initiated by the respondent herein by instituting a complaint before the District Land and Housing Tribunal (DLHT) for Kinondoni (Land Application No. 204 of 2005) against Cosmas Eugeni and Rajabu Swedi Nkwabi. She sought for declaratory orders that; she is the rightful owner of the suit property and the appellant was a trespasser; eviction order and demolition of any structure built therein at the costs of the appellant; permanent restraint from interfering and trespassing onto the suit land; general damages to the tune of TZS. 10,000,000.00 and costs of the suit. In the course of the trial, the respondent was granted leave of the Tribunal to drop the name of Cosmas Eugeni and remained with the present appellant. At the end of trial before the Tribunal, the application was dismissed. Dissatisfied with the outcome of her suit, the respondent successfully, appealed to the High Court (Land Division) in Land Appeal No. 66 of 2007. Again, the outcome of the appeal displeased the appellant, hence the present appeal. In order to appreciate the gist of the complaint, the following background is crucial. In her application before the trial tribunal, the respondent claimed the suit land was allocated to her in 1996 after revocation of the previous holder (the appellant). The reason for revocation was breach of the terms of occupancy. According to the revocation letter of 15/6/1994 attached to the application, it indicates that the President revoked the certificate of title of the appellant on 9/9/1992. Consequently, in 1996, the respondent was allocated the suit plot. The respondent further 2 stated that on the same year of 1996, the appellant entered in the said plot and started building a house. Despite the stop order from Kinondoni Municipal Council, the appellant proceeded with construction of a house. The appellant's written statement of defence (WSD) strongly disputed the respondent's claims. He maintained that he is the rightful owner of the suit property having been allocated since 1982 and that he started developing therein since 1990. He refused to recognize the President's revocation over his right of occupancy on the reason that he was not afforded a right to be heard. Before the DLHT, four issues were framed to wit: who was the rightful owner of the disputed property; whether the appellant defied a stop order; whether the respondent was entitled to damages and what reliefs were the parties entitled to. In adducing her evidence, the respondent stated that the land was previously owned by the appellant, but his right of occupancy was revoked by the President. That she made an application before the Kinondoni Municipal Council and was issued with an offer of right of occupancy and later was granted a certificate of title. She tendered eleven exhibits, including; the revocation of the appellant's right of occupancy dated 09/09/1992; notice of revocation to the editor of 3 Government Gazette of 15/6/1994; letter of offer of 14/7/1994; certificate of title; other documents and correspondences in respect of her occupancy, land rent payment and complaint on trespass. The appellant likewise testified that he was allocated the suit plot by the relevant authority. He tendered certificate of title CT No.35304, a photograph of the house in support of his averment that he had been developing the land plot ever since 1990. He also tendered receipts proving that he has been paying rent, He reiterated what was set in the WSD that he was not served with a notice of revocation, thus he remained unaware of any revocation of his right of occupancy. After hearing from both parties, the Tribunal dismissed the respondent's suit. The Tribunal's reasoning had two folds, that the revocation did not comply with the proper procedures and did not afford the appellant's right to be heard. It was the opinion of the Tribunal that if there was valid revocation, the Kinondoni Municipal Council would not proceed to demand land rent from the appellant. Apart from that, it was the Tribunal's finding that the respondent did not prove that the said revocation was gazetted. He thus proceeded to nullify the revocation so entered by the President and declared the appellant as a rightful owner of the suit land. 4 The Tribunal's decision aggrieved the respondent, hence on 18/9/2007 she successfully challenged it before the High Court (Land Division) in Land Appeal No. 66 of 2007. Among the grounds raised at the High Court, included the jurisdiction of the Tribunal to nullify the revocation of right of occupancy made by the President and failure to evaluate the evidence. It happened that Mr. Nkwabi passed away on 30/07/2008, while the appeal before the High Court was still pending. The appellant herein having been appointed as administrator joined the appeal and his name was substituted on 25/11/2010. It is on record that the appellant at the High Court, raised an objection based on time limitation, that the trial Tribunal's judgment was delivered on 18/6/2007 and the appeal was lodged at the High Court on 18/9/2007 thus time barred. However, according to the judgment of the High Court appearing at page 161 of the record of appeal, the objection on time limitation was rejected because the appellant wrongly cited section 38 (1) of the Land Disputes Courts Act instead of section 3 of the Law of Limitation Act. The learned judge quoted section 38 (1) of the Land Disputes Courts Act that it is applicable only if the dispute originated from the Ward Tribunal. In such circumstances, the applicable 5 law relating to time limitation was the Law of Limitation Act as the matter originated from the District Land Housing Tribunal. Consequently, the High Court (Sambo, J.) dismissed the preliminary objection and proceeded to determine the appeal on its merits. It was the High Court's decision that the Tribunal had no jurisdiction to try and determine or nullify acts of the President which were exercised under section 10 (1)(2) of the Land Ordinance (by then). The reason among others, was that the Office of the President was not a party to the suit, therefore, the government was condemned unheard contrary to the basic principles of natural justice. Also, it was ruled that the Tribunal had no jurisdiction to hear suits against the government. Consequently, the High Court proceeded to quash the judgment and decree of the Tribunal and in lieu thereof, declared the respondent as the rightful owner of the suit plot. Having reflected on the reliefs sought by the respondent, the High Court awarded general damages to the tune of TZS. 5,000,000/= and ordered demolition at the appellant's costs any development made in the suit plot. It is against that background; the appellant is discontented, and seeks to impugn the decision of the High Court upon a memorandum of appeal which is comprised of three points of grievance out of which we shall at a later stage reproduce only the first ground of appeal. 6 We have taken a great deal to give a lengthy background in order to show as to how the appellant surfaced in this appeal. Due to its nature as we hinted above, we do not intend to reproduce the grounds of appeal save for the 1st ground which is the subject of this judgment as follows: 'That the Hon. Judge erred in law for failure to observe that the instituted appeal in the High Court was time barred" At the hearing, Mr. Elisa Abel Msuya, assisted by Ms. Irene Mchau both learned counsel for the respondent conceded to the 1st ground of appeal that the 45 days limit was not followed when the respondent appealed from the DLHT to the High Court. Mr. Msuya, candidly, informed the Court that he had vividly observed that when the respondent filed an appeal before the High Court, the Land Disputes Courts Act, Cap 216 did not provide for time limit, hence the general Law of Limitation Act applied. He referred the Court to section 3 and Part II, item 2 of the Schedule to the Law of Limitation Act which provides time limitation of 45 days to lodge an appeal where specific law does not provide time to appeal. Since the 45 days were not followed, Mr. Msuya, submitted that the appeal from the DLHT to the High Court was lodged out of time. Thus, this appeal is a nullity because it stemmed from null proceedings and judgment of the High Court. Hence, he implored the Court to allow the appeal, quash the proceedings and set aside the judgment and decree of the High Court with no order as to costs. In turn Mr. John Kamugisha, the learned counsel for the appellant welcomed the concession and urged the Court to allow the appeal, quash the proceedings of the High Court and set aside its judgement and decree emanating therefrom and each party to bear own costs. Having considered the strength of the first ground which touches the jurisdiction of the High Court as the learned counsel had concurrently submitted to us, on our part, we accede to the uncontested first ground of appeal. We, as well have reviewed the records of appeal and found it is apparently clear that the appeal before the High Court was filed beyond the prescribed time. The decision of the Tribunal was delivered on 25/07/2007 and the respondent filed her appeal at the High Court on 18/09/2007, thus constituting an aggregate of 53 days contrary to 45 days required by the Law of Limitation Act. As a way forward, we accede to the concurrent suggestions made by the learned counsel which is in line with our decisions in Moto Matiko Mabanga v. Ophir Energy Pic & Others (Civil Appeal No. 199 of 2021) [2021] TZCA 599 8 (22 October 2021) and in Swila Secondary School v. Japhet Petro (Civil Appeal 362 of 2019) [2021] TZCA 169 (30 April 2021), where the Court observed that: "The law is settled that the issue o f jurisdiction for any court is basic as it goes to the very root o f the authority o f the court or tribunal to adjudicate upon cases or disputes. Courts or tribunals are enjoined not to entertain any matter which is time barred and in any event they did so, the Court unsparingly declare the proceedings and the consequential orders a nullity" (emphasis is ours) With emphasis, the issue of time limitation touches also the jurisdiction of the presiding court. Whatever decision made on a matter which was lodged before the court out of time, such decision and the whole proceedings will be nullified on appeal. Similarly in this appeal, the issue of time limitation was rightly raised by the parties but was not rightly determined by the High Court. Having so reasoned and based on the fact that the first ground of appeal was conceded by the respondent, we proceed to allow the 9 appeal, quash the proceedings and set aside the judgment and decree of the High Court. We make no order in regard to costs. DATED at DAR ES SALAAM this 26th day of February, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Judgment delivered this 26th day of February, 2025 in the presence of Ms. Irene Mchau, learned counsel for the Respondent and also holding brief for Mr. John Kamugisha, learned counsel for the 10