20150530 TZHC Iringa

IN THE HIGH COURT OF TANZANIA ·[LAND DIVISION] AT IRINGA MISCELLANEOUS LAND CASE APPEAL NO. 23 OF 2012 (From._tpo~ decision,(:_)f.:the- DistrictLand and. Hous~ing Tribunal o(:; . ;> 0 · 0 -··, Iringa District . at Iringa in Land Case Appeal No. 40 of 2012 . and Original Ward Tribunal of Ifwagi Ward ... : in Application No. 62 of 2011) j .•. . PATRISIA MDEMU APPELLANT i VERSUS . .,. JUDI KIDEGELIMBA ............... RESPONDENT ~/4/2014 & 30/5/2014 JUDGEMENT MADAM SHANGALI, J~ In the District Land and Housing Tribunal at Iringa the appellant PATRISIA MDEMU instituted an appeal intending to challenge the decision given against her by the trial Ward . Tribunal of Ifwagi. Unfortunately the said appeal was instituted out of time, the fact which compelled the ;District Land and Housing Tribunal to dismiss the same with costs. Aggrieved by that decision, the appellant now, enjoying the legal services from Mr. Chauia, learned counsel has appealed :~'- .to Jhjs court op one , ·- -• t... ~ t· ' . .t, .... ....;,.,,. •. -..- ~ . -'. .·~~ -· -~ ·--. 1 :. ·-•·: . ....·.t:• •• 1_ _,. • , • ~ . I• , ground that the~Ch~rperson erred- in lavv and fact to dismiss the• .. _suit basing on curable procedural irregularity. - Before this court the respondent JUDI KIDEGELIMBA was . -_., ;:-- r_~present~c:! py,_Malang~ila_. learned advocate._ .On th~,Fequest of - the parties the appeal was conducted by way · of written submissions. Mr. Chaula argued that it was wrong for the District Land and Housing Tribunal Chairman (shall be referred to as _,:.Chairperson) to dismiss the appeal ~hich was late by six days . . ..: He --contended that so far as the ~ppeal had not been heard and determined on merits, the proper cause for the Chairman was to struck out the appeal so that ~e appellant . .- could have a right to file a fresh applicati6~ for extension of time to file his appeal out of time. He reiterated his proposition by referring to the cardinal principle of the law that procedural irregularity should not defeat justice, citing Article 107 A (e) of the Constitution of the United - Republic of Tanzania. He also cited the case of Simon Chatanda Vs. Abdul Kisoma (1973) LRT 11 where the court was ready to ignore the rules where parties were not represented by an advocate and where strict adherence to such rules might occasion the miscarriage of justice. He insisted that the Chairman was wrong to dismiss the appeal instead of striking it out. In respons~ Mr. Malangalila strongly submitted· that the 2 ''\ ChairmB;..t."'1. vvas right in dismissing the appeal because that is the position of the lavv. He cited Section· 3 ( 1} fu7.d (2l of the lav;r of Limitation Act together with the cases of Stephen Ma.sato Wa.sira Vs. Joseph Sinde Warioba ( 1999) TLR 334 and Blue Star . -Service Station-Vs. Jackson .,Musseti T / A. l,VlussetLEnterprjlse$.. · (1999) TLR 80. Mr. Malangalila submitted to the effect that the law is clear that the proceedings should be dismissed where the matter has been filed out of time and that is not to defeat the end of justice as claimed by ~Ii~ appellant. Regarding to the claims that the matter was curable proced-µral irregularity, Mr. Malangalila contended that what was dismissed is the appeal which was time barred and by doing that, the appellant has not been denied the right of applying for leave for extension of time to file the appeal out of time. Having considered the submission from both sides, the first question is whether the dismissal of the appeal was based on a curable procedural irregularity. From the very beginning the counsel for the appellant conceded that the appeal was filed out of time, to wit six (6) days after expiry of prescribed forty five (45) days. Although the record of the District Tribunal indicate that the appeal was filed seventy three (73) days after the date of the decision making it late by twenty eight (28) dctys. The appellant 3 . ..' , _, ,t., ~ . ... . !' ' ,, • •.. _ "." ... ' " ~ .• .._,..~ ... who· v.r8:s·:i;roti~pr.esented before the District Tribunal conceded to ·. that f~~t --~c(p:ray~d to withdra\Y. the appeal -~~t unfortunately to . . ' him. the Chairman uphold the preliminary . objection and dismissed the appeal with costs. Therefore the contention that the dismissal of the appeal was b~sed on.curable procedural irregularity is untenable. There was nothing whatsoever capable to cure the fault committed against the prescribed limitation period. -:~: . ., . . The second question is whether the Ch_airman was correct ~ ' -to c;{ismiss the appeal having found it to be time barred. There is ··no dispute that the appeal was not heard and determined on merits. Mr. Chaula strongly submitted that having found the appeal time barred, the Chairman should have struck out the appeal in order to give a chance to the appellant to refile the appeal according to the procedure. I think Mr. Chaula is correct. A proper cause for the appeal filed out of tim e is to st..rike it out 1 instead of dismissing it. (See the case of Furaha Omary Mng'ong'o Vs. Jumbe Said and Another, Land Case Appeal No. 8 of 2007 Iringa Registry (unreported). I have perused the decisions cited by the respondent's counsel namely Stephen Masato Wasira (supra) and Blue Star , Service Station (supra) and found them distinguishable from .. the case at· han~ because they are concerned with applications - . ·atici' not ..,appeals ... One should differentiate .. and.-. u~cterstan·d ,-~·· ~-:;.--: 4 • : . ·. t· the consequences ?f dismissal of a suit, appeal or,~ application. Where the matter has not been heard and determined on merits by the_ parties the proper . ·.cause ··.. is, to-·· struck . .. it out in order to allow the aggrieved party to r~file his matter subject to the lav.r of limitation . . . ~-= . . .-:~-:. . In conclusion, the appeal is allowed to that extent, meaning that the decision of the District Land and Housing Tribunal to dismiss the appeal is quashed and set aside. Instead the Preliminary Objection before the District Land and Housing __1\ibunal is .. upheld and the appeal thereof is struck out with costs. Each party to shoulder his costs in-this appeal. M. S. SHANGALI JUDGE 30.5.201;1- Judgement delivered in the presence of Mr. Chaula, learned advocate for the appellant also holding brief for Mr. Malangalila, learned advocate for the respondent. The appellant present m person. M. S. SHANGALI JUDGE 30.5.2014- 5 ·,.··. _f: . J