20060531 TZCA Dar es Salaam

THE COURT OF APPEAL OF TANZANIA AT DAR.ES SALAAM CIVIL APPLICATION NO. 3 OF 2006 In the Matter of Intended Appeal PRESIDENTIAL PARASTATAL SECTOR ... APPLICANT REFORM COMMITTEE VERSUS 1. RASHID! MAKWAMBA & 1~2749 OTHERS} 2. KILOMBERO SUGAR CO. LTD (ILLOVO) } } RESPONDENTS 3. THE ATTORNEY GENERAL i } 4. MINISTER FOR FINANCE ;' . } (Application to Strike out tlie Notice of Appeal Against the Decision of the High Court of Tanzania at Dar es Salaam) (Longway, J.) th dated the 8 day: of November, 2005 in I Land Case No. 15 of 2005 ■ ••••• 22nd & 31 st May, 2006 RULING RAMADHANI, J.A.: The applicants were represented by Mr. Chipeta, learned counsel, Mr. Mwakajinga, and Ms. Mnguto, learned advocates, appeared for the first and the fourth respondents: respectively while the second and I the third respondents had the services of Mr. Ngwembe, learned Senior State Attorney. Mr. Chipeta filed a notice of motio:n seeking to strike out the notice of appeal of the first respondents ltjdged on 14th November, 2005, on ( I i \ ,I 2 the grounds that leave to appeal has not been obtained or even applied for while time within which to do so has elapsed. Mr. Chipeta pointed out that section 47 (1) of the Land disputes Courts Act (Cap 216) stipulates that leave to appeal has to be obtained in order to appeal against a decision of the Land Division of the High Court. The application was supported by the remaining respondents. Mr. Mwakajinga reacted by saying that section 47 (1) of Cap 216 disturbs him. He then submitted that that section contravenes section 5 (1) (a) of the Appellate Jurisdiction Act which provides appeals as of right from the original jurisdiction of the High Court as the current matter was. He also said that leave to appeal is procedural and, therefore, it should not defeat substantive law. The learned advocate even referred me to Article 107 of the Constitution of the United Republic of Tanzania, 1977, which identifies the Judiciary as the institution with the function of administering justice and requires the courts "kutokufungwa kupita kiasi na masharti ya ufundi yanayozuwia haki kutendeka". Section 47 (1) provides as follows: Any person who is aggrieved by the decision of the High Court (Land Division) in the exercise of its original, revisional or appellate jurisdiction, may with the leave from the High Court (Land Division) appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. 3 That subsection is laud and clear that an appeal from the original jurisdiction of the High Court (Land Division) requires leave to appeal. Not only that, but a full Court of the Court of Appeal has decided so in Dero Investment Ltd. v.Heykei Berete, Civil Appeal No. 92 of 2004. Sitting as a single judge I have to toe the line. However, I am disturbed, too, by that subsection like Mr. Mwakajinga. My learned brothers in Dero said that: ... it was not entirely illogical for the Parliament to have intended to impose a restriction on appeals from the decisions of the High Court in land disputes. I am a shade unsure of the logic. It seems to me that that restriction is arbitrary. Admittedly, it is in tune with section 5 (l)(a) of the Appellate Jurisdiction Act which provides as follows: (1) In civil proceedings, except where any other written law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal - (a) against every decree, including ex parte or preliminary decree made by the High Court in a suit under the Civil Procedure Code, 1966, in the exercise of its original jurisdiction; Thus section 47(1) is "such any other written law" which provides otherwise. However, I say that the provision appears to be arbitrary because the Land Division is a Division of the High Court of Tanzania. Now, decisions of the High Court of Tanzania in its original jurisdiction are appellable as of right and do not need leave of court. That is so with respect to appeals from the Commercial Division of 4 the High Court of Tanzania. In fact ppeals even from LART Tribunal I in the exercise of its original jurisdihion come to this Court without leave. The nagging question on my mind) is why some appeals from the High Court of Tanzania in the exeraise of its origina'I· jurisdiction are appellable as of right and do not ~eed leave while those from the Land Division require leave? AppJals from the High Court in its I appellate or revisional jurisdiction do require leave. I have no quarrel with that and it is logical to me. I am afraid the requirement might be more of an oversight than by design. Section 47 (1) lumps together "the exercise of the original, revisional or appellate jurisdiction" of the Land Court. It appears to me that appeals from the High Court which do not require leave and those which need leave have been put in the same boat. That, in my opinion, is an oversight and is not logical. There ought to be at least one appeal as of right and that if why it is provided for decisions from the original jurisdiction of the High Court. But the requirement of leave under section 47 (1) doe~ not guarantee the availability of that one appeal. My learned brothers in Dero obseryed, however, that: It may well be that in restridting appeals to the Court of Appeal from the decision~ of the High Court (Land Division) in its original juiisdiction Parliament was curtailing the constitutional rights of the litigants. If it '. 5 is thought so however, an aggrieved I party or parties may wish to argue it before the High Court in a constitutional case. It cannot be.largued and decided in the first instance in this Court. I agree with my learned brothers that an aggrieved party has to file a constitutional case in the High Cou~ to seek a judieial review of section 47 (1). So, the application is granted and the notice of appeal lodged on 14th November, 2005, by the first respondJnts is struck out with costs. 0 - f A t? t,·l:-q - ( '\ DATED at DAR ES SALAAM this 31 st Jy of May, 2006. I .~ \ o..,. A. S. L. RAfylADHANI f.,',. .I!~'_/!,~.. ~ JUSTICE OF APPEAL ''j '. t '\, . .; I ; I ~ -~ - ' '\:,-.._ -;_--;-:'_~ ~ -