MISC

L IN THE HIGH COURT OF THE UNITED REPUBLIC OFTANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION NO. 10458 OF 2024 (Arising from Ilala District Land and Housing Tribunal Misc. Application No. 266 of 2023 Original Ilala District Land and Housing Tribunal in Application No. 30 of 2008) PROSPER GRATION...................................................................APPLICANT VERSUS THE REGISTERED OF TRUSTEES OF THE SEVENTH DAY OF ADVENTIST ASSOCIATION OF TANZANIA............... RESPONDENT RULING 14/8/2024 & 20/08/2024 GWAE, J The issue before the Court is whether an appeal against a decision or order of the District Land and Housing Tribunal may lie with the High Court automatically excluding the period from when the copies of judgement and decree were requested to the date when the same were availed in terms of section 19 (1) of the LLA. If the above issue is affirmatively answered, whether, a party who considers exclusion provided for under section 19 of the Law of Limitation Act, Cap 89, R. E. 2019, not automatic but upon an i lAl application for extension should be penalised by dismissing his application for extension of time. In this application preferred under section 41 of the Land Disputes Courts' Act, Cap 216, Revised Edition, 2019 (herein "LDCA"),the applicant seeks an extension of time within which to file an appeal to the Court challenging the decision of the District Land and Housing Tribunal of Ilala at Kivukoni . This is application precipitated by the ruling rendered by the DLHT on 19th March 2024 and followed by an application letter dated 22nd March 2024 when the applicant applied for obtaining copies of ruling and drawn order. The DLHT extracted and issued its drawn order on 3rd day of May 2024. Aiming at exercising his constitutional right of Appeal as provided under Article 16 (6) (a) of our Constitution, 1997, the applicant found himself barred by the law of Limitation which set a period of 45 days of appeal from the date of delivery decision or order of the DLHT (See section 41 (2) of the LDCA). Henceforth, this present application for extension of time duly filed on 8th May 2024. With consensus, this application was disposed of by way of written submission. The parties' advocates namely; Mr. Samson Mbanda and Mr. 2 Evodius Rutabingwa for the applicant and respondent respectively filed their written submissions in support of and against the application as per the court order dated 10th July 2024. It was the submission of the applicant's advocate that since forty- five (45) days required for filing an appeal to challenge a decision or order of the DLHT had lapsed since when he was duly supplied with the requisite documents. The applicant's counsel submitted that provisions of section 19 of the LLA could not be invoked to salvage the delay as according to him it cannot be applied automatically. He therefore argued that, the applicant, in the premises, has given sufficient cause. He invited the Court to refer to case of Lyamuya Construction Company Ltd vs. Board of Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 and Hamis Hussein Muccadam vs. Ngulo Mtiga (as legal representative of the late Abubakar Omar Said Mtiga) and two others, Civil Reference No. 12 if 2022. In his reply, the respondent's counsel argued that, it was wrong for the applicant to file this application for extension of time while his delay is salvaged by section 19 (2) and (3) of the LLA. He cited the case of Bukoba Municipal Council vs. New Metro Merchandise, Civil Appeal No. 374 of 3 L 2021 (unreported), Alex Senkoro and 3 others vs. Eliambuya Lyimo as administrator of the estate of Fredrick Lyimo, Civil Appeal No. 16 of 2017 (unreported) demonstrating that the exclusion of days of delay is automatic. The learned counsel for the respondent went further stating that, this application is uncalled and therefore deserves to be dismissed due to disobedience of the statutory provision and judicial precedents. He therefore urged me to refer to the decision of this Court (Maghimbi, J) in A. H. Jamal administrator of the estate of the late Alnoor Tajdin Nanji and another vs. Wellwort Hotels & Lodges Limited, Misc. Civil Application No. 18 of 2021 (unreported). In his brief rejoinder, the Rutabingwa admittedly that, the position well-founded by the case law in Bukoba's case (supra) and another are clear and correct but in his opinion, the same are distinguishable in sense that the principle applies in a situation where there is an appeal. He added that, he failed to comprehend how the decision of the Court in A. H. Jamal's case is applicable since its essence was for disobedience of the lawful orders of the Courts and requirement of judicial officers to control their proceedings in 4 manners consistent to the law. He consequently prayed this application be granted. Now to the determination of the 1st issue herein, perhaps it is, in my view, apposite have section 19 (1) to (3) of the Law of Limitation Act, Cap 89 Revised Edition, 2019 Reproduced herein under "19.-(1) In computing the period of limitation for any proceeding, the day from which such period is to be computed shall be excluded. (2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgment, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded. (3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall be excluded". According to the above-cited provisions of the law, I inclined to hold that the time requisite for obtaining a decree, judgment, or both for the purpose of appeal or an application for review of the judgment to the Court until when the same are supplied is excludable. I fortify my holding with the decisions of the Court of Appeal for example the case law cited by the 5 respondent's counsel of Alex Senkoro and 3 others vs. Eliambuya Lyimo (Civil Appeal 16 of 2017) [2021] TZCA 104 (13 April 2021), it was restated that; "We entertain no doubt that the above sub sections expressly allow automatic exclusion of the period of time requisite for obtaining a copy of the decree or judgment appealed from the computation of the prescribed limitation period. Such an exclusion need not be made upon an act of the court in a normal application for extension of time. Indeed, that stance was taken recently in Mohamed Salimini v. Jumanne Omary Mapesa, Civil Appeal No. 345 of 2018 (unreported), where the Court affirmed that section 19 (2) of the LLA obliges the courts to exclude the period of time requisite for obtaining a copy of the decree appealed from. "[Emphasis added] The same position was maintained in Bukoba Municipal Council vs. New Metro Merchandise (Civil Appeal 374 of 2021) [2022] TZCA 413 (11 July 2022) where it was stated "In the present appeal we have shown herein that the crucial issue before the High Court was whether an exclusion of time provided under section 19 (2) of the LLA is subject to an order of the court. Given the dear position of the law that section 19 (2) and (3) of the LLA provides for an automatic exclusion of time requisite for obtaining a copy of the decree 6 or judgment appealed from when computing the period of limitation for lodging an appeal, the High Court ought to have automatically excluded the period between the date of judgment and the date of obtaining a copy of the impugned judgment which according to the appellant it was on 15th May 2016." On the strength of the above judicial decisions of the Court of Appeal, which are binding upon the Court as well as the court's observation that under Order XXXIX Rule 1 of CPC, a certified copy of decree or order and that of judgment are mandatory to be attached to the Memorandum of Appeal. Hence, the exclusion of the time requisite for obtaining judgment and decree is automatically salved under section 19 of LLA with an order of the court provided that it is evident that the applicant did apply to be supplied of the same. In the light of the above discussions, I am of the view that, the applicant's assertion that, he was to secure an order or leave of the court before filing of an appeal in order to challenge the ruling of the DLHT refusing to grant an extension of time is not attainable in the eye of the law. The provisions of the law regarding exclusion of the date of reckoning is very lear provided that there is proof to that effect and the same be pleaded in the Memorandum of Appeal. 7 Therefore, in our instant application where the applicant was supplied the certified copy of the ruling and drawn order on 3rd May 2024, the period of 45 days stated from that period, that means the time to file his appeal had not lapsed. Thus, this application was prematurely filed as the period of 45 days was yet to expire. Seemingly, this application was filed due to fear of his unknown position of the law. In the 2nd issue, whether it is proper to dismiss this application on the ground of the applicant's failure to abide to the existing law that is to say, his act for filing the application for extension of time while he had many days within which he could have properly filed his appeal to this Court. The decision in the case of A. H. Jamal (supra) is, in my considered opinion, is distinguishable since the Court (Maghimbi, J) extensively dealt with disobedience with the lawful courts' orders and inherent powers to control judicial proceedings. However, I am aware that, an application for extension of time can be filed after or before expiry of the period prescribed by the law within which to appeal as provided under subsection (2) of section 41 of the LDCA. In case of application for extension of time before expiry of days prescribed by the law, it must be immediately before the date of its expiry that is before 8 one day or so but not more than ten days. In other words, the applicant must have anticipated impossibility to meet the time set by the law. In that view, with due respect, I am not convinced by the submission by the learned counsel for the respondent that, this application ought to be dismissed on the ground that, it was prematurely filed since the applicant was still within time. The proper remedy, in my considered opinion, is to issue an order for the costs for filing this application superfluously. Consequently, the application is granted, for the interest of justice, the applicant is given seven (7) days within which to file his inetdned appeal to this Court. As the applicant unnecessarily filed this application, the applicant shall pay the costs of this application. It is so ordered. DATED and Delivered at DAR ES SALAAM this 20th August 2024 9