20120511 TZHC Moshi

I 'II IN THE HIGH COURT OF TANZANIA AT MOSHI MISC. CIVIL APPLICAITON N0.4 OF 2008 (From Original Moshi High Court Civil Application no.60 of 2007 and (DC) Civil Appeal No.4 of 2007) REGINA LUCA MSAMI. ....................................... APPLICANT VERSUS MRS ELIESHI ANAEL KYAMA .............................. RESPONDENT RULING MZUNA, J. The applicant, Regina Luca Msami who is represented by Shayo, Jonathan and Co. advocates, is applying for leave to appeal to the Court of Appeal against the decision of Moshi High Court Civil case no.4 of 2007 which was delivered on 12/10/2007. The applicant's application is made under Rules 43 (a) and 44 of the Court of Appeal Rules and is supported by an affidavit sworn by the applicant. In the course of hearing of the application the parties agreed to argue the application by way of written submission and with the leave of the court both parties filed their submissions accordingly. In order to understand the nature of this application, it is ideal to provide a brief background of the matter. 1 In her affidavit in support of the application and submissions to this court, the applicant submitted that, her husband in late 1950's was allocated 50 acres parcel of land by the Native Administration. Later in 1980's the husband of respondent carved and seized 20 acres of land, and again in 1991, the respondent's husband cc;1rved and seized another portion of 5 acres of land. In view of the alleged wrongful action taken by respondent husband of seizing land, the applicant in year 2001 lodged a Criminal case on trespass on 30 acres against the respondent of which she was acquitted. Following the acquittal of the respondent, the applicant then instituted Moshi RM Civil Case No. 4 of 2002 seeking declaratory order that, respondent's land is her property, but the case was struck out on the ground that it was time barred as the limitation period of 12 years had expired ( effective from 1987 when the alleged trespass had started.) This preliminary objection on the point of limitation period was raised after three witnesses for the plaintiff had testified. The applicant was dissatisfied with the decision of Moshi Resident Magistrate Court, and the subsequent unsuccessful appeal to the High Court (Mugasha, J.) The applicant being dissatisfied with the High Court decision dated 12/10/2007 seeks leave to appeal to the Court of Appeal and has submitted four points for considerations which are as follows: 2 (a) The court erred in holding that failure to file the amended plaint within the time given rendered the suit improper before the court; (b) The Court erred in not giving the parties an opportunity to be heard on the point of not filing the amended plaint in time; (c) The court erred in not finding/holding that, the claim of 7 acres was raised for the first time in the written submissions in the appeal; (d) The Court erred in not addressing and determining the point of limitation based either on the plaint or the amended plaint. Relying on Rule 43 and 44 of the Court of Appeal Rules, 1979, the applicant submitted that she seeks leave of the High Court to appeal against a decree of High Court DC Civil Appeal No.4 of 2007. In reply to the application, the respondent did not oppose the application and in his submission briefly admitted that, the applicant has raised important points of law for consideration by the Court of Appeal. It is important to state that, in the application of this nature the court may grant leave to appeal to the Court of Appeal if the applicant establishes that there are chances of success in the 3 intended appeal. For that reason I will consider one ground after another. In respect of applicant's grounds (a) the applicant's contention is that, the court erred in holding that, failure to file the amended plaint within stipulated time, rendered the suit improper. In rejecting the amended plaint, the High Court relied under Rule 18 of Order VI of the Civil Procedure Code (Cap 33 R.E. 2000) which provides as fo!llows: "If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is thereby limited then within fourteen days from the date of the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, as the case may be, unless the time is extended by the court." In view of the guidance provided under rule 18 of Order VI of the Civil Procedure Code, 1966, Cap 33 on the consequences of failure to file· amended plaint on time, I am satisfied that there are sufficient guidance on the point from the Civil Procedure Code. In connection to that point, I also find there is no important point worth consideration by the Court of Appeal. If the applicant say was not accorded chance to be heard in (b) above, under Order 39 Rule 2 CPC, I would say that the issue touches on a point of limitation which is a point of law. It can be 4 • raised by the Court itself any time even on appeal (See: M/5 Fida Hussein & Co. LTD vs. T.H.A, Civil Appeal No. 60 of 1999, CAT, unreported.) I find no merit in this point. Likewise ground (b) has no merit. I therefore find that in both grounds (a) and (b) there are no important points worth consideration by the Court of Appeal because there is sufficient guidance provided in rule 18 of Order VI of the Civil Procedure Code, 1966 of which parties are bound to abide. I now proceed on ground ( c) and (d) where the Applicant in his submission contends that, her piece of land was seized by respondent first in the late 1950's and later in year 1990 or 2001 as the case may be. In ground (c) the applicant is advancing a point that a claim on trespass and seizure of her 7 acres which took place in 2001 was raised not in her written submission alone, but rather inclusive the amended plaint (Para 1 and 13) and the evidence of PW.land PW.3. In that regard if it was established the amended plaint was filed outside the prescribed time and without leave of the Court i.e. (19/9/2002 instead of 18/9/2002), then it could not be the basis upon which to back that point. Parties are bound by their pleadings the Appellate judge reminded them of this fact and I find it proper to put more emphasis. This point equally fails as I see no justifiable reasons to grant her leave to the Court of Appeal. 5 In item ( d), it appears on my part that• the applicant is contesting the computation of the period of limitation done by the Resident Magistrates Court, that it was not properly done. In her submission it appears there was need to examine and determined each act of trespass separately and that was not done on appeal at the High Court. The applicant's contention is that, since the suit was filed in 2002 then it was not barred by limitation. If I have captured well the applicant's concern is on two angles; first the trespass and seizure of land was done on phases and secondly the manner of computation did not take into account the latest seizure. I have perused the applicant affidavit and submission and find that there are contentious points on trespass and seizure of land which was done in phases. Without dwelling too much on this point I am satisfied that, under Section 7 of the Law of Limitation Act cap 89, there is need to ascertain whether there were acts of trespass and seizure on applicant's land which took place in year 1991 or 2001 and whether such claims were time barred. Paragraph 3 of the Memorandum of appeal is crystal clear on this point. In dealing with this point (Para 3) Madam Justice Mugasha, J at Page 4 and 5 of the typed judgment capitalized on the point of 7 acres which she said was new ground and therefore could not be entertained on appeal. She was entitled to that finding. However there is need for leave as even in the original plaint, Para 15, 16 and 6 • 17 it seems action to claim land (whether 7 acres or 23 acres) was taken in 2001. In that regard, I find there is merit on the point raised in ground (d) of the application. I am satisfied that the applicant has demonstrated that, there is a point worth to be considered by the Court of Appeal. Taking into account that the respondent did not object to the application, I hereby pursuant to Section 5 (1) (c) of the Appellate Jurisdiction Act, cap 141, grant leave to appeal to the Court of Appeal on ground (d) only. Also, I certify that, the following is the point of law worth consideration by the Court of Appeal: 1. Whether the court erred: {a) In not determining the point of limitation at all; {b) Whether the limitation was based either on the original trespass {from 1987 when the alleged trespass had started as the RM's Court found) or subsequent trespass and action taken in 2001 as the applicant contends in her original plaint. The respondent did not resist the application but as of right she is _!~~t)f1~~~y~ her costs. It is hereby so ordered. 11\ .\,-1' ~✓-- ', J- M.G'MtGNA, 72( i ./1 ·~;yj,;{{i<~~~;\ ~1~\\ .-,.~_;3l\ \~ :\ t'· . JUDGE (r ( 5l -~~ }. ••.. _,! ... ,,,, ·(:·:- )~' ..,.,, • 7 ~ .. (') ,l \ "'$,~ ,, . ;!i!i'fJJ~i,ii,'.t,~ .-r JiA.!J I '- ' "-·~ "' ""''""'-~,.....-/ ~ft'4 ''-\,,:'.;i,,:~;;;;:;;,.~ ·• :::l·""'~5,./ /- ' ... , ,, ':'1 ~' '·'-:" oate: ~ 11/5/2012 Coram: M.G. MZUNA, J. Applicant: Mr. Jonathan Advocate Respondent: Absent C.C: Ram\a ~ourt: Ruling delivered. ~ M.G. MZUNA, JUDGE 11/5/2012 8