RICHARD BARORI RULING 0001

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT - LAND DIVISION (MUSOMA SUB REGISTRY AT MUSOMA) APPELLATE JURISDICTION LAND APPEAL No. 514075 OF 2023 (Arising the District Land and Housing Tribunal for Mara at Musoma in Land Application No. 5 of2021) RICHARD BARORI...................................................................... APPELLANT Versus MARO KYARIGA....................................................................... RESPONDENT RULING 24.07.2024 & 25.07.2024 Mtulya, J.: Mr. Richard Barori (the appellant) was aggrieved by the decision of the District Land and Housing Tribunal for Mara at Musoma (the tribunal) in Land Application No. 5 of 2021 (the application) issued on 11th May 2023 and certified for collection on 18th May 2023. Three (3) days later, specifically on 21st May 2023, Mr. Maro Kyariga (the respondent) went to the tribunal and collected certified judgment and decree of the application whereas the appellant had approached the tribunal for collection of the same documents on 23rd June 2023. After having the documents for necessary steps, the appellant had approached this court on 8th July 2023 and filed Land Appeal No. 514075 of 2023 (the appeal) to contest decision of the tribunal in the application. However, before the appeal hearing proceedings could take its course, the respondent's learned counsel Ms. Rosemary Makori had i complained on the appeal for reason of time barred. According to Ms. Makori, the appeal was lodged out of time without leave of this court in an application for enlargement of time to file an appeal out of time. In citing appropriate law which is complained, Ms. Makori cited section 41 (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019] (the Act), which provides for forty-five (45) days rule in preferring appeals from district land and housing tribunals to this court. In explaining her protest, Ms. Makori stated that the application in the tribunal was delivered on 11th May 2023 and certified copies of judgment and decree were ready for collection on 18th May 2023, but the appellant went and collected the same after a month and lodged the appeal after fifty-two (52) days instead of forty-five (45) days. Ms. Makori submitted further that the appellant was late in taking necessary documents in the tribunal and also had delayed in bringing the appeal within the prescribed time hence the appeal be dismissed for want of enactment of section 41 (2) of the Act. The submission was bitterly protested by Mr. Emmanuel Gervas, learned counsel for the appellant. According to him, section 41 (2) of the Act must be read together with section 19 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019] (the Law of Limitation) for want of exclusion of days of delay in following up copies of judgments and decrees in land tribunals. In his opinion, the date when the judgment was issued or certified is irrelevant, but the date when the appellant 2 had paid tribunal's fee for collection of the copies of judgment and decree. In his submission, Mr. Gervas contended that application of section 41 (2) of the Act is subject to section 19 (1) of the Law of Limitation in taking on board other necessary conditions, such as economic muscles of the parties in land disputes at tribunals, including payment of tribunal's fee for copies of judgments and decrees. Finally, Mr. Gervas submitted that the appellant economic powers had raised on 23rd June 2023 and immediately paid the prerequisite fee for collection of the judgment and decree for the appeal purposes. According to him, days of preferring an appeal in that case start to run when the appellant had received the copies of the judgment and decree, that is 23rd June 2023. Rejoining the submission, Ms. Makori stated that there is no law which requires parties to file appeals after raising their economic muscles or fulfilling certain conditions, such as payment of monies. According to Ms. Makori, If such practice is allowed, appellants would prefer appeals as they so wish. Ms. Makori submitted further that Mr. Gervas submitted and discussed issues and documents which are not record hence this court cannot rely. In her opinion, even if he was correct on submitting issues of fee and economic muscles, that will need evidence to be registered in an application for enlargement of time. Regarding the application of section 19 (1) of the Law of Limitation reading together with section 41 (2) of the Act, Ms. Makori 3 submitted that the dual sections do not allow economic reasons, but delay in days of certification. In her opinion, any delay caused by other reasons must be lodged in an application for enlargement of time regulated by the proviso enacted in section 41 (2) of the Act. I have glanced the record, the raised point of law and submissions of the learned minds in Ms. Makori and Mr. Gervas. From the record of appeal, it is obvious that the learned minds are not in contest on the dates of judgment, certification and filing of the present appeal. However, their contest is on the appropriate date when time starts to run for appeal purposes. The Law in section 41 (2) of the Act is silent on the subject certification of copies of judgments and decrees and time limitation. It just provides, in brief, that: an appeal may be lodged within forty-five days after the date of the decision or order Similarly, section 19 (1) of the Law of Limitation is silent on the indicated subject. It is just states that: in computing the period of limitation for any proceeding, the day from which such period is to be computed shall be excluded. The question before this court then is: when time starts to run for lodging appeals or applications in courts. It is fortunate that the question has already found a reply in section 19 (2) of the Law of Limitation and practice of the Court of Appeal in the precedent of Oliva Damas Vegulla & Another v. Mohamedi Bashiri Telangwa, Civil Appeal No. 159 of 2019. According to the indicated section, in brief: in computing the period of limitation prescribed for an 4 appeal, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the order appealed from or sought to be reviewed, shall be excluded. In resolving the section, the Court of Appeal in the cited decision of Oliva Damas Vegulla & Another v. Mohamedi Bashiri Telangwa (supra) had decided that the principle of computation of time for appeal purposes starts when copies of judgment and decrees are ready for collection. Having the enactment of section 19 (1) of the Law of Limitation and precedent of Oliva Damas Vegulla & Another v. Mohamedi Bashiri Telangwa (supra) issued by our superior court, this court cannot be detained to interpolate further interpretation of section 19 (1) of the Law of Limitation. In the end, I hold that the date in computing time of initiating appeals or applications starts to run when copies of judgments and decrees were certified by courts or tribunals for collection. In brief, the instant appeal is time barred and hereby dismissed for want of section 41 (2) gfe^vAut.cl^bsso with costs. F.H. Mtulya Judge ■" 25.07.2024 delivered in Chambers under the Seal of this court in the presence of the appellant's learned counsel, Mr. Emmanuel Gervas and in the presence of the respondent's learned counsel, Ms. Rosemary Makori. n F.H. Mtudya Judge 25.07.2024 5