20141010 TZHC Iringa

IN THE HIGH COURT OF TANZANIA [LAND DIVISION) AT IRINGA LAND CASE APPEAL NO. 2 OF 2011 (From the decision of the District Land and Housing Tribunal of Iringa District at Iringa in Land Case No. 6 of 2009) SIKITU YAHAYA ...................... APPELLANT VERSUS MARTHA FELIX KATAYA ...........•. RESPONDENT 5/8/2014 & 10/10/2014 RULING MADAM SHANGALI, J. Th_is appeal arises from the decision of trie District Land and Housing Tribunal at Iringa in Land Application No. 06 of 2009. In that application the present respondent namely MARTHA FELIX KATAYA in her capacity as the administratrix of the estate of her late husband Damas Hilary Kapita sued the present appellant SIKITU YAHAYA for trespassing onto their piece of land measuring ½ an acre located at Mtwivila area within Iringa Municipality. The respondent/ap~licant 1 .. ..:-.: . .,.. vvas successful in that suit and the piece of land ,was declared the property of the respondent/ applicant. Being aggrieved by that decision the appellant has now appealed to this . court ·to... ·challenge· . · that decision. .,. The appellant has filed five grounds of appeal. On 29/4/2014 when this appeal was called for hearing the appellant who appeared in person and unrepresented. and "': Mr. Mwamgiga, learned advocate who represented the respondent prayed for the leave of this court to -conduct the ~earing of the appeal by way of written submission. The request was duly granted and a schedule order for filing written submission was agreed and issued by this court. In .. that scJ;ieduled· order the appellant was required to file her . written submiss,iop. on or before 30/5/2014. The respondent was-required to file her ·reply td the written submission on or before 4/7 /201_4 and rejoinder if any by the appellant was ~o be filed on 25/7/2014. The matter was fixed for mention on 5/8/2014 in order to fix a date for judgement. When the matter was called for mention on 5/8/2014 Mr. Mwamgiga, learned advocate for the re~pondent informed the court that the appellant has refused or neglected to comply with the order of the court dated 29/4/2014. As a result no i written submission .. has been filed by the appellant; Mr . 2 . J~,; ~ :1: ~ . :: :,! ' .. ,.-:,.~--- llli&i:lkll'!&lll-•111111■ ~• JMll&~lllliiML!ll" a■- ■.■·■-■111!1£&11.l!l□■ .k■ Z■□!!IJ■ J ■□ -¥Alll!P■-■s■ a111n&~-~~:~.· !Dll!■.!l!~fl\1!l~ !141.~:wwwwlB!m. 11·!11,m. ~;.fr..M!ltll ....M.ffi"'W~t4■ .. ll!D'1!1!1i'.l•.@lltM!l!!l.&~~m :!ll!. £i!IIN■ anmc MV\ramgiga stated that when he realized that situation he decided to prepare and file his written submission in defence of his case. He prayed the court to consider his submission and dismi~s the appeal. The appellant who was present in person casually stated that she was sick and could not prepare her written submission. She prayed for the court to assist her and grant extension of time to file her written submission. Mr. Mwamgiga objected to the request and submitted that the appellant had ample- time to file her written submission but neglected or refused to do so because she have no interest to pursue her appeal. I agree with Mr. Mwamgiga because the appellant appears to be not serious at all to conduct her own appeal .. She did not attempt to adduce any type of evidence to prove or substantiate her claims of sickness. She decided to remain silent at home and dry since 29/4/2014 to 5/8/2014. She did not even attempt to apply for extension of time when her time was about to expire or when it expired on 30/5/20'14. The appellant should understand that court orders are· made to be respected and complied with. The order of this court dated 29/4/2014 was made with the purpose of regulating the conduct of hearing th~ appeal by way of written 3 submission· vvithin· a prescribed time. The ·appellant ·was . required to comply ·with that order or to adduce sufficient and reasonable cause for not complying with it. · In the case of Mankobrand Vs. Mivoslav Katik and another (HC) Civil Case No. 321 of 1997 Dar-es-Salaam Registry (unreported) the court stated that such court orders are meant to command parties to act within a time frame fixed by the court and if the parties are to act in total disregard to •. :such ~rders then~ courts business will be rendered uncertain_ :. _a:r:1d_ that will no.t be good for the efficient administration of ., -... justice. T;he practice of filing written submission is equivalent to an oral hearing of the appeal or · application and therefore failure to comply with a schedule order for filing written submission without sufficient· cause amount to non- appearance or want of prosecution. See the . . cases .of Buyamba John Vs. Adili Bank Corporation Ltd. & another, Civil Case No. 146/2000 - Dar-es-Salaam Registry (unreported); Fatuma Khassim Vs. Ta~u Proper (PC) Criminal Appeal No. 12/2002 HC - Dar-es-Salaam Registry (unreported); Hidaya Zuberi Vs. Boque Mbwana, (PC) Civil Appeal :No. 98 of 2003, Dar-es-Salaam Registry (unreported) and Abdallah Mbuma Vs. Gabriel Lugala Misc. Land Application No. 1 of 2013 Iringa Registry (unreported). 4 .,.,--S~t~ta~t•.••J!JX'1falll!IS_ _ _ _ _ _ _ _ _ _ _ _ _E --■d----■a--■ z•- LRSIUC-d--■JIIAiilliUillllilliii• ■2■-llil!!Ul!II.■□ 1111111.- - - I - have also perused the record of · proceedings and ·. judg~ment of the trial District Land and· Housing Tribunal and found two serious matters which I believe could have been the reasons for the appellant's inaction and lack of seriousness to pursue her appeal. One is the fact that the respondent's case was proved to the. required standard Le. · on a balance of probabilities; and second, the appeal was filed out of prescribed time. The judgement of the District Land and Housing Tribunal was delivered on 15/7/2010 and the appeal was filed on 4/3/2011 after a period of about 232 days. The . appeal was supposed to be filed within a period of 45 days from the date of judgement as per item 2 of part II of the Schedule of the Law of Limitation Act, Cap. 89. No application for extension· of time to file the appeal out of prescribed time was sought and obtained. In such a dilemma the appellant opted not to prosecute her appeal as ordered by this court. In the circumstances this . appeal is hereby dismissed with costs for want of prosecution. M. S. SHANGALI JUDGE 10/10/2014 Ruling . deliyered in the pre~enc~ of Mr. M w?IDgiga, 5 - - -- ,- learned advocate for the respondent ·and ·in the presence of Mikidadi Yahaya, relative of the appellant. M. S. SHANGALI JUDGE 10/10/2014 6