20130516 TZHC Mbeya

I IN THE HIGH COURT OF TANZANIA LAND DIVISION OF THE HIGH COURT AT MBEYA LAND CASE APPEAL NO. 1 OF 2006 SIlIOFI AVIE BADO ................................................ APPELLANT VERSUS MBOZI MAIZE FARMS LTD. ............................. RESPONDENT (Originating from the District Land and Housing Tribunal At Mbeya, Land Case No. 4912005) JUDGMENT 07/09/2007 & .................................. S.M. Rumanyika, J. On 15/08/2005, Mbozi Maize Farms Ltd. (the Respondents herein), instituted against Simon Awe Bado, in the District Land and Housing Tribunal Mbeya (DLHT) suit No. 49/2005, mainly praying, and was successful, to evict the said Simon (Appellant herein), from House No. MMF/RB/GRC/16 located at Mbozi which decision the later is not happy with. Hence this appeal. The facts of the case on which the evidence has a bearing are brief and straight forward. That having been employed by the Respondents for a couple of years,.the Appellant's contract of 1 1 service was terminated on 21/12/1987. Leave alone his wife Magreth Kalata Awe, his co-employee thereat, whose service employment came to be terminated 14 years later ie. 20/02/2004, and was paid all her terminal dues. That even after contract of service was terminated, the Appellant still occupied the Respondent's residential house. Having sought and obtained the 1st two extensions of tenancy from the ex-employers. Then the latter refused such other and further extensions. The Appellant never vacated. As such the Respondents took him as a. trespasser thereon. The Appellant appears in person. The Respondents were represented by Mr. Mkumbe Learned Advocate of M/S Mkumbe and Company Advocates. There are 6 grounds of appeal which boil down to only 4 as follows: - That the trial tribunal erred on overruling the sound Preliminary Objection (P.0) on the competence of the Respondents then under receivership of the PSRC to sue in its own names. That the trial tribunal grossly misapprehended facts of the case to wit the Appellant had never refused to vacate the 2 II suit house but for the non payment of the repatriation allowance by the Respondents to the Appellants. That the trial tribunal failed to consider the fact that re- invited, along other ex-workers and some neighbours, the Appellant hired the Respondents' land to till for the 2005/2006 season. That having the Respondents failed to prove their case, it was wrong for the DLHT to condemn him for the costs. Before going to the merits of this appeal. I am compelled to dispose the preliminary objection raised by Mr. Mkumbe Learned Advocate, on the limitation period. It is not disputed as between the parties, that this appeal was lodged on lapse of 70 or 70 minus a day, of the impugned judgment. Contrary to mandatory requirement of item 2, part II of the 15t schedule to the Law of Limitation Act No. 10 of 1971 (LLA) which provides for 45 days. Counsel prays this court to strike the appeal out with costs. Substantively on his part, the Appellant submitted that he would have appealed within time was he supplied the copies of judgment and decree timely. That he was now well protected by S. 19 (2) of the LLA. 3 ( I would only agree with Mr. Mkumbe that the law applicable here is item 2, part II of the schedule to the LLA. In which case the reason and arguments by the Appellant would only be of assistance in the application for enlargement of time within which to appeal. However, much as law relating to limitation period is purely procedural, I don't think substantive justice can miss its way at the expense of such legal technicalities. However, the Appellant stands an unrepresented layman. Given the extent of the delay and reasons therefore, which were not controverted, I with retrospective effects, hereby grant him extension of time so that he appeals out of time prescribed by law. Now on the merits of ground ONE, one essentially appeals against such interlocutory order which led not to finality of the matter. By any standard it was not and still is not appealable. (As per by Act No. 25 of 2002). Ground ONE is dismissed. Through ground two, the Appellant contends could not have vacated the suit house before was repatriated to home place. Actually this material fact suggests that indeed, it was not a land dispute but a labour related matter. I am saying so because, looking at all fours of the documentary evidence, it is glaring that 4 it was corresponces between people having employer - employee relationship. The Respondents might have been of the view that the Appellant was no longer employed by them and therefore, his tenancy had already gone with the employment. Granted! But looking at their evidence adduced in the DLHT on whether if the Appellant was ever repartiated and if was paid when were the payments done? One dwells only on the affairs of the Appellant's wife as if the latter's payments was a triable issue. The wife was even no party to the case. Then I found that the Appellant was re-engaged/re- employed by the Respondents vide the latter's letter wife Ref. No. MMF/2:12 of 07/06/2004. The letter allocates him the house. Following Appellant's letter dated 13/05/2004 requesting for extension of tenancy in the suit house. Most interestingly are those words whose effects is re-engagement of the Appellant's employment service. I quote in part from the letter:- "Ndugu Simon A. Bado Mashamba ya Mahindi Mbozi MBOZI Ndugu, 5 4- YAH: OMBI LA NYUMBA 2. Pia barua yako ya tarehe 13/05/2004. 3.......................................................... (ii) Utafanya kazi yoyote ya kampuni itakayojitokeza bila kisingizio chochote. 4 5........................................................ Sgd: MENEJA MWANGALIZI" (emphasis added). I said earlier, and I repeat myself, that reading it from the quotation above, I interprete it to mean that the Respondents did two crusial things: one, they extended tenancy of the Appellant and two, Respondents re-engaged him as employee. Only that this time round one was assigned general duties. No scheme of service, but any jobs that would emerge any time anyhow. It is not even said whether the Appellant eventually did the job (s). However, this one cannot be my concern here. Because even logically, it is not expected for any employee to ask 6 •1 ! Appellant acknowledges to have vacated the suit house (repatriated) even before he instituted this appeal. As such the dispute is no more. However, like he was gambling, the Appellant pleads at times, for sympathy and or good samaritarianism, that he stay in suit house pending such crop harvests. Like some ex-workers the Respondents were still sheltering. That he was entitled to retain and reside in the suit house. On this one, I would only say that this is only court of justice not court of sympathy. Surely, any court order compelling person to sympathize with fellow cannot have legal effects. It will always remain an unlawful order. Which I just cannot make any way. Grounds 2 and 4 allowed. Ground 3 is devoid of merits. Again, , as regards the parcel of land the Appellant might have hired to till from the Respondent, whatever acrage might be, had nothing to do with the suit house. Now I wish to conclude saying that even assuming for its sake, that perse, it was a land dispute, the DLHT on those lines, respectfully misled itself. The Appellant, given the circumstances of the case, could not be a trespasser on the suit house. Decision and orders of the DLHT are quashed and set aside respectively. N. Only to such limited extent, the appeal is allowed with costs Here, and at the Tribunal below. Right of appeal explained. Sgd: S.M,. Rumanyika JUDGE 07/02/2013 Date: 16/5/2013 Coram: Hon. A. M. Lyamuya - DR For Appellant - Present Respondent - Absent C/C: M. Kimweri Court: Judgement delivered. Right of appeal explained. DISTRICT REGISTRAR 16/05/2013 I certify that this is true DI O :T9,EGIS RAR 2013 9