SONGA MOSHI WILLA AND 3 OTHERS VS SAMWEL MWAMPASHE JUDGMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY AT TABORA LAND APPEAL NO.9380 OF 2024 (Arising from the decision of the District Land and Housing Tribunal of Tabora in Land Application No, 29 of2023 SONGA MOSHI WILLA GEOFREY KOLADO .................. APPELLANTS PATRICK PAULO ANYELWISYE A. MWAIBOFU VERSUS SAMWEL MWAMPASHE............... RESPONDENT Date of Last Order: 29/10/2024 Date of Delivery: 13/11/2024 RULING KADILU, J. In 2023, the respondent filed a land case In the District Land and Housing Tribunal (DLHT) for Ta bora praying for the tribunal to declare him the rightful owner of two acres of land located at Ipuli Ward in Tabora District within Tabora Region. A brief background of the matter is that the 1st appellant sold two acres of land to the respondent. Later, he (the 1st appellant) sold the same land to the 2 nd, 3rd and 4th appellants. The lsfc appellant alleged that the land sold to the 2nd, 3rd' and 4th appellants was not the same sold to the respondent. After the trial, the DLHT decided the case in favour of the respondent by declaring him the lawful owner of the suit land. It ordered the appellants to vacate the suit land and pay the respondent the costs of the case. The i decision aggrieved the appellants hence; they filed the instant appeal armed with the following grounds: 1. That, the Honourable Trial Tribunal erred in law and facts by disregarding the weight of the evidence adduced by the appellants and hence arrived at an unjust decision. 2. That, the Honourable Tribunal grossly erred in law and facts by its failure to evaluate the evidence adduced by the appellants and therefore arrived at a wrong judgment. 3. That, the Honourable Tribunal grossly erred in law and facts by declaring the respondent the lawful owner of the disputed land while he failed to describe the size of the land in dispute as required by the law. 4. That, the Honourable Tria! Tribunal grossly erred in law and fads by disregarding the marks shown by the first appellant during the sale of the disputed land. Based on the above grounds, the appellants prayed for the court to allow the appeal by quashing and setting aside the judgment and decree of the DLHT in Land Application No. 29 of 2023, and declare them the lawful owners of the suit land and order the respondent to pay costs of the case. Before the hearing date, Advocate Magreth Kaumuliza representing the respondent, raised a preliminary objection on the point of law to wit; the appeal is time-barred. As it is the practice of the court> I had to first dispose of the preliminary objection, and therefore, this ruling determines the competence of the appeal before this court. During the hearing of the P.O., the appellants were represented by Mr. Amos Gahise, the learned Counsel. Mr. Gahise argued that the impugned decision was delivered on 18/03/2024 not 18/01/2023 as written on the judgment. The appellants were supplied with a copy of the judgment on 08/03/2024 together with a decree. 2 The Appeal was filed on 29/04/2024. Under Section 41 (2) of the Land Disputes Courts Act [Cap. 216 R.E. 2019], the appellants had 45 days within which to appeal. The 45 days started to run on 08/03/2024 when the appellants got appeal documents. Mr. Gahise added that according to Rule 21 (1) of the E-filling Rules, the appeal is not barred by a limitation period. Responding to the submissions by Mr. Gahise, Ms. Magreth stated that the decision of the DLHT was delivered on 08/03/2024, and the appeal is time-barred because Section 41 (2) of the Land Disputes Courts Act allows any party aggrieved by the decision of the DLHT to appeal to the High Court within 45 days from the date of the decision or order. According to Ms. Magreth, the instant appeal was filed on 29/04/2024, 52 days after the date of decision. Therefore, the appellants delayed filing their appeal for 07 days. The learned Advocate opined that the appellants were supposed to apply for an extension of time instead of filing the appeal right away. Submitting further, the respondents advocate cited the provisions of Section 3 of the Law of Limitation Act [Cap. 89 R.E. 2019], and urged me to dismiss the appeal because the court lacks the jurisdiction to determine it. She supported her stance with the case of Kigoma Ujiji Municipal Council v. UHmwengu Rashid t/a Ujiji Mark Foundation, Civil Appeal No. 222 of 2020z the Court of Appeal at Kigoma in which it was held that the court lacks jurisdiction to entertain the time-barred appeal. The learned Advocate elaborated that this court reiterated this position in the case of Edward Kayanda v. Lucia Luziga, Land Appeal No. 2389 of 2023. Consequently, she prayed for the appeal to be dismissed with costs. 3 In his rejoinder, Mr. Gahise insisted that the appeal is not time-barred and that the cited authorities are distinguishable as they fit well in an application for an extension of time. He insisted that the court has jurisdiction to determine the appeal before it. Having carefully considered the records and submissions by the learned Advocates, the issue is whether the appeal is time-barred or not. Section 41 (2) of the Land Disputes Courts Act is clear that the appellant was supposed to appeal within 45 days after the date of the decision, that is, 08/03/2024. It is undisputed that the appeal was filed on 29/04/2024. From 08/03/2024 to 29/04/2024 when the appeal was filed, 52 days had lapsed. For that matter, there was a delay for about 07 days in filing the appeal. The position of the law under Section 3 (1) of the Law of Limitation Act is that the proceedings instituted after the period of limitation should be dismissed. The provision has been interpreted in several cases ncluding Fatuma Mohamed v. Chausiku Selema, Civil Application No. 225 of 2017, Court of Appeal of Tanzania at Mwanza. Thus, I uphold the preliminary objection raised by the Advocate for the respondent. I find that the appeal is incompetent before the court for being filed after the time prescribed by the law. Therefore, I hereby dismiss it with costs. It is so decided. J. JUDGE 13/11/2024 4 The Ruling delivered in chamber on the 13th day of November, 2024 in the presence of Mr. Amos Gahise, Advocate for the appellants also holding brief for Ms. Magreth David, Advocate for the respondent. LU, MJ. JUDGE 13/11/2024 5