20140430 TZHC Moshi

IN THE HIGH COURT OF TANZANIA AT MOSHI CIVIL APPEAL NO 12 OF 2009 C/F. CIVIL CASE NO 7 OF 2004 HAI DISTRICT COURT THE CONSOLIDATED HOLDING CORPORATION & ANOTHER ..........................................................APPELLANT VERSUS YUSUFU MUSSA~ ............................................... RESPONDENT JUDGEMENT Date of Last Order: 28/03/2014 Date of Judgment 30/4/2014 This is an appeal from Hai District Court where by the appellants are appealing to this honourable court challenging the decision of Hon. G.M. Shayo learned trial magistrate advancing two grounds of appeal as herein under; 1. That, the trial District Court erred in holding that the District Court had lost jurisdiction to t.ry the land case. 2. That, the trial District Court grossly erred in holding that the land case had expired The hearing of the appeal proceeded exparte after the respondent defaulted appearance. The appellants were represented by Innocent Mwanga learned advocate. Arguing both grounds of appeal the counsel for the appellants submitted that before the introduction of the Land Courts the 1 cases which touched land issues were entertained in the normal courts as this was among the cases which started in the normal courts. After the introduction of the Land Courts the cases which contained land issues were supposed to proceed in the normal courts and they were given grace period of two years as per section 54(3) of. the Courts Land Disputes Settlement Act, No. 2 of 2002. Therefore with this direction these cases including their case were supposed to proceed in the normal courts to its finality. The counsel for the appellants argued further that Act No. 2 of 2002 came into force on 1st October, 2003 their case was filed and since it was completed within the grace period of two years given under that Act, and 'before the parties could fulfill what the law has directed the Chief justice by then Augustina Ramadhan issued a circular to the land Division granting leave with the powers given to him by Section 54(4) extending time to hear and conclude proceedings and appeals listed in the annexure to the application for as long as it will take to finalize the matter in every case. Thus their case enjoyed that privilege as per the circular dated 8th October, 2008. Having gone through the memorandum of appeal, the submissions by the appellants and the record of Hai District Court, it is not disputed that the matter was filed in the District Court in 31/03/2003 and the trial magistrate gave his decision ' to struck out the suit in 14/07/2009. I am in total agreement with 2 the argument of the learned counsel for the appellants that this present case falls within the matters which were filed before the introduction of the Land Courts and were given a grace period of two years as stipulated under Section 54{3) of the Land Disputes Courts Act [CAP 216 R.E 2002] which Provides that; "(3) All the proceedings or appeals under this section shall be concluded within the period of two years from the date of the commencement of this Act. (4) Where the High Court or the Magistrates' Court fails to hear and conclude the proceedings or appeals within the period specified in subsection (3), the Minister may upon application by the relevant Registrar, extend time to such other time as he may determine." That being the case and taking into consideration that the above cited Act came into force on 1st October, 2003, this case was supposed to be finalized in October, 2005. But then The Chief Justice Augustina Ramadhan (as he then was} gave a circular extending time to hear and conclude proceedings and appeals for as long as it will take to finalize the matter in every case. Therefore this case was supposed to be heard and determined by Hai District court to its finality. With due respect the trial magistrate misdirected himself when he ruled out that Hai District Court had no jurisdiction to determine the matter at Hand. The same had jurisdiction to determine this matter by that time. 3 For the reasons stated herein above this appeal is allowed. But taking into consideration that there is no Land Register in ) District courts, to the District Courts have no jurisdiction I order this matter to be re opened in the District Land and Housing Tribunal and the same should be heard and determined on merit expeditionary as soon as possible because this is an old case of 2003. Furthermore I wave fees for instituting this case in the tribunal. The thairman is ordered to expedite its hearing. QfdJ?l accordingly . /; * (i~-1/·~t,,, ·'/ ~~ .~\1.!H COUR'f'-...._ .,, . ./,,>- t•'i'•>. -c;., ✓. ........-, ~tf--l",, . «"~ r,.... ~ bf~-.c§· ~:,\~,-.r·sz:?Y~,ii·-~!'.l<::.7.- 't6):\ 1 . ~.;~.?#·{·CJ·-.;\~.)~.-:- A. C. N ERE RE ,t ,;, ;/t;.;;. <:tif@,:/~ffi-S .1 ·~ •:·- '('le' s,-.,.~s5;: I:.',,-. J<r. '.· ~-•:,\". l,(1~-C::::: -· ·· 'o ::;J il't JUDGE r{~. ;~~~~ t \.'\: /J' '.,p.,. ~C'S 301412014 ~.!!!':!1\\~\. » . . JudgmB-rlf1Jellvered this 30th day of April , 2014 in the presence of Mr. Patrick Paul Counsel holding brief for Mr. Sambo Counsel for Appellants and in the presence of Respondent. A.C.~RE JUDGE 30/4/2014 4