registered trustees of ansaar muslim vs mohamed a singo 2017 tzca 305 12 july 2017

IN THE COURT OF APPEAL OF TANZANIA AT TANGA (CORAM: LUANDA, J.A., MZIRAY. J.A.. And NDIKA, J.A.^ CIVIL APPEAL NO. 178 OF 2016 THE REGISTERED TRUSTEES OF ANSAAR MUSLIM YOUTH CENTRE......................................... APPLICANT VERSUS MOHAMED A. SIN G O .................................................................. RESPONDENT (Appeal from the Judgment of the Court of Tanzania at Tanga) (Msuya, J .) dated 4th day of April 2016 in Land Case No. 4 of 2011 RULING OF THE COURT 12th & 12th July 2017 NDIKA 3.A.: At today's hearing of this appeal, Mr. Kato Zake, learned Counsel, rose up, at the very outset, and acknowledged that the appeal was materially and fatally deficient as follows: First, the notice of appeal was not served within time upon the respondent contrary to the equipment of rule 84(1) of the Tanzania Court of Appeal Rules, 2009. Secondly, the letter applying for the copy of proceedings from the High Court was not served upon the respondent within the prescribed period contrary to rule 90(2) of the Rules. Thirdly, no certificate of delay is on the record of appeal, implying that the appeal ought to have been lodged within sixty days of the lodgment of the notice of appeal, as the appellant must be deemed to have not been entitled to exception under rule 90(1) of the Rules of time required for collection of the requested copy of proceedings from the High Court. As a result, the appeal, lodged on 16th September, 2016 more than sixty days after the notice of appeal was lodged on 8th April, 2016 must be deemed to have been lodged out of time. Finally, the record of appeal is incomplete in that exhibits admitted at the trial were omitted. At the prompting of the Court, Mr. Zake conceded further that the appeal, being a land matter, ought to have been lodged with leave of the High Court obtained under section 47(1) of the Land Disputes Court Act Cap. 216 RE 2002. He admitted that the leave on record of appeal, granted by the High Court sitting at Tanga, in Miscellaneous Land Application No. 30 of 2016, was irregularly granted under section 5(1) (c) of Cap. 141 (supra) which is inapplicable to appeals on land matters. In the circumstances, Mr. Zake prayed that the appeal be struck out on account of its incompetence with no order as to costs. Mr. Obeid Chanjarika, learned Counsel for the respondent, concurred with Mr. Zake's position but pressed that the respondent be granted costs of the matter for having appeared in Court. On our part, we agree with the parties, in the light of the conceded facts, that the appeal suffers from the incurable ailments mentioned by Mr. Zake and that it is rendered incompetent. Of particular concern to us is the irregularity in respect of the leave to appeal granted by the High Court under the inapplicable provisions of section 5(1) (c) of Cap. 141 (supra) instead of section 47 (1) of Cap. 216 (supra). There is a litany of the decisions of this Court that where the High Court, in an application for leave to appeal in respect of a land matter, is moved under section 5(c) of Cap. 141 (supra) and not section 47 (1) of Cap. 216 (supra), the application for leave is incompetent and should be struck out. See, for instance, Lucy Daniel Mpiluka & Two Others v Finca Tanzania & Two 2 Others, Civil Appeal No. 96 of 2013, Jamila Surendra v Surendra @ Mohamedi Dharumsi Jutha, Civil Appeal No. 32 of 2015; and Hassan A. Shawa & Another v Jackson Ndesingo &T wo Others, Civil Appeal No. 77 of 2015 (all unreported). In view of the irregularity concerning the granted leave to appeal, we find ourselves constrained to invoke the Court's revisional powers under section 4 (2) of Cap. 141 (supra) and nullify the proceedings of the High Court in respect of the application for leave and strike out Miscellaneous Land Application No. 30 of 2016 before the High Court for its incompetence. In effect, therefore, this appeal lacks the requisite leave of appeal. That ailment coupled with the other defects acknowledged by Mr. Zake render this appeal incompetent. We thus strike out the appeal with no order as to costs. DATED at TANGA this 12th day of July 2017. B.M. LUANDA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL G.A.M. NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 3