registered trustees of evangelical lutheran church tanzania north western diocese vs anas swaib 2018 tzhc 2696 10 august 2018

IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF BUKOBA AT BUKOBA LAND CASE APPEAL NO. 13/2015 (Arising from Application No. 28/2014 of District Court and Housing Tribunal for Kagera at Bukoba) THE REGISTERED TRUSTEES OF EVANGELICAL LUTHERAN CHURCH TANZANIA NORTH WESTERN DIOCESE------------------------------------------ APPELLANT VERSUS ANAS SWAIBU--------------------------------------------- RESPONDENT RULING 28/5/2018 & 10/8/2018 Kairo, J. Before me is an appeal by the Appellant following his dissatisfaction with the decision delivered on 14/01/2015 by the District Land and Housing 1 Tribunal in application No. 28/2014. In his reply to the petition of appeal, the Respondent also gave a notice of preliminary objection through which he raised three P.Os , but later during submission he abandoned two of them and remained with one couched as follows:- That the appeal is misconceived and bad in law for being hopelessly filed out of time. The Appellant is being represented by Advocate Lameck Erasto while the Respondent is receiving the legal services of Advocate Zeddy Ally. The parties agreed to dispose the P.O raised by written submission and they accordingly abided with the order to file the same. In his brief submission, Advocate Zeddy Ally submitted that the ruling by the District Land and Housing Tribunal which is being impugned was delivered on 14/1/2015 and the appeal was filed on 23/4/2015 almost ninety days later. He went on that section 41 of the Land Disputes courts Act Cap 216 RE 2002 only provides for the court to which an appeal from the District Land and Housing Tribunal would rely to, but it is silent on the period within which to file the said appeal. Thus the Law of Limitation Act Cap 89 RE 2002 comes into play and the relevant part is paragraph 2 of Part II of the schedule of the Act which provides; "an appeal for which no period of limitation is prescribed by this Act or any other written Law.................. Forty five days. 2 He went on arguing that, by simple calculations, the Appellant was to file the appeal by 28/2/2015 but the same was filed on 23/4/2015 which is 99 days later, thus hopelessly out of time without court leave. Advocate Zeddy Ally concluded by praying the court to sustain the P.O and dismiss the appeal with cost. Advocate Lameck Erasto for the Appellant strenuously contested to the raised P.O. He submitted that soon after the delivery of the ruling on 14/1/2015, the Appellant applied for the copies of the ruling and drawn order which are mandatory documents to be attached to the petition of appeal as per order XXXIX R 1 (1) read together with order XL R (2) of the CPC 33 RE 2002. He went on that the ruling of the Tribunal was certified on 3/2/2015 and the appeal was filed on 24/4/2015, almost 80 days later. Advocate Lameck argued that it is established principle of Law that time for the purpose of appeal commence to run after obtaining the Judgment or ruling adding that there are a number of holdings supporting his argument, one of them being that of Mary Kimaro vrs Khalfan Mohamed (1995) TLR 202 which held that “it is from the time of supply of both such documents that the limitation of time for appeal begins to run". He added that the said holding found the support from section 19 (2) of Cap 89 RE 2002. The Advocate for the Appellant also refuted the argument by Advocate Zeddy Ally that the time within which to appeal for this case is forty five days under the strength of item 2 under Part II of the schedule to Cap 89 (supra), arguing that the correct time is ninety days as set by case laws quoting the 3 case of Hosea William and Edward Mushenga and Another; Land case Appeal No. 22/2011 High Court Bukoba (unreported) to support his argument. He further argued that basing on the principle of uniformity of the decisions made by the courts on the same subject matter, this court cannot decide otherwise lest it cause absurdity and confusion as was decided in the case of Kiganga and Associate Gold Mining Co. Ltd vrs Universal Gold NL (2002) TLR 129 wherein the court observed or held "It is desirable that decisions of courts on similar situation should not be in conflict and should avoid giving false impression that results of cases in courts of law perhaps depend more on personality of Judges than on the law of the land, so a Judge should not lightly dissent from the considered opinion of his brothers or sisters". He also argued that if the time limitation would have been 45 days as argued by Advocate Zeddy Ally then there could have been no use to amend section 41 of Cap 216 specifying the time limitation. He prayed the court to reject the P.O raised. In his rejoinder, Advocate Zeddy Ally maintained his argument that the appeal was filed out of time. He further informed the court that he will address two issues raised in the Appellants submission; first on when time to appeal starts to accrue, whereby he submitted that the contention by the Advocate for the Appellant that time stars to accrue after obtaining a copy 4 the judgment or ruling is not correct. He distinguished the cited case of Mary Kimaro arguing that the same was determining an application for an extension of time while in the matter at hand there is already an appeal filed in court without leave. He further contended that it has already established by the court that time to appeal starts to run after pronunciation of the judgment or ruling. He cited the case of Automobile Stores Ltd vrs L.K. Msoga [1967] HCD 226 to support his argument, adding that when calculating from when the ruling was delivered (14/1/2015) to when this appeal was filed (23/4/2015), almost 100 days has lapsed. Advocate Zeddy Ally went on to submit that the second issue is whether section 19 (2) of Cap 89 (supra) automatically comes into play. He contended that, Advocate Lameck Erasto has argued that section 19 (2) of Cap 89 (supra) comes into play when the trial court doesn't supply the appellant with the copies of the judgment or ruling on time to which he agreed but argued that the same doesn't come into play without moving the court through an application for an extension of time supported by an affidavit. He cited the case of Ponsian Baitataffe vrs Khalid S. Hussein and 3 Others High Court; Civil Appeal No. 28/2016 High Court Bukoba (unreported) to buttress his argument. He thus concluded that the said provision (Sec.19 (2) of Cap 89) is not automatic but there must be an application before the court moving it to extend time and in it, the applicant would assert section 19 (2) of Cap 89 (supra) to be a reason. 5 With regards to the cited case of Hosea William (supra) which was cited by Advocate Erasto to support his stance that limitation time of filing their appeal is 90 days, Advocate Zeddy Ally argued that the cited case was decided without taking into account other decisions on the position of law. He further submitted that the said decision being a High Court decision is not binding to this court. He reiterated his prayer to have the objection sustained. After going through the adversary arguments regarding the raised P.O, the issue to be determined by this court is whether the P.O has merit, thus sustainable. There is no dispute that the ruling to be impugned was delivered on 14/1/2015 and this appeal was filed on 23/4/2015 that is 100 days after its delivery. It is also not disputed that Cap 216 section 41 (by then as now Written Laws (Misc. Amendments) Act No. 4/2016 has made an amendment to section 41 of the DLHT by inserting subsection 2 which stipulates specific time of 45 days) didn't provide for time within which to appeal to the High Court by an aggrieved party. However both parties are at idem that the law of Limitation Cap 89 (supra) comes into play to fill the said gap. The contentious issue is which part of Cap 89 is relevant in the circumstance of this matter. I will discuss this shortly. Going through the arguments as per the parties submissions, among the contentious matter is when does a time for filing an appeal starts to run. The 6 Appellant contented that it starts to accrue after obtaining the judgment or ruling and cited the case of Mary Kimaro (supra). The Respondent on his part argued that the time starts to run from the date when judgment or ruling was delivered. In my understanding, time starts to run from the date when the judgment or ruling was pronounced for the purpose of limitation. Various cases are in support of this stance [Refer the case of Automobile Stores (supra) which held "Therefore, the time for filing an appeal should be measured from the date the Judgment was pronounced". With due respect to Advocate Erasto, I consider his argument in this regards to be incorrect as rightly argued by Advocate Zeddy Ally. The cited case of Mary Kimaro (supra) was determining the application for an extension of time wherein the applicant found herself not to have been provided with the necessary documents for the purpose of appeal by the court and the time to file the appeal was running against her. Thus the case is distinguishable to the one at hand which the appeal is already filed in court. According to the parties' arguments, they all agree that resort is sought from the Law of Limitation Act in the absence of expressive limitation period in Cap 216, but the rival argument is on which part of the said Act. Advocate Lameck for the Appellant argued that the relevant part is Part I (1) of the schedule to ection 3 of Cap 89 which provides for ninety days and cited the case of Hosea William (supra) to bolster his argument while 7 Advocate Zeddy Ally on his part argued that the correct one is Part II (2) of the schedule to section 3 of Cap 89 (supra). For easy reference I wish to quote the same: 1. An appeal under the Civil Procedure Code where the period of Limitation is not otherwise provided for by any written law ............ninety days. 2. An appeal for which no period of Limitation is prescribed by this act or any other written law...........forty five days. In my judicial interpretation ninety days is for appeals under the CPC, but in the appeal at hand there was no law (by then) which has provided time to appeal as such the proper part is Part II (2) of sec. 3 of Cap 89 as correctly argued by Advocate Zeddy Ally. I understand that in support of his argument, Advocate Lameck Erasto has sought a support of the case of Hosea William (supra) urging this court to follow a similar stance for the sake of what he called consistency and uniformity. I have gone through the said decision. Suffice to state that much as consistency and uniformity in deciding cases of similar facts are desirable, but if, and only if the same is in accordance with the law. In my view that's why the principles of stare decisis allow the court to depart from its former decision when necessary. Besides, it is also a principle that a court is not bound by its former decision. All those are safety valves against perpetuation of decisions given either erroneously or in forgetfulness of the position of the law. 8 In that regard therefore and with much respect to the argument by the Advocate for the Appellant, together with the stance of my learned brother presided over the cited case of Hosea William but with much humility I still maintain that the correct position is the one under Part II (2) of the schedule to section 3 of Cap 89 (supra) that is appeal was to be filed within 45 days. No wonder the amendment done to Sec 41 of Cap 216 which stipulated the days within which to appeal came to confirm the said position. The Appellant has sought to invoke section 19 (2) of Cap 89 (supra) to verify that the appeal is within time as the days to follow up for the ruling was to be excluded. However having found that the appeal was to be filed 45 days, the said section is irrelevant and cannot rescue the situation. Nevertheless, this court still maintains its stance, that the application for an extension of time wouldn't have been dispensed with even if section 19 (2) would have been relevant [Refer the case of Ponsiano Baitataffe (supra) and that of Praxeda Jambo vrs Edward Jambo; Civil Appeal No. 13/2013 High Court Dar es salaam (both unreported). I thus agree that this appeal was filed out of time and no leave of the court was sought to have it filed out of time. The only remedy is to dismiss it with cost under section 3 (1) of Cap 89 (supra) as I hereby do. The said provision was also interpreted in the case of Stephen Mapunda vrs Shirika la Usafiri Dar es salaam and Another [1982] TLR 258. 9 Objection sustained. Consequently this appeal is dismissed with cost having found to have been filed out of time with no leave of the court. It is so ordered. R/A explained. At Bukoba 10/8/2018 10 Date: 10/8/2018 Coram: Hon. L.G. Kairo, J. Appellant: Present, Christone Lugebella, Land Officer. Respondent: Present in person B/C: R. Bamporiki Court: The matter is for ruling following the P.O. raised by the Respondent. The same is ready and is read over before the parties as per today's coram in open court.