20140523 TZHC aRUSHA

. ._t~~it__· \ . IN THE HIGH COURT OF TANZANIA ATARUSHA LAND APPEAL NO. 53 OF 2011 (C/F District Land and Housing Tribunal of Arusha at Arusha in Land Case No. 103/2008) · BETWEEN THE REGISTERED TRUSTEES OF THE APOSTLES OF JESUS ...................................... APPELLANT AND HELLEN JAMES :1a ■■■ 111 ■■ ••••11 ■ 11••·······••11 ■■■ 1111 ■■■■■■ 11a11••··········· RESPONDENT (From Judgment of the District Land and Housing Tribunal of Arusha) (M.R. Makombe, Chairperson) JUDGMENT MUGASHA, J. In the District Land and Housing Tribunal of Arusha at Arusha, the respondent sued the appellant over a piece of land measuring 2½ acres which was uninterruptedly occupied by his late husband one James Tillya under deemed right of occupancy since 1961. The case was proved ex parte hence ex parte Judgment entered in favour of the respondent. Aggrieved; the appellant intended to appeal but she was already time barred and she applied for extension of time vide Miscellaneous Land Application No. 10 of 2011. On 22 nd day of September, 2011 in presence of Mr. Materu learned counsel holding brief of Mr. Ngalo learned counsel for the appellant , the appellant was granted leave to file the appeal within 1 ·:.; . h,No week$, that is; fourteen (i°4) days. ~The appeal at hand was filed on 24th October, 2011 that is; 32 days from the date of th·e Order of this Court dated 22nd day of September, 2011. The hearing of the appeal was conducted by written submissions where the appellant had services of Ngalo and Company Advocates while the respondent was assisted by the Legal Aid Unit of the Legal and Human Rights Centre. Responding to the written submission by the appellant, the respondent raised an aspect of time limitation that the appeal is time barred for more than eighteen (18) days because it was filed beyond term ordered by this Court on 22/09/2011. Therefore; the respondent prayed for the appeal to be dismissed. In response, Mr. Nga lo counsel for the appellant submitted that; the appeal is within time because though the order to file an appeal out of time was granted on 22 nd day of September, 2011, yet; the said order was duly signed and issued on 18th day of October, 2011 with the ·'/appeal filed on 24th day of October,. 2011, that is, just after six (6) 'i~:f~ys from the date of the order thus within the granted fourteen (14) days. · -:·-,· . Mr. Ngalo added; it was the Drawn Order which mandated the appellant to lodge the appeal, otherwise; the appeal would be incompetent. As rightly submitted by parties herein, it is not disputed that the order for extension of time to lodge an appeal out of time was granted on 22 nd day of September, 2011 while this appeal was lodged on 24th day 2 of October, 2011. As correctly argued by the respondent, the 9p.peal . -is;. : •.· time barred because it was filed after the expiry of the permitted::terrn. The argument by the appellant1s counsel that, obtaining copy of Drawn Order was· mandatory for the purposes of the appeal lacks merits in law because; the important document for the purposes of the appeal at hand was the Judgment and Decree in Arusha Land Application No. 103 of 2008, in terms of Order XXXIX Rule 1(1) of the Civil Procedure Code, [CAP. 33 R.E, 2002] which provides:- "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court'') or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded'~ Since the appeal preferred is against the Judgment in Arusha Land Application No. 103 of 2008 and not against Miscellaneous Land Application No. 10 of 2011, at any rate; the said Drawn Order cannot be said to have been an important document for the purposes of lodging the present appeal. The only importance of Ruling and Drawn Order in Miscellaneous Land Application No. 10 of 2011 could arise just to substantiate that the appellant was as such granted the said extension of time and not for the purposes of been annexed to the petition of appeal in compliance of Order XXXIX Rule 1(1) of the Civil Procedure Code (supra). In other words, 3 annexing or not annexing the said copy in the present appeal would not have affected competence of the present appeal. .. In the premises; the appeal is time barred. In the circumstances; dwelling to the merits of the appeal will be just an academic exercise which will not salvage the situation at hand. Therefore; the appeal is dismissed for being time barred. Since no party has prayed for costs as the respondent has been enjoying legal aid from the Legal Aid Unit of the Legal and Human Rights Cen1t~~~':'mq~~ no order as to costs. Ao:ft· I I -, ,-- ::· ,. p·' - ::- ---: ..~:·"'';"' "~ ~~ It is s.i0roered>· '. _;:/;,:,-,<__ ·. :·~~~ . ) f "'- , .. - ·- ·1 ,-.,., i 'i ; I r l ··:- · , "-~ ,' " ,' ·-;:· ~ 'I ',;\ :_: '- -· · )' - ~i .· ✓}f;}J)t I S.E,:u~:~SHA 23/05/2014 Judgment delivered this 23 rd day of May, 2014 in absence of all the parties. 4