20131200 TZHC Dar es Salaam

. . IN THE HIGH COURT OF TANZANIA -• (DAR ES SALAAM DISTRICT REGISTRY) r AT DAR ES SALAAM LAND APPEAL NO. 3 OF 2012 (Appeal from the Land and Housing Tribunal for Temeke District in Application No. 145 of 2007) (Mbilinyi, Chairperson) THE REGISTERED TRUSTEES OF THE ARCHDIOCESE 0~ YOMBO DOVYA PARISH .......... 1 5T APPELLANT OMARI ·MOHAMED ......................................... : ..... 2ND APPELLANT Versus RAJABU RAMADHANI ...............•.......... ~ ............•..... RESPONDENT RULING F. Twaib, J: Before me is an appeal from the Land and Housing Tribunal for Temeke District in Application No, 145 of 2007. __ .. The respondent has raised a preliminary point of law to the effect that the appeal is time-barred. Both parties agreed to dispose of the preliminary objection by way of written subm_issions. Learned counsel for the rival parties·are in agreement on the following: ~/From Office/Judicia'l'./Regd, Trustees Archdiocese Yombo Dovya v Rajabu Ramadhani (Rg Dec, 2013) 1 1.. That the decision being appealed against was delivered on 20 th June 2011; I 2. That on 12th July 2011, the ·appellants applied for certified copies of judgment and decree (21 days after the date of delivery of judgment); 3. That the appellants received. the requested documents on 13th December 2011; · 4. That the memorandum of appeal was filed on 23_rd January 2012 (39 · days after the appellants received the certified copies ·of judgnient and decree; 5. That the time limit for filing an appeal from a decision of the Land and Housing Tribunal is 45 days; 6. That the time·· requisite fot ·obtaining copies of proceedings, judgement and decree is to be excluded in the computation of time limitation. The bone of contention between the pa.rties . is whether Q the·time t.hat the appellants took to apply for copies. (21 .days) _is to. be excluded. The .. appellants say that it should,; and that the only time to b_e taken into account runs from the date the certified copies were reaqy for collection (13 th Dec~mber 2011) and the ~ate. the appeal was filed (39 days). The respondent, on the other hand, maintains that the 21. days the appellants took to apply for certified copies should be included-which means, 21 +39=60 days-well beyond the time limit, according. to counsel. 3/From Office/Judiciary/Regd. Trustees Archdiocese Yombo Dovya v·Rajabu Ramadhani (Rg Dt<:, 2013) 2: : ' • f .,- • - • ·t--· . The respondent has relied on· Rustomje, K.J., The Law of Limitation and Adverse Possession, Vol. I, 5th ed.,· Butterworth & Co. (India), Calcutta, 1938, p. 210 at p. 211. The learned author wrote: " ... The time requisite is the time beyond tt,e appellant's control occupied by the copyist· department after an application for a copy has been made to the proper officer and ends when the copy is made for delivery. A period outside these two limits cannot be allowed under section 12. · Tim_e requisite ends not when the applicant chooses to take delivery of the copy, but when the copy is ready for delivery."· · The learned author thus opines, as counsel for the respondent maintains, that the time taken to apply for requisite copies should not be excluded. On behalf of the appellants, however, counsel has relied on a number of decisions in our jurisdiction to support his position. Iri Selestin Silowoka v Symphorian N. Kifale, HCT Civ. Appeal No. 88 of 2002, Massati J. held: "The period requisite for obtaining a copy of judgment would, I think, be that between the date of judgment and that on which the Court certifies it as a true copy .... in my view, it can, I think, validly be presumed that the time requisite for obtaining a copy of the judgment is between the date of delivery and that when the trial/appellate Court certifies it as the appellant's time begins to run from then." · · This position has been followed by other Judges of this Court. See, for instance, Kioo Ltd. v Joseph Leonard (HCT Civ. Appeal No. 210 of 2001, Luanda J, Chitto Charles Msuku v Edward Kunjunu, HCT Civil Appeal No . . .. 3/From Office/Judiciary/Regd. Trustees Archdiocese Yambo Dovya v Rajabu Ramadhani (Rg Dec, 2013) 3 l) 177 of 2004 (Shangwa J) and G.osbert Byombalirwa v Dr. Kandore Musika . & Another, Land Case' No. 24 of 2010 (HCT-Land Div.) (De Mello, J.) In light of the position taken by this Court in the cases cited above, I am inclined to hold that the Indian interpretation as described by Rustomji · above does not apply in our jurisdiction. Consequently, it is my finding that the time requisite for the purposes of appeal between the date of delivery of judgment and the date .of applying for copies thereof and other necessary papers, so long as the request therefor is made before expiry of the period of limitation, is to be excluded, just like the time between the application and the date the said copies are certified as available for collection. In the upshot, the preliminary objection is overruled. Costs to be in the ' . . course. DATED·AND DELIVERED AT DAR ES S~LAI\M this ......................... day of December 2013. Fauz Twaib ·Judge 3/From Office/Judiciary/Rcgd. Trustees Archdiocese Yombo Dovya v Rojabu Ramsdhani (Rg Dec, 2013) 4