registered trustees of the avengelistic assemblies of god vs ibrahim said ibrahim and others 2020 tzhclandd 32 11 march 2020

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO.51 OF 2017 (From the decision of the District Land and Housing Tribunal of KIBAHA District at KIBAHA in Land Case No.40 of 2013) THE REGISTERED TRUSTEES OF THE AVANGELISTIC ASSEMBELIES OF GOD TANZANIA.............................. APPELLANT Versus IBRAHIM SAID IBRAHIM (Administrator of the Estate of RASHID SELEMANI...... 1st RESPONDENT SALUM OMARI...................................................2nd RESPONDENT RAMADHANI LEGEZA.............................. ......... 3rd RESPONDENT HEZERANI HAMISI............................................ 4™ RESPONDENT REHEMA BAKARI............................................... 5th RESPONDENT SELEMANI JONGA..............................................6™ RESPONDENT JUMA MUSA......... ............................................. 7th RESPONDENT PEMBE JAFFARI..................................... ...........8th RESPONDENT RULING OPIYO J. The rolling hills behind this appeal is piece of land, located within Coast Region in Bagamoyo District, Plot No. 57, Block F, with an estimated value of 40,000,000/- here in after referred as the suit land. Both sides claiming ownership of the suit land. The dispute reached the District Land and Housing Tribunal for Coast Region, at Kibaha. H.l Mbuga, the Chairperson of the trial tribunal delivered a judgement in favour of the late Rashid Seleman, by then 1st respondent and declared him as the rightful owner of the suit land on 30th January 2017. Aggrieved by the decision of the trial tribunal, the appellant preferred the present appeal on five grounds as follows:- 1. That, the District Land and Housing tribunal erred in law for disregarding the letter offer granted to the appellant as evidence of ownership of the land in dispute. 2. That, the District Land and Housing tribunal erred in law for declaring that the appellant's letter of offer was fraudulently obtained although there was no any allegations of fraudulently obtained although there was no any allegation of fraud in the pleadings that was pleaded by the respondent. 3. That, the District Land and Housing tribunal erred in law for declaring the respondents as owners of the land in dispute despite the fact that there was no counter claim. 4. That, the District Land and Housing tribunal erred in law and fact by obviously siding by respondents' case during the trial. 5. That, the District Land and Housing tribunal erred in law and fact by relying on very contradictory evidence. The respondents on the other hand are against the appeal on grounds that it was filed out of time and further that the Memorandum of appeal was not accompanied by the decree and judgement of the trial tribunal. These are the two objections raised by the counsel for the respondents, Mr Kiondo. Submitting for the two preliminary objections above, Mr Kiondo maintained that, the decision forming the basis of the appeal at hand was made on 30th January, 2017. This appeal was filed on 16/3/2017 without being attached with the copy of decree or judgment appealed against. The copies were certified on 10/4/2017. Common sense shows that the copies was acquired after the filing of the appeal in court. It is a trite law that appeal from original decree of District Land and Housing Tribunal attachment of decree is a mandatory requirement, Order 39 rule 1 (1) of the Civil Procedure Code, Cap.33 R.E. 2002. Also the case of Ngoni Matengo Cooperative Union Limited v Ally Mohamed Osman (1959) E.A. 577 as quoted with approval by the court of Appeal No.9/2018 Pristine Properties Limited and Others v UBL Bank (Tanzania) Ltd at pg 5 insisted on this issue. On the limitation of time, the counsel for the respondents argued that, the case was decided on 30/1/2017 therefore under S.41 (2) of the Land Disputes Court Act as amended it is clear that appeal is within 45 days from the date of judgment. The 45 days elapsed on 15/3/2017, and the appeal was filed on 16/3/2019. Therefore the appeal was late for one day. Replying to the submission, Mr. Didas Kanyambo counsel for the appellant referred to Article 26 (1) as the Constitution of Tanzania as amended it is clear that "kila mtu ana wajibu wa kufuata na kutii katiba hii na sheria za Jamhuri ya Muungano". He prayed this honourable court overrule the 3 objections that has been raised by the for the respondents regard to the Appeal at hand. The objection on time limitation is not within the courts record, and argued without seeking leave of the court to do so, therefore it should be disregarded. After all the appeal is within time. The judgment of the District Land and Housing Tribunal was delivered on 30th January, 2017 and the appeal was filed on 16th March, 2017. By simple mathematics it was lodged this appeal was lodged on the 45th day and if that the case then it was within the time. On the 2nd objection Mr. Kanyambo maintained that, the documents complained to have been missing on the Memorandum of appeal, was attached on the amended Memorandum of appeal. The amendment followed the order of this court issued on 22nd July 2019. Therefore this objection should be overruled as well. In his rejoinder Mr. Kiondo reiterated his submissions in chief and insisted that the appeal ought to be dismissed or in alternative be struck out with costs owing to the anomalies mentioned on the two objections above. The records at hand a submissions by parties through their respective counsels, have been duly examined. On the face of it the first objection that the appeal is time barred lacks merits as it does not tally with simple mathematics. The judgement which is the basis of this appeal was delivered on 30th January 2017 and the appeal reached this court on 13th March 2017, which is 42 only days from the date of the said judgement of the trial tribunal. The prescribed time for filing appeal as per section 41(2), of Cap 216 id 45 days. Thus, the appeal is well within time contrary to what is argued by Mr. Kiondo. The objection on time limitation is therefore overruled. Coming to the other objection that, the appeal was filed without being accompanied by the copy of decree of the trial judgement. It is true that the appeal when filed in this court on 13th March 2017 was not accompanied by any copy of judgement or decree of the trial tribunal. This was contrary to the mandatory provisions of Order XXXIX Rule 1 (1) of the Civil Procedure Code Cap 33 R.E 2002. The law provides that:- "Every appeal shall be preferred in the form o f a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as nthe Court”) or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy o f the decree appealed from and (unless the Court dispenses therewith) o f thejudgment on which it is founded" This provision by plain interpretation is that, accompanying a decree on appeal is mandatory and not optional, failure to do so renders the appeal incompetent. The same was emphasized by the court in Ngoni Matengo Cooperative Union Limited v Ally Mohamed Osman (1959) E.A. 577 as quoted with approval by the court of in Pristine Properties Limited and Others v UBL Bank (Tanzania) Ltd Appeal No.9/2018 supra. However, Mr. Kanyambo counsel for the appellant contended the documents complained to have been missing on the Memorandum of appeal, was attached on the amended Memorandum of appeal through amendment via court order issued on 22nd July 2019. The question here is whether that attaching the missing documents through amendment cured the original omission to attach those documents. Plainly to amend a document is to make minor changes on the document itself or an addition that is designed to improve the text, a modification adjustment or adoption of some important facts or issues on the document. Amendment do not mean a complete change or production of a new document which was mandatorily require to be attached in the first place. Above all the amendment cannot validate an incompetent application or appeal. The rules of amendment of pleadings in court were laid down in the case of Salumu Abdallah Chande t/a Rahma Tailors versus The Loans and Advances Realization Trust and 2 Others, Civil Appeal No. 49 of 1997, Court of Appeal of Tanzania, at Dar Es Salaam. Though the rules were specifically for pleadings but this court can borrow a wisdom contained therein to emphasize on the laid rules for amendment. The first rule is that once filed pleadings can only be amended by leave of the court. In the present appeal, a leave to amend the memorandum of appeal was granted by this court on 22ndJuly 2019. The second is that the amendment must aim at and be limited to what will be necessary for determining the real questions in dispute between the parties. In the circumstances, it is the duty of the court to set the parameters within which the alteration or the amendment will be made. In this case the leave was general therefore the appellant was at a complete freedom to amend the memorandum as there were no conditions and manner of the intended amendment were attached. It is at this point where the appellant's counsel took a complete advantage and filled up the holes left by him during the filing of this appeal. 6 In my opinion, no matter how general the leave to amend may be, it cannot entail validating incompetence. Thus, the attachment of necessary missing documents to the amended memorandum of appeal was not proper. In my view, that was not an amendment of the memorandum of appeal, rather, it was an attempt to put in line or validate an incompetent appeal. It was insisted in the same case of Salumu Abdallah Chande t/a Rahrna Tailors versus The Loans and Advances Realization Trust and 2 Others (supra) that... "Any amendment must not result in a substitution o f an entireiy new case" I will add an emphasis here that amendments should cannot affect the competence of the case/matter, rather only contents of the documents so amended. For the above reasons, I uphold the 2nd preliminary objection. Consequently, I proceed to struck out this appeal for being incompetent. M. P. OPIYO, JUDGE 11/3/2020 7