registered trustees of the muslim council of tanzaniabakwata vs salehe aron mgimwa others 2014 tzhc 2281 26 september 2014

4 in t h e h i g h c o u r t o f Ta n z a n i a [LAND DIVISION] AT IRINGA MISCELLANEOUS LAND CASE APPEAL NO. 2 OF 2013 (From the decision of the District Land and Housing Tribunal of Iringa District at Iringa in Land Case Appeal No. 71 of 2012 and Original Ward Tribunal of Isakalilo Ward in Application No. 17 of 2012) THE REGISTERED TRUSTEES OF THE MUSLIM COUNCIL OF TANZANIA (BAKWATA......................APPELLANT VERSUS 1. SALEHE ARON MGIMWA 2. ALOYCE PETER TULI RESPONDENTS 3. IDIFONSI N. MAGODA 4. HALIDI LINUSI MAGODA. 10/6/2014 & 26/9/2014 JUDGEMENT MADAM SHANGALI, J . Before Isakalilo Ward Tribunal Land Case No. 17/2012 the appellant THE REGISTERED TRUSTEES OF MUSLIM COUNCIL OF TANZANIA (BAKWATA) sued the respondents SALEHE ARON MGIMWA and OTHERS claiming for a piece of land measuring 1 / about 10 acres situated at Mkoga area. After hearing the evidence from both side and after a critical examination and evaluation of that evidence the trial Ward Tribunal unanimously deliberated in favour of the respondents. Dissatisfied with that decision, the appellant filed an appeal to the Iringa District Land and Housing Tribunal, to wit Land Appeal No. 71 of 2012. Before the hearing of the appeal the respondents raised a preliminary objection based on two points of law namely, One that the appeal was time barred and two that the person who signed the petition of appeal is incompetent to represent the appellant who is the Registered Trustees of the Muslim Council of Tanzania. In the hearing of the preliminary objection, the first point of objection was upheld and the appeal was dismissed with cost for being filed out of time. Still disgruntled with that decision, the appellant has filed this appeal based on four grounds of appeal, of which all circumvent to two main complaints namely, whether the Hon. Chairman of the District Land and Housing Tribunal erred both in law and in fact by declaring that the appeal was time barred without computing limitation period from the date the appellant received the copy of judgement and decree and two, whether the Hon. Chairman erred both in law and fact for not considering the fact that the trial Ward Tribunal had no pecuniary jurisdiction to entertain the suit. 2 Kibamba, learned advocate while the respondents were represented by Mr. Onesmo Francis, learned advocate. On the request of the parties this court allowed them to argue the appeal by way of written submission. In support of his complaints on the first ground of appeal the appellant submitted that the trial Ward Tribunal delivered its judgement on 21/6/2012 and thereafter explained to the parties on their right to appeal within a period of sixty (60) days from the date of that decision contrary to the prescribed period of 45 days as provided under Section 20 of the Land Disputes Courts Act, Cap. 216. That the appellant requested for a copy of judgement on 30/6/2012 and obtained the same on 5/7/2012. The appellant stated that having obtained that copy of judgement and bonafide relying on the words of the trial Ward Tribunal to appeal within 60 days he filed his appeal on 27/8/2012. The appellant contended that in computing the limitation period the Hon. Chairman was under obligation to exclude the time which the appellant used to wait for a copy of judgement as provided under Section 19 (2) of the Law of Limitation Act, Cap. 89. He argued that, the Hon. Chairman should have started to compute the limitation period of 60 days from 5/7/2012 when he was availed with a copy of judgement and not on 21/6/2012 when the judgement was -delivered. He contended that from 5/7/2012 when he obtained his copy of judgement to 27/08/2012 when the appeal was finally lodged, the period'of 50 da}^s that was provided and announced by the trial Ward Tribunal had not expired and therefore the appeal wTas not time barred. The appellant argued that the prescribed limitation period of 45 days should not be employed in this case because the appellant as a layman relied on the words -of the trial Ward Tribunal to file appeal within a period of 60 days and therefore it was the trial Ward Tribunal which mistakenly contravened the law. On the second complaint the appellant argued that the property in dispute is six acres of land containing one modern house whose value is over and above the pecuniary jurisdiction of three million shillings. He contended that Section 16 of the Land Disputes Court Act provides that the pecuniary jurisdiction of the Ward Tribunals is three million shillings. In reply, the respondents submission was very brief. They submitted that the District Land and Housing Tribunal was correct to hold that the appeal before it was time barred in view of Section 20 of the Land Disputes Courts Act, Cap. 216 which states clearly that every appeal to a District Land and Housing Tribunal shall be filed in the District Land and Housing Tribunal within forty five (45) days after the date* of the decision of the Ward Tribunal. They further stated that despite the fact that the 4 appellant was aware that he was time barred no attempt was made to apply for extension of time within which to appeal against that decision of the trial Ward Tribunal. Having heard all the parties, let me put one issue straight that in his submission the appellant, The Registered Trustees of the Muslim Council of Tanzania, who is never a ‘layman’ categorically admitted that the trial Ward Tribunal was wrong to advice parties to appeal within a period of 60 days. The appellant is pretty aware that the prescribed limitation period is 45 days and Section 20 of the Land Disputes Court Act, Cap. 216 is very clear on that. It is surprising that the appellant is attempting to justify that wrong advice and misapplication of the law in order to proceed with his appeal filed in contravention of the law without even seeking for extension of time. On the other hand the appellant has been presenting his arguments as if this is an appeal against the decision of the District Land and Housing Tribunal refusing to grant extension of time to file an appeal out of time. What was before the District Land and Housing Tribunal was a Land Appeal No. 71 of 2013 where the respondents filed a preliminary objection to the effect that the appeal was filed out of time. The appellant conceded that fact before the District Land and Housing Tribunal and even before this court he has insisted the same to the effect that the judgement of the trial Ward Tribunal was delivered on 2 1/6/2012; that he requested for a copy of judgement on 30/6/2012; that he was issued with that copy of judgement on 5/7/2012; that the appeal was lodged to the District Land and Housing Tribunal on 27/8/2012. To that extent the appeal was lodged about 66 days from the date of judgement. The law under Section 20 of the Land Disputes Court Act, Cap. 216 provide that the appeal from Ward Tribunal to the District Land and Housing Tribunal is 45 days. I agree with the appellant that the law under Section 19 (2) (3) of the Law of Limitation Acts, Cap. 89 provide that in computing the \ period of limitation prescribed for an appeal the day on which the judgement was delivered and the period of time requisite for obtaining a copy of the judgement shall be excluded. The appellant was given his copy of judgement on 5/7/2012 and therefore the period between 21/6/2012 and 5/7/2012 should have been excluded as provided by the law. If that is done, then the appeal was filed after 52 days from the date when the appellant was availed with a copy of judgement. According to that position of the law the appeal was filed out of the prescribed period of 45 days. The appellants contention that the prescribed limitation period in this case should have been 60 days because that was the period mentioned by the trial Ward Tribunal cannot be accepted. Such argument may be a good reason to be tabled and canvassed in an application for extension of time to file the appeal out of rime but not a reason to justify an appeal filed out of rime. In my considered opinion, in such a scenario, the appellant was supposed to file an application seeking for extension of time to file his appeal out of time. In such an application he is required to adduce sufficient reasons for the delay to warrant grant of extension of time. It is surprising that the appellant has been capitalizing on the wrong advice of the trial Ward Tribunal to rescue an incompetent appeal. The appellant has been adducing reasons for the delay at a wrong forum. The second ground of appeal is also misguided. The issue of a house erected on the land in dispute has been raised by the appellant for the first time at this stage of appeal. That issue was neither raised nor discussed before the trial Ward Tribunal and the value of the said house is unknown even to the appellant. In addition the case before the trial Ward Tribunal was filed by the appellant who is now making wild allegations on pecuniary jurisdiction of the trial Ward Tribunal without any evidence to substantiate. In conclusion, this appeal has no merits whatsoever. It is hereby dismissed with costs. M. S. SHANGALI JUDGE 26/9/2014 Judgement delivered in the' presence of Mr. Majid Salum representing the appellant and Mr. Onesmo Francis, learned advocate representing the respondents. M. S. SHANGALI JUDGE 26/9/2014