20140926 TZHC Iringa

. ;· .,. ,·, ,I j . . .. . . -· ·.< ·MfSCELLAifEOUS LAND°CASE: APPEAI}No·. ·2·=c,fr~·2013:·- • I l , (From the decision of the District Land and Housing Tdbunal of Iringa District at Iringa in Land else.Appeal No. ;71 of 2012 and Original Ward ;ribunal bf Isakalilo Ward in · Application No. J17 of 2012) THE REGISTERED TRUSTEES OF THE MUSLIM COUl'fCIL..OF . I TANZANIA (BAKWATA ...................... APPELLANT - -. l - . VERSUS I • 1. SALEHE ARON MGIMWA 2. ALOYCE PETER TUIJI I ...... RESPONDENTS 3. IDIFONSI • N. MAGODA I 4.HALlDILlNUSIMAGODA 10/6/2014 & 26/9/2014 i JUDGEMENT MADAM SHANGALI, J. Before Isakalilo Ward Tribunal Land Case No. 17 /2012 the appellant THE REGISTERED TRNSTEES OF MUSLIM COUNCIL I ' . I . - . OF TANZANIA (BAKWATA) sued tme respondents SAL:e:HE ARON ' MGIMWA and ·oTHERS claimint for a piece of land m.~~suring I-· .•1~ft • ·t -- . . ?"i '~:' . '"~i-~~~4i: :- ,: ·1T .,, : •,rt . I ~4 .~,• • £, ' 1 . ... _··.-.:~--: ;:·.• ,.·1. ~-.... •_:.:...,,~_ ·,,-~ ~ -~ . ... ,··. .,.. ; I . ,. about. 1:0 acres situated at Jvikoga · Brea:·.:' :., .After hearing the· evidenc~ .from :both -~ide and ,after a c~itical ~xamination. and ·,•evaluati_on of that evidence the trial .Ward Tribunal unanimously -·.. deliber~ted in favour of the respondents. :;· ··-· ·- .. . 'f .. • ', _Dissatisfied with that d~cision, 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 !o represent the appellant who is the Registered Trustees of the Muslim Council of Tanzania. In the hearing of the preliminary objection, th~ 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 compla_tnts 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 wit~out 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 t~e trial Ward Tribunal had no pecuniary jurisdiction to ~ntettain the suit_,· . ' ' 2 . . t . In . this .appeal . the' appeHan.t · v;.ra~ rep resented by hiir._·. Kiba,.mh~, . learned· advocate · whil~ · the respondents ·were represented by Mr. Onesmo· Francis, learned advocate. On the reqqest of the. parties. this ~ou;t allowed the~ to.ar~e the. . . . . appeal· ; . · -~ --~ i .:_ .. /·.· by ·way of written submissio~. In support of his complaints on the first ground of appeal the appellant sub~itted that the trial Ward Tribun_al delivered its judgement ori 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 decisio..n ·contrary to.the prescribed period of 45 days as provided under Section 20 of the Land Disputes Courts Act; Cap. 216. That the. ;ppellant 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 ~ays he filed his appeal on 27 /8/2012.: The appellant contended that in co~puti°:g th.e 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, C?-P· 89. He argued that, the Hon. Chairman should ~ave started to ,•· compute the limitation period of 60 days from 5/7/2012 when he was availed with a copy of judgement and not o·n 21/6/2012 when the judgement was delivered. He contended that from . •;_ffi/7 /2012 when he obtained: .-his '~opy of ....judgement ·to:· 3 ...... r 1- j ·-- '• l::.. . 27 /08j201'2wheri/the appeal_.·vv·asfinally lodged; the period.of 60 .. • •• ••' ~ ,'>- n ; ' • - • -. • • • days · that• ;was'' ::provided - and ·. annouric~d by the trial \V ard ·· • Tribun~-had::not.iexpired and therefore the appeal w~s not ·tim_~ : barn~~-~- ; ·_i>f t\/,'>-. ··· · ·-· · 'I j I 'J ,. • ~ .; • : ; ••. ' t ·'·. ( ~· ·, ;_ ; ~' •·., :,~"' ··. ' -- ... "'·'. 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 _irf· dispute is six .acres of land containing one modern house whose value is ·over and above the pecuniary jurisdiction of three million shillings. He conte·nded 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 ,... ; ' · ·· Watd Tribunal.,: They furthei· stated that .despite the fact that the·· · ., -- 4 ., . ·1 ...... ' I . ' ·- ... '>.. • ... ·- .. ~~- ,;" .I . . . ..?'' . . .. ·• . .... _. . ;. I I'. " I . :· '·' appellan.t -~ras aw$re :· that )ie Vlras ;time barred· 11.9 ·attempt. was . m~de to. ·appl;:- fo;·_,;ej{tensio~·· of dme. withi~ wHich to appeal ., . I against.thafde-~ision of\he t~ial Ward Tribunal .... I, .-·,-.· . . •. : .. . . .. . ?·. . . . -~ .· ,· . . : . . Having heard all the parties; ~et _me put ·on~ issue straight . . . ' . . . . t . .that in his submission the appellatit,. The -Registe;red Trustees of- the Muslim Council of Tanzanid, wh~ is n'e~er a 'layman' I I categorically admitted that the triaj Ward Tribunc:9- was wrong to . advice parties to appeal within /:a period·, of . . 'I . 60 days. ' The appellant is pretty aware that the prescribed limitation period is • I' . 45 days and Section 20 of the Land Disputes Court Act, Cap. 216 is very clear on that .... · It is surbrising that the appellant is ,, attempting to justify that wr~ng a~vice and misapplication of the /' . I I . . law in order to proceed with his ~~peal filed in qontravention of . the law without even seeking for extension of time:, . · I r . I On the other hand the appellant has beed presenting his arguments as if this is an appeL against the i decision of the .District Land and Housing TribuJal refusing to Igrant. extension Ii of time to file an appeal out of tim€. What was before the District Land and Housing Tribunal was • l 1'1 Land Appeal; No. 71 of 2013 where the respondents filed a prtiminary objec~ion to the effect that the appeal was _file~ out of fime. T~e ap~.ellant · conceded that fact before the D!l.stnct Land Fd Housing Tribunal and even· 1 before this court he has insisted ithe same to t~e effect that the ,, j_udgement of the. .trial w ara Trihti'nal was delivered qn I . --~ii/-6/~Qt2r• that- h~•i.,~q,~e~;ted f,fr~ ·a. copy" of ,judgemenf" Ori: :-~-:.h_--. · 5 .• . • • . . . 30/6/2012; Jhat he was .issued <with that copy ·of judgement on 5/7/2012; tp.~t the appe~ was lodged to th.e District Land and · Housing!ribunal on_27/~/2012. - . • . To' 'th~t ·extent". the;~·a;peal was lodged··· ibout 66 d~ys -from·_ . ,., ' . . . . . the date of Judgement. · .The law under Section 20 of th~ .. L'an:p, . Disputes ·cou~t Act, Cap. 216.prov:ide that the appeal from Ward Tribunal to the District Land ~ .· and Housing Tribunal is 45 days. I agree wi~ 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 be~ause that was the period mentioned by the trial Ward Tribunal cannot be accepted. Such argument may be a good reason to be tableg. and l ~ canvas·sed 1n an applica#Qn_ f<?; _extens)Qri q(;;: ,t.iaj.~,_...to 1file .the ~ •-.... ◄ • .... • •• ,_,. ...,., .. ,..... 6 ,; .. . . _· '. ~ ':r ; 'I I .. ' j '· • •, . :- .1 . ,, I .. . . . . ., ' .. , . .; , . . I,• • . . app~al out 'of time but.not a reason: to justify an appeal filed out , · oftime. ' j. I . \· r, : . ·In my considered opinion, in_ s\lch a s~en_arid, the_.appellant was· s{ipp6sed· to fiI°e -~ ap~licati6~ ~eeking. for. ~xt~nsi~n- of time to'_ file. his appeal out of tirn_e'. · . 11;1. slich _,art,: ~p-plication. he is . . .. . . required to. adduce. suffici_ent reasons for tlJ_e aeilay to warrant grant of'extension of time. It is surprising th~t th~ appellant has · • : • I . . • I. . I . been capitalizing on the wrong advice of the trial ·ward Trib~nal · :., .·· • l • . I . to ··rescue an incompetent appeal.--- The appellant has been --~- . adducing reason~ for the delay at a)wrong forum. I ;,;.. • •• I i The second ground of appeal :is also misgui1ed. The issue - of a house erected on the land in dispute has beJn raised by the. appellant for the first time at this stage of appeal. j rhat issue was · neither raised nor discussed befor/e the trial W31d Tribunal and the value of the said house is unknown even to the appellant. In addition the case before the trial Ward Tribunal tas filed by· the _appelJant who is now making .ild allegationJ on pecuniary jurisdiction of the trial Ward Tribunal without by evidence to substantiate. l . h' . al h I .. I In cone1us1on, t 1s appe ~s no ments whatsoever. It is hereby dismissed with costs. I , lJ I ' M. S. SHANGALI l _I -•~=i"_1l!~?~t- ~- · . ~c· 26/9/2014 . i 7 I .. ·•. - . ,. ._ . _ ; · .. _.,.. •; ...... '_<·· · . ,_ ~, ,:" ,,.·, I · ,, .. ••.. , s ;_ ··. I ~,: ·--. ' : ; ·. - ... "' ... ~ f L • \ ·J:udgernent · deliv~red in; the presence of Mr. Majid. Salum·. · · repres~nting the appellant · and· Mr. Onesmo ~·-Francis, learned· .. . l• ~· ' . ,. .. , ! . ·. advocate representing the respondents. •·. ·,'.M .. S. SHANGALI. JUDGE 26/9/2014 .,... ,• .. ~1 t-•;.i' .-- ''.!""'~ ...,_ ·\ :; ~-.":41.~"__,l.._., ..... ~ .. ,(ft"'' - ~ . . _, .....,.. 8