theotimo itanisa v josephine rugomora administratrix of the estate of the late godwin rugomora 2023 tzhc 21302 29 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF BUKOBA AT BUKOBA CIVIL APPLICATION NO. 51 OF 2022 (Arising from Civil Appeal No. 9 of2020, Civil Application no. 13 of 2018 High Court of Tanzania at Bukoba, Civil Appeal No. 15 of1999 District Court of Bukoba and Originating from Civil Case No. 25of1997 Bukoba Urban Primary'Court and Civil Case No. 410 and 411 of1969 Customary Land Tribunal in West Lake Region, Bukoba Urban and the decision of the Minister for Land Housing and Urban Development in 1977) THEOTIMO ITANISA....................... ......... ............. ........ . APPLICANT VERSUS JOSEPHINE RUGOMORA (Administratrix of the estate of the late GODWIN RUGOMORA)..................... ........ RESPONDENT RULING 14th and 29th September, 2023 BANZI, J.: The applicant is seeking a certificate on point of law in order to appeal to the Court of Appeal of Tanzania against the ruling of this Court in Civil Appeal No. 9 of 2020 that was dismissed for being time barred. The records reveal that, after a series of applications before this Court, on 20th April, 2020, the applicant, vide Civil Application No. 13 of 2018 was given extension of time to file the appeal within ten days from the date of the ruling against the decision of the District Court of Bukoba in Civil Appeal No. 15 of 1999. It is also on record that, following such order, the applicant lodged his appeal electronically on 6th May, 2020 which was admitted on the same date. On 8th Page 1 of 10 May, 2020, the petition of appeal was manually filed and received at the respective registry. After hearing and in the course of composing judgment, the presiding Judge encountered with legal issue on competence of the appeal after realising that, it was filed out of the time prescribed by order of this Court. Parties were called and each was given opportunity to address the court on that legal issue. Messrs. Eliphazi Bengesi and Abel Rugambwa, learned counsel for the appellant and the respondent respectively, both admitted that, the appeal was time barred because by the time it was lodged electronically on 6th May, 2020, the ten days given on 20th April, 2020 had already lapsed. In its ruling dated 28th October, 2022, this Court dismissed the appeal for being time barred. Aggrieved with that decision, the applicant lodged his notice of appeal pursuant to rule 83 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 as amended by GN No. 344 of 2019. Apart from that, since the appeal originated from Primary Court, in compliance with section 5 (2) (c) of the Appellate Jurisdiction Act [Cap.141 R.E. 2019] ("the AJA*), the applicant filed this application seeking the certificate on point of law against the ruling of this Court in the said Civil Appeal No. 9 of 2020. The application is supported Page 2 of 10 by affidavit of the applicant, whereas, the respondent filed counter affidavit opposing the application. When the application was called for hearing, Mr. Rogers Theotimo Itanisa appeared and argued on behalf of the applicant under the special power of attorney given by the applicant on 16th May, 2023 and registered by the Assistant Registrar of Titles on 19th May, 2023. On the other hand, the respondent was represented by Mr. Abel Rugambwa, learned counsel. By consent, the application was argued by way of written submissions. In his submission, the applicant contended that, there are six points to be certified as stated under paragraph 6 (a) to (f) of the affidavit. He clarified that, the learned Judge erred by dismissing the appeal which was incompetent for non-joinder of necessary parties who were parties to original case before the primary court; failure to include correct case numbers and for being time barred. According to him, since the appeal was incompetent, it ought to be struck out rather than being dismissed considering the fact that, it was not determined on merit. He further insisted that, the High Court lacked jurisdiction to entertain the incompetent appeal. He cited the cases of North Mara Gold Mine Limited v. Sinda Nyamboge Ntora [2022] TZCA 258 TanzLII, Francis Petro v. Republic [2019] TZCA 304 TanzLII, National Insurance Corporation (T) Ltd v. Shengena Limited [2020] Page 3 of 10 TZCA 261 TanzLII and unreported decisions in Peter Ng'homango v. The Attorney General, Civil Appeal No. 114 of 2011 CAT at Mwanza and John Hilarius Nyakibari v. Republic, Criminal Appeal No. 149 of 2007 CAT at Dares Salaam to support his argument that, incompetent appeal should be struck out instead of being dismissed. In that regard, he prayed for the application to be allowed with costs. In response, Mr. Rugambwa submitted that, on 20th April, 2020, the applicant was given ten days to institute the appeal but he failed to lodge the same within the prescribed time. Besides, after being admitted that, Civil Appeal No. 9 of 2020 was incompetent, the applicant cannot benefit from his own wrong. In that regard, it was proper for the learned Judge to dismiss the time barred appeal as directed under section 3 (1) (2) of the Law of Limitation Act [Cap. 89 R.E. 2019] ("the Law of Limitation Act"). According to him, there is no point of law to be certified by this Court to be determined by the Court of Appeal. Thus, he prayed for this application to be dismissed with costs. In his rejoinder, applicant reiterated his submission that, since the appeal was incompetent, it ought to be struck out instead of being dismissed. He added that, section 3 (1) (2) of the Law of Limitation Act is not applicable in the case of this nature. Thus, he insisted that, the fact that the Page 4 of 10 incompetent appeal was dismissed instead of being struck is worth to be certified as a point of law for determination by the Court of Appeal. He therefore prayed for the application to be allowed with costs. Having heard the submissions of both parties and having scrutinized the records of this Court and the courts below, the issue for determination is whether there is point of law to be certified by this Court for determination by the Court of Appeal. It is the position of the law under section 5 (2) (c) of the A1A that, appeals to the Court of Appeal for matters originating in primary courts must be preceded by certificate issued by the High Court certifying that, there is point of law to be determined by the Court of Appeal. In that regard, the aggrieved party has no room to appeal on factual matters. This position was underscored in the case of Ali Vuai Ali v. Suwedi Mzee Suwedi [2004] TLR 110 where it was held that: 'According to section 5(2)(c) of the Appellate Jurisdiction Act 1979, a certificate on a point of Jaw is required in matters originating in Primary Courts; it is provided therein that an appeal against the decision or order of the High Court in matters originating in Primary Courts would not He unless the High Court certifies that a point of law is involved in the decision or order;" Page s of 10 In the matter at hand, the applicant in paragraph 6 of his affidavit mentioned six points to be certified by this Court for them to be determined by the Court of Appeal. The same are reproduced as hereunder: a) Whether there was a competent appeal before the second Appellate court capable of being heard and decided as it was done. b) Whether the effect of filing an appeal out of time is only to render the same incompetent whose remedy is to strike out or not. c) Whether it was correct on the part of Hon. Judge to proceed with civil appeal No. 09 of2020 and dismiss the same without joining the proper and necessary parties in particular Pantaleo Kasibira, who were the parties to the original proceedings that is civil case no. 25 of 1997 of the trial court. d) Whether under the current trend in Courts of this Land when an appeal is not heard on merits for being incompetent and time barred the remedy is to dismiss the same or to struck out of court record. e) Whether under the circumstances surrounding the dismissed appeal the learned Judge of the second Appellate court was slipped into error or not in delivering a ruling in place of the judgment as required by the law. Page 6 of 10 f) Whether the course of action taken by the Hon. Judge in en tertaining and deciding the said appeal which was not properly before the High court for failure to include the correct number of the original cases, and for inserted in the title of the petition of appeal number of the cases which does not originates (sic) from original proceedings is justified in law. I have carefully examined the mentioned points, the issue cross­ reference of incorrect number in original case has never been the issue of law rendering the appeal or application to be Incompetent to the extent of being struck out. Also, in the issue of nonjoinder of Pantaleo Kasabira, it is apparent that, the applicant/appellant from the beginning decided to appeal against the respondent only. Apart from that, he did not explain whether the said Pantaleo has direct interest in appeal and by not joining him, the second appellate court not be in a better position to adjudicate the said appeal. His absence would lead to inexecutable decree. Under these circumstances, the two issues are not worth to be certified as points of law for them to be determined by the Court of Appeal. Reverting to the issue of dismissing the time barred appeal, it was the contention of learned counsel for the respondent that, the time barred appeal deserves to be dismissed. He relied on section 3 (1) and (2) of the Page 7 of 10 Law of Limitation Act. On the other hand, the applicant relied on various authorities of the Court of Appeal and argued that, the time barred appeal deserves to be struck out. However, it is common knowledge that, the Law of Limitation Act is not applicable in all matters because some of the proceedings are excluded under section 43. Among them are, criminal proceedings, applications and appeals to the Court of Appeal and any proceeding for which a period of limitation is prescribed by any other written law. It is undoubted that, section 25 (1) (b) of the Magistrates' Courts Act [Cap 11 R.E. 2019] ("the MCA") is a self-contained law which provide for limitation of time of thirty days to lodge the appeal originating from Primary Court and it provides discretion to High Court to extend time after such period of thirty days has expired Equally, the same limitation and discretion to extend is provided under rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN No. 312 of 1964 ("the Rules"). This position was also underscored in the case of Gregory Raphael v. Pastory Rwehabura [2005] TLR 99 where it was stated that: "The combined effect of sections 46 and43(f) of the Law of Limitation Act 1971 is that the Act is not applicable where there Is a dear time limit in other written laws and that such other time limits in other written laws are deemed to have been made by this law..." Page 8 of 10 From the position of the law explained above, it is clear that, the Law of Limitation Act as relied by learned counsel for the respondent is not applicable in appeals originating in primary courts. Nonetheless, unlike in the Law of Limitation Act which provides for remedy on the proceedings filed out of the prescribed time, neither the MCA nor the Rules provides for remedy of instituting the time barred appeal. Dealing with similar situation concerning inapplicability of section 3 of the Law of Limitation, the Court of Appeal in the case of North Mara Gold Mine Limited v. Sinda Nyamboge Ntora {supra) restated as follows: "It is important to state here that; the Court considered the effect of the application filed out of time in the High Court and its consequence under S. 3 of the Law of Limitation Act. The authority is therefore inapplicable to proceedings filed in this Court. The reason is that the Law of Limitation Act does not apply to such proceedings. In effect, whenever an appeal or application is filed out of time, the practice has been to strike it out. " Since the Law of Limitation Act is not applicable in appeal originating in primary courts and since neither the MCA nor the Rules provide for remedy against the appeal filed out of time, it is the considered view that, there is a Page 9 of 10 point worth to be certified for it to be determined by the Court of Appeal. In that regard, I hereby certify one point of law to be placed before the Court of Appeal for determination, thus: Whether it was proper for the High Court to dismiss the time barred appeal which originated from the primary court. Consequently, the application is granted and each party shall bear its own costs. I. K. BANZI JUDGE 29/09/2023 Delivered this 29th day of September, 2023 in the presence of Rogers Theotimo Itanisa on behalf of the applicant and Mr. Abel Rugambwa, learned counsel for the respondent who is also present. I. K. BANZI JUDGE 29/09/2023 Page 10 of 10