vocational education and training authority veta vs registered trustees of ruvuma tailoring school 2013 tzhc 2156 12 august 2013

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) ATSONGEA LAND CASE APPEAL NO. 4 OF 2013 .(From Songea District Land and Housing Tribunal Miscellaneous Land Application No. 36 of 2012 Original Land Application No. 18 of 2008 of Songea District Land and Housing Tribunal Land) VOCATIONAL EDUCATION AND TRAINING AUTHORITY (VETA) .................. APPELLANT VERSUS THE REGISTERED TRUSTEES OF RUVUMA TAILORING SCHOOL .................. RESPONDENT RULING 25/7 - 12 / 8/2013 KWARIKO, J. Originally, the respondent herein obtained an ex-parte judgment against the appellant at the district land and housing tribunal for Ruvuma at Songea. Then, later, the appellant filed an application for extension of time to apply to set aside the ex-parte judgment which application was refused by the district tribunal. Thus, this appeal has been filed against that order of refusal. However, in reply to the petition of appeal the respondent through Mr. Komba learned Advocate raised points of preliminary objection to the following effect; "That the appeal is bad in law and time barred and has been filed without a decree and after time for filing has expired and failed to file stay o f execution under hand Regulations". When the matter was called for hearing of the preliminary objection the counsel for parties were granted leave to argue the same by way of written submissions. The submissions have been duly filed according to the scheduled order. Mr. Komba learned counsel for the respondent started, firstly, in his submission by shortening his wordings of the preliminary objection and now it reads; "The appeal is bad in law and the appellant failed to file stay o f execution o f the decree under Land Regulations". Thus, to amplify the foregoing, firstly, the respondent's counsel submitted that the appeal is incompetent as it lacks a copy of decree as required under Order XXXIX Rule 1 (1) of the Civil procedure Code Cap. 33 R.E. 2002. Secondly, it was submitted in the alternative that the appeal has been filed in contravention with section 38 (2) of the Land Disputes Courts Act Cap. 216 R.E. 2002. In their reply, the appellant through the office of the Attorney General's Chambers in Songea submitted in respect of the first point of objection that their appeal is against the decision in the ruling which denied them right of extension of time to file an application for setting aside the ex parte judgment and stay of execution of a decree. Hence could not attach a copy of a decree since there is no any decree to appeal against and thus Order XXXIX Rule 1 (1) of the Civil Procedure Code is not applicable. Secondly, the appellant's counsel argued that section 38 (2) of the Land Disputes Courts Act is not applicable in this case since the same relates to appeals filed in the High Court on matters which originate in the ward tribunals. That, the appellant's appeal arose from the dispute which was entertained by the district land and housing tribunal sitting in its original jurisdiction hence the appeal was properly filed in the High Court. The rejoinder by the respondent's counsel insisted the position of the law which was quoted in their first submission. The issue to be decided here is whether the preliminary objection has merit. Firstly, this court agrees with the appellant's counsel that the present appeal is against the ruling which refused extension of time to file an application to set aside ex-parte judgment. Thus, this appeal is not against the ex-parte judgment where a decree could have been extracted from. That is what it is provided under section 28 of the Civil Procedure Code thus; ’The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow", [emphasis supplied]. This position of law was applied with approval in the case of THE ATTORNEY GENERAL V REV. CHRISTOPHER MTIKILA, Civil Appeal No. 20 of 2007, Court of Appeal of Tanzania at Dar es Salaam [unreported]. In that case it was also said that while a decree is obtained from the judgment an order is derived from the ruling. In the case of CLEOPHACE M. MOTIBA & OTHERS VS THE PERMANENT SECRETARY MINISTRY OF FINANCE & TWO OTHERS, Civil Appeal No. 17 of 2003, Court of Appeal of Tanzania at Dar es Salaam, [unreported] section 3 of the Civil Procedure Code was interpreted in respect of the term "Order" to mean; "A formal expression o f any decision o f civii court which is not a decree". And also a term "decree" is defined in the same section thus: "A formal expression o f an adjudication which, so far as regards the court expressing it, conclusively determines the right o f the parties with regard to all or any o f the matters in controversy in the suit and may be either preliminary or final and it shall be deemed to include the rejection o f a plaint and the determination o f any question within section 38 or section 89 but shall not include - (a) an adjudication from which an appeal lies as an appeal from an order; or"..... Therefore, with the foregoing, a decree cannot replace an order and thus this appeal which originates from a ruling and not a judgment the requirement that it should be accompanied by a decree is not tenable. The first point of objection is thus overruled. As regards the second point of objection I agree with the submission by the appellant's counsel that section 38 (2) of the Land Disputes Courts Act concerns with the period of limitation on appeals in respect of matters originating in the ward tribunal. This is clearly indicated in the marginal note on section 38 (1) of the Act [supra] which says: "Appeals o f matters originating from the Ward Tribunal" Therefore, since the present appeal originated in the district land and housing tribunal exercising its original jurisdiction the law applicable is the Civil Procedure Code Cap. 33 R.E. 2002, the Law of Limitation Act Cap. 89 R.E. 2002 and the Evidence Act, Cap. 6 R.E. 2002 (see section 51 and 52 of the Land Disputes Court Act (supra). And thus the appeal has been properly filed before this court. This second point of objection is also rejected. I have also seen submission and counter-submission in relation to why the appellant did not apply for stay of execution and the issue of legal representation in respect of the appellant. I think this amounts to placing a cart before a horse. We have not reached to these issues yet as in my considered view the same will be covered in the appeal when the time comes. Otherwise, I find that the preliminary points of objection are non- meritorious and are hereby overuled with costs. It is ordered accordingly. v M.A. KWARIKO JUDGE 12/8/2013 Ruling delivered in court today in the presence of Ms. Juntwa learned State Attorney for the Appellant and Mr. Komba learned Advocate for the Respondent. Ms. Eva court clerk present. M.A. KWARIKO JUDGE 12/8/2013