wilbad lubuye vs mkaka magafu 2012 tzhclandd 145 17 october 2012

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) MWANZA MISCELLANEOUS LAND CASE APPEAL NO. 66 OF 2008 (From the Decision of the District Land and Housing Tribunal of Nyamagana District at Mwanza in Land Case Appeal No. 103 of 2007 and Original Ward Tribunal of Selema Ward in Application No. 10 of 2006) WILBAD LUBUYE.................................................................APPELLANT VERSUS MKAKA MAGAFU.......................................................... RESPONDENTS RULING MWAMBEGELE. J.: Upon perusal of the record in this court file, I have realised that the appeal was filed out of time and therefore incompetently before this court. This appeal was filed on 30.07.2008. The judgment of the District Land and Housing Tribunal which is appealed against is dated 29.04.2008. The appeal ought to have been filed by 28.06.2008. In the absence of any order of this l court enlarging time within which to file this same, I find myself not properly seized or vested with the requisite jurisdiction to entertain it. The rest of this Ruling is demonstrating why this appeal is incompetent and therefore should be struck out. This appeal is controlled by the provisions of Section 38 (1) of the Land Disputes Courts Act, Cap. 216 of the Laws of Tanzania (hereinafter referred to as Cap. 216) as amended by the Written Laws (Miscellaneous Amendments) Act, 2010. This subsection provides for time within which a party aggrieved by the decision or order of the District Land and Housing Tribunal in exercise of its appellate or revisional jurisdiction may appeal to this court. It reads: "Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise of its appellate or revisional jurisdiction, may within sixty days after the date of the decision or order, appeal to the High Court: Provided that the High Court may for good and sufficient cause extend the time for filing an 2 appeal either before or after such period of sixty days has expired". Having been commenced in the Ward Tribunal (Selema Ward Tribunal), and given the fact that the judgment of the District Land and Housing Tribunal intended to be impugned was delivered on 29.04.2008, the Petition of Appeal ought to have been filed within sixty days after the date of decision; that is, by 28.06.2008. For the avoidance of doubt, I have computed the period of limitation as stipulated by Section 19 (1) of the Law of Limitation, Cap. 89 (hereinafter Cap 89). For the avoidance of doubt, let me demonstrate further on appeals falling JU fr k f /h it under Section 38 of Cap. 216. In appeals/section time starts to run against an aggrieved party on the date on which the judgment appealed against is pronounced. This section does not put as mandatory any document to accompany it (the Petition) at the time of filing. That is to say; a copy of judgment or ruling or order appealed against must not necessarily be accompanied by a petition of appeal at the time of filing. Actually, the way subsections (2) and (3) of Section 38 of Cap. 216 (as amended) are couched, it suffices if only a Petition of Appeal is filed in the District Land and Housing Tribunal and the requisite fees paid. After the filing of a petition and requisite fees paid, the Tribunal will dispatch the petition together with the record of the proceedings of the District Land and Housing Tribunal to this Court within fourteen days. Let the subsections speak for themselves: "(2) Every appeal to the High Court shall be by way of petition and shall be filed in the District Land and Housing Tribunal from the decision, or order of which the appeal is brought. (3) Upon receipt of a petition under this section, the District Land and Housing Tribunal shall within fourteen days dispatch the petition together with the record of the proceedings in the Ward Tribunal and the District Land and Housing Tribunal to the High Court". This problem was canvassed at some length by Luanda, J. (as he then was) in Gregory Raphael Vs Pastory Rwehabura, 2005 TLR 100. Luanda, J. was faced with an identical situation when grappling with the interpreting Section 25 (3) of the Magistrates7 Courts Act, Cap. 11 (hereinafter Cap 11) 4 which is in pari materia with subsection (2) above. Subsection (3) of Section 25 of Cap 11 reads: "Every appeal to the High Court shall be by way of petition and shall be filed in the district court from the decision or order in respect of which the appeal is brought His Lordship, after asking himself as to when does time of appeal to the High Court start to run against an appellant who seeks to contest the decision of the District Court on matters originating from Primary Courts, held at p. 105 that: "Attachment of copies of decrees and judgment is a condition precedent in instituting appeals originating from District Courts and courts of resident magistrate." His Lordship went on: "But the position is different in instituting appeals in this court on matters originating from Primary Courts. Attachment of copies of decree or 5 judgment along with petition of appeal is not a legal requirement. The filing process is complete when petition of appeal is instituted upon payment of requisite fees" His Lordship concluded that time starts to run against an intended appellant from the date the judgment appealed against is pronounced. He held further that in computing the time of limitation, no time is excluded as attachment of judgment and decree are not a mandatory requirement. The position in respect of appeals under Section 38 of Cap 216 was well expounded by Mgetta, J. in a recent decision in the case of Fadhila Ally Vs Alex Holela, Miscellaneous Land Case Appeal No. 05 of 2011 DSM (unreported) in the following terms: "... the appellant is not necessarily required to attach copies of decree and judgment to petition of appeal as the attachment of such copies is not a condition precedent in instituting appeals originating from Ward tribunals. The filing process of the petition of appeal to the High Court is 6 complete upon presenting it and payment of the requisite fees in the Tribunal". In the light of the above two cases, it is clear therefore that in instituting appeals to this court on matters dealt with the District Land and Housing Tribunal in its appellate or revisional jurisdiction, attachment of copies of decree or judgment is not a legal requirement. The filing process is complete when a petition of appeal is instituted in the District Land and Housing Tribunal and requisite fees paid. In computing the time of limitation, save for the application of Section 19 (1) of Cap 89, no time is excluded. Time starts to run against an aggrieved party right from the date of judgment of the District Land and Housing Tribunal which the intended appellant seeks to challenge. Coming back to the instant case, the appeal was filed 32 days after the expiry of the period of limitation. It was filed out of time. In the absence of any order of this court enlarging time within which to file this appeal, this court finds itself not properly seized or vested with the requisite jurisdiction to entertain it. 7 Having found that the appeal was filed out of time, what then should I proceed to do? This is the question to which I now turn. There are two options. The first one is to have the appeal dismissed in the light of the provisions of subsection (1) of Section 3 of Cap 89. This subsection reads: "... every proceeding ... which is instituted after the period of limitation ... shall be dismissed whether or not limitation has been set up as a defence". The second option is to strike it out according to the directions of the Court of Appealas articulated in Ngoni-Matengo Cooperative Marketing Union Ltd Vs Alimamohamed Osman, (1959) EA 577, and AbdallahHassan Vs VODACOM (T), Civil Appeal No. 18 of 2008, (unreported) and Thomas Kirumbuyo and Another Vs Tanzania Telecommunications Co. Ltd., Civil Application No. 1 of 2005 (CA - unreported). These cases direct that in situations, as in the present one, where the appeal is incompetently before the court, the proper course to take should be to strike the appeal out rather than dismissing it. The distinction between dismissing and striking out an appeal was well pronounced by the Ngoni-Matengo case (supra). At 8 page 580, Windham, J.A speaking on behalf of Sir Kenneth O'Connor, P. and Gould, J.A had this to say: "When the appeal came before this court it was incompetent. ... This Court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this Court ought strictly to have done ... was to "strike out" the appeal as being incompetent, rather than to have "dismissed" it; for the latter phrase implies that a competent appeal has been disposed of while the former phrase implies that there was no proper appeal capable of being disposed of". (Emphasis supplied). The above quotation in the NgonhMatengo Case was quoted with approval by the Court of Appeal in Abdallah Hassan Vs VODACOM (T) (supra). The Court of Appeal reiterated and emphasised the well structured explanation of the Ngoni-Matengo case in respect of the distinction between "dismissing" and "striking out" an appeal. The defunct Court of Appeal for 9 East Africa sat on 21.05.1959 and 11.06.1959 at Dar es Salaam deciding Civil Appeal No. Dar. 2 of 1959. The Court of Appeal of Tanzania in the Abdallah Hassan case (supra) also referred to its decision in the Thomas Kirumbuyo case (supra), in which, speaking through Lubuva, J.A held: "From the outset, and without prejudice; it is to be observed that the learned judge having upheld the preliminary objection that the application was hopelessly out of time, and therefore incompetent, should have proceeded to strike it out Dismissing the application as happened in this case, presupposes that the application was competent and that it was heard on merits". (Emphasis supplied). With these decisions of the court of appeal, my way forward becomes simple. It is crystal clear therefore that there is a clear distinction between dismissing and striking out an application, a suit or an appeal as the case may be. Dismissing an application, a suit or an appeal, as the case may be, 10 would signify that the matter has been entertained on merits. While striking out an application, a suit or an appeal, as the case may be, would imply that there was no matter before the court to be entertained on merits. I have declined to entertain this appeal on merits it being incompetent for being filed out of time. I find and hold that this appeal was filed out of time as a result of which, having not sought and obtained leave of this court to appeal out of time, the appeal is incompetently before me. In the light of the authorities cited above, the appeal deserves the punishment of being struck out as incompetent rather than having it dismissed. In the end result, this appeal is struck out as incompetent for being filed out time. In view of the fact that this issue was raised by this court suo motu, I make no order as to costs. DATED at MWANZA this 17th day of October, 2012 ^ J. C. M. MWAMBEGELE JUDGE \