winifrid wenslaus mtimalyasi vs helmes mtimalyasi 2018 tzhclandd 407 31 july 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 6 OF 2017 (From the decision o f the District Land and Housing Tribunal o f Kiiombero/Uianga in Land Application No. 37 o f 2013 WINFRID WENSILAUS MTIMALYASI As Administrator o f estate o f the late WENSLAUS HELMES MTIMALYASI.........APPELLANT VERSUS HELMES MTIMALYASI................................................. RESPONDENT Date of last Order: 25/06/2018 Date of Ruling: 31/07/2018 RULING Makuru, J.: This is an appeal against the decision of the District Land and Housing Tribunal of Kilombero. However the Respondent Helmes Mtimalyasi attacked the appeal by filing a notice of preliminary objection on points of law that: 1. The appeal has been filed by the deceased, Wensislaus Helmes Mtimalyasi. 2. The appeal is time barred. 3. The appeal has not been presented for filing and the copies of judgment and decree have not been annexed thereto. Both parties appeared in person, unrepresented. Submitting in support of the first preliminary objection the Respondent argued that, the Appellant was never appointed as the administrator of the estate of the late Wensislaus Helmes Mtimalyasi's estate. On the second preliminary objection it is submitted that, the judgment subject of this appeal was delivered on 06/11/2016 while this appeal was sought on 06/01/2017 about 59 days after the date of judgment. According to him, the appeal was supposed to be filed within 45 days after the date of judgment. Hence, the appeal is hopelessly time barred. As for the third preliminary objection the Respondent argued that, the Appellant did not attach a copy of judgment and decree to the memorandum of appeal. In reply thereto the Appellant submitted that, he was appointed the administrator of estate of his father Wensislaus H. Mtimalyasi and that he tendered all the relevant documents at the trial Tribunal. As regards the second preliminary objection, the Appellant contended that he could not file the appeal on time because he was sick. On the third preliminary objection the Respondent contended that, failure to attach a copy of judgment and decree is due to ignorance as he does not know how to read and write. Having heard the arguments of both parties, I will now determine the preliminary objections in seriatim. On the first preliminary objection the record shows that the Appellant, Winifrid W. Mtimalyasi, was duly appointed as an administrator of the estate of the late Wensislaus Hermes Mtimalyasi and he tendered the letter of administration as an exhibit during trial. Further to that, the proceedings of the trial Tribunal shows that the Appellant was litigating in his capacity as administrator of estate of the late Wensislaus H. 2 Mtimalyasi, the capacity under which he has brought this appeal. The Respondent's objection is therefore without merits. On the second preliminary objection that the appeal is time barred, the record shows that, the judgment subject of this appeal was delivered on 8/11/2016 and this appeal was filed on 6/7/2016. Under section 41 (2) of the land Disputes Courts Act Cap 216 R.E. 2002, as amended by the Written Laws Miscellaneous Amendments (No. 2) Act, No. 4 of 2016, appeals of this nature are supposed to be filed within 45 days from the date of the decision. The High Court may for good cause extent such time. The said section stipulates that: "(2) an appeal under subsection (1) may be lodged within forty five days after the date of the decision or order: Provided that, the High Court may\ for good cause, extend the time for filing an appeal either before or after the expiration of such period of forty five days." The Appellant was hopelessly out of 45 days when he filed his appeal on 06/01/2017. He also did not file an application for extension of time. On account of this point of preliminary objection alone, the appeal ought to be dismissed. Regarding the last preliminary objection, I think the Respondent did not peruse the documents properly, because the court record shows that the Appellant attached the copy of judgment of the trial Tribunal. The third preliminary objection is also unmeritorious. 3 In the upshot, I find the 2nd point of the preliminary objection raised to have merits and I hereby dismiss the appeal with costs. C. W. Makuru JUDGE 31/07/2018 Court: Ruling delivered in court this 31st day of July, 2018 in the presence of the parties in person. Right of appeal explained. C. WTHakuriA JUDGE 31/07/2018 4