yusuph juma scanned

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION)

AT DAR ES SALAAM LAND APPEAL NO. 32599 OF 2024.

BETWEEN YUSUPH JUMA SALUM................................................... APELLANT

VERSUS FAREED SOMOE MUSHANGANI (as an attorney Of SHARIFA ABDALLAH SAID)..........................................RESPONDENT

RULING Date of last Order: 10/3/2025 Date of Ruling:17/3/2025 LALTAIKA, J, The Respondent herein FAREED SOMOE MUSHANGANI (as an attorney of SHARIFA ABDALLAH SAID) has put this preliminary objection on a point of law thus: the present appeal is incompetent for being filed out of time. The PO was argued by way of written submissions as per the following schedule: Respondents' submission in Chief 24/2/2025, Reply by the Appellant on Monday 3/3/2025 Respondent's Rejoinder if any: 5/3/2025 Mention for setting the date of Judgment 7/3/2025 at 10:00 AM. Page 1 of 10 Mr. Nkungu, Counsel for the Respondent, argued that the Appellant had filed the appeal in the High Court on 27th December 2024, whereas the judgment and decree of the District Land and Housing Tribunal (DLHT) for Kigamboni in Land Application No. 110 of 2023 had been delivered and signed by the Chairman on 30th September 2024. He emphasized that all parties had been present at the time of delivery and had been informed of the availability of the judgment and decree for collection. It was Mr. Nkungu's submission further that under the Land Disputes Courts Act (Cap 216 R.E. 2019), an appeal was required to be filed within 45 days from the date of the impugned judgment. However, Counsel reasoned, in the present case, the Appellant had lodged the appeal on 27th December 2024, despite the fact that the impugned judgment had

been delivered on 30th September 2024. As such, the 45- day period had already elapsed by the time the appeal was filed. Counsel contended that the statutory deadline had expired on 14th November 2024, meaning that the Appellant had failed to institute the appeal within the prescribed period and had instead delayed for more than 43 days beyond the legal time frame. Page 2 of 10 Additionally, Counsel referred to Section 41 of the Land Disputes Courts Act (Cap 216 R.E. 2019), which provided that all appeals, revisions, and similar proceedings from a District Land and Housing Tribunal in the exercise of its original jurisdiction were to be heard by the High Court. The same provision stipulated that an appeal had to be lodged within 45 days from the date of the decision or order, although the High Court had the discretion to extend the time for filing an appeal upon showing good cause. However, Counsel contended that by filing the appeal without regard to the statutory time limitation, the Appellant had voluntarily taken the risk of having it dismissed with costs, as the court lacked jurisdiction to admit and determine a time-barred appeal. Mr. Nkungu emphasized that the Appellants claim that the delay in filing the appeal had been caused by the late supply of the judgment copy was an afterthought. He pointed out that the Appellant had not attached any judgment or decree to

substantiate the assertion that the DLHT had extracted a different judgment and decree from the one delivered on 30th September 2024 in the presence of all parties. Counsel maintained that the letter allegedly written by the Appellant to the Chairman of the DLHT, requesting to be supplied with the judgment and decree, was merely an Page 3 of 10 attempt to circumvent the law, as those documents had been available for collection since 30th September 2024. Furthermore, Counsel asserted that there was no supporting affidavit from the Tribunal Chairman or Tribunal Clerk to verify the claim that the delay had been caused by the late supply of the copy of the judgment. Neither had the Appellant attached any evidence to show that the judgment had been extracted at a later date. The Respondent thus maintained that the appeal, having been filed out of time, was hopelessly time-barred, and consequently, the court lacked jurisdiction to entertain it. In support of his argument, Counsel cited the case of Kigoma Ujiji Municipal Council v. Ulimwengu Rashid t/a Ujiji Mark Foundation, Civil Appeal No. 227 of 2020, in which the Court of Appeal had held that an appeal filed out of time ought to be dismissed, as the court lacked jurisdiction to entertain it. On this basis, the Respondent prayed for the court to dismiss the appeal with costs. Counsel concluded by asserting that since the appeal had

been instituted out of time without leave of the court, it deserved to be dismissed. He pointed out that the judgment attached to the appeal, at page 13, confirmed that the judgment had indeed been delivered and Page 4 of 10 signed on 30th September 2024. In his view, the Appellants delay in collecting the judgment amounted to negligence, which could not be condoned by the law. On these grounds, the Respondent prayed for the appeal to be dismissed and for costs to be borne by the Appellant. Mr. Ng'weli, Counsel for the Appellant, objected to the Respondent's submission. He pointed out that the Memorandum of Appeal, on the second page at the foot of the document, contained an insertion stating that the judgment had been delivered on 30th September 2024, that a request for copies had been made on 16th October 2024, and that the judgment and decree had been supplied on 19th November 2024. He maintained that after the judgment was delivered, parties were not immediately issued with typed copies of the judgment and decree but were instead instructed to collect them when they became ready. Due to this, Counsel asserted, the copies were unavailable until the Appellant wrote a letter on 16th October 2024, requesting to be supplied with them. He added that the Appellant had persistently followed up on their availability but only managed to obtain them on 19th November 2024, upon being

permitted to make payment through a government receipt. He noted that both the letter requesting the copies and the receipt for payment were attached to the Memorandum of Appeal for reference. Page 5 of 10 Counsel further argued that the law required an appellant to request copies of the judgment and decree and that such copies were only issued after payment of the prescribed government fees. He asserted that the Appellant had complied with all legal requirements, and the copies had been supplied only after he fulfilled the payment obligation, as evidenced by the government receipt dated 19th November 2024. In his view, the Appellant could not be blamed for filing the appeal out of time since he had met all the legal conditions. He relied on Section 19(1), (2), and (3) of the Law of Limitation Act, Cap 89 R.E. 2019, which excluded the time required to obtain copies of the judgment and decree from the computation of the limitation period. He elaborated that, based on this provision, the period from 30th September 2024, when the judgment was delivered, to 19th November 2024, when the copies were supplied, had to be excluded when calculating the time for filing an appeal. To support this argument, Counsel cited the case of Valerie McGivern v. Salim Farkrudin Balal, Civil Appeal No. 386 of 2019 (CAT- Unreported), where the Court of Appeal of Tanzania had reinforced the principle

that the time spent obtaining copies of the decree or order was to be excluded from the computation of the limitation period for filing an Page 6 of 10 appeal. He emphasized that Section 19(2) of the Law of Limitation Act applied only if the appellant had made a written request for copies of the judgment and decree, which had been done in this case. Counsel further contended that the Respondent's claim that copies of the judgment and decree had been available since the date of delivery lacked justification unless proven otherwise. He reasoned that if the copies had indeed been available, the tribunal should have issued them to the Appellant upon his request, as evidenced by the letter attached to the Memorandum of Appeal. He added that it was the duty of the trial tribunal to notify the Appellant once the copies were ready, citing the case of Registered Trustees of Marian Faith Healing Centre @Wanamaombi v. Registered Trustees of the Catholic Church Sumbawanga Diocese, Civil Appeal No. 64 of 2007 (Unreported), which had been approved in Valerie McGivern (Supra). Mr. Ngweli rejected the Respondent's argument that the trial tribunal was required to issue a judgment with an order specifying the date on which the copies were extracted, asserting that no legal provision imposed such a requirement. Since it was undisputed that the Appellant had been supplied with the copies on 19th

November 2024, he maintained that the 45-day period for filing the appeal commenced on that date. Page 7 of 10 Given that the appeal had been filed on 27th December 2024, he concluded that it was within the legally prescribed time frame. In his rejoinder submission Mr. Nkungu argued that section 19(2) of the Law of Limitation Act, Cap. 89 R.E. 2019, which the Appellant relied upon for computing time, was inapplicable to the present appeal. He advanced several reasons for this assertion, stating that the letter attached to the appeal, which the Appellant had allegedly submitted to the trial tribunal requesting a copy of the judgment, referred to Case No. 110 of 2024 (YAH: OMBI LA NAKALA YA HUKUMU SHAURI NO 110/2024), rather than Application No. 110 of 2023. Additionally, he pointed out that the letter had not been served upon the opposing party and did not contain details such as the names of the parties, the date the case was decided, or the presiding officer. Mr. Nkungu maintained that, given the lack of proof that the Appellant had submitted a written request for a copy of the judgment and decree within the required time, the Appellant could not benefit from the exclusion of time under section 19(2) of the Law of Limitation Act. He also concluded that the appeal was time-barred and ought to be dismissed with costs. Page 8 of 10 Having carefully considered the arguments by

both parties, issues for my determination are twofold: One, whether the appeal was filed within the prescribed period. Two, whether section 19(2) of the Law of Limitation Act (Supra), is applicable in the circumstances of this case. It is trite law that the period of limitation for filing an appeal begins to run from the date of delivery of judgment unless otherwise provided. However, under section 19(2) of the Law of Limitation Act, the time required for obtaining a copy of the judgment and decree is excluded, provided that the appellant had formally requested the same in writing. I want to put the above argument in the simplest of languages: Since it was obvious that the 45 days had lapsed since the trial Tribunal's judgment was delivered, benefits accruable from the Statute of Limitation had to be actively sought. It other words, Counsel for the Appellant needed to file an application for extension of time to file the appeal and only then invoke the provisions of the Law of Limitation. Hoping that the Court would "see it" is tantamount to leaving one's goal without a goalkeeper and expecting the rival team not to score a goal. The law is clear that an appellant who seeks to rely on section 19(2) must demonstrate that a written request for copies was duly made within Page 9 of 10 time. The absence of proof that the request was properly made casts doubt on the applicability of section 19(2) in the present case. In the upshot, the preliminary objection raised by the Respondent is hereby sustained, and the appeal is accordingly dismissed for being time-barred. Each party to bear their own cost. It is so ordered. E. I. LALTAIKA

JUDGE 17/03/2025 Court: Ruling delivered in Court Chambers this 17th day of March 2025 at 14:30 in the presence of both the Appellant and the Respondent who have appeared in person. Page 10 of 10