20140314 TZHC Iringa

_,:-·.... . :.\ . . ; ·,.\\: Ji~.,- IN THE HIGH COURT OF TANZANIA [LAND DIVISION] ATIRINGA MISCELLENAOUS CIVIL APPLICATION NO.20 OF 2010 (Originating from Application No.2 of 2008 Njombe District Land and Housing Tribunal) MITAWA YOHANIS CHAULA ................ APPLICANT VERSUS ··1. FLORANGAILO } 2. DANFORD MBILINYI · ............ RESPONDENTS 14/03/2014 RULING MADAM SHANGALI, J. Mitawa Yohanis Chaula (the applicant) under services of Mkumbe and Company Advocate filed an application for leave to appeal out of time against the Judgment and decree of Application No.2 of 2008 of the Njombe District Land and Housing Tribunal. In his chamber summons supporterd with affidavit he cited sections • 38(1) of the Land Disputes Courts Act, Chapter 216 of the Laws Revised Edition, 2002 and. section 14(1) of the Law of Limitation ~ . Act, Chapter 89 of the Laws Revised Edition, 2002 .. On the other .. 1 • :;• ·t, • ~•~\ • l ....... . . . .... "i - ;/ ;;;,: .. '-.; ' ··side, the . . re,spondents; .µrtder. servib~s of F:r.ank·Ngafumika,:·learned· •- '· • I ·. • • •:•• • • • • ·• ' ~ ~-'• { ',~, ~. ('• • • ·• •. • ~ ~-J • • counsel entered a .counter .affidavit. The resp~rtdents, further filed a · .: ·{ , ' PreliiP:inary:· Point of Objections to. the effect that the. application is· brought u{{de:r ··a wrong;:: provision of the :.law· ancL that, it ·is~ hopelessly time barred. · · The Court ordered parties to argue the Preliminary Objection by way of written submissions . .( . In his brief submission, counsel for the respondents argued that the provisiops · ~f ·. the law under which this application is . brought is wrong. That; section 38(1) of the Land Disputes Courts . . Act in the Chamber summons is wrongly cited as it is not applicable in the case at hand. That, this provision of the law deals with application for extension of time in land matters originating from wards tribunals. That, the case at hand has originated from the District Land and Housing Tribunal hence it has never been adjudicated in the Ward Tribunal. That the only provision· that ~ ought to have been cited is section 14(1) of the Law of Limitation Act. That, since there is mixed citation, the application becomes incompetent and ought to be struck out. Arguing on the second point of objection, Mr. Ngafumika submitted that the application is time barred. That, the ruling in respect of which an appeal is purported to be intended, was- . delivered on 18 th D~cember, 2008 and the instant application wa.s .... 2 .l .. -_.-~r>f):~~ -: :_: .>\.··_}.-:: j -~ -. ·. ;;/· . :,,'\+ filed_ on· 8 th No,;ember, 2010 being 22 months and some few days. Turning-to the relevant law, such applications ought to have been filed :within sixty days as per ·item 21 of 'part III of the schedule .to the .Law of Limitation Act hence the appiicati6ri\s time. bart~~f. H~ submitted further that the effect of any matter being time barred is set out in section 3 of the Law of Limitation that is dismissal of the same. He therefore prayed the application to be dismissed with costs .. In response, Mr. Mkumbe for the applicant submitted to the effect that he was relieved that the Counsel for the respondent has readily conceded that the only relevant and proper cited is Section 14 (1) of the Law of Limitation Act. Mr. Mkumbe_ further attempted -~ . . to convince this court tha~ even Section 38 · (1) of the Land Dispute Courts·Act is also relevant because there is ~o other specific section in the said Act that deals with the Appeals originating from District Land and Housing Tribunal. ~ It should be noted that, Counsel for the applicant did not submit on the second point of preliminary objection. I was not surprised. Infact I expected the Counsel for the respondent to substantiate his ~econd point of preliminary objection with evidence on how the application for extension of time is time barre~. Instead he jumped the gun and started to argue the main application for extension of time to appeal out of time against the judgement and decree of Land Application No. 2, of 2008. It is obvious that the 3 . . -· . . , . ; . ~ .·.' ,. '"),/~·: second poi~t-of':prelimin~·-·;objection .co~~·titutes misconception -on -~ \ ...;;: ' · ... '·:'.1-,"i'-;' •. ' • ,._ • • ."f·£;• -~'.::·~.:--:,.,·~. .· • ._;. ,,; > '•: ': •.•. ·. _.,•'.. \ ,: l • .• • ' . . •.' ' ... the part ofthe. counsel for. the respondent because the issues of . • .• h i • • < ' .. lirhitatior/~f time is the main. 'subject in the main application. At this ju~cture, the prime issue to be determined is whether tl:iis court has been properly moved to entertain the applicat~on. As rightly contended by counsel for the respondent, section ~ . . 38(1) of the Land Disputes Courts Act deals with appeals to the Hig~ Court on matter originated fro,m Ward Tribunal. It is improper. to use this section on matters originated from the District Tribunal . .... Howev·er, the. applicant apart from citing section 38(1) of the Land Dispute·s Courts Act, he has also cited section 14(1) of the Law of Limitation Act to move this court. That is the correct law to be : -1 applicable. Based on the above analysis I am of full considered views that · the citation of Section 38(1) of the Land Disputes Courts Act is indeed irrelevant and super flows to this application. Nevertheless I am pretty convinced that · the mischief cannot vitiate · the competency of the application because section 14(1) of the Law of Limitation Act which was duly cited in the chamber summons redeems the whole application.(see the case of ABDALLAH HASSAN versus JUMA HAMIS SEKIBOKO, Civil Appeal No. 22 of 2007, CAT- Tanga (unreported). • 1, In the _upshot., tpe applica.tio:µ_ is proper before this Court and 4 .}~;ts -}~:y :</;-t :-:. '/"f'."tt::;,. ·;·'e ·· ':,:'''i'f ' -'.i:>. ~a,;,,•t, <'. :--n.,. r t ~, , ; ' i :•:r, .~ therefore, the point§,. of Preliminary Objection are dismissed ,vith · 1J,,, J' costs. . M. S. SHANGALI JUDGE 14/3/2014 Ruling delivered todate 14/3/2014 m the presence of the applicant in person and in absence of his advocate Mr. Mkumbe · and in absence of the respondents and their advocate · Mr. Ngafumika. Respondents and their advocates to be rtotified. M. S. SHANGALI JUDGE 14/3/2014 5 ·;1··:-_·. IN THE HIGH COURT OF TANZANIA (LAND DIVISION} AT DAR ES SALAAM MISCELLANEOUS LAND APPEAL NO. 66 OF 2010 (From the Decision of the District Land and Housing Tribunal of Kinondoni District at Magomeni in Land Appeal No. 97 of 2005 and Original Ward Tribunal of Mbezi Luis Ward in Application No. 163 of 2005} ZAKAYO ELIA .......................................................... APPELLANT VERSUS JOSEPH MWANGAKE ........................................... RESPONDENT RULING MWAMBEGELE, J.: The preambular statement to the grounds of appeal in the Petition of Appeal has the following words: "The Appellant ZAKA YO ELIA, appeals against the judgment of the Kinondoni District Land 1 . ' · and Housing Tribunal, at Magomeni in Land · Case No. 97 of ioos by Hon. Chairperson J. T. · · · th Kaar.e dated the 16 (sic) day of March 2009 · (Certified on 16th day of April, 2010} for the following reasons ... " As will be clear shortly in this judgment, the words as bracketed in the above quotation are pregnant with meaning. On 19.10.2011 this court ordered that the Preliminary Objection filed by the- Respondent be argued by way of written ·submissions: an~ the submission dates were scheduled accordingly. After fixing several dates of ruling, today 27.03.2.012 was fixed as a.date: of ruling· and the case reassigned to me. However, this ruling is not in respect of the preliminary objection as expected; it is on something else raised by this court suo motu. It answers the issue whether or not the appeal was filed within the prescribed time limit. 2 This appeal v/as filed o~ 28.05.2010; The judgment of ·the District Land and Housing Tribu.nal- ·which. is appealed against is dated 06.03.2009 but was certified on 16.04.2010. It is my argu·rn-ent-that the appeal was filed out of time in clear contravention of the provi_sions . of.Section . 38 {1) . of. the Land . Disputes Courts .Act, Cap. 216 . of the Laws of Tanzania (hereinafter r~ferre~ to_ ~s Cap. -~16) as amended by the Written Laws {Miscellaneous Amendments) Act, 2010. This pr.ovision provides for time within which a party who 'is aggrieved. by the decision ··or order of the District Land and Housing ' . Tribunal on matters originating from the Ward Tribunal and revisiohs thereof, may appeal to this court. It reads: _"Any party who is aggrieved by a decision Qr 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: 3 Provided that the High Court may/or good · . and sufficient cause extend the· time for filing an· appeal either Qefore or after such period.of sixty days has expired". Having been commenced in the Mbezi Luis Ward Tribunal, and given the· fact that the judgment' and decree of the District Land and Housing Tribunal which are being appealed against are dated 06.03.2009, the Petition of Appeal ought to have been filed within sixty: days afterth-e· date ·of- decision; that is~ by 05·.05 ..2009:'. :· In ·the· · absence of any order of this court· extending time within which to file this appeal, I find .. myself not p.roperly seiz·ed or vested· with th·e requisite jurisdiction to entertain it. For the avoidance of doubt, let me· be clear that in appeals under Section 38 of Cap. 216, time starts to run against an aggrieved party on the date on which the judgment appealed against is pronounced. Of course, in computing such period of limitation Section 19 (1) of 4 the law of Limitation, Cap:- 89' (h·ereinafter: c;ap .. 89) will be invited into play. Section 38 of Cap: 216, does not put ·as mandatory any document to accompany _the Petition except t.~~ Petition itself. A copy of judgment or ruling or order appealed against must not qe~ess_arily . be.accompanied by a petition of appeal .at the . . time of filir:,g.• Actually, .the way subsections (2) and (3) of Section 38 oJ Cap. 2.16 (as,al'!lerded) are couched, it suffices if .only a. Petition of Appe~I • p'• •• is file.d -i!1 the District. Land and Housing . Tribunal . and the requis\te .' fees--paiq. -~ft~r _the filing and requisite fees are paid, the. Tribun.al. will-thereafter ~ispatch the petition together with the record of the .. proceedings .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 Distric;t Land and Housing Tribunal from the decision or order of which the appeal is brought. 5 {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 . H_igh Court". Luanda, J. (as he then was) was faced with an identical situation when interpreting Section 25 (3) of the Magistrates' Courts Act, Cap. 11 ( hereinafter Cap. 11) which is in pari materia with ·subsection (2) above _in Grego-ry,-Raphael· Vs Pastory' R-w.ehab.u.ra71-2005.~TLH~:100.:. 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 6 the decisiol'.l of the District-Court on matters originating from Primary Courts, held at. p'. ,195 that:. . ' · ~'Attachment of copies of decrees and 'j~dgme.n/ is a· conditio·n pr~ceden'( 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. Aftachment of copies ·. of decree or 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" .He conclud~d that time of_ appeal starts to run against the appellant from the date the judgment appealed against is pronounced. In computing the time of limitation, no time is excluded, for attachment of judgment and decree are not a mandatory :.· . requirement. 7 The position i_n respect of appeals under Section 38 of Cap.· 216 was well expounded by Mgetta, J. in a recent decision (delivered ·on 14.8.2012}-'.in the.case· of Fadhila Ally Vs Alex. Hole/a~ Miscellaneous Land· Case Appeal No. 05 of 2011 (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.· ·precedenL~in···. instituting appeals originating from-· Ward·-.. - tribunals. The filing process of the petition of appeal to the High Court" is comple~e 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 8 requirement. · The fili □ g process is complete when a petition . of appeal ;is instituted in.:the- District Land antj Housing Tribunal upor:i ·p·ayrne.n"t bf .~requisite fe·es .. · Thus,· :in computing the time of limitation,) flt> time: is excluded. Time starts to run against · a_r:, aggrieved party right from the date of judgment of the District Land - and Housing Tribunal which the intended appellant seeks to challenge. It is evident theref_ore !hat the ,l\ppellant in the present case wasted . his precious time-:- more than a year - waiting for a copy of judgment so as to file his petition. He· could have filed the petition of appeal without a copy of judgment and it could be fine before the eyes of the law. Time started to click against him on 06.03.2009 when the judgment appealed against was pronounced. • -• ""' • • a • . The .court is not properly moved if an· appeal is filed out of' the ' prescribed time. That is the reason why I raised this issue suo motu. 9 There is a line ... of.decisions . of the Court of Appeal;· the highest . . court·· · of the land, which give me strength so to do. The·se cases include . Michael Leseni Kweka Vs John Eiliafe, Civil Appeal No. 51 of' 1997 · .... . . (unreported), Faustine G. Kiwia and Another Vs Scolastica Paulo~ Civil Ap·peal No. 24 of 2000 (unreported} and Nicomedes Kajungu & ' ' 1374 Others Versus Bulyankulu Gold Mine (T} LTD Civil Appeal No. 110 of 2008 (unreported}, to mention but a few. For·instance, ..in ··the,-Nicomedes:;Kajungir-case:.{supr.:a}•th·e".'.:Court'.,of. Appeal; Speaking through"' Othman,. J. A (now Chief; Justice'.·:,of Ta.nzania) held: "... it is the duty of the Court to satisfy itself that it is properly seized or vested with the requisite jurisdiction to hear and determine a matter. It is a well settled principle that a question of jurisdiction ... goes to the root of determination - see Michael leseni Kweka V. John Eiliafe, Civil Appeal No. 51 of 1997 {CA) (unreported}". A challenge of jurisdiction is also- a question of competence". {Underlining supplied) . ~aving foun.d that th_e appeal was filed _out of time, what then should I dq _in the circumstances? This ls the question to which I now turn. There a.re tw~ options. The first one is to have the appeal dismissed in the light of the provisions of Section 3 of the Law of Limitation. This provision read: "... 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 Appeal as demonstrated in Ngoni-Matengo Cooperative Marketing Union ltd Vs Alimamohamed Osman, {1959) EA, and Abdallah Hassan Vs VODACOM (T), Civil Appeal No. 18 of 2008, {unreported). These cases direct that in situations, as in the present one, where the application is incompetently before the court, the proper course to take should be to strike the appeal out rather than 11 dismissing it. The-distinction between dismissing and str!king out an appeal. was well .articulated by the Ngoni-Matengo case (supra); At page· 580, Windham,- J. A speaking on behalf · of Sir. Ke.nneth O'Connor, P. and Gould, J.A had this to say: II [The] 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--:str.ictly 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 ofn. (Emphasis supplied). 12 The -a·bove· quotation in the Ngoni-Matengo Case. was quoted with a·pproval·by the ·court of Appeal in• Abdallah Hassan Vs VODACOM . . (T) .(s·upra): :The Court of Appeal reiterated and emphasised the ·well . structured explanation ofthe Ngoni-Matengo cas·e in respect of the . . · distinction between "dismissing" and "striking out" an appeal. The defunct Court of Appeal for East Africa sat on 21.05.1959 and O' o• •• • •• • ~ < • ' 11.06.1959 at Dar .es Salaam deciding Civil ,Appeal No. Dar. 2 of 1959. The Court of Appeal of ~anzania in the Abdallah Hassan case (supr.a) . also referred to its de~ision· in Thomas Kirumbuyo and Another Vs Tanzania Telecommunications Co. Ltd., Civil Application No. 1 .of 2005 (CA - unrepo"rted) 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 1-3 ,. ·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 suiLor an appeal, as the case... may. be,. would· s:ignify· that.the· mattec has been entertained on merits. While striking out an application, a suit or an appeal, as the· case•• may be, would. imp·ly- that there·: was no. matter before the court to be entertained on merits. I have declined to entertain this appeal on merits. I find and hold that this appeal was filed belatedly 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 14 cited above, the appeal deserves the punishment of being struck out as incompetent rather than having it dismissed. In the upshot, this appeal is struck out for being filed hopelessly out of time. In view of the fact that the appeal has been disposed of on a ground raised by this court suo motu, I make no order as to costs. DATED at DAR ES SALAAM this 2ih day of September, 2012. J. C. M. MWAMBEGELE JUDGE 15