zuberi mussa ngaola and 2 others vsabdallah uwesu kiporoya administrator of estate of the late salum mohamed ngaola 2021 tzhclandd 870 27 october 2021

IN THE HIGH OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM MISC. LAND CASE APPLICATION NO. 519 OF 2020 ZUBERI MUSSA NGAOLA ............................ 1st APPLICANT. JUMA MUSSA NGAOLA ......... 2nd APPLICANT RUKIA ATHUMANI .............................. 3rd APPLICANT VERSUS ABDALLAH UWESU KIPOROYA (Administrator of Estate of the Late Salum Mohamed Ngaola)............................ RESPONDENT (Originating from the Order of the High Court of Tanzania at Land Division Land Case No. 102 of 2016 dated 9th October 2019) RULING Date of Last Order: 16/09/2021 & Date of Ruling: 27/10/2021 A. MSAFIRI, J This is the Ruling in respect of reliefs sought by the applicants that, this Court be pleased to grant extension of time to file an appeal out of time against the decision of District Land and Housing Tribunal forTemeke before Hon. P.I Chinyele in Land Application No. 292 of 2016 dated 30/04/2020. The Application is brought under Section 38 (1) of the Land Disputes Courts Act Cap. 216 R.E 2019, Section 93 and 95 of the Civil Procedure Code, Cap. 33 R.E 2019, and Section 14 (1) of the Law pf 11 P a g e Limitation Act Cap. 89 R.E 2019. The applicants are praying that they be allowed to file an appeal out of time. The Application is supported by a joint affidavit sworn by the applicants. When the Application was called on for hearing applicants were represented by Advocate Francis Munuo while respondent was represented by Advocate Pendo Charles. On mutual consent of the parties and leave of the Court, the matter was disposed of by way of written submissions. Parties complied with the court's order of filing their written submissions. With due respects to the parties' arguments, the application at hand is made under Section 38 (1) of the Land Disputes Courts Act Cap. 216 R.E 2019, Section 93 and 95 of the Civil Procedure Code, Cap. 33 R.E 2019, and Section 14 (1) of the Law of Limitation Act Cap. 89 R.E 2019. On record the decision to be challenged is the judgment and decree of the District Land and Housing Tribunal for Ilala in Land Application No. 292 of 2016 upon which applicants lost the case. Therefore, it is obvious that the matter originated from the District Land and Housing Tribunal and it is on the way to this Court as first appeal. This rise the question as to whether the Court has been properly moved and, whether the application is competent. As I have stated above, among other provisions of law cited above, applicants choses to move this Court by citing Section 38 (1) the Land Disputes Courts on the Chamber Summons. The said provision states as follows; 38 - (1) Any party who is aggrieved by a decision or order of the District Land and Housing Tribunal in the exercise 2|Page of its appellate orrevisiona!jurisdiction may within sixty days after the date of the decision or order, appeal to the High Court.... "(Emphasis is mine). The above provision is self-explanatory that the appeal under the cited law must originate from Ward Tribunal coming to the High Court as second appeal. One who preferred the above provision of law must bear in mind that the decision to be appealed against must originates from the Ward Tribunal as clearly stated. The applicants has contradicted themselves by citing in the Chamber Summons the above section since it doesn't apply as the impugned decision originate from District Land and Housing Tribunal so it must come to this Court as first appeal. Therefore, the proper provision that could have been cited is section 41 (1) and (2) of the Land Disputes Courts Act, that; 41 (1); "Subject to the provisions of any law for the time being in force, all appeals, revisions and similar proceeding from or in respect of any proceeding in a District Land and Housing Tribunal in the exercise of its original jurisdiction shall be heard by the High Court. (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 the good cause, extend the time for filing an appeal either before or after the expiration of such period of forty five days." Jb / // 3 |Page From this, the applicants misdirected themselves by choosing the wrong provision of law to move this Court. Clearly, the cited law in the Chamber Summons is not a provision under which an Application for extension of time to file an appeal originated from the District Tribunal can be preferred. It is also my considered opinion that, section 14 of the Law of Limitation Act and sections 93 and 95 of the Civil Procedure Code Cap 33 cannot apply in land cases originating from the District Land and Housing Tribunal for appeal purpose, as there is a specific law providing for time limitation for one to appeal to the High Court against the decision when the District and Housing Tribunal is exercising original jurisdiction. Sections 43 and 46 of the Law of Limitation Act explains the manner upon which the Law of Limitation Act shall not apply if there is other written law providing for limitation of time. I say so because Section 41(2) of the Land Disputes Courts Act is a specific law which provides for the time limitation for the matters originating from the District Land and Housing Tribunal going for appeal to the High Court. It is trite law that, where there is a specific law providing for time limitation for any proceeding, the general law on limitation of time cannot apply. [See the case of James Sendana versus Republic, Criminal Appeal No. 279B of 2013 the Court of Appeal of Tanzania (unreported)]. Let me emphasize that the law in this Country is quite settled in this respect. It is to the effect that non-citation or wrong citation of the enabling provisions of the law renders the application incompetent. This position has been stated in countless decisions of this Court and the Court of Appeal of Tanzania. For instance, in the case of Mgonja vs. The 4|Page Trustees of the Tanzania Episcopal Conference, Civil Revision No. 2 of 2002 (AR), the Court of Appeal held as follows: "If a party cites the wrong provisions of the law the matter becomes incompetent as the Court will not have been properly moved" In my humble opinion, failure by the applicant to cite the proper law under which the application is preferred is a serious omission. Having said all that, it is the position in this Ruling that the Court is moved wrongly which make this application incompetent for wrong citation and therefore the available remedy is to strike it. On the foregoing, the Application is hereby struck out for being incompetent with no order to costs. It is so ordered. Dated at Dar es Salaam this 27th Day of October 2021. A. MSAFIRI JUDGE 5jPage