zuhura bakari mtonoya vs rashid mohamed saidi 2018 tzhclandd 128 4 may 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND APPLICATION NO. 663 OF 2017 ZUHURA BAKARI MTONOYA.......................... APPLICANT VERSUS RASHIDI MOHAMED SAIDI......................... RESPONDENT RULING Date o f last order: 26/2/2018 Date o f Ruling: 4/5/2018 MGONYA, J. There is before me an Application by way of Chamber Summons. It is supported by an affidavit affirm by ZUHURA BAKARI MTONOYA, the Applicant. Ms. Salma learned Counsel appeared for the Applicant while Mr. Syengula learned Counsel appeared for Respondent. The Court is being for an order that:- "The period of time within which to file an appeal of the Judgment of District Land and Housing Tribunal at Lindi be extended." Undaunted, the Applicant has come to this court seeking extension of time to institute an Appeal originated from the decision of District Land and Housing Tribunal of Lindi at Lind in Land Application No. 16 of 2016. When the Application was called on for hearing, the Respondent, raised a preliminary Objection Notice of which he had duly give before. The preliminary Objection was based on the following grounds:- a) This Application is bad in law as Ex-parte Judgment is not subject to Appeal; b) That this Application is bad in law by failure to be filed in the proper Court Registry. On 26th February, 2018 the Court ordered the Parties to file the Written Submissions for and against but for the reasons known to herself, the Applicant did not comply with the said scheduling date of filing the reply written submission. I shall first deal with the second leg of the point of Preliminary Objection. It is common ground that incompetence of proceedings takes many forms. It may arise out of the proceedings being wrongly instituted being instituted in the wrong court or forum being wrong moved etc. In the case at hand, there is no controversy that the matter originated from the decision of District Land and Housing Tribunal at LINDI in Land Application No. 16 of 2016 delivered by S. H. Wambili, Chairman. However, via Exchequer receipt No. 16629887, the Applicant has filed the present Application in this court situated at Dar es Salaam. Now, the issues is whether the Applicant is justified to file the present Application in this court. The law is settled that following amendment of land Act 1999 and Land Disputes Court Act Cap. 216 [R. E. 2002] by the Written Laws (Miscellaneous Amendment) Act No. 2 of 2010, there is no land division at the different High Court District Registers. It follows therefore High Court District Registries in the entire Country enjoys the same powers to hear and determine land matters. Without flicker of doubt, I see no legal justification or reason whatever, for the Applicant to jump/escape the High Court District Registry at Mtwara and proceeded to institute the present Application to this Court. Since the present Application has been instituted in a wrong forum, it makes such Application incompetent. 3 At this juncture, an incompetent Application does not deserve anything other than stricking out. In the circumstances, I find no valid reason to discuss the merits of the first limb of the preliminary since the same will be vain exercise. All in all therefore this Application was wrongly instituted and wrongly admitted as Misc. Land Application No. 663 of 2017 and consequently is hereby STRUCK OUT WITH COSTS. The Applicant is at liberty to institute the Application in a proper court. It is so ordered. L. E. MGONYA JUDGE 4/5/2018 COURT: Ruling delivered in the presence of two Representatives from both parties and Ms. Emmy B/C in my chamber today 4th May, 2018. L. E. MGONYA JUDGE 4/5/2018 4