John Materu & Another vs Martin Nassari (Civil Appeal No. 540 of 2020) [2023] TZCA 17671 (29 September 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWARIJA. J.A.. KEREFU. J.A And MDEMU. J.A/> CIVIL APPEAL NO. 540 OF 2020 JOHN MATERU .1st APPELLANT 2 n d APPELLANT SALVATORY MREMA VERSUS MARTIN NASSARI RESPONDENT (Appeal from the Decisions of the High Court of Tanzania at Arusha) This third appeal seeks to challenge the decision of the High Court of Tanzania at Arusha in Land Appeal No.42 of 2011 which extended time to the respondent to appeal against the decision of the Arusha District Land and Housing Tribunal (the DLHT) in Land Appeal No.83 of 2011. Time was extended in the course of determination of the preliminary objection raised by the appellants herein. (Nyerere, JQ dated 13th December, 2011 & 22n d March, 2012 in Land Appeal No. 42 of 2011 JUDGMENT OF THE COURT 19th& 29th September, 2023 MDEMU, 3.A.: i

The background of this appeal as may be gleaned from the record of appeal are that; in the Ward Tribunal of Moivo, the respondent filed land dispute against the two appellants claiming ownership of a piece of land which he alleged to have purchased it from one Frida Eugine Mshana. He was successful. The appellants appealed successfully to the DLHT of Arusha. The respondent was aggrieved by that decision thus appealed to the High Court of Tanzania at Arusha. Upon being served with the memorandum of appeal, the appellants herein raised a preliminary objection to the effect that, "the appeal is hopelessly time barred." The High Court (Nyerere J.), determined the preliminary objection and in the course, extended time and did strike out the preliminary objection. She also proceeded to determine the appeal on merits to its finality. We will resort later to the propriety or otherwise of this procedure adopted by the learned Judge. The appellants were again not happy with the decision of enlarging time to appeal hence this appeal fronting the following one ground: "That the learned Judge erred in law in extending time to file Misc. Land Appeal No. 42 o f 2011 suo motu" The appeal was placed before us for hearing on 19th September, 2023. The appellants were represented by Mr. Edmund Ngemela assisted 2

by Mr. Ombeni Cuthbert Kimaro, both learned Advocates and Mr. Duncan Oola, also learned Advocate appeared for the respondent. The second appellant and the respondent also attended at the hearing. Before hearing of the appeal commenced, we had a dialogue with counsel for the parties on whether the appeal was properly before us because the ground of appeal was not premised from the impugned judgment. Following that dialogue, the counsel for the appellants prayed leave of the Court to amend both the notice of appeal and the memorandum of appeal by adding the date of the decision of the High Court in the preliminary objection raised by the appellants, that is the decision dated 13th December, 2011. We gave effect to the amendment through our order made in terms of rule 111 of the Tanzania Court of Appeal Rules, 2009 (the Rules). Mr. Kimaro then commenced his oral submission by adopting the written submissions filed in that behalf. Referring us at page 61 of the record of appeal, Mr. Kimaro submitted that, having found the appeal was out of time in terms of section 38(1) of the Land Disputes Courts Act, Cap.216, the learned Judge ought to have dismissed it instead of proceeding to grant extension of time. He therefore faulted the learned Judge by extending time in the course of disposing the preliminary 3

objection basing on the ground as to when the respondents were supplied with proceedings and judgment. According to him, the learned Judge had no mandate to extend time because she was neither dealing with an application for extension of time nor there was automatic extension of time under the provisions of section 38 (1) of Cap, 216. He thus thought the High Court should not have assumed jurisdiction of dealing with application for extension of time in the absence of a formal application. The learned counsel thus cited the cases of Fortunatus Lwanyantika Masha & Another v. Claver Motors Limited, Civil Appeal No. 144 of 2019 and Aidan Chale v. Republic, Criminal Appeal No.130 of 2003 (both unreported) to insist that the remedy open to the learned Judge on seeing that the appeal was out of time was to dismiss it. Adding to what Mr. Kimaro had submitted, Mr. Ngemela stated that, the determination of the preliminary objection hinged on whether or not the appeal was in time. In this, he added that, at page 57 of the record of appeal, the respondents themselves conceded that the appeal was out of time. He thus argued that there was no evidence to the effect that the respondents were obstructed to appeal by failure to be supplied with copies of proceedings and judgment because such facts were submitted in the course of hearing of the preliminary objection, therefore that was 4

submission from the bar, which is not evidence. Having that understanding, the learned counsel faulted the learned Judge to invoke the proviso to section 38(1) of Cap. 216 because the said proviso is only applicable when there is evidence indicating good cause. On his part in resisting the appeal, Mr. Oola submitted that, the appellants' counsel appeared to have abandoned their ground of appeal because there is nothing in their submissions indicating that, the learned Judge acted "suo motu"\n extending time to appeal. In his brief oral submission, the learned counsel observed that, parties were heard in the course of determining preliminary objection and it is during that time where the respondent herein indicated when copies of judgment and proceedings were supplied to him and the time the appeal was filed. In his submission, the learned Judge was correct to rule out that, the appeal was filed within sixty (60) days basing on availability of copies of proceedings and judgment, a fact which the appellants are taken to concede by their failure to file a written rejoinder submission. Mr. Oola concluded that, the appeal was in time thus the reason why the preliminary objection was overruled and as such, faulted the learned Judge for having extended time to appeal while in her finding, the 5

same was filed within time. The learned counsel argued therefore that the appeal is unmeritorious and thus urged us to dismiss it with costs. Mr. Ngemela rejoined briefly that, the ground of appeal has not been abandon because extension of time by the High Court Judge was in the course of determining the preliminary objection thus did act "si/o motW. He thereafter reiterated what he submitted in chief. We have examined the record of appeal and dully considered the submissions advanced by both counsel for the parties. From the outset, we find it to be uncontentious that, the learned Judge extended time to appeal in the course of determining the preliminary objection raised by the appellants herein. As alluded to, the preliminary objection was to the effect that the appeal was time barred. Again, in the end, the learned Judge came with a finding that the preliminary objection was unmeritorious and proceeded to strike it out. In essence, we have to make it clear outrightly that, the duty of a judge or a magistrate who hears parties in a raised preliminary objection should either sustain or overrule the said preliminary objection. Striking out a matter in judicial proceedings is a term invoked when a suit, an appeal or an application is incompetent on procedural aspects. In Osborn's Concise Law Dictionary, Eleventh 6

Edition, Sweet &Maxwel, 2011 at page 396 through 397 the term "striking out" is given the following commentaries: '7/7 civil proceedings the court has the power to order the whole or any part o f a statement o f a case to be struck out The court may struck out the statement o f a case where it appears to the court that the case discloses no reasonable grounds for bringing or defending a claim; that the case is in abuse o f the court processes or is likely to obstruct the just disposal o f proceedings or there has been failure to comply with a rule, practice direction or court order (CPR r.3.4). Either party to the proceedings may apply to the court to strike out or the court may do so o f its own initiative. See CIVIL PROCEDURE RULES" It was wrong therefore for the learned Judge who determined the second appeal, after having to have struck out the preliminary objection, found it to be devoid of merit. The remedy open to her was to overrule the said preliminary objection. We now turn to the ground of appeal. The contentious issue is whether time to file land appeal No.42 of 2011 was extended "suo motd' by the learned Judge. In other words, whether in the appeal at the High Court giving rise to this appeal, there was no prior application for 7

extension of time by the respondent herein. To come to this, we should begin with the procedural laws relating to appeals to the High Court in land matters. May time be extended in the course of determining a preliminary objection? May this Court, under the circumstances, hold that there was an application for extension of time? We are taking that route because our understanding to the learned counsel for the appellants as coached in the ground of appeal and throughout his entire submissions both oral and written is that, there was no formal application for extension of time. In that therefore, he attacked the learned Judge in extending time in the course of determining the preliminary objection on time limitation. In this therefore, we reproduce section 38(1) of Cap. 216 as hereunder: "38 (1) Any party who is aggrieved by a decision or order o f the District Land and Housing Tribunai in the exercise o f its appellate or revisiona / jurisdiction , may within sixty days after the date o f the decision or order, appeal to the High Court. Provided that, the High Court may for good and sufficient cause extend the time for filing an appeal either before or after such period of sixty days has expired. "[Emphasis ours] 8

What is envisaged in the foregoing provision, particularly in the proviso, is the discretionary powers vested in the High Court to extend time to appeal before or after expiration of sixty (60) days which is the time limit in the instant land dispute originating from Moivo Ward Tribunal. The issue now is whether such a discretion enshrined in the proviso may be exercised suo motu or upon application by a party. Parties parted their ways in this. However, in the course of dealing with the said preliminary objection to determine whether or not Land Appeal No. 42 of 2011 was in time, the learned Judge at page 57 of the record of appeal made the following observation: "The appellant argued that he was unaware that the said sixty (60) days provided under section 38(1) o f the Land Disputes Courts Act (supra) are strictly counted from the date o f the decision o f the tribunal contrary to his knowledge that time start to run from the date when one is supplied with certified copies o fproceedings, judgment and decree. The appellant thus prayed for this Court to grant him extension of time within which to file his appeal out of time. For some obvious reasons as the appellant conceded to the Preliminary Point o f objection, the respondents did not file a rejoinder to their already filed written submission in chief." [Emphasis supplied] 9

Our understanding of the above quoted passage in the decision of the learned Judge is that, the respondent herein applied to the High Court for extension of time to appeal. We will come to this later whether, in the first place, it was proper to do so and whether, it was justified for the learned Judge to extend time to appeal in the circumstances where she overruled a preliminary objection on time limitation raised by the appellants. As of now, we need to resolve the complaint in the ground of appeal. The question we raised is whether the learned Judge extended time to appeal suo motu. As we have observed above, it is not disputed that the decision of the DLHT was delivered on 20thJuly, 2021 whereas the appeal to the High Court was filed on 4th October, 2011 which was beyond the sixty (60) days envisaged under section 38 (1) of Cap. 216. The respondent at pages 52-53 of the record of appeal conceded to this fact in the following version: ''Actuallywhen I was filing my appeal, I did not realize that sixty days provided under section 38 (1) o f the Land Dispute Courts Act No. 2 o f2002 are strictly counted from the date o fjudgment to the date o f lodging an appeal without excluding days taken by the tribunal to prepare records applied. Based on wrong interpretation o f the 10

provision o f section 38 (1) (supra) I filed the appeal after period provided by law has expired. The appeal was filed in court on 4 h October, 2011 almost 15 days after lapsed o f appeal period." The learned Judge took note of this factual issue but nevertheless proceeded to deal with the matter as if she was determining an application for extension of time. In our view, the learned Judge was not mandated to do so. We have the following reasons: One, there was no application for extension of time before her. Two, time was extended after taking into account as to when the respondent was supplied with copies of proceedings and judgment. Three, we also think the learned Judge took a wrong position because having found that the provisions of section 19(2) of the Law of Limitation Act, Cap.89 do not apply to proceedings originating from Ward Tribunal nor do the Magistrates' Court (Limitation of Proceedings Under Customary Law) Rules GN. No. 311 of 1964 exclude the period for obtaining relevant appeal documents, the learned Judge ought not to have extended time relying on such factor. She observed at page 60 of the record of appeal regarding this that: - "Likewise, a reading o f the Magistrate Courts (Limitation o f Proceedings under Customary Law) i i

Rules via G.N. 311 o f 1964 under the Magistrate Court Act (supra) the law does not provide for an avenue as it is under the provisions o f section 19 (2) o f the Law of Limitation Act (supra) for exclusion o f the period o f time used in time used in obtaining the relevant documents for an appeal." Four, as there was no application for extension of time, it means, the learned Judge had no evidence within which to base in the exercise of her discretion to extend time in terms of the proviso to section 38 (1) of Cap. 216. We find so because after having conceded to be time barred, the respondent submitted to court that, what actually delayed him was sickness of his child. Let the record at page 53 speaks for itself: "Madame Judge Extension o f time to appeal is a discretionary order, leave is granted depending on circumstances o f each case. It is crystal dear that my appeal was filed out o f time. However, I could have filed my appeal in time if my child did not fall sick and the requirement o f law that a decree appealed against must be annexed to the petition o f appeal when an appeal is presented in court. I said so because I was served with a copy o fjudgment earlier but copy o f decree was served to me on 15th September, 2011."[Emphasisours] 12

Following that concession, the learned Judge at page 62 of the record of appeal proceeded to consider the delay caused by failure to have proceedings and judgment in time, a fact which the respondent said was not the reason for his delay. His, was the sickness of his child of which, in our considered view, require evidence which may not be resolved without difficulties in the course of determining a preliminary objection. In fact, what we have so far noted is that, the learned Judge was optimistic because, first, as she observed sufficient cause, then in her view, no court would deny the respondent an opportunity to apply to appeal out of time. Second, refiling of the application for extension of time to her was unnecessary as it would cause delay. What we however find of relevance in the foregoing is that, the learned Judge had no application for extension of time before her. As it is, extension of time basing on failure to have proceedings and judgment in time and sickness of the respondent's child as good causes, are without basis. Equally, across the respondent's written submissions in the High Court, there is nowhere the applicant prayed to court to have time extended for appealing purposes. If any, then as the counsel for the appellant submitted, was in the course of responding to the preliminary objection. 13

There are two matters to take into account in her move to extend time suomotu. One as we said, there was no an application for extension of time and two, that she had in mind that the appeal was out of time. In this therefore, we have nothing to fault the learned counsel for the appellants' that the remedy open to the learned Judge was to dismiss the appeal as was the position in the case of Fortunatus Lwanyantika Masha & Another v. Claver Motors Limited (supra) and that of Aidan Chale v. Republic (supra) cited to us by the learned counsel for the appellants. As there was no application for extension of time, we are in all fours with the learned counsel for the appellants that time to appeal in Land Appeal No. 42 of 2011 was extended suo motu. The learned Judge could not have assumed jurisdiction to extend time in the course of determining a preliminary objection in absence of an application to have time enlarged. In Aidan Chale v. Republic (supra) it was observed that: 'We think that there is nothing inherently wrong in a court to which an application has been made to consider all or any o f those matters as to good cause for admitting an appeal out o f time. But we have to come back to the same point that a court should not act suo motu in favour o f a party by 14

assuming the existence o f a request to it to extend the period limited by the statute for bringing an appeal to it To do so, could lead to a subversion o f the very purpose for which a limitation period to appeal was statutorily fixed for both the private individual and the Director o f Public Prosecutions." We now turn to what we reserved, that is, whether it was justifiable in the circumstances to extend time to appeal where on one hand, the learned Judge made a finding that the objection that the appeal is time barred has no merit while on the other hand extending time to appeal. We should state from the outset that, the learned Judge was not justified to extend time to appeal. We have two reasons in this observation. One, having observed in her ruling that the preliminary objection on time limitation was not merited, the learned Judge was to end there. Our understanding is that, overruling a preliminary objection that the appeal is time barred is in itself a concession that the said appeal was filed within time. Two, at page 58 through 59 of the record of appeal, the learned Judge made a finding that the appeal was filed within sixty (60) days as per section 38 (1) of Cap. 216. It is provided in the record of appeal that: "Thus, even by bypassing the date when the appellant obtained the said certified copies o f proceedings and decree o f the District Land and 15

Housing Tribunal as the said decree does not disclose the date under which it was issued and even by counting dates from the date when the appellant obtained the said certified copies o f judgment i.e. on 24/08/2011 in comparison with the date when the appeal was filed in this Court i. e. on 04/10/2011; it is beyond doubt that the said appeal was filed within 60 days from the date when the appellant obtained the said certified copies of judgment the days which would be cut shorter if one counts the days from the date when the appellant was supplied with the remaining copies o f proceedings and decree o f the District Land and Housing Tribunal o f Arusha at Arusha. "[Emphasis ours] With that position of the learned Judge, in our view, it was settled to her that the appeal was filed within time. As found above however, the learned Judge strayed into an error because she did not have before her, any material upon which she could have made that finding. Her finding of extending time was superfluous as in any case, there was nothing to extend after having found that the appeal was filed within time. We endeavored to pronounce ourselves so in order to put the record right. 16

We find it odd for the learned judge to overrule the objection that the appeal is time barred while on the other hand extending time to appeal. Having observed so, we stated in the foregoing that the learned Judge extended time to appeal suomotu. Consequently, we hereby nullify the proceedings from the point at which the decision on the preliminary objection was made, the decision thereto as well as the resultant judgment dated 22n d March, 2012. We thus find the appeal to have merit and accordingly allow it with costs. DATED at ARUSHA this 29th day of September, 2023. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The judgment delivered this 29th day of September, 2023 in the presence of Mr. Edmund Ngemela, learned advocate for the appellants and Mr. George Sospeter, holdings brief for Mr. Duncan Oola, learned advocate for the respondent is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 17