Oliva Damas Vegulla & Another vs Mohamed Bashiri Telangwa (Civil Appeal 159 of 2019) [2022] TZCA 817 (15 December 2022)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM. MKUYE. J.A.. KIHWELO, 3.A And MAKUNGU- ].A.1 CIVIL APPEAL NO. 159 OF 2019 OLIVA DAMAS VEGULLA ................................ ................... 1 st APPELLANT LAWRANCE HUMPHREY VEGULLA ....................... ............. 2 nd APPELLANT VERSUS MOHAMED BASHIRI TELANGWA ......................................... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, (Land Division) at Dar es Salaam) (Maonya. J.^ dated the 28th day of September, 2018 in Misc. Land Application No. 241 of 2018 JUDGMENT OF THE COURT 25th October & 15th December, 2022 MAKUNGU. J.A.: The appeal arises from the Ruling and Order of the High Court of Tanzania sitting at Dar es salaam in Miscellaneous Land Application No. 241 of 2018 (Mgonya, J) which dismissed the applicants' application for extension of time to file the appeal out of time. Aggrieved by the said decision, they have appealed to this Court. i A brief background to the appeal is that: before the District Land and Housing Tribunal of Kibaha (the DLHT), the respondent in his capacity as the administrator of the estate of his late father Bashiri Telangwa instituted a land dispute against the appellants. He prayed, among others, to be declared a legal owner of all farm No. 2765 which is 10 acres situated at Ukuni Bagamoyo (the suit land). His claim was that, following the death of his father in 2004, the family of Makubi one Abdalla Makubi who is deceased invaded the suit land which belonged to his deceased father and possessed it and subsequently unlawfully transferred it to the appellants. The respondent hence prayed for vacant possession. On the other hand, the appellants' defence was that they lawfully purchased the suit land in 2004 from the family of Makubi, therefore they got rights in the suit land. They stated that the sale transaction was concluded at the Village Council of Kaole, and DW4 (Oliva Damas Vegulla) tendered exhibit D1 being minutes from the Village Council of Kaole. After a full trial the DLHT entered Judgment in favour of the respondent. The appellants were dissatisfied with the said decision but were late to lodge their appeal to the High Court hence they applied for extension of time to file their appeal vide Misc. Land Application No. 241 of 2018. 2 After hearing the above application, the High Court ruled in favour of the respondent by dismissing the application for failure of the applicants (appellants) to account for the delay. Still dissatisfied, on 24/10/2018 they lodged notice of appeal (page 161 of the record of appeal) and applied for necessary documents for appeal purpose on 01/10/2018. They also successful applied for leave to appeal (page 210 of the record of appeal). The appellants then filed their memorandum of appeal containing five grounds of appeal. When the appeal came before us for hearing, the appellants had the services of Ms. Elizabeth John Mlemeta and Mr. Ally Hamza both learned advocates, whereas the respondent was represented by Mr. Yuda Thadei Paul, also learned advocate. After going through the five grounds of appeal and oral submissions made by the counsel for the parties, we are satisfied that this appeal can be satisfactorily and conclusively disposed of on the basis of the first ground of appeal which reads as follows: "(i) That the Honourable Court erred in law to find that the appeal was time barred contrary to section 41 (1) and section 41 (2) o f the Land Disputes Courts Act Cap 216 R.E. 2002 as amended by sections 40 and 41 (a) and (b) o f the 3 Written Laws Miscellaneous Amendment) Act No. 2 o f 2016 and section 19 (2) and (3) o f the Law o f Limitation Act Cap. 89 R.E. 2002 in failing to take into consideration the documents attached in the application specifically annexure "Vegula 3" (attached) which evidently shows the date in which the Memorandum o fAppeal was lodged and rejected by the Court that was 2(fhApril, 2018 and the date in which the copy of the judgment and decree for Land Application No. 16 of 2011 was collected, that was 7th March, 2018 as evidenced by the records o f the District Land and Housing Tribunal by Exchequer Receipt No. 99001350771 thus the applicants were still within the 45 days prescribed by the law." In confronting the above ground, Ms. Mlemeta argued that under no circumstances can an appeal be filed in the High Court of Tanzania without the impugned judgment and the decree in terms of Order XXXIX Rule 1 (1) of the Civil Procedure Code, Cap. 33 R.E. 2002 (the CPC), as they are necessary documents to accompany the memorandum of appeal filed. She contended that this being the legal position, the law has also provided the time requisite for the intended appellant to obtain such documents and when such time should start running against him or her. She argued that similarly, under section 19 (2) of the Law of Limitation 4 Act, Cap 89 R.E. 2002 (the LLA), the requisite time to be excluded when obtaining copies of judgment and a decree for appeal purpose has been provided. To reinforce this point she referred us to the case of Valerie Mcgivern v. Salim Farkrudin Balal, Civil Appeal No. 386 of 2019 (unreported). The learned counsel substantially faulted the holding of the High Court Judge that the time limit for filing an appeal started to run as from the date when the copy of the judgment and decree were certified. She argued that this was erroneous because the judgment and decree were furnished to the appellants on 7/3/2018 upon payment of appropriate fees for collection of the documents and the appeal was filed on 20/4/2018. She argued that under the circumstances this being what transpired it was erroneous on the part of the Judge of the High Court to find that the appeal was time barred. She ended by imploring the Court to find that the appeal has merit and to allow it, quash the impugned Ruling and Order with costs and then order restoration of the appeal filed in the High Court so that it be heard on merit. Mr. Paul vehemently resisted the appeal. He supported the Ruling and Order of the High Court and contended that the appellants failed to file the appeal when the judgment and decree were certified and were 5 ready for collection on the 2n d March, 2018. He pointed out that the appellants wasted their time waiting for the copy of proceedings which was not necessary documents to accompany the memorandum of appeal. He also supported the action taken by the Deputy Registrar of the High Court to reject the memorandum of appeal filed out of time. He cited the case of the High Court of Bakema s/o Said Rashid v. Nashon s/o William Bindyanguze and 2 others, Election Reference No. 1 of 2020 (unreported). He implored the Court to find the appeal lacking merit and dismiss it with costs. The rejoinder by the appellants' counsel was mainly to reiterate what was stated in the submission in chief. We will determine this ground of appeal on the basis of the record before us and the law applicable on the matter. In our understanding and appreciation of the record and the law it is evident that the judgment of the DLHT was delivered on 10th November, 2017. The said judgment was certified on 2n d March, 2018 to suggest that it was ready for collection as from that date. Indeed, in the affidavit of Mr. Ayoub Mtafya, learned advocate for the applicants (appellants herein) deponed to on 27thApril, 2018, and specifically under paragraph 5 thereof, he averred that he received the certified copy of the judgment on 2n d 6 March, 2018 and the memorandum of appeal was lodged on 20th April, 2018. The memorandum of appeal was initially received and stamped by the Registrar of the High Court, however, after assessing the documents the Registrar rejected the memorandum of appeal by cancelling it on the ground that the appeal was out of time. Thus, the Registrar informed the counsel for the applicants that they should lodge an application for extension of time to file an appeal out of time. On 25th April, 2018, Misc. Land Application No. 241 of 2018 was filed in the High Court where after hearing the parties it held that the appeal was out of time thus the application was dismissed with costs for want of merit. Now the issue for our determination here is whether the applicants were out of time when the memorandum of appeal was lodged in the High Court. The appellants substantially are defaulting the High Court that their appeal to the High Court was not time barred as per section 19 (2) and (3) of the LLA and contended that the time spent waiting to be supplied with copies of proceedings, judgement and decree are automatically excluded. Part II paragraph 2 of the First Schedule to the LLA prescribes the time limitation for an appeal to be forty-five (45) days from the time the decision is delivered. Additionally, section 19 (2) of the LLA provides that: 7 "In computing the period o f limitation prescribed for an appeal, an application for leave to appeal, or an application for review o fjudgment, the day on which the judgment complained o f was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded. "(Emphasis added) In the case of Registered Trustees of Marian Faith Healing Centre @ Wanamaombi v. The Registered Trustees of the Catholic Church Sumbawanga Diocese, Civil Appeal No. 64 of 2007 (unreported), it was held that: "... the period between 2/5/2003 and 15/12/2003 when the appellants eventually obtained a copy of the decree ought to have been excluded in computing time." Suffice to say, section 19 (2) of the LLA and the holding in the decision cited above reinforce the principle that computation of the period of limitation prescribed for an appeal is reckoned from the day on which the impugned judgment is pronounced and the appellant obtains a copy of the decree or order appealed from by excluding the time spent in obtaining such decree or order. 8 In this case it is on record that, the judgment of the DLHT was delivered on 10th November, 2017 and the certified copies of that judgment and decree were ready for collection on 2n d March, 2018 and the intended appeal to the High Court was lodged on 20th April, 2018. The Registrar of the High Court rejected the memorandum of appeal by way of cancelling the stamp on the ground that it was filed out of time. The memorandum of appeal at page 10 of the record of appeal reads: "MEMORANDUM OF APPEAL The appellants being aggrieved by the decision o f the District Land and Housing Tribunal for Kibaha (Hon. Jerome Njiwa, Chairman) dated l& h November, 2017 (and received by the appellants on 2Td March, 2018) in Land Application No. 16 o f2011 at the District Land and Housing Tribunal for Coast Region at Kibaha, do hereby appeal against the whole o f the judgment and decree to this Honourable Court on the following grounds...." The Registrar after assessing the documents found that the appeal was out of time for 3 days thus he rejected it. As such, we think that the Registrar was right to reject the memorandum of appeal which was filed out of time. 9 On 2n d May, 2018, Misc. Land Application 241 of 2018 was filed in the High Court. In the said application the applicants applied for an extension of time to file an appeal out of time. On 5th June, 2018 the High Court granted the prayer that the application be disposed of by way of written submissions. The High Court on 28th September, 2018 dismissed the application for want of merit. It found that the appellants failed to account for the delay. However, the appellants informed the High Court Judge that they failed to file the appeal in time because they were still making follow up to obtain copy of proceedings. The learned Judge rejected their submission and stated at page 193, from line 5 to 9 of the record of appeal that: "The law is very dear on which documents should accompany the memorandum of appeal in which the copy o f proceedings was not amongst; hence the applicants were waiting and making follow-up o f the necessary documents which were not necessary for one to file an appeal". For quick reference, the provisions of Order XXXIX Rule 1 (1) (supra) provide that: "Every appeal shall be preferred in the form of a memorandum of signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the 10 Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded". (Emphasis added). It is apparent that the above provision does not specifically mention the word proceedings. However, the 48 days of delay minus 45 days required to obtain copies of judgment and decree, the actual delay become 3 days of which was not accounted for. As such, we are of the firm view that the High Court Judge justifiably exercised her discretion to refuse to grant extension of time sought. Before this Court, the appellants' counsel gave different reason for the delay. She told us that the appellants couldn't collect the documents on 2n d March, 2018 because it was Friday and the following two days were Saturday and Sunday. If that was the case, the appellants could easily collect the documents on Monday which was 5th March, 2018. However, they collected the documents on 7th March, 2018 which was Wednesday. Still we find no good reason given before us for that delay. For the foregoing reasons, we agree with the finding of the learned Judge that the appellants failed to account for the delay and therefore the appeal was filed out of time. ii Having so found, we dismiss the first ground of appeal. This finding will alone suffice to dispose of the appeal and for that matter, we need not belabour on the other grounds which were raised in the memorandum of appeal. The appeal is, therefore, dismissed with costs. DATED at DAR ES SALAAM this 13th day of December, 2022. R. K. MKUYE JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 15th day of December, 2022 in the presence of Ms Elizabeth John Mlemeta, learned counsel for the appellants and in the absence of the respondent is hereby certified as a true copy of original. 12