Laiton Baliko vs Titye Village Government (Civil Application No. 175/11 of 2017) [2018] TZCA 967 (28 August 2018)

j IN THE COURT OF APPEAL OF TANZANIA AT TABORA CIVIL APPLICATION NO. 175/11 OF 2017 LAITON BALIKO •..•••.••••..••....•..••.••.•...•.••.....••••.•••.••••..••••.....•..••..• APPLICANT VERSUS TITYE VILLAGE GOVERNMENT ................................................ RESPONDENT (Application for extension of time within which the applicant can apply for leave to appeal against the decision of the High Court of Tanzania at ·Tabora) 24 th & 30 th August, 2018 MUSSA, l.A~: (Rumanyika, J.) dated the 16 th day of November, 2016 in Misc. Land Application No. 70 of 2016 RULING In the District Land and Housing Tribunal, at Kigoma, the applicant unsuccessfully sued the respondent over ownership of a parcel of land. Dissatisfied, the applicant preferred an appeal to the High Court which was, nevertheless, dismissed for being time barred in a decision that was pronounced (Mrango, J.) on the 12 th May, 2016. Still aggrieved, on the 6 th June, 2016 the applicant contemporaneously lodged a Notice of appeal to this Court and requested the first appellate Court to provide him with 1 ·;... '

copies of the proceedings and judgment for purposes of the desired appeal. A little later, on the 25 th July, 2016 the applicant preferred an application, in the High Court, through which he sought leave to appeal to the Court of Appeal. Having heard the quest on the merits, on the 16 th November, 2016 the High Court (Rumanyika, J.) dismissed the application. Undaunted, the applicant presently seeks to extend time within which to re-institute his application for leave to appeal to this Court. The application is by way of a Notice of Motion which has been taken out under Rules 10 and 45 (b) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The same is supported by an affidavit of Mr. Kuwayawaya S. Kuwayawaya · who held himself to be counsel for the applicant. The Notice of Motion is being resisted by the respondent through an affidavit in reply sworn by Mr. Felix Lukeba who happens to be a Principal Officer of the respondent. When the application was placed before me for hearing, the applicant entered appearance in person, unrepresented. He informed the Court that he was prepared to fend for himself. On her part, the respondent entered appearance through Mr. Amos Mteka, a member of the Village Executive 2

Committee who informed the Court that the Village Chairperson was bereaved. As it turned out, the applicant fully adopted the Notice of Motion as well as the affidavit in support just as Mr. Mteka similarly adopted the

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affidavit in reply without more. From the look of the Notice of Motion, upon his application for leave being refused by the High Court on the 16 th November, 2016, the application was minded to supposedly seek a second bite to this Court but, apparently, he did not do so within the fourteen days prescribed by Rule 45 (b) of the Rules, hence Notice of the Motion which seeks an extension under Rule 10 of the Rules. In the supporting affidavit, the applicant avers that the decision of the High Court refusing him leave was not availed in time. It was, according to his advocate, availed to him on the 9 th February, 2017 when the time prescribed for a second bite was long past. As it turns out, this is the sole reason assigned by the applicant to explain the delay in re-instituting the application for leave to appeal. If I may express at once, it is now trite that in application of this nature, there are situations where an applicant is expected to do more than simply account for the delay. 3

In for instance, the unreported MZA Criminal Application No. 7 of 2011 - Mwita Mhere Vs. The Republic, the Court observed:- "To succeed in showing that he has a good cause under Rule 10 of the Rules, it must be shown further that the applicant has an arguable case. An arguable case is one that demonstrates that the intended ground of review is at least one of those listed in Rule 66 (1) of the Rules." Corresponding remarks were made in another unreported Criminal Application No. 13 of 2009 - Charles Barnabas Vs The Republic. Admittedly, the two cases were specifically concerned with applications for extension of time within which to lodge applications for review but, I should suppose, the requirement of an arguable case is common ground to all applications for extension of time. In the matter presently under my consideration a question looms as to whether or not the applicant stands to have an arguable case before the Court of Appeal. My concern stems from the fact that this application originated from a land matter. The applicants lost in both the District Land and Housing Tribunal and the High Court (Land Division). The applicants lost as well, in the High Court in an application for leave to appeal to this 4

Court. A party who has been aggrieved by the decision of the High Court in a land matter cannot come to the Court on appeal without having first sought and obtained leave of the High Court so to do. This is provided for by the provisions of section 47 (1) of Cap. 216 which provides:- •~ny person who is aggrieved by the decision of the High Court in the exercise of its original, revisional or appellate Jurisdiction, may with the leave from the High Court appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. " The Court have had an opportunity, on several occasions, to interpret the tenor and import of the subsection. Such opportunities occurred in Felista John Mwenda v Elizabeth Lyimo, MSH Civil Application No. 9 of 2013 Nuru Omary Ligalwike v Kipwele Nduguru, Civil Application No. 42 of 2015, Tumsifu Anasi Maresi v. Luhende lumanne Selemani & Another, TBR Civil Application No. 184/11 of 2017 and Elizabeth Losujaki v Agness Losujaki & Another, Civil Appeal No. 99 of 2016 (all unreported) to mention but a few. In all these cases, the Court took the firm view that an application for leave to appeal to the Court in a land matter is within the exclusive jurisdiction of the High Court. To put it 5

I differently, on the terms of section 47 (1) of Chapter 216 as it presently stands, the Court of Appeal lacks jurisdiction to entertain an application for leave to appeal to itself. To say the least, even if the application at hand succeeds, the grant would not serve any useful purpose as the desire application for leave will, obviously, be destined for a nose dive. All said, the applicant has not demonstrated good c::~u$e_ to de_serve _a ____ . _ ~:

• . -- .. grant of extension of time within which to lodge, in this Court, an application for leave to appeal. The application is, accordingly, dismissed with costs. DATED at TABORA this 28 th of August, 2018. K. M. MUSSA JUSTICE OF APPEAL I certify that this is a true copy of the original. 6