Bock Juma Rungwe vs The Grand Lodge Company Limited & Others (Civil Appeal No. 18 of 2023) [2025] TZCA 1010 (2 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: KOROSSO, J.A.. MAKUNGU, 3.A. And RUMANYIKA. J.A.T CIVIL APPEAL NO. 18 OF 2023 BOCK JUMA RUNGWE ........................ . .................................. APPELLANT VERSUS THE GRAND LODGE COMPANY LIMITED ......................... 1 st RESPONDENT TH E REGISTRAR OF TITLES ........................................2N D RESPON DE NT THE ATTORNEY GENERAL . ................. . .......................3 rd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Land Division at Dar es Salaam) (Mkwizu, 3 .^ Dated the 05th day of November, 2021 in Land Case No. 137 of 2019 RULING OF THE COURT 25th July & 2n d October, 2025 KOROSSO. JA.: The appeal is founded on a land dispute that was tried and determined by the High Court of Tanzania Land Division (trial court). The appellant, Bock Juma Rungwe, sued the respondents seeking the following: An order declaring the plaintiff as the lawful occupier of the property located at Plot No. 376 Block 45C, Kijitonyama, Kinondoni Municipality registered with certificate of Title No. 48721 (suit property); 1

an order for perpetual injunction prohibiting the defendants, their agents, assignees, workmen and/or any person(s) from claiming interest in the plaintiff's property; an order for payment of general damages as shall be assessed by the court; costs; and any other orders or reliefs the court may deem fit to grant. The background leading to the instant appeal presented albeit in brief, is that allegedly, the appellant in the year 2006, acquired the suit property through a deed of gift issued to him by one Hashimu Rungwe. The appellant occupied the suit property without disturbance and then initiated process to transfer it to his name. He paid the fees and dues. In 2008, the appellant was granted consent from the Commissioner for Lands to effect the intended change of land use. The process for change of ownership took some time until 2015 when he was requested to submit documents to prove the existence of the deed of gift. On the other hand, the 1s t respondent resisted the claims through his written statement of defence and asserted to have acquired the suit property through an auction where he was the highest bidder and paid Tshs. 50,000,000/=. The auction arose from execution proceedings in respect of the decree in Civil Case No. 55 of 1997 between Naftal Mero v. Bahari Motors Company Limited and Hashimu Rungwe issued by Tabora 2

Resident Magistrate's Court and Anallzed by Kinondoni Resident Magistrate's Court on 6/7/2012. It is on record that while processing the transfer of the certificate of title, the 1s t respondent learnt of the disposition of the suit property by Hashimu Rungwe which prompted filing an application for transfer through transmission by operation of the law under section 71 of the Land 'RegSfiStJori Act, Cap 334 (the Land Registration Act). The said application led to the appellant being served with a notice from the Registrar of Titles regarding the application filed by the 1s t respondent. It is on record, that it is the said notice that led to the appellant filing the suit subject to the instant appeal pleading to be declared the lawful owner of the suit property and for dismissal of the 1s t respondent's application arguing that it is unjustified and the other reliefs as outlined earlier. After a full trial, the High Court judgment was in favour of the 1s t respondent ruling that he was the bonafide purchaser of the suit property and that the appellant's alleged title to the suit property was unlawfully obtained. The appellant's suit was thus dismissed with costs with an order for the 2n d respondent to proceed with the 1s t respondent's application having annulled the appellant's title to the suit property. Disgruntled by

the decision of the trial court, the appellant has come before the Court advancing ten points of grievances which for reasons which will come to light in the cause of this judgment we shall not reproduce. When the appeal was called for hearing, Mr. Mohamed Tibanyendera, learned counsel represented the appellant whereas, the 1s t respondent had the services of Mr. Armando Swenya, learned counsel and Ms. Lucy Leons Kimaryo and Mr. Ditrick Ernest Luambano, learned State Attorneys entered appearance for the 2n d and 3r d respondents. Before the appeal proceeded in earnest, with the leave of the Court, Ms. Kimaryo sought leave to raise a point of law, which upon dialogue with the parties, we granted the prayer with the understanding that we shall hear submissions from the parties on the point of law first and thereafter, on the grounds of appeal and may end determining the appeal on the point of law only. On that note, Ms. Kimaryo submitted that the appeal was time barred for failing to serve the respondents with the letter requesting for copies of the judgment and proceedings in terms of rule 90(1) of the Tanzania Court of Appeal Rules, 2019 (the Rules). She contended that in terms of rule 90(3) of the Rules, the appellant may not rely on the

certificate of delay, which will render his appeal out of time having been filed more than ninety days after filing the notice of appeal in contravention of the Rules. She thus prayed for the appeal to be rendered time barred and struck out. On his part, Mr. Swenya aligned himself to the submissions by the learned State Attorney, adding that the anomaly is not curable since under rule 90(3), the appellant cannot rely on the certificate of delay which renders the appeal time barred. He urged us to strike out the appeal with costs as they had filed written submissions and prepared themselves in readiness for hearing of the appeal. Mr. Tibanyendera on his part objected to the respondents' counsel stance of not being aware of the letter requesting the impugned judgment and proceedings. He however, conceded not to have the evidence to show that the same was served to them within the time prescribed by the law. He implored the Court to apply the overriding principle so that the hearing of the appeal on merit may proceed. He further contested the prayers for costs from the 1s t respondent arguing that the 1s t respondent failed to justify being granted the same.

At this juncture we find it imperative to reproduce and then discuss the import of rule 90(1) and (3) of the Rules which provides as follows: - "90-(1) Subject to the provisions of rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days of the date when the notice of appeal was lodged with - (a)a memorandum of appeal in quintupficate; (b) the record of appeal in quintuplicate; (c) security for the costs of the appeal, save that where an application for a copy of the proceedings in the High Court has been made within thirty days of the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted be excluded such time as may be certified by the Registrar of the High Court as having been required for the preparation and delivery of that copy to the appellant. (2) N/A ( 3) An appellant shall not be entitled to rely on the exception to sub-rule (1) unless his application for the copy was in writing and 6

a copy of it was served on the Respondent" [Emphasis added] Certainly, according to rule 90(3) of the Rules, if the letter requesting essential documents for appeal is not served on the respondent or the respondents, the appeal must be lodged in sixty days of lodging the notice of appeal as provided for under rule 90(1) of the Rules otherwise, the appeal will be time barred. As emphasized in various decisions of the Court, rule 90(1) of the Rules, makes it judicially imperative for an appeal from the High Court to the Court to be lodged within sixty days of the date when the notice of appeal was lodged. Moreover, it also provides that where the intended appellant or appellants fail to lodge an appeal within the specified time frame, similar to what obtains in the instant appeal, the appeal is time barred. For reasons that the appellant cannot benefit from the exclusion by the Registrar of the High Court of the time expended to retrieve the requested essential documents for the appeal, unless, there was a letter written by the appellant requesting for certified copies of proceedings and judgment for purposes of appeal filed with the High Court within thirty days of the impugned decision and a copy of the said letter served to the respondents. (See, Mwatima Suleiman Petro and Another v. Halima

Juma and 8 Others, Civil Appeal No. 293 of 2019 and Mohamed Issa Mlamile and 3 Others v. Tanga City Council and Another, Civil Appeal No. 200 of 2019 (both unreported). Having revisited the record of appeal, we discerned that the impugned judgment was delivered on 5/11/2021 and the notice of appeal against the impugned judgment and decree was lodged on 9/11/2021 and duly served on the respondents on 17/11/2021. The appeal was filed on 19/01/2023. The letter requesting copies of proceedings, judgment and decree of Land Case No. 137 of 2019 was filed on 8/11/2021, well within the 30 days of delivery of the impugned judgment as found on page 509 of the record of appeal. Again, the copy of the said letter does not show that it was served to the respondents. The learned State Attorney and the counsel for the 1st respondent submitted that the same was not served to them and thus the appellant may not rely on the certificate of delay found at page 568 of the record of appeal in terms of rule 90(3) of the Rules. Certainly, the learned counsel for the appellant failed to show when the letter from the appellant requesting copies of the proceedings and judgment filed on 8/11/2021 was served on the respondents, he only stated that they were aware of it. We are thus satisfied that the

respondents were not served with the letter requesting for the certified copies of the proceedings and judgment under rule 90(1) of the Rules. In fight of this, since under rule 90(3) of the Rules, the appellant cannot rely on the certificate of delay issued by the High Court Registrar, and the fact that the appeal was filed on 19/01/2023 whilst the notice of appeal was filed on 9/11/2021, which is way beyond the prescribed 90 days under rule 90(1) of the Rules, plainly, the appeal is time barred. The learned counsel for the appellant urged us to hear the appeal on merit and apply the overriding objective principle despite the anomaly discerned. It is well settled that the overriding objective principle should not be blindly applied against mandatory provisions of procedural law which goes to the foundation of the case such as time limitation (See, Njake Enterprises Limited v. Blue Rock Limited and Another [2018] TZCA 303, TANZLII and Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited and 4 Others [2018] TZCA 303, TANZLII). For reasons stated above, we thus refrain from granting the above prayer by the learned counsel for the appellant. The remedy available where an appeal is out of time as in the instant case, is to strike it out, as stated in Wilfred Lwakatare v. Hamis

Kagasheki and Another, Civil Appeal No. 118 of 2011 (unreported) and Mohamed Issa Mlamile and 3 Others (supra). For the foregoing reasons, the appeal is struck out for being filed out of time. The appellant is to bear the costs of the 1s t respondent only as the 2n d and 3r d respondents did not press for costs. DATED at DODOMA this 19th day of September, 2025. W. B. KOROSSO JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 2n d day of October, 2025 in the presence of the Mr. Mohammed Tibanyendera, learned counsel for the Appellant, Mr. Armando Swenya, learned counsel for the 1s t Respondent and Ms. Lucy Leons Kimaryo, learned State Attorney for the 2n d and 3r d Respondents connected via Teleconference and Mr. Stephene John Msila, Court Clerk, is hereby certified as a true copy of the original.