Paulina Thomas and Prosper John Mutayoba and Another (Civil Application No. 77/8/2017) [2017] TZCA 1295 (27 November 2017)

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CIVIL APPLICATION NO. 77 /8/2017 PAULINA THOMAS ................ · ...................................... APPLICANT VERSUS

1. PROSPER JOHN MUTAYOBA} .
2. FRANCIS GRATIAN .................................... RESPONDENTS {Application for extension of time to apply·for leave to appeal and to institute an appeal against the decision and ruling of the High Court of Tanzania at Mwanza) MKUYE, l.A.: (Gwae, J.) dated the 31 st day of July, 2015 in Land Appeal No. 100 of 2014 RULING This is an application by Notice of Motion brought under Rules 10 and 4(2) (a), (b) and (c) of the Tanzania Court of Appeal Rules, 2009 (the Rules). It was filed on 2/12/2016 and it is supported with an affidavit of Paulina Thomas, the applicant. The applicant is moving this Court for a number of prayers which seem to be confusing but the most relevant is that, this Court be pleased to grant extension of time to enable her apply for leave to appeal against the decisi~n and Ruling of the High Court of Tanzania at Mwanza (Gwae, J.) dated 31/7/2015 in Land Appeal No. 100 of 2014. 1

On 23/11/2017, the ist Respondent, Prosper John Mutayoba, through the services of Galati Law Chambers filed a notice of preliminary objection challenging the application on the ground that:

1. This Honourable Court has no Jurisdiction to entertain this application. At the hearing of the application the applicant appeared in person and was unrepresented. The 1 st respondent was represented by Mr·. Geofrey Kange, learned counsel and the 2 nd respondent, one, Francis Gratian, appeared in person. Arguing in support of the point of preliminary objection, Mr. Kange submitted that since according to para 11 of the applicant's affidavit, her application for leave to appeal to the Court of Appeal vide Application No. 131 of 2015 at Mwanza High Court, was dismissed on 25/5/2016 by Mlacha, J, she does not have a chance to bring a similar application to this Court on a second bite. This is because, he said, this Court does not have jurisdiction to entertain such an application as per section 47(1) of the Land Disputes Courts Act, Cap. 216 R.E. 2002 (LDC Act). Mr. Kange contented further that since the application for leave to appeal to the Court of Appeal was denied by the High Court then the applicant ought 2

to appeal to this Court. He cited the case of Hamis Msunge Vs. Hawa Hassan Mtumwa Civil Application No. 105 of 2014 in support. For that matter, he contended that as the applicant is seeking extension of time to apply for leave to appeal to this Court which has no jurisdiction, the same should be struck out with costs. In response, the applicant strongly objected the preliminary objection. She submitted that she had filed this application on 2/12/2016 at the time when this Court had through the case of Arunaben Chaggan Mistry Vs. Naushad Mohammed Hussein and 3 Others Civil Application No. 6 of 2016 granted extension of time to file an application for leave to appeal on a land matter after the same was denied by the High Court. The applicant contended that Msunge's case (supra) was distinguishable and that, infact, it was decided recently. In rejoinder, Mr. Kange submitted that much as the applicant had cited Arunaben's case (supra), in practice the recent decided case is to be taken as an authority. I have seriously considered the rival submissions from both sides. There is no doubt that in Arunaben's case (supra) the Court extended time within which to file an application for leave to appeal to the Court 3

of Appeal on a land matter. Again, it is not disputed that in the case of Msunge ( supra) this Court held that where leave to appeal to the Court of Appeal on a land matter is denied by the High Court, the applicant has to appeal to the Court since section 47(1) of the LDC Act does not allow to apply for leave to appeal to this Court on a second bite. Clearly, the decisions are somehow conflicting. However, as was rightly submitted by Mr. Kange, the law is very clear on what happens in case of two conflicting decisions. As was stated in the case of Arcopar (O.M) S.A Vs. Harbet Marwa & Family Investments Co. Ltd & 3 Others Civil Application No. 94 of 2013 the recently decided case is to be followed. In the said case it was stated as follows: - " ... where the Court is faced with conflicting decisions of its own, the better practice is to follow the more recent of its conflicting decisions unless it can be shown that it should not be followed for any reason. .. " Therefore, I would follow the most recently decided case which ruled out that this Court has no jurisdiction. 4

Be it as it may, the case cited by the applicant in my view, overlooked the existence of the previous cases of this nature in which the Court strenuously insisted that this Court has no concurrent jurisdiction on matters relating to leave to appeal on cases relating to land. In other words, that case was decided per incuriam. For example, in the case of Felista John Mwenda Vs. Elizabeth Lyimo MSH Civil Application No. 9 of 2013 (unreported) the Court stated: "The Court of Appeal in terms of clear provisions of section 47(1) of Cap. 216 lacks Jurisdiction to entertain the application" (See also the case of Tumsifu Anasi Maresi Vs. Luhende Jumanne Selemani & Another (TBR) Civil Application No. 184/11 of 2017 in which the case of Nuru Omary Ligalwike Vs. Kipwele Ndunguru Civil Application No. 42 of 2015 (CAT)(unreported) was quoted with approval). On top of that, section 47(1) of the LDC Act itself is very clear. This was the position of the law since it's enactment in 2002. It exclusively vests jurisdiction on applications for leave to appeal on land matters to the High Court only. The provision states as follows:- 5

.. '!-4ny 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 in accordance with the Appellate Jurisdiction Act" [Emphasis added]. As it is, the provision _does not vest such powers to the Court of Appeal. This means that, in this case, even if extension of time is granted to file an application for leave to appeal to this Court, the Court cannot entertain it because it does not have such powers. Given such circumstances, I find myself inclined to sustain the preliminary objection and strike out the application with costs. DATED at MWANZA this 27 th day of November, 2017. R. K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy of the original. 6 ) J