Laurent Martin Mpeka vs Bertha John Gita (Civil Application No 497, 17 of 2016) [2017] TZCA 346 (2 November 2017)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 497/17 OF 2016 LAURENT MARTIN M PEKA.......................................................APPLICANT VERSUS BERTHA JOHN G IT A .............................................................. RESPONDENT (Application for extension of time to file an application for leave to appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Ndika, J.) (as he then was) Dated 27th day of April, 2014 In Land Appeal No. 99 of 2014 RULING 9th October & 2n d November, 2017 MWARIJA. J.A.: In this application, the applicant has by a notice of motion, moved the Court for an order granting him an extension of time to do the following: - "... to apply for a second bite for leave to lodge an appeal against the Judgment and Decree on appeal o f the High Court of Tanzania, Land Division (Hon. Ndika, J.) dated27thApril\ 2014..." The application which has been supported by the applicant's affidavit, was brought under Rule 10 of the Tanzania Court of Appeal Rules, 2009 (the Rules). The respondent, who filed an affidavit in reply to the applicant's affidavit, resisted the application.

At the hearing, the applicant appeared in person, unrepresented while the respondent had the services of Mr. Sylvester Sengerema, learned counsel. Submitting in support of the application, the applicant relied on the facts which he deponed in his affidavit regarding the cause of the delay in filing the intended application; that is, an application for leave to appeal to this Court against the impugned decision. The main reason, according to the applicant's affidavit, is contained in paragraphs 12 and 13 of the affidavit. He states as follows:- "12. That I made follow up of a copy o f the ruling and document order dated $h November 2016 which came to be supplied to me on the 2Cfh November, 2016 and29h November, 2016respectively.../' 13. That I could not make an application for leave in this Court as a second bite before obtaining copies of the ruling and the drawn order o f the High Court." In response, Mr. Sengerema did not at first, oppose the application.** He submitted that the same has merit because it was filed within the period of 60 days from the date of receipt by the applicant, of copies of the ruling and the drawn order of the High Court. According to the learned

;ounsel, the ruling and the drawn order are essential documents for the application. However, when his attention was drawn to the provisions of S. 47(1) of the Land Disputes Courts Act, [Cap. 216 R.E. 2002] (the Act), the learned counsel argued that the application is misconceived because the Court does not have jurisdiction to entertain the intended application for leave to appeal. He agreed that when an application for leave to appeal made under that section has been refused by the High Court, a person cannot come to this court by way of a second bite as intended by the applicant. On that stance, Mr. Sengerema prayed to the Court to dismiss the application. As pointed out above, the applicant is moving the Court to grant him an extension of time to lodge, by way of a second bite, an application for leave to appeal against the decision of the High Court sitting as a Land Court. Under S. 47(1) of the Act, decisions of the High Court in land cases are appellable to the Court with leave of the High Court. The provision states as follows:- " Any person who is aggrieved by the decision o f the High Court in the exercise o f its original[ revisionai or appellate jurisdiction, may with leave of the High Court appeal to the Court o f Appeal in accordance with the Appellate Jurisdiction Act, 1979." [Emphasis added].

From the clear wording of this provision of the Act, it is only the High Court which is vested with jurisdiction to entertain an application for leave to appeal against a decision of the High Court in land cases - See for example, the case of Felista John Mwenda v. Elizabeth Lyimo, MSH Civil Application No. 9 of 2013 (unreported). In that case, the Court stated as follows:- "The Court o f Appeal, in terms o f the dear provisions of section 47 (1) of Cap. 216 lacks jurisdiction to entertain the application . " Given the above stated position of the law, when an application filed under S. 47 (1) of the Act is refused by the High Court, the aggrieved party cannot come to the Court by way of a second bite application. The proper course is to prefer an appeal subject to the provisions of S.5 (1) (c) of the Appellate Jurisdiction Act [Cap. 141 R.E. 2002] (the AJA). See the case of Tumsifu Anasi Maresi v Luhende Jumanne Selemani and Another, TBR Civil Application No. 184/11 of 2017 (unreported). Now therefore, since.the purpose for which the intended application is sought cannot be achieved on the ground of lack of jurisdiction by the Court, there is no gainsaying that this application is not tenable. It is for this reason, misconceived. In a similar situation, in the case of Elly Peter

Sanya v. Ester Nelson, Civil Application No. 3 of 2015 (unreported), the applicant applied for extension of time to file an application for a certificate that a point of law was involved in the intended third appeal. Having considered the provisions of S. 5(2) (c) of the AJA, the Court held that, since under that section, it is the High Court which is vested with exclusive jurisdiction to certify that a point of law was involved in the intended appeal, the application for extension of time was untenable. On the basis of the above stated reasons, this application which has been misconceived, is hereby found to be incompetent. The same is, as a result, struck out with costs. DATED at DAR ES SALAAM this 31s t day of October, 2017. A. G. MWARD A JUSTICE OF APPEAL I certify that this is a true c o d v of the oriainal. ^^ YjyiKW IZO DEPUTY REGISTRAR COURT OF APPEAL