John Kiondo vs Sarai Mbwana (Civil Application No. 124 of 2011) [2014] TZCA 2299 (18 February 2014)

\j .. . •.. .-~ ~ ' .... 4 ...... , .• ~> . f.-' . ,.,.. i .. '.""' . I f_l 1· '•· .•., ' •. 1 ·, , ' . , . ' IN- THE COURT OF APPEAL OF TANZANIA I AT DAR ES SALAAM JOHN KIONDO CIVIL APPLICATION Nd. 124 OF 2011 -

• I . •• ■ ■ •••• ■ ••••••• ■ ■ ■ •••••••••••••••• ■ ■ ■ ■ ■ ■ 1 ■ 1 ■ •• ■■■■ II •• ■ ••••••••• ■ •• ■ •• ■ I I I •• APPLICANT VERSUS SARAI MBWANA .... -~ ........... ·........................... ..........................•.. RESPONDENT . . I {Application for Extension of Time to File AJplication for Leave to Appeal out of Time from the Decision of the High Court at Dar es Salaam) I {Mziray, J. ) ) Dated the 09 th day of March, 2010
• in I Land Appeal No. 138 of 2008 ...•••.....••....• RULING 7TH February & 10 th March, 2014 ORIYO, J.A: On 20 th September, 2011, the applic, nt lodged in this Court a Notice of Motion in which he sought to be grantd an order for the extension of time to file an application for leave to appeI to the Court out of time. The grounds upon which the Notice of Motion iJ based are stated as:- (1) That the applicant was given ~,tified copies of ruling dated 2dh July 2011 delivered oy Hon. R.£S Mziray 1. which was(sic) struck out applicatiJn for leave to appeal to the court of appeal belated.

------------ ----------- - . - - ··-··-·----- i (2) And the High Court Registrar refused to give the applicant certificate of delay as provided for by the law under Rule (90)(1) so that the application in this court would be in time. (3) The District Land and Housing Tribunal delivered Judgment which was different from what was prayed for by the appellant in his memorandum of appeal and the High Court erroneous (sic) confirmed the Judgment which is unjust and erroneous (sic) reached The Notice of Motion is supported by an affidavit of John Sebastian Kiondo, the applicant The respondent, through the services of Mr. Thomas Joseph Massawe, learned counsel, filed an Affidavit in reply in terms of Rule 56(1), on 29 th November, 2011. Paragraph 3 of the affidavit states:- "The contents of paragraph 2 of the affidavit of the applicant are strongly denied by the respondent who states that there is a misdirection to the court by the applicant The respondent further states that there was an application for leave which was struck out on 2d'1 July 2011 and it is the one the applicant was supposed to rely on instead of the Judgment delivered on Jdh March 201 0'~ 2

When the application came up for hearing, the applicant was unrepresented, he appeared in person and the respondent was represented by Mr. Thomas Massawe, learned counsel. The applicant, being a layman informed me that :he had already lodged in Court written submissions in support of the application, in terms of rule 106(1) of the Rules. He prayed to adopt the same as he had nothing useful to add. The learned counsel for the respondent contended that the applicant is ~onfusing issues. He stated that the applicant had applied in the High Court for leave to appeal to this Court; which was struck out for incompetence on 20/7/2011. The learned counsel further stated that the application in the High Court was found incompetent for having been filed under the wrong nonexistent law and filed beyond the prescribed period of fourteen (14) days, in terms of Rule 45(a) of the Rules. He submitted that in his view, the proper remedy for the applicant was to go back to the High Court and apply for leave to appeal to this Court out of time by citing the proper legal provisions. He stated that the 3

legal position stated arises from the fact that the High Court did not dismiss the application for leave to appeal on merits, but it was simply struck out for incompetence. Rule 45 of the Court of Appeal Rules provides:- " In Civil matters- (a) Where an appeal lies with the leave of the High Court, application for leave may be made informally, when the decision against which it is desired to appeal to appeal is given/ or by chamber summons according to the practice of the High Court, within fourteen days of the decision;" (Emphasis mine). There is no controversy here that the app:licant's attempt to come to this Court by way of an appeal against the order of the High Court dated 9/3/2010 which dismissed his appeal in Miscellaneous Land Case Appeal No. 138 of 2008 was " nub bed in the bud" for contravening the dictates of Rule 45(a). Being aggrieved, the applicant decided to come to this Court by way of Notice of Motion supported by an affidavit for the enlargement of time to apply for leave to appeal to this Court out of time. 4

Rule 45(b) of the Rules Provides:- (b) Where an appeal lies with the leave of the Court, application for leave shall be made in the manner prescribed in Rules 49 and 50 and within fourteen days of the decision against which it is desired to appeal or, where the application for leave to appeal has been made to the High Court and refused, within fourteen days of that refusal (Emphasis mine) In view of the clear provisions of rules 45(a) and (b) (supra), it is evident that the applicant has prematurely come to this Court. I say so because the High court did not determine the merits of the application and did not refuse to grant leave to appeal to the applicant, on merits. The High Court, having found that the· applications was incompetent, proceeded to strike it out. Therefore, the applicant has not been refused leave to appeal to this Court by the High Court in terms of Rule 45(b) of the Rules. To fortify the above legal position, it is the law that all appeals from . ' the Land Division of the High Court have to be made with leave of that court. Section 47(1) of the Land Disputes Act, No. 2 of 2002, provides:- "47.-(1) any person who is aggrieved by the decision of the High Court {Land Division) in the exercise of its 5

., . original, revisional or appellate Jurisdiction, may with the leave from the High Court {Land Division} appeal to the Court of Appeal in accordance with the Appellate Jurisdiction Act. " (Emphasis mine). The appellant has yet to comply with the provisions of section 47(1) of the Land Disputes Act and Rule 45(b) of the Rules. In the circumstances I find that the application is incompetently before this Court and I am compelled to strike it out with costs. ·It is ordered. DATED at DAR ES SALAAM this 18 th day of February, 2014. K. K. Oriya JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ F. J. Kabwe DEPUTY REGISTRAR COURT OF APPEAL 6