Buruna v Sasi (Ruling of the Court) (Civil Appeal No. 166 of 2016) [2013] TZCA 2; (27 October 2016);

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IN THE COURT OF APPEAL OF TANZANIA AT MWANZA

(CORAM: RUTAKANGWA, J.A.,MASSATI, J.A., And MUGASHA, J.A.)

CIVIL APPEAL NO. 166 OF 2016

WILLIAM BURUNA.…………………………………………. APPELLANT

VERSUS

GOMELO SASI ………………………………..…………… RESPONDENT

(Appeal from the decision of the High Court of Tanzania at Mwanza)

(Rugazia, J.)

dated the 16thday of April, 2013 in

Misc. Land Appeal No. 17 of 2006

……….

RULING OF THE COURT

25th & 28th October, 2016

RUTAKANGWA, J.A.:

The appellant was aggrieved by the decision of the Rung’abure Ward in Serengeti District on a land dispute between him and the respondent. The decision was given on 11th February, 2005. He was late to institute an appeal and as such he had to seek an order of extension of time to lodge the appeal out of time. This order was sought in Misc. Application No. 2 of 2005 of the Musoma District Land and Housing Tribunal (“the application”).

The application was by chamber summons supported by his own affidavit. The respondent did not resist the application and the learned Tribunal Chairman, granted the sought order. It was on 9th June, 2005. The appellant/applicant was given fourteen days from the date of the ruling within which to lodge the intended appeal. The said appeal, however, was lodged on 24th June, 2005, instead of 23rd June, 2005, which we have found out was a working day. It goes without saying, therefore, that the said appeal, i.e. Civil Land Appeal No. 14 of 2005, was lodged out of time.

Notwithstanding the above fact, the appeal was entertained and determined on merit by the District Land and Housing Tribunal (“the Tribunal”). The appeal was dismissed with costs on 28th March, 2006. Still dissatisfied, the appellant instituted Land Case Appeal No. 17 of 2006 in the High Court at Mwanza (“the appeal”).

The High Court delivered its judgment on 16th April, 2013. The appeal was dismissed with costs, hence this appeal.

When the appeal came before us for hearing, Mr. Mashaka Fadhili Tuguta, learned advocate, appeared for the appellant. For obscure reasons, the respondent did not enter appearance. Under normal circumstances, we would have adjourned the matter in order to secure the presence of the respondent or his agent. We could not do so as we were uncertain of the legal status, i.e. competence, of the appeal, after perusing the proceedings in the Tribunal.

As alluded to above, the appellant was late in instituting his appeal in the Tribunal. He sought for and was granted an order for extension of time within which to lodge his intended appeal.

      As already shown above, he was again late in lodging his appeal. The first anomaly.

We have shown earlier on that the application for extension of time was by chamber summons supported by the applicant’s (now appellant) affidavit. That affidavit, we have found out, was incurably defective as it is not shown at all in the jurat of attestation if it was sworn before any recognized Commissioner for Oaths. This was the second anomaly.

These irregularities were conceded by Mr. Tuguta who left the fate of his purported appeal in the discretion of the Court.

There is no gainsaying, therefore, that the appeal in the Tribunal was incompetent an account of having been lodged out of time. The Tribunal ought to have dismissed it.

The above fact notwithstanding, even if the appeal had been lodged in time as per the Tribunal’s order, the appeal would all the same have been incompetent. This would have so been for the simple reason that the application for extension of time was incompetent. It was not supported by a valid affidavit.

In the circumstances, we have no option other than declaring that the extension of time proceedings, and the appeal proceedings were a nullity. The decisions of the Tribunal in those proceedings were a nullity too. For this reason, as the appeal proceedings in the High Court Land Division, were premised on void proceedings in the Tribunal, we hold that they were a nullity too, as well as the impugned High Court judgment, the subject of this appeal. In the light of the above, we have found ourselves constrained to invoke our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2002, to quash and set aside the proceedings in the High Court giving rise to this appeal as well as those in the Tribunal.                                                                                                     The appellant, if he is still desirous of pursuing his appeal, should go back to the

Tribunal seeking an extension of time order to appeal out of time.

In fine, this purported appeal is hereby struck out.

      Each party shall bear his own costs, in this Court, the High Court and the Tribunal.

DATED at MWANZA this 28th day of October, 2016.

E.M.K. RUTAKANGWA

JUSTICE OF APPEAL

S.A. MASSATI

JUSTICE OF APPEAL

S.E.A MUGASHA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

P.W. Bampikya

SENIOR DEPUTY REGISTRAR

COURT OF APPEAL.