AfricaPress-Tanzania: NZUGUNI residents have lost their appeal to College of Business Education (CBE) in a dispute on the lawful owner and user of land in the capital city of Dodoma.
This follows the Court of Appeal’s decision to “strike out” the appeal the residents had lodged against the High Court’s decision in favour of CBE on the matter.
Justices Rehema Mkuye, Ferdinand Wambali and Winfrida Korosso upheld one ground of appeal with the effect that the appeal was time barred.
“In the event, as the appeal is hopelessly time barred, we sustain the (…) point of preliminary objection. Having concluded that the appeal is time barred, we strike out the appeal with costs,” they declared in their judgment.
The justices noted from the record of appeal that the judgment of the High Court was delivered on December 28, 2016 and a notice of appeal was lodged on January 10, 2017 within the prescribed time.
“Unfortunately, it took the appellants almost one year and eight months to lodge the present appeal on September 18, 2018. Therefore, there is no dispute that the appeal was lodged after the expiry of 60 days prescribed by the provisions of Rule 90(1) of the (Court of Appeal) Rules.”
On the other hand, the justices maintained on June 11, 2018 the appellants applied to the High Court Registrar for copies of proceedings as required under the provision of Rule 90(1) of the Rules.
“However, we regret to state that the letter cannot salvage the competence of the appeal,” they said.
The justices emphasised that in terms of Rule 90(1) of the Rules, the letter requesting to be supplied with certified copies of the proceedings could be validly relied on by a party in explaining the period of delay, if it was written within 30 days from the date of the decision sought to be challenged on appeal.
On the contrary, the justices said the appellants’ letter was written almost after more than five months after the delivery of the decision of the High Court.
Moreover, they said for that letter to be of any assistance, the Registrar of the High Court must have issued to the appellants a certificate of delay, certifying that the days in respect of the period of delay should be excluded in computing the period of limitation.
Besides, according to the justices, for the appellants to have relied on that letter, the same must have been served to the respondent as required by Rule 90(3) of the Rules.
“This is not the case in the present appeal. According to the records of appeal, the appellants neither copied nor served the letter to the respondent. As the appellants did not fully comply with the requirements of Rule 90(1) and (3) of the Rules, they were bound to lodge the appeal within 60 days,” they said.
CBE sued 12 residents of Nzuguni in a land case No 6 of 2012 instituted at the High Court of Tanzania in Dodoma.
The main prayer, among other things, was for a declaratory order that the respondent was the lawful owner and user of the land located to him in Nzuguni, Dodoma Municipal Council.
The appellants resisted the suit as they lodged a written statement of defence and a counter claim. The High Court heard the evidence from both sides and in the end decided in favour of the respondent.
Aggrieved, the appellants lodged the present appeal in which they presented three grounds of appeal to contest the judgment and decree of the High Court.
