Mohamedi Geregeza v. Hamadi Juma, Civ no 153 of 2006 ( tresspass)

THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL APPLICATION NO. 153 OF 2006

In the Matter of Intended Appeal

MOHAMEDI GEREGEZA    …            APPLICANT

VERSUS

HAMADI JUMA         …    RESPONDENT

(Application for extension of time to apply for a Reference from the ruling of a Single Judge of the Court of Appeal of Tanzania at Dar es Salaam)

(Kileo, J. A.)

dated the 28^th day of September , 2006

in

Civil Application  No. 86 of 2005

.......

RULING

RAMADHANI, J.A.:

Mohamedi successfully sued Hamadi before the Primary Court Magistrate of Manzese in Civil Case No. 36 of 2000, complaining of trespass committed to his unfinished house. Hamadi’s defence was that the plot on which the house in dispute is built was a subject matter of a suit between him (Hamadi) and one Juma Mfaume before the Primary Court at Magomeni in Civil Case No. 51 of 1997 which went on appeal to the District Court at Kinondoni (Civil Appeal No. 60 of 1997) and finally in the High Court as Civil Appeal No. 33 of 1999 (MACKANJA, J.). Hamadi was successful in all three forums.

However, that defence was rejected by the Primary Court Magistrate in that Civil Case No. 36 of 2000 because he was satisfied that Mohamedi bought the plot from the said Juma Mfaume on 19 April, 1997. Hamadi appealed to the District Court at Kinondoni in Civil Appeal No. 69 of 2000 and won. The District Magistrate reversed the Primary Court judgment and said that the PCM was wrong to hold that Mohamedi was not involved in the previous suit and subsequent appeals. The plot was held to belong to Hamadi, and NOT Juma, as the Primary Court had decided.

However, the District Court went further that Hamadi did not seek a court order to restrain Mohamedi from developing the plot. Instead Hamadi went into the plot and finished the structure that was built by Mohamadi by putting on a roof on the said building. So, the court held that Mohamedi was the owner of the unfinished house and ordered Hamadi to compensate him an amount that would be determined by the Government Valuer.

Both Hamadi and Mohamedi went to the High Court to have that judgment revised in Civil Revision No. 42 of 2001 and Civil Revision No. 47 of 2001 respectively. IHEMA, J. consolidated the two applications as Civil Revision No. 42 of 2001 and decided in favour of Hamadi saying:

Without labouring the point it is clear that the District Court, having confirmed that Hamad Juma was the lawful owner of the disputed plot, proceeded in error to order the owner to pay compensation for the development carried out by Mohamed Geregeza who at law is but a trespasser.

The learned Judge concluded:

For the avoidance of doubt Hamad Juma’s ownership over the suit plot is confirmed. It is up to Mohamed Geregeza to seek redress from Juma Mfaume Chuma who fraudulently sold him the disputed plot which was not his property.

That decision was delivered on 10/10/2002 in the absence of both parties who were aware of the delivery date. The learned Judge ordered that the parties be notified of the ruling. Mohamedi, according to his affidavit before MROSO, J. A., claims to have known the ruling on 24/10/2002. If so, his 14 days within which to lodge his notice of appeal expired on 08/11/2002. He lodged it on 29/11/2002, when he was late by 22 days.

Mohamedi on 28/11/2002 went to the High Court with an application for leave to appeal to this Court. That application was struck out on 30/11/2004 by ORIYO, J. for being out of time. It would then appear that Hamadi came to this Court in Civil Application No. 68 of 2005 seeking that the notice of appeal lodge by Mohamedi be struck out for failure to take essential steps and MSOFFE, J. A. did that on 02/12/2005.

Mohamedi made an application, Civil Application No. 86 of 2005, seeking to enlarge time within which to lodge a notice of appeal. That application came before MROSO, J. A. The learned Justice of Appeal took it that ORIYO, J. struck out the notice of appeal on 30/11/2002 and he wondered what notice of appeal was then struck out by MSOFFE, J. A. on 02/12/2005 for he had not seen any indication that the notice of appeal had been reinstated.

I say that that holding was an oversight on the part of MROSO, J. A. because ORIYO, J., as a High Court judge, did not have the power to strike out a notice of appeal lodged in this Court. What was before her was an application for leave to appeal to this Court and she gave the following order:

The application is incompetent and is hereby struck out.

It is loud and clear, to me, that what she struck out was the application before her, leave to appeal, and not the notice of appeal.

MROSO, J. A. took it that the application to enlarge time within which to file a notice of appeal should be calculated from the date of the ruling of ORIYO, J., that is, 30/11/2002 and not when MSOFFE, J. A. gave his ruling on 02/12/2005. So, MROSO, J. A. found that Mohamedi’s application to enlarge time which he filed on 9^th June, 2005, was made more than seven months after the notice of appeal was struck out by ORIYO, J. and that no explanation was given for the delay. So, the learned Judge dismissed the application on 10^th April, 2006.

Two things have to be pointed out: One, ORIYO, J. did not strike out the notice of appeal and two, the difference between the ruling of ORIYO, J. on 30/11/2004, and that of MSOFFE, J. A. on 02/12/2005, is a year and two days and that makes a material difference in calculating the period of limitation. Thus MSOFFE, J. A. struck out the notice of appeal 5 months and 24 days after Mohamedi had filed his application for the extension of time within which to lodge a notice of appeal on 09/06/2005.

I have to make it clear that Mohamedi applied for the extension of time to file a notice of appeal not because it was struck out by ORIYO, J., but because he was out of time when he filed his notice of appeal on 29/11/2002. As I have said, he became aware of the ruling of IHEMA, J. on 24/10/2002 so time ran out on 8/11/2002. So, actually MSOFFE, J. A., unknowingly, struck out an improper or a defective notice of appeal. He merely acted upon the application of Hamadi on the grounds of failure to take essential steps: One, failure to serve Hamadi with a copy of the letter applying for the record of appeal. And, two, failure to institute the appeal with sixty days of the lodging of the notice of appeal.

But apart from those two grounds before MSOFFE, J. A., there were two others: One, the notice of appeal was filed out of time, as I have already demonstrated. And, two, there was no leave to appeal. ORIYO, J. struck out the application for leave and there was no fresh application in this Court. I am aware that this matter started in the Primary Court and, strictly speaking, there ought to have been a certificate of point of law. However, before IHEMA, J. there were two applications for revisions and not appeals. So, what was required was leave to appeal. 

So, despite the oversight, the ruling of MROSO, J. A. to dismiss the application for extension of time within which to file a notice of appeal remains valid. The notice of appeal had already been struck out by MSOFFE, J. A. and the application before MROSO, J. A. was not a response to the decision of MSOFFE, J. A.

Of course, Mohamedi was dissatisfied with that ruling of so he came back to this Court with Civil Application No. 60 of 2006 seeking an extension of time within which to file a reference against that ruling of MROSO, J. A. On 28^th September, 2006, KILEO, J. A. dismissed that application on two grounds: One, the application was made under wrong provisions of the law. Two, there was no reason why Mohamedi was late again to seek the reference.

Mohamedi has yet filed this application, Civil Application No. 153 of 2006, seeking an enlargement of time within which to file a reference against the ruling of KILEO, J. A. This application has been lodged on 31^st October, 2006, while the ruling of KILEO, J. A. was on 28^th September, 2006. So, this application, again, is 25 days late because he had to seek the reference not later that 05^th October, 2006.

One wonders why there is this chain of delays beyond the prescribed times and Mohamedi, admittedly, a layman, keeps on repeating the same failure. The question which comes to mind is whether Mohammedi is really serious with the matter or he is just applying delaying tactics to inconvenience the decree holder, Hamadi. IHEMA, J. gave Mohamedi a sound advice, that is, to sue Juma who unscrupulously sold him the plot which is beset with legal tangles. The advice has not been heeded.

I have deliberately taken pains to trace out the history of this matter so as to put it in one record and demonstrate this abuse of the process of the Court.

Besides, Mohamedi was aware that he was buying a plot which had a dispute in court. When Mohamedi bought the plot from Juma Civil Case No. 51 of 1997 between Hamadi and the said Juma was pending in the Magomeni Primary Court. Mohamedi himself said before IHEMA, J. thus:

Respondent – My Lord I am not satisfied with the decision in 60/97 dated 2/2/2001 due to:

That the plot sold to me was sold in error this is not true because I bought the plot on 19/4/97 from Juma Mfaume. There is a sale agreement to that effect. I started construction immediately. On 25/5/97 I had done substantive development on the area. As regard the case [Civil Case No. 51 of 1997 of the Primary Court, Magomeni] I recall that it was mentioned for the first time on 19/3/97. (Emphasis is supplied.)

Mohamedi bought the plot a whole month after the case was first mentioned. So, he was aware that there was a dispute over the plot he was buying. He is, therefore, not a bona fide purchaser for value.

I have no hesitation to dismiss this application in its entirety with costs. 

DATED at DAR ES SALAAM this 19^th day of April, 2006.

A.  S. L. RAMADHANI

JUSTICE OF APPEAL

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

( S.M. RUMANYIKA )

DEPUTY REGISTRAR

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