abdallah bakari vs mikidadi ramadhani 2023 tzhc 18508 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF TABORA

AT TABORA MISCELLANEOUS CIVIL APPLICATION NO. 6 OF 2023 (Arising from PC. Civil Appeal No. 12 of2020 of the High Court, Civil Appeal No. 1 of 2018 of Tabora District Court and Original Civil Case No. 48/2016 of Tabora Urban Primary Court) ABDALLAH BAKARI......... -........................................... APPLICANT

VERSUS MIKIDADI S/O RAMADHANI.................................. RESPONDENT

RULING Date 19/04/2013 & 23/06/2023 BAHATI SALEMA, J.: Abdallah Bakari, the applicant herein, preferred this application through chamber summons attached with a supporting affidavit sworn by the learned counsel, Mr. Masendeka Anania Ndayanse. This application emanates from the Judgment of this Court in PC Civil Appeal No. 12 of 2020 where the learned Judge upheld the decision of Tabora District Court, the decision that dismissed the applicant's first appeal. The application is brought under section 5(2)(c) of the Appellate Jurisdiction Act, Cap. 141 [R.E 2019]. The applicant is seeking an order of this Court to certify seven points listed in paragraph 5 of the affidavit as points of laws worth consideration by the apex Court of the land. At the hearing, both parties appeared in person unrepresented. The Court welcomed the applicant for submission but he had nothing to submit than a prayer for the Court to adopt the affidavit sworn by his counsel. i Likewise, the respondent on his side prayed the Court to dismiss the application since there is no issue worth consideration. As per the supporting affidavit, the applicant has demonstrated a total of seven grounds which he believes to be pure points of law requiring the attention of the Court of Appeal of Tanzania, these are; 1. Whether the numbering of Civil Case No. 48/2016 in the year 2014 and the years 2016 and 2017 as Civil Case No. 8/2016 alleging an order of "retrial de novo" is fatal to the proceedings.

2. Whether failure to pronounce a judgment of a counterclaim by the appellant (the then defendant) is fatal, 3. Whether failure to record the opinions of the gentlemen assessors/lady assessors in the trial Court Judgment is fatal, 4. Whether the 1st Appellate Tabora District Court had any jurisdiction whatsoever to preside over and determine Appeal No. 1/2018, 5. Whether failure to consider the applicant's written arguments in support of the appeal by the High Court is proper, 6. Whether the 1st appeal was based upon factual matters only.

7. Whether the 2nd appellate High Court of Tanzania at Tabora had any Jurisdiction to preside over and determine the appeal. h brief history of cases that led to the emergence of this application is that in 2016 the respondent herein named Mikidadi Ramadhani filed a Civil case at Tabora Urban Primary Court against the appellant claiming the payment of TZS: 1,300,000/- after he had supplied bags of sardines to the applicant. The case was heard before Hon. Abelly John and the judgment was delivered in favour of the respondent on 29/04/2016. Later on, the District Court of Tabora overturned the decision and ordered a fresh hearing of the matter. 2 In 2017 the matter was re-opened in the Primary Court but this time the court committed a judicial error by re-opening proceedings on the previous case file without giving it a new number. The case was heard and determined in favour of the respondent and the applicant was ordered to pay him a total of TZS: 1,300,000/= plus TZS: 10,000/= as costs. Dissatisfied with that decision, the applicant appealed to the District Court and upon full consideration of the grounds of appeal the appeal was dismissed and the decision of the trial Court was upheld. Again, the applicant was aggrieved by the decision of the District Court, he appealed praying to the Court to overturn the decisions of the two Courts below but upon hearing the appeal the

learned Judge was not convinced by the grounds of appeal levelled by the applicant, he therefore dismissed the appeal hence this application. Having carefully gone through the affidavit, counter affidavit and the prayers advanced by both parties, the issue to determine is whether the seven proposed points require determination by the Court of Appeal of Tanzania. Certification on points of law for appeal purposes is not automatic, this Court will have to consider points to be certified as contained in paragraph 5 of the affidavit sworn by the applicant's counsel. The practice of this Court in applications of this nature was stated in the case of Harban Hajimosi & Another vs Omari Hiiai Seif and Another [2001] TLR 409 wherein the following observation was made; "Therefore, according to subsection (2) (c), a certificate on point of law is necessary with appeals related to matters originating in Primary Courts. The practice of the High Court is to frame such a point or to approve and adopt one 3 framed by the intending appellant to certify it to the Court of Appeal" However, the Court of Appeal of Tanzania in Dorina N. Mkumwa vs Edwin David Hamis Civil Appeal No. 53 of 2017 briefly stated what is expected by the Court of Appeal from the Certifying High Court stated; "Therefore, when High Court receives applications to certify a point of law, we expect Rulings showing

serious evaluation of the question of whether what is proposed as a point of law is worth to be certified to the Court ofAppeal. This Court does not expect the certifying High Court to act as an uncritical conduit to allow whatsoever the intending appellant proposes as a point of law to be perfunctorily forwarded to the Court as the point of law" Starting with the first point on whether the numbering of Civil Case No. 48/2016 in the year 2014, 2016 and 2017 as Civil Case No. 8/2016 is fatal to the proceedings, this point was exhaustively discussed by the 1st appellate Magistrate on page 1 and 2 of the Judgement. The learned Magistrate pointed out clearly that the trial Court committed a judicial error by restoring a de novo\x\a\ with the numbers of a previous case. It was the 1st appellate Court finding that the error did not touch the merit of the case and the parties were not prejudiced due to wrong registration of the case to the Court Registers. The same findings were blessed by this Court on the second appeal. I am also of the same view that, since the error was committed by the Court itself and since the same did not affect the merit of the case this point lacks a base for certification, therefore the point is thus not certified. 4 As to the second point on whether failure to pronounce a judgment on a counterclaim by the appellant is fatal. The trial Court judgment

states that the respondent's claim was a total of TZS: 1,300,000/= and the applicant raised a counterclaim of TZS: 5,820,000/= which now the applicant faults the trial court for not deciding on the counterclaim. This claim was adjudicated by the trial Court and the findings of the Court are on page 4 of the judgment that; "... Kwa sababu hiyo madai ya mdaiwa kuwa anadai Tsh: 5,820,000/= hayana msingi wowote na wala hajaweza kuthibitisha kama kweli alimkodishia mdai maturubai haya." Moreover, the 1st appellate was of the view that the omission by the trial Court to pronounce an order regarding Counterclaim was not fatal and it went on to confirm the findings of the trial Court as the correct findings as indicated on page 8 of the judgment; "The appellate court cannot interfere with the correct findings of the trial Court as it had an opportunity to examine the demeanour of each witness and I must appreciate the conclusion reached by Hon. J. Nkya of Tabora Urban Primary Court." Since this point was exhaustively adjudicated upon by the three courts, I find no viable reason explained by the applicant for this Court to certify it to the attention of the Court of Appeal, therefore, this point is not certified. Regarding the third point on whether failure to record the opinion of gentlemen/lady assessors in the trial Court judgment is fatal. I think the question should not detain me

much because the law requires the opinion of assessors to be recorded in the proceedings, it does not make 5 it mandatory for magistrates to reproduce the same in the judgment so in this regard I do not certify this point. As to the 4th and 7th points on whether the 1st appellate Tabora District Court had jurisdiction to determine Appeal No. 1/2018 and whether the 2nd appellate High Court had jurisdiction to determine the appeal. The appellate jurisdiction of the District Court is provided by section 20(1) (b) of the Magistrates Courts Act, Cap. 11 [R.E 2022] which provides that; In any other proceedings, any party, if aggrieved by an order or decision of the primary court, may appeal therefrom to the district court of the district for which the primary court is established. Also section 25 (1) (b) of the Magistrates Courts Act, Cap. 11 [R.E 2022] confers jurisdiction to the High Court to entertain appeals from District Courts in the exercise of its appellate jurisdiction. The law states that; "... In any other proceedings any party, if aggrieved by the decision or order of a district court in the exercise of its appellate or revisional jurisdiction may, within thirty days after the date of the decision or order, appeal therefrom to the High Court; and the High Court may extend the time for filing an appeal either before or after such period of thirty days has expired." It

should be remembered that all appeals that the appellant is now questioning the powers of the Courts were initiated by the applicant himself but he is now doubting his moves. Based on the two provisions of the law cited hereinabove, the answer to the questions as to whether the 6 two Courts had jurisdiction is provided in the law, it does not need the attention of the apex Court to interpret the two provisions of the law. Regarding the fifth point on whether failure to consider the appellant's written arguments in support of the appeal by the High Court, the answer is found on the last page of this Court's Judgment where the learned Judge stated, I quote; "Having read the impugned judgment, the trial Court's records and parties' arguments, I am not persuaded that there are any glaring errors or misapprehension of evidence on the face of the record." No evidence whatsoever was brought by the applicant to disprove the statement, the judgment speaks for itself that all arguments made by I parties to the 2nd appellate Court were fully considered by the appellate Judge. Lacking the evidence to disprove the statement makes the whole point disqualified for certification. The last point for certification on whether the 1st appeal was based on factual matters only. The record of the 1st appellate Court shows that the first appeal was based on both facts and law and the

appellate Magistrate indicated on page 4 of the judgment that being the first appellate Court has the duty to examine and evaluate the records of the trial Court to see its correctness and propriety of its decision. The record indicates that the magistrate analysed both factual and legal issues. That being said this point is also rejected. In view thereof, this being an application for certification on point of law, the decision is final. This application is dismissed. Each part bears its costs. Order accordingly. 7 A. BAH ATI SALE MA

JUDGE 23/06/2023 Court: Ruling delivered in presence of both parties. A. BAHATI SALEMA

JUDGE 23/06/2023 Right of Appeal is hereby explained. A. BAHATI SALEMA

JUDGE 23/06/2023 8