RULING ON PO KASWA NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCELLANEOUS CIVIL APPEAL NO. 21408 OF 2024 (REFERENCE NO. 202408301000021408) ABRAHAM MWANDAMlLA KASWA...........................................APPELLANT VERSUS TOWN PLANNERS REGISTRATION BOARD...........................RESPONDENT RULING 18/09/2024 & 26/09/2024 MANYANDA, J.: The counsel for the Respondent has raised a limine iitis objecting the hearing of this appeal based on two points as follows: - 1. The memorandum of appeal has annexures which contravene Order XXXIX Rule 1(1) of the CPC; and 2. The appeal contravenes the ruling of this Court delivered in Misc. Civil Application No. 12679 of 2024 between Abraham Mwandamila Kaswa and the Town Planners Registration Board dated 31/07/2024 by Hon. Kagomba, J. in which when determining points of illegality, this Court dismissed some illegalities as grounds for extension of time and accepted others. This Court is functus officio. The same grounds have been brought to the same Court for determine. Page 1 of 14 He prayed the appeal to be dismissed with costs. When was given chance to defend against the objection Dr. Murungu, the Appellant's Counsel submitted raising a concern on the manner the said objection was raised arguing that it has no prior notice filed in court, hence taking them with surprise. According to his view, since the objection has not bee filed in court, then the same does not qualify as an objection in law. He asked for the same to be struck out. In alternative, Dr. Murungu submitted opposing the first limb of the objection arguing that the appeal does not contravene Order XXXIX Rule 1(1) because the memorandum of appeal qualifies as such though it has no copy of decree attached. He went on arguing that the law under which the appeal is brought, does not have a requirement of a decree, but they attached a copy of the impugned decision. In that context, he was of the view that the same met the requirement under Order XXXIX Rule 1(1) as they attached a decision dated 27/12/2023, a ruling of this Court condoning the appeal to be filed out of time and a drawn order thereof. Further, the counsel conceded that they attached other documents related to the disputed decision, subject for determination by this Court. Page 2 of 14 That they attached all documents which in their view form the basis of this appeal, documents which even if they did not attach, this Court is empowered to order the same to be availed to it. According to the counsel, what the Appellant did is just to ease the Court which, any way, is still unlimited to call for the record from the Board. He prayed the first limb of the objection to be over ruled. In respect of the second limb of the objection about this Court being functus officio, Dr. Murungu conceded that the memorandum of appeal includes both rejected and accepted illegalities, but he quickly pointed out that what this Court rejected were illegalities as grounds for good cause for extension of time, but the same are substantive grounds for this appeal. He was of the view that they could have been functus officio had they were also grounds for extension of time in this matter. Further that what the Appellant has done is just to comply with the drawn order dated 31/07/2024. Moreover, the counsel invited this Court to refer to page .... of the its ruling extending the time where it warned itself and avoided to discuss merits of this matter hence, it neither discussed nor deliberated on the validity of points of illegalities. Also, it did not discuss and frame grounds to be considered on appeal, as is done in applications for Page 3 of 14 certifications on points of law to appeal to the Court of Appeal of Tanzania where this Court frames such grounds of appeal. He prayed the second limb of the objection also to be overruled. On his turn, Mr. Ngatanda, for the Respondent rejoined that he was still sticking onto his objections. He responded on the concern by the Appellant's counsel on the issue of filing of a notice arguing that the situation has changed with online filing because documents are filed directly in the court system which does not allow the parties to access; hence the Appellant’s counsel did not see it due to the system procedures. As regard to the first limb of the objection, the State Attorney insisted that Order XXXIX Rule 1(1) require a memorandum to be accompanied with the decision only. Then, the Court may direct whether other documents should be availed to it. That, this appeal contains more than the decision as it contains proceedings and other attachments which are not necessary at the moment until this Court needs them from the Board. In respect of the second limb of objection, the State Attorney maintain that the issues of illegalities are functus officio because at page Page 4 of 14 26 of the ruling granting extension of time this Court sieved them and found others were in fact not illegalities for purposes of extension of time. He reiterated his prayer, that objection be sustained, and the alleged appeal struck out. Having scanned the submissions by the parties' counsel, I find the issue for determination is whether this appeal is incurably marred by the legal technicalities raised by the Respondent's counsel. I will start with the style the objection was raised. Dr. Murungu complaint is that the objection has been wrongly raised without a prior notice been filed in court. Mr. Ngatanda position is that a notice was filed online, unfortunately, the court system is not accessible by the adverse party. It is the position of the law in ensuring fair hearing that where an objection is intended to be raised against hearing of a given matter, a prior notice is given. The requirement of a notice is meant to prevent surprise. In the case of Registered Trustees of the Baptist Convention of Tanzania @ Jumuiya Kuu ya Wabatisti vs. James Kasomi and 3 Others, Civil Case No. 08 of 2021 (unreported) I cited with approval my brother Hon. Mwenempazi, J. holding in Gabinius Page 5 of 14 Singano vs. St, Timoth Pre & Primary School, Labour Revision No. 8 of 2019 (unreported) where been faced with a situation akin to this had this to say: - "The law is silent on the manner which a preliminary objection should be raised, however, practice has shown that one should give notice o f preliminary objection and the essence o f the notice is to allow the other party prepare his defence. It was therefore not proper for the applicant to raise an objection at the time when he was supposed to respond to the preliminary objection that had been raised by the respondent." This position was also well elucidated by our superior most court, the Court of Appeal of Tanzania in the case of Commissioner General (TRA) vs. Pan African Energy (T) Ltd, Civil Application No. 206 of 2016 (unreported) where been faced with a situation similar to this one in an application, amidst submissions in respect of a preliminary objection, the Counsel for the Respondent raised a preliminary objection. There was no provision in the Rules providing for requirement of lodging a prior notice to the preliminary objection. The Court stated as follows: - We made it clear that there is no specific rule concerning preliminary objections to applications filed in court. We were also satisfied that a preliminary objection to an application is, procedurally, similar to preliminary Page 6 of 14 objection to an appeal, and must therefore be made the before hearing o f the application begins. It may be irrelevant to state that the applicant, as stated by Mr Bhojan, has surprised the opposite party and the court by raising a preliminary objection without prior notice. It is elementary law that litigation should be conducted fairly, openly and without surprises. In Hon. B. P. Mramba vs. Leons S. Ngalai and the Attorney General [.1986] TLR 182 we made reference to HalsburyS Laws o f England, 4h Edition, Vol. 36, Paragraph 38 and underlined: - 'The function o fparticulars is to carry into operation the overriding principle that litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises, and incidentally to reduce costs.' After saying so, the Court of Appeal went on stating that: - "On this point we find it irresistible to associate with the persuasive decision o f the High Court o f Kenya (Mbogholi and Kuloba, JJ) in Juma and Others vs. Attorney General [2003] 2 EA 461, wherein it was stated at p. 467: 'Justice is better served when the element o f surprise is eliminated from the trial and the parties are prepared to address issues Page 7 of 14 on the basis o f complete information o f the case to be met.' For the avoidance o f doubt, we are aware that the foregoing authorities were dealing with surprise in the course o f trial. However, we are certain in our minds that the principle is applicable to the situation at hand as well." In those cited cases above, the courts refrained from entertaining the preliminary objection for lack of a prior notice. However, the situation is different in the case at hand. I have inspected all the documents in the Digital File available in the Electronic Case Management System (e-CMS) of the judiciary and found there is a document headed "Notice of Preliminary Objections" dated 10/09/2024. As rightly submitted by Mr. Ngatanda, the e-CMS, still being undergoing construction, at the moment does not allow parties to see documents filed online. However, in order to cure the mischief and avoid parties to be caught in surprise, it has been a practice for them to serve each other with hard copies. In this matter, though the Appellant's counsel was not served, I find no prejudice occasioned because he understood the nature of the objections and was able to address this Court accordingly. Page 8 of 14 As regard to the objection in the first limb, it is evident that both counsel agree that Order XXXIX Rule 1(1) require a memorandum to be accompanied with the decision only. Also, it is not disputed that in this matter, the Appellant attached more documents than the impugned decision. I have read the provisions of XXXIX Rule 1(1) and found that truly, it is only a decree or a decision intended to be challenged that is required to be attached to the memorandum of appeal. It reads as follows: - "XXXIX Rule 1(1) Every appeal shall be preferred in the form o f a memorandum signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy o f the decree appealed from and (unless the Court dispenses therewith) o f the judgment on which it is founded." (emphasis added) In my understanding from the counsel submissions, the Appellant attached the impugned decision, but added others which include proceedings and documents used in presenting the cases before the Board. Page 9 of 14 It is a settled principle of law that this Court, and which has been a long-standing practice, is always empowered to call for original records from the inferior court or tribunal for it to justly get satisfied on the propriety or otherwise of the procedure and the decision reached. In this matter, I think the counsel for the Respondent is worried about genuineness of "those other documents" attached by the Appellant that this Court may act on the same. This is a fear for nothing because in order for this Court to ensure fair hearing, it must use the original documents from the concerned tribunal. Therefore, existence of "those other documents" has nothing prejudicial to the Respondents. The first limb of objection has no merit. In regard to the second limb of objection it is not disputed that the memorandum of appeal includes both rejected and accepted points of illegalities by this Court when it deliberated the application for extension of time. However, it was the argument by the counsel for the Appellant that the points which were rejected by this Court were discussed in the context of extension of time as grounds for extension of time and this Court refrained from determining the same after finding that doing that would amount to hearing of the appeal itself. Moreover, the counsel Page 10 of 14 maintained that in the matter at hand the illegalities have been raised as substantive grounds of appeal. In my view, this objection appears to fall short of qualification for preliminary objection because it concerns matters to be ascertained from facts. I say so because in order for this court to sort out whether a complaint is on illegality will have to got to the proceedings and decision reached by the Board and see whether such a point was actually canvassed by this Court in the application for extension of time. I think, such a task can better be dealt with when deliberating on the grounds of appeal rather than in an objection like this one where the law requires only clear and undisputed facts to form the basis of the objection. It is trite that a preliminary objection is limited to point of law which are manifest on the face of the record and which need no long process of ascertainment and reasoning. A relevant case here is the case of Musanga Ng'andwa vs. Chief Japhet Wanzagi and Eight Others, [2006] TLR 351 where the Court of Appeal stated inter alia as follows: - "The expression preliminary objection has been used in our jurisdiction to refer to objection to the jurisdiction o f the Court, a plea o f limitation and the like; it contains a point o f law which, if argued as a preliminary point, may dispose o f the suit; a preliminary objection cannot be Page 11 of 14 raised if any fact has to be ascertained, that is, it cannot be based on unascertained factual matters."(emphasis added) In Misc. Civil Application No. 12679 of 2024 between Abraham Mwandamila Kaswa and the Town Planners Registration Board dated 31/07/2024 this Court, Hon. Kagomba, J. deliberated on the illegalities based on, among others, the principle of "manifest on the face of the record" and the principle of "sufficient importance to the matter under consideration". It was argued by the Respondents' counsel at page 16 of the ruling and accepted by this Court that some alleged points of illegalities were in fact not manifest on the face of the record, it was stated as follows: - the issue whether or not the applicant was heard now may require a long-drawn argument since there is hearing by the Board and Committee o f inquiry o f the Board. Under such circumstances, the applicant will necessarily have to make long argument to justify that he was not heard, thereby disqualifying his contention as an illegality in light o f the cases above cited." Then, his Lordship Hon. Kagomba, J. deliberated at pages 18-19 as follows: - Page 12 of 14 "As for the significance o f the cited potential illegalities, there is no doubt that the same have significant bearing to the right to be effectively heard, and the same were pleaded by the applicant in the affidavit as can be gleaned in paragraphs 6(i) & (ii) and 7 o f the affidavit supporting the application. With the above illegality being alleged, it follows therefore that the principle o f law stated in Principal Secretary, Ministry o f Defence andNational Service vs Devram Valambhia (supra) stands. The Court has a duty to pave way for such illegality to be ascertained so that, if the same is established, appropriate correctional measures be invoked, accordingly" As it can be seen, the issue of illegality was not finely resolved. It is on these reasons that this Court finds it expedient to deal with issues of illegalities when deliberating on the grounds of appeal, of course, with mind on case laws, which include the ruling of this Court extending time for the Appellant to bring this matter. I also don't find merit in the second limb of objection. In the upshot, for reasons stated above, the preliminary objection is hereby overruled. Cost in the course. Dated at Dodoma this 26th day of September, 2024 Page 13 of 14 F. K. MANYANDA JUDGE Delivered at Dodoma in the presence of Mr. Lucius Njiti, the counsel for Applicant and Abraham, the Appellant present in court both by virtual court, on one hand and Messrs Omary Ngatanda State Attorney and Benjamin K. Mihayo, Senior State Attorney for the Respondents of the other hand also present in court by virtual court this 26th day of September, 2024. Preliminary objection is overruled. Costs in the course. F. K. MANYANDA JUDGE Page 14 of 14