bartazary wambura thomas vs ayubu joseph 2022 tzhc 14755 23 november 2022

THE UNITED REPUBLIC OF TANZANIA (JUDICIARY) THE HIGH COURT (IN THE DISTRICT REGISTRY OF MUSOMA) AT MUSOMA CIVIL APPPEAL CASE No. 4 OF 2022 (Originating from the Resident Magistrates' Court of Musoma at Musoma in Misc. Civil Application No. 13 of2021) BARTAZARY WAMBURA THOMAS............................... APPELLANT Versus AYUBU JOSEPH....................................................... RESPONDENT JUDGMENT 23.11.2022 & 23.11.2022 Mtulya, J.: On 19th September 2021, the Resident Magistrate Court of Musoma at Musoma (the court) in Civil Case No. 13 of 2021 (the case) dismissed the case for want of prosecution under Order VIII Rule 29 (a) and (b) of the Civil Procedure Code [Cap. 33 R.E 2019] (the Code). Mr. Bartazary Wambura Thomas (the appellant) was not satisfied with the dismissal order hence preferred an application for restoration of the case in Misc. Civil Application No. 26 of 2021 (the restoration application) in the same court. However, the application was protested at preliminary stages, and was determined in favor of Mr. Ayubu Joseph (the respondent) and the court held that the appellant had filed the i application for restoration out of statutory time per requirement of the law enacted in Order vin Rule 30 (1) of the Code. This citation of the law aggrieved the appellant hence rushed to this court complaining that the court grossly erred in law and fact for holding that the restoration application was filed out of time. The application was scheduled for hearing in this court today afternoon and both parties decided to invite learned counsels, Mr. Chiyengere Gaya Wandore for the appellant and Mr. Evance A. Njau for the respondent to argue the appeal on their behalf. However, before the appeal hearing could take its course, this court sue moto noted undetermined issue on the interpretation of section 19 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019] (the law of limitation) which was brought by the appellant in the case via Applicant's Written Submission in Reply to the Respondent's Written Submission on Preliminary Objection. Following the observation, the learned minds were invited to submit on the subject before appeal hearing as part of cherishing article 13 (6) (a) of the Constitution of the United Republic of Tanzania [Cap. 2 R.E. 2002] and precedent in Mbeya-Rukwa Auto Parts & Transport Limited v. Jestina George Mwakyoma [2003] TLR 251. According to Mr. Chihengere, this court may order the court to resolve the issue so that it appears 2 and be part of the record whereas Mr. Njau thinks that the issue on interpretation of section 19 (1) of the law of limitation is reflected in the Written Submissions of the parties, but the court had declined to determine it because it is a general provision in general law that cannot be invited where there is specific provision of the law in Order vill Rule 30 (1) of the Code. In my opinion, I think, it is settled law that undetermined issues at lower courts or tribunals cannot be determined at appellate level. There is a bunch of precedents on the subject determined by the Court of Appeal (see: Swabaha Mohamed Shoshi v. Saburia Mohamed Shoshi, Civil Appeal No. 98 of 2018; Alnoor Sharif Jamal v. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 and Celestine Maagi v. Tanzania Elimu Supplies (TES) & Another, Civil Revision No. 2 of 2014). Similarly, this court has been cherishing the move (see: Nyamatoma Frugence v. Hekwe Kitagita, Misc. Land Appeal Case No. 117 of 2021; FINCA Tanzania Limited (Tarime Branch) v. Omary Manyara Mkuge & Another, Land Appeal Case No. 123 of 2021; and Manyinyi Weswe v. Malibha Nyonyi, Misc. Land Appeal Case No. 34 of 2022. Having noted Mr. Njau is admitting that there is unresolved issue in the restoration application, I agree with learned counsel Mr. Chihengere that the issue has to be remitted to the court for 3 determination. In the end, I quash both the judgment and decree of the court. I further remit the record to the court to compose fresh judgment that will comprise replies to all raised issues in the submissions. I do so without any order as to the costs as the fault was caused by the court, not the parties. In any case, the undetermined issue was raised by this court suo moto and the dispute is in the course at the court. The determination and composition of the fresh and proper ruling be done by the same magistrate and completed within sixty (60) days from the date of this judgment, without any further delay. this court in the presence of Mr. Chiyengere Gaya Wandore, learned counsel for the appellant and in the presence of Mr. Evance A. Njau, learned counsel for the respondent. 23.11.2022 4