RULING SOPHIA KASWAHILI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY AT MWANZA LAND APPEAL NO. 30685 OF 2024 (Arising from Order of District Land and Housing Tribunal of Mwanza at Mwanza in Application No. 02 of 2024 before Hon. Lekamoi – Chairperson)) SOPHIA KASWAHILI (Administratrix of the Estate of the Late Kaswahili Bakari ………………….………….…………. 1ST APPELLANT LETISIA ERASTO …………………………………………..………….…. 2ND APPELLANT FROLOA ERASTO …………………..………………………….…………. 3RD APPELLANT MARIAM ERASTO ………………………………………………….……… 4TH APPELLANT DALAHILE ERASTO ………………………...……………………….……. 5TH APPELLANT SSHIJA DOKELA ……………………………………………………….…. 6TH APPELLANT RICHARD MALASHI ………………………..……………………………. 7TH APPELLANT IKUPA MSIKA ………………………..…………………………….……… 8TH APPELLANT CHRISTINA KASWAHILI BAKARI ……………………..……………… 9TH APPELLANT VERSUS ALLY ABDALLAH MAHULUKE ………………………………….………. RESPONDENT RULING 11th & 12th March, 2025 E. L. NGIGWANA, J. The appellants, through the service of Ms. Nzaniye Karubutse, learned advocate from Nzaka & Company Advocate, have lodged this appeal to challenge the order of the District Land and Housing Tribunal of Mwanza at Mwanza in Application No. 02 of 2024. 1 However, upon reading the appellants’ petition of appeal, I discovered the following; one, the appeal was preferred in the form of a petition of appeal instead of a memorandum of appeal. Two, the petition of appeal was not dated and signed by an advocate who drew and filed it and three, it was not accompanied by the order appealed from. Following such discovery invited the parties to address the competency of this appeal based on the 2nd and 3rd points above. Before embarking on the submissions of the parties, I would like to address the first point. I am aware that the Land Disputes Courts Act, [Cap. 216 R.E. 2019] and its regulations are silent on the mode to be used to appeal against the decision or order of the tribunal when the Tribunal was exercising its original jurisdiction. However, the remedy is provided for under section 51 (1) of the Land Disputes Courts Act which provides that; “51. -(1) In the exercise of its jurisdictions, the High Court shall apply the Civil Procedure Code and the Evidence Act and may, regardless of any other laws governing production and admissibility of evidence, accept such evidence and proof which appears evidence and proof which appears to be worthy of belief. Cap. 33” Applying the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC), it means that a party aggrieved by the decision or order delivered by the 2 District Land and Housing Tribunal exercising its original jurisdiction, and wishes to appeal to the High Court shall use the Civil Procedure Code, [Cap. 33 R.E. 2019] to file his/her appeal. Order XXXIX rule 1 of the CPC provides clearly that every appeal shall be preferred in the form of a memorandum of appeal. Whether an appeal is to be preferred in the form of a “petition” or “memorandum” of appeal, this court has developed two schools of thought. The first school subscribes to the view that using “petition of appeal” instead of “memorandum of appeal” offends the mandatory procedure provided for under Order XXXIX rule 1 of the CPC which directs the specific wording to be used. According to the First School of thought, using the word “petition of appeal “renders the appeal incompetent, and hence must be struck out. The following cases support the first school of thought. Amidu Damian Likiliwike vs. Steven Temba (Land Appeal 3 of 2020) [2020] TZHC 1350 (16 June 2020) Tanzlii where Matogolo, J. stated as follows: - "There is therefore a mandatory requirement for the appeal to be in the form of "memorandum of appeal" due to the word "shall" used which has mandatory requirement." See further Rabieth s/o Mpembeni and Another vs Bonitha D/o Mlyelye (Land Case Appeal 14 of 2019) [2021] TZHC 9158 (23 November 3 2021) Tanzlii, Edward Otesoi vs Maingwa Mario (Misc. Land Appeal 36 of 2019) [2020] TZHC 351 (31 March 2020) Tanzlii, and Lucas Philipo vs. The Registered Trustees of Kanisa La Pentekoste Tanzania [2011] T.L.R. 220. The 2nd school of thought subscribes to the view that the word “petition” and memorandum as used in appeals are analogous to each other and there is no clear distinction worth rendering the appeal incompetent. The cases supporting this school include Felician Mchuruza vs. Zindunza Mnaku [2013] T.L.R. 210 where Hon. Mwambegere, J. now JA, stated as follows: - "Whether one uses Petition of Appeal or Memorandum of Appeal in the documents does not matter. They just are different names meaning one and the same thing, intended to serve the same purpose. The use of the title "Memorandum of Appeal" instead of "Petition of Appeal" as provided for by cannot ipso facto render the appeal incompetent." See also Basil Masere vs. Petrol Michael [1996] TLR 226, Sophia Joackim Mganya vs. Philipo Gasper Kilenga (Consolidated Civil Appeal No. 36 of 2022) [2023] TZHC 16295 (22 March 2023) Tanzlii, Yoram Niima vs. Zakaria Numa (Land Appeal 71 of 2019) [2021] TZHC 2889 (14 4 April 2021) Tanzlii, and Rustica Mwalyosi vs. Raphael Mwalyosi (Civil Appeal 261 of 2020) [2021] TZHC 3507 (27 May 2021) Tanzlii. I subscribe to the 2nd school of thought, that is why I saw no need to invite the parties to address me on this issue. I now turn to the submissions of the of the parties. Taking the floor, Ms. Karubutse, learned advocate for the appellants, submitted by conceding that she filed this appeal electronically, but the petition of appeal which she filed was not dated and signed by the appellants or herself as their advocate. She further submitted that the appellants were aggrieved by the order of the District Land and Housing Tribunal of Mwanza in Land Application No. 2 of 2024 but the present petition of appeal was not accompanied by a copy of the said order, instead, it was accompanied by a copy of the order of the same DLHT in Application No. 318 of 2023 involving the same parties. The learned counsel concluded her submission by praying to the court to allow the appellants to amend the petition of appeal, and she cited Order VI rule 17 of the CPC Cap. 33 R.E. 2019 to support her prayer. On the other hand, Mr. Arsein Molland, learned advocate for the respondent submitted that the Land Disputes Courts Act, [Cap. 216 R.E. 5 2019] is a specific law that regulates land matters but where there is lacuna, the CPC must come into play through section 51(1) of the Land Disputes Act. He added that as per Order XXXIX rule 1 of the CPC, every appeal must be accompanied by a copy of the decree or order appealed from. He went on to submit that the provision is couched in the mandatory terms because under section 53 (2) of the Interpretation of Laws Act, [Cap 1 R.E.2019 when the word 'shall' is used in any written law in conferring a function, such word shall be interpreted to mean the function must be performed Submitting on the omission to date and signing the petition of appeal, Mr. Molland stressed that the undated and unsigned petition/memorandum of appeal offended Order VI rule 14 of the CPC, which requires pleadings to be signed. According to him, Order VI rule 17 of the CPC cited by the learned advocate for the appellants cannot cure this appeal; the only remedy is to strike it out. To support his stance, Mr. Molland cited the case of Ibrahim Kigombe vs. Mary Sange & 2 Others (Civil Appeal 7 of 2022) [2022] TZHC 14754 (24 November 2022) Tanzlii. Having heard the parties' submissions, the issue for determining whether this appeal is competent. Order XXXIX Rule 1 of the CPC provides that; 6 “1. -(1) Every appeal shall be preferred in the form of 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 of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded” The possible question that may arise here is whether the order appealed has been covered by the above provision of the law. The answer is not far to fetch. In the case of Mariam Abdalla Fundi vs Kassim Abdalla Farsi (Civil Appeal No. 7 of 1991) [1991] TZCA 54 (3 December 1991) Tanzlii, the Court had this to say; “That Order 39, Rule 1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from and where the appellant has failed to comply with this provision, the appeal is not properly before the court….” (Emphasis added). As pointed out earlier, this appeal was filed without being accompanied by a copy of the order appealed from. Furthermore, even though the petition of appeal was drawn and filed by a senior advocate, it was not dated but also not signed by the appellants or their advocate. With due respect to 7 learned counsel for the appellants, it is as if she was not aware of the existence of Order XXXIX Rule 1 of the CPC, and if she was aware, she would have preferred this appeal in the form of a memorandum of appeal duly signed by the appellants or herself and duly accompanied by a copy of the order appealed from. Had the anomaly been only that of preferring the appeal in the form of “Petition of appeal” instead of “Memorandum of appeal,” the appeal would have survived because, as pointed out earlier, I subscribe to the 2nd school of thought. Because the petition of appeal was not accompanied by a copy of the order appealed from, but also the said petition of appeal was not dated and signed by the appellants or their advocate, it is the finding of this court that this appeal is incompetent. The appellants’ advocate argued that the same is curable by way of amendment under Order VI rule 17 of the CPC. However, I shake hands with the respondent’s advocate that the same cannot be rescued by way of amendment. I am also aware of the principle of Overriding Objective which was introduced to facilitate just, expeditious, proportionate, and affordable resolution of disputes without due regard to technicalities as opposed to substantive justice, but the principle does not help a party to circumvent the 8 mandatory rules and procedures. This position was articulated in the case of Martin D. Kumalija & Others vs. Iron & Steel Ltd (Civil Application No. 70 of 2018) [2019] TZCA 234 (5 March 2019) Tanzlii. Similarly, in the case of Juma Busiya vs. Zonal Manager, South Tanzania Postal Corporation (Civil Appeal 273 of 2020) [2021] TZCA 522 (27 September 2021) Tanzlii, it was held that: “The principle of overriding is not the ancient Greek goddess of universal remedy called panacea, such that its objective is to fix every kind of defects and omissions by parties in courts” Reading carefully the herein-cited Court of Appeal decisions, it is apparent that this appeal cannot be rescued by the principle of overriding objective because the said omission goes to the root of the appeal. In the event, this appeal is hereby struck out for being incompetent. Since the issues were raised by the court suo motu, I make no order as to costs. DATED at MWANZA this 12th day of March, 2025. E.L. NGIGWANA JUDGE 9 Delivered this 12th day of March, 2025 in the presence of Mr. Nzaniye Karubutse, learned counsel for the appellants, Mr. Arsein Molland, learned counsel for the respondent, and Ms. Gladness Mnjari, RMA. E.L. NGIGWANA JUDGE 12.3.2025. 10