COSMAS MAGORI MOTERESA V

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA AT SHINYANGA PC. CIVIL APPEAL REF. NO. 20240730100001844 COSMAS MAGORI MOTERESA ……………..……………. APPELLANT VERSUS STEPHEN MINANGI MAGESA ………………………….. RESPONDENT [Appeal from the decision of the District Court of Kahama at Kahama] (Hon. E.P. Kente SRM.) dated the 1st day of July, 2024 in Misc. Civil Application No. 93 of 2024 ---------- JUDGMENT 22nd & 31stOctober, 2024. S.M. KULITA, J. This is an appeal from Kahama District Court. There at Kahama District Court, it was the application for extension of time by the appellant herein who had been ordered to be a civil prisoner regarding the decision of Kahama Urban Primary Court dated 18/8/2023. Upon the original case being decided ex-parte against him, the trial court ordered the appellant to be arrested and detained as a civil prisoner, as a means of executing its decree. 1 Upon been asked to show cause, the appellant alleged that he was unaware of the said case. He thus lodged before the District Court an application for extension of time to appeal against the ex-parte judgment that had been entered against him. The said application at the District Court was attacked with the Preliminary Objections raised by the Respondent herein. Among the grounds that had been raised as the Preliminary Objections is the time limit in which the impugned application had been lodged at the District Court. But, it is my view that, if the application is for extension of time to appeal, the arguments that the Applicant was negligent for not filing it in time cannot stand. It was supposed to be argued in the hearing of the application on merit. In this matter, whose core issue is the extension of time, this ground of Preliminary Objection was not supposed to be entertained. However, upon going through the pleadings submitted at the District Court, I have come to note that there were other two grounds of which the District Court was right to entertain. The said two grounds are the following; 1. That, the application is prematurely incompetent as it has been filed without prior seeking leave to set aside the ex-parte judgment before the trial court. 2 2. That, the application is prematurely incompetent as it has been filed without being accompanied with the copy of the intended petition of appeal. Upon entertaining the above two grounds of Preliminary Objection the District Court sustained them and ordered for the execution mode adopted by the Trial Primary Court, that is arresting the Applicant and detaining him as a civil prisoner, to play part. Aggrieved with this decision of the District Court, the Appellant herein lodged this appeal with the following two grounds; 1. That, the District Court erred in law and in fact by holding that, the appellant should have first applied before the trial court to set aside the ex-parte decision and pray for inter-parties hearing rather (sic) asking the Trial Court to extend time for the appellant to lodge his appeal. 2. That, the District Court erred in law and in fact by considering in its ruling the extraneous and irrelevant matters of the appellant trying to invite the District Court to intervene the decision entered ex-parte without knowing the reasons behind a fact. 3 As for the nature of the raised grounds of appeal, that they are related to each other, I am going to analyze them collectively as follows; The Appellant’s counsel, Mr. Geneya, submitted that, at the District Court the appellant had never been seeking for extension of time to challenge the decision of Kahama Urban Primary Court for handling the matter ex-parte, but he was challenging on the merit of its decision, hence the District court was not supposed to fault his application for extension of time appeal. On this, the thing that I wish to comment is that, basically the application for leave to appeal out of time should be accompanied with the copy of the intended petition of appeal. Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964, Government Notice No. 312 of 1964 which deals with the applications for leave to appeal out of time provides; “An application for leave to appeal out of time to a district court from a decision or order of a primary court or to the High Court from a decision or order of a district court in the exercise of its appellate or revisional jurisdiction shall be in writing, shall set out the reasons why a petition of appeal was not or cannot be filed within thirty 4 days after the date of the decision or order against which it is desired to appeal, and shall be accompanied by the petition of appeal or order or shall set out the grounds of objection to the decision or order” [emphasis is mine] The aim of attaching a copy of the intended petition of appeal in the application for extension of time is to enable that superior court to know nature of the appeal that is intended to be lodged upon leave being granted. As for the matter at hand, it is for the District Court to know whether the Appellant herein (Cosmas Magori Moteresa) intends to appeal against merit of the case which is a precise attempt, or against the matter being entertained ex-parte by the trial Primary Court, whose remedy is not appeal, but the Applicant to lodge the application to set aside the ex-parte judgment before the same trial court, that is, Kahama Urban Primary Court. As rightly submitted by the Respondent, which was also the standing point of the District Court as per its ruling, that, it was wrong for the Applicant to file the application for extension of time to appeal without attaching a copy of Petition for the intended appeal. This made the said 1st Appellate court being uncertain as to which matters the applicant is going to appeal against, in case leave is granted for him to appeal out of time against the decision of 5 Primary Court. Will it be against the original case being conducted ex-parte? or, will it base on the merit of the case? When you read the Appellant’s affidavit that he had lodged at the District Court you can find it uncertain on the nature of appeal that he was intending to file, in case the application for leave would have been granted. The contents of paragraphs 4, 5, and 6 show that the Appellant was complaining on the litigation of the original case, that he was unaware of it as he had never been served with the summons from Kahama Urban Primary Court. As well the Appellant alleged that, it is the Respondent himself who did cut communication with him. At paragraph 8 the appellant deposed that his application at the District Court was for seeking it to set aside the ex-parte judgment of the trial Primary Court. The picture that I can get from the above said situation is that, the appellant has been challenging both; the legality of the ex-parte proceedings and its resultant judgment, he has also been challenging the decision made by the trial Primary court. The same affidavit lodged at the District Court at paragraphs No. 8 and 9 transpire the applicant to have deposed a request for stay of execution so that he can seek leave from the Primary Court to set aside the ex-parte 6 judgment, so that the case could be entertained inter-parties. But, at paragraph 11 the Appellant deposes that the ex-parte judgment is tainted with illegality. For this later assertion by the applicant/appellant, it means the appellant is challenging on the merit of the impugned decision of the trial Primary Court, whose verdict is not setting aside the ex-parte judgment but appealing at the District Court against the decision of Primary court. Under that scenario, what would be the District Court’s order if the application for leave (extension of time) could have been allowed? Could it order the appellant to apply for setting aside the ex-parte judgment? of which, according to the law, it was supposed to be the duty of the trial Primary court, not the District court. Could the extension of time be for the appellant to file appeal at the District Court against the decision of Primary Court? In short the said application at the District court is vague. Further, unlike the contents read in the chamber summons in which the Applicant (Appellant herein) sought for only one thing, that is, the District Court should grant leave for him to file appeal out of time, in his affidavit Applicant is uncertain on the reason behind seeking for the extension of time. Basically application of this nature is discouraged for being omnibus, that the Applicant seeks for two or more different reliefs of which, for their nature 7 cannot be granted at once. The applicant was to seek for extension of time for either; to appeal at the District Court, or otherwise, to seek for setting aside the ex-parte judgment. However, as narrated herein before that the venue for setting aside the ex-parte judgment is the trial court, that is the Kahama Urban Primary court for this matter. I can also see, in his written submission before this court, Advocate for the Appellant, Mr. Gervas Geneya, came up with the admission on the Respondent’s argument that the Appellant had not attached the copy of intended petition of appeal. In it, the counsel replied that, inspite of the said omission, there was no fatality. My finding on this is that, contrary to the argument of Mr. Geneya, that it is unnecessary and not a requirement of the law to attach a copy of the intended petition appeal in the application for extension of time, in my view, I find it necessary and it is a requirement of the law. It aims to avoid uncertainty as to what the Applicant for extension of time is going to challenge in the appeal that he is going t lodge, in case his application is granted. As I have so stipulated herein before that Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964, Government Notice 312 of 1964 made this requirement 8 mandatory for the reasons that I have stated. Otherwise the court, in which the application for extension of time to appeal has been lodged, can’t be in a position to know as to which challenge(s) the applicant is going to make in the intended appeal, if at all leave is granted. If it is for challenging merit of the case tried and decided upon by the trial court, even if it was so done ex-parte, it is ok. But, if it is for faulting the procedure(s) adopted by the Lower Court in conducting the case and deciding upon it ex-parte, hence seeking for the same to be set aside, the venue should be the trial (Primary) court, not the appellate (District) court, which means that the application for extension of time at the District Court can’t succeed. See the case of DANGOTE INDUSTRIES LIMITED TANZANIA V. WARNERCOM T. LIMITED, (Civil Appeal No. 13 of 2021) [2022] TZCA 34 TanzLII, at page 7. Further, in the same affidavit I can also see the Appellant alleging at paragraph 11 that, in entertaining the original case, Civil Case No. 75 of 2023, the trial court relied on the electronic evidence while it had no jurisdiction to do so. The Appellant’s Counsel thus took it as the illegality, which is a ground for nullification of the trial court’s proceedings and its resultant decision, if it is so proved. I went through the record of the Primary 9 Court and noticed that there was no electronic evidence engaged in entertaining that case as alleged. I thus find this ground unmeritorious too. For the aforesaid reasons, I find this appeal with no merit, hence dismissed. The executing court, Kahama Urban Primary Court, should thus proceed with execution of decree for its decision in the Civil Case No. 75 of 2023. I so order. S.M. KULITA JUDGE 31/10/2024 DATED at SHINYANGA this 31st day of October, 2024. S.M. KULITA JUDGE 31/10/2024 10 11