DEOGRATIUS MHUMBIRA JUDGMENT 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 8213 OF 2024 (Originating from Miscellaneous Civil Cause No. 99 of 2023 in the Resident Magistrate Court of Dar es Salaam at Kisutu) DEOGRATIAS FELIX MHUMBIRA .......................................... APPELLANT VERSUS CELINA MALU MHUMBIRA BH•B•B••HB••• RESPONDENT JUDGMENT Date of last order: 18/09/2024 Date of judgment: 17/10/2024 NGUNYALE, J. Tbe appellant DEOGRATIAS FELIX MHUMBIRA filed a petition for / reception order for the respondent SELINA MALU MHUMBIRA (his biological mother) to be received in the Mental Health Care Facility on grounds of personality or behaviour change, talks nonsense, she is a threat to others and aimless wondering. The trial court was moved under Section 8 of the Mental Health Act. Tbe trial court heard the =M. petition and decided in favour of the respondent. Tbe petition was dismissed for being defective or incompetent. The appellant was not amused with the decision of the trial court, he raised the following grounds of appeal to challenge the decision of the trial court: 1. That, the Learned Trial Magistrate erred in law and fact for dismissing the applicant’s application in his decision dated 04th day of March, 2024 by ignoring and disregarding the annexed documents attached in the applicant’s application and his written submission supporting the application without further justification, Contrary to the procedure of law. 2. That, the Learned Trial Magistrate erred in law and fact for Ins decision to dismiss the applicant’s application instead of struck out the same, Contrary to the procedure of law. Hearing of the appeal attracted the form of written submission; the appellant was represented by Mr. Paul Elias learned Counsel from Attorney at Work and Consultation. Ttle appellant Counsel started his submission by arguing the first ground of appeal that it was erroneous for the trial Magistrate to dismiss the said application filed by the appellant due to the fact that the application was not determined on merit because it was found to defective. Tbe only remedy for the said defective application was to struck out so that the parties to have a right XW to refile for it to be heard on merit. 2 ought to strike out. They insisted that the trial Magistrate would correctly enter an order of struck out and not dismissal. The act of the trial Magistrate to dismiss the said application instead of instead of struck out prevented the appellant to enjoy his right to be heard before the same court with competent jurisdiction to determined and finalise the matter on merit. He referred the court to the case of Yahya Khamis versus Hamida Haji Idd & Others, Civil Appeal No. 225 of 2018 Court of Appeal sitting at Bukoba. The term Strike out or struck out was defined by this court in the case of Juma Nhandi versus Republic, Criminal Appeal No. 289 of 2012 (unreported) in which the term strike out was elaborated while citing with approval the case of Ngoni Matengo Cooperative Marketing Union Ltd versus Ally Mohamed Osman [1959] EA where the court of appeal discussed the striking out and dismissing appeal on the following words; "This Court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to strike out the appeal as being incompetent, rather than to have dismissed' it; for the latter implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable of being disposed of. But it is the substance of the matter that must be looked at, rather than the words used... " [Emphasis added] ;M He cited another case of Emmanuel Luoga versus Republic, Criminal Appeal No. 281 of 2013 (unreported) on the same position. Tbe court on the issue whether it was proper for the first appellate court to dismiss the appeal which was incompetent, it was stated as follows: - "We are of the view that, upon being satisfied that the appeal was incompetent for reason it had i assigned, it ought to strike out the appeal instead of dismissing it. The reason is dear that by dismissing the appeal it implies that there was a competent appeal before it which was heard and determined on merit which is not the case." He concluded the second ground of appeal by inviting the court to set aside the dismissal order and substitute with the order of struck off so as to allow the appellant to have a right to refile his application for reception order of Celina Malu Mhumbira for it to be determined on merit. On the first ground of appeal that the trial court dismissed the petition by ignoring and disregarding the annexed documents attached, the petitioner Counsel was very brief that the trial court had no justification for failure to taken into consideration of the annexed documents in support of the application. In short there was no point of determination and the reasons for the determination. He cited the case of Said Mohamed versus Muhusin Amiri and Another, Civil Appeal No. 110 Of 202U where it was stated that: - "We are of the considered view that generally a judge is duty bound to decide a case on the issues on record and that if there are other questions to be considered they' should be placed on record and the parties be given opportunity to address the court on those questions" Before I proceed I wish to comment that the respondent as seen in the citation above is merely ceremonial, the suit is one-sided containing argument of the appellant alone due to its nature. After hearing the appeal my starting point is whether the appeal has merit or not guided by the grounds of appeal and the respective submissions in seriatim. Tbe trial court found that the petition was incompetent before the court, thus it proceeded to dismiss the same with costs. Ttle sub issues to be determined are one, whether the petition was incompetent and two, if the first issues is in the affirmative whether the court provided proper reliefs. The trial magistrate in the first place found that the applicant prayed for the reception order at the Mental Hospital of Muhimbili National Hospital but the application was not supported by any affidavit as basic evidence in support of the application. In the second place the trial Magistrate found that in his submission the appellant raised a new prayer that he @@ should be appointed as a manager of the estate of Celina Malu Mhumbira due to her being of unsound mind. This second prayer was found to be new because it was not pleaded in the pleadings. Relying on the principle that parties are bound by their pleadings the trial magistrate found that failure to implead the second prayer in the pleadings means the appellant was not legally correct to raise a new prayer. I am in agreement with the learned trial Magistrate that the application was incomplete because it was not supported by an affidavit and that the appellant departed from his own pleadings. The fact that the application was incompetent was not controverted by the appellant save for the relief granted by the trial Magistrate. Tbe appellant in his submission submitted that the proper relief was an order to struck out the application and not to dismiss it. I need not to cite any new authorities in support of the position that an incompetent application is worth of being struck out and not dismissal order. Ttris position has been well elaborated by the case law cited by the appellant above thus, I am satisfied that the application was incompetent attracting the trial Magistrate to struck out and not to dismiss. Since the second ground of appeal disposes the appeal sufficiently, the “:W- serve no legal purpose in the incompetent matter. As a whole then, and for the reasons so advance above, the trial court erred to dismiss the application. The trial Magistrate ought to strike out. I therefore exercise revisional jurisdiction to set aside the order of dismissal in Miscellaneous Civil Cause No. 99 of 2023 and substitute the same with the order of struck out. Appeal allowed; nature of the suit attracts no order to costs. Order accordingly. Dated at Dar es Salaam this 17th day of October, 2024. i(iPR,Q)X \h JUDGE Judgment delivered this 17th day of October, 2024 in absence of the parties. n} $iN r JUDGE 7