dosla shauri vs domu shauri 2023 tzhc 23544 1 december 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB- REGISTRY]

AT ARUSHA PC. CIVIL APPEAL NO. 61 OF 2023 (C/F Civil Application No. 8 o f2023 District Court o f Karatu at Karatu) DOSLA SHAURI .......................................................................... APPELLANT

VERSUS DOMU SHAURI....................................................................... RESPONDENT

JUDGMENT 20th November & 1st December, 2023 TIGANGA, J. This appeal emanates from Civil Case No. 82 of 2023 filed at Karatu Primary Court (the trial court) where the appellant herein claimed a total of Tshs. 3,407,659/= from her brother, the respondent, being the costs for the treatment she paid for him when he was sick. According to the record, failure of the respondent to pay such an amount would cost him his piece of land measuring two acres. Eventually, the trial court decided in respondent's favour. Aggrieved by the decision, the appellant filed Civil Appeal No. 7 of 2023, before the District Court of Karatu at Karatu (the 1st appellate court). The same was determined ex-parte in favour of the appellant following the Page 1 of 11 respondent's failure to file his written submission as per the scheduling order. In the urge to pursue his right, the respondent filed Civil Application No. 08 of 2023 praying for the ex-parte judgment to be set aside on the ground that, he filed his submission timely and as per the scheduling order. The appellant opposed the application and raised a preliminary objection that, the 1st appellate court had no jurisdiction to determine the application as the same has not been properly moved. That, since the application originated from the Primary Court the respondent was wrong in moving the court by using the Civil Procedure Code [Cap. 33 R.E.

2019], and the 1st appellate court erred in using the same law in adjudicating the application. The 1st appellate court did not deal with such objection, but rather it dealt with the substantive part of the application and consequently granted the application on the ground that, the respondent filed his submission timely, but it was the court clerk who after receiving the same left it at the registry instead of filing it in the case file. The ex-parte proceedings and judgment were therefore set aside and the parties were ordered to proceed with the hearing of the appeal inter-partes. Dissatisfied with the decision, the appellant preferred this appeal with the following four grounds; that the 1st appellate court erred in law and fact in failing to appreciate the whole concept of equal distribution of matrimonial properties resulting in the shoddy decision.

1. That, the trial court decision is bad in law for being arrived at based on matters not pleaded in the application and affidavits filed by the parties.

2. That, in deciding Civil Application No. 8 of 2023, the trial magistrate assumed the role of the respondent hence the decision reached is a biased one.

3. That, the trial court had no jurisdiction to try Civil Application No. 8 of 2023 hence the decision and the entire proceedings are nullity.

4. That, the decision issued by the trial court is unfair and bad in law for being reached without strong reasons being advanced by the applicant. During the hearing of this appeal, the appellant was represented by Mr. Felichism Baraka, whereas the respondent was represented by Mr. Martin Maligana, both learned Advocates. Supporting the appeal Mr. Baraka submitted on the 1st and 2nd grounds that, the 1st appellate magistrate assumed the role of the party, the respondent herein, in searching and presenting the evidence in support of the application. In his view, the magistrate was only supposed to act on the evidence presented by the parties and not to search for the evidence on his Page 3 of 11 own as held in the case of Juma Hussein vs. The Republic, Misc. Criminal Case No. 18 of 2020. He further submitted that the respondent did not plead in his affidavit that he complained to the Magistrate in Charge regarding his submission not being in the case file. In contrast, he filed the same timely at the registry. He therefore argued that the District Court erred in dealing with issues not pleaded in the affidavit hence contrary to the rule that parties are bound by their affidavits. On the 3rd ground of appeal, the learned counsel submitted that, the impugned Civil Appeal No. 07 of 2023 emanated from the Primary Court Case No. 85 of 2022 hence the appeal proceedings were supposed

to be regulated by the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN No. 312/1964. However, the District Court issued its decision based on the respondent's lodged application under the Civil Procedure Code, [Cap. 33 R.E. 2019] (CPC) which does not apply in any proceeding emanating from Primary Courts. According to him, the respondent's only remedy was to move the District Court to re-hear Civil Appeal No. 07 of 2023 pursuant to Rule 18 of GN No. 312/1964 and not to set aside the ex-parte judgment under the CPC as reflected in the filed application. He asserted that, apart from the fact that CPC does not apply in appeals originating from the Primary Court, there is a specific law and provision directing the way forward if the decision in appeals was given exparte. More so, when he raised this issue by way of preliminary objection, the District Magistrate glossed and disregarded it and made his decision in favour of the respondent which set a bad precedent as well as prejudiced the appellant because she had to start all over again. On the last ground of appeal, Mr. Baraka argued that the District Court granted the application to set aside the ex-parte judgment while no good reason was advanced for the same to be departed. The respondent was obliged to state in his affidavit why he could not file his submission as per the scheduling order but he

did not discharge such duty which is nothing but a demonstration of laxity, negligence, and ignorance. To support his contention, he cited the case of Mzee Mohamed Akida & 7 Others vs. Low Shek Kon & 2 Others, Civil Application No. 481/17 of 2017 where the Court of Appeal emphasized the importance of complying with court orders in accordance with law. He prayed that this Court invoke its revisionary powers and nullify the decision of Civil Application No. 8 of 2023 and the decision of Civil Appeal No. 7 of 2023 be upheld. Page 5 of 11 Opposing the appeal, Mr. Maligana submitted generally and in no particular order of the grounds of appeal raised that, it is not the duty of the Advocate to examine administrative omission of the court rather, in practice the sphere of the case as per the client need as well propounded in the case of UAP Insurance Tanzania Limited vs. Akiba Commercial Bank PLC, Civil Appeal No. 135 of 2022, CAT at Dsm. He added that the respondent herein filed his submission timely and later came to realize that the appeal was heard ex-parte against him on the ground that he failed to file his submission a fact which was not true. Thus, his filing of the impugned application was the only way to voice his grievance and upon inquiry, the District Court made its own findings and set aside the ex-parte decision. According to him, the respondent properly moved the

District Court under Order IX Rule 9 and section 95 of the CPC as well as any other enabling provision of the law. By the latter phrase, any other applicable laws may apply including the ones cited by the appellant for the sake of reaching a just decision. The learned counsel further cited the case of Ramadhani Myolele vs. Hamadi Alii Islam, Misc. Civil Application No. 40 of 2022 where it was held that, when there is right to appeal revision cannot be used as an 6 alternative. Thus, this Court cannot invoke its revisionary powers as requested by the appellant's counsel. He prayed that the same be dismissed. There was no rejoinder. Having gone through the parties' submissions as well as the District Court's records, I will be guided with the following two issues for determination. These will cover all four grounds of appeal; 1. Whether the District Court had jurisdiction to determine Civil Application No. 08 of 2023 simply because the court was moved under the wrong law.

2. Whether the District Court was justified to set aside its expartedecision in Civil Appeal No. 07 of 2023 dated 31st July, 2023. Starting with the first issue, the appellant contends that the District Court had no jurisdiction to determine Civil Application No. 08 of 2013 because it was not properly moved. The G.N. No. 312 of 1964 provides for the law governing appeals in the District Court and High Court on matters originating from Primary Courts. The said law defines "appellate court" to mean the High Court or the District Court, as the case may be. Therefore, as rightly argued by the appellant's counsel, the CPC is a misplaced law for such a situation for it does not apply in matters originating from the Primary Court. Page 7 of 11 On the same note, the import of Rule 18 of G. N. No. 312 of 1964 and Order IX rule 9 is not far-fetched as they are all set to be applied by a defaulting party aggrieved by the ex-parte proceedings and decision in seeking remedy to set aside the same. Although in previous years, wrong citation of the enabling provision was fatal as it renders the application incompetent, this is currently not the stance as the same can be cured by the Overring Objective Principle as long as it is evident that the applicant took essential and timely steps in pursuit of his right and the court before which the motion is made has jurisdiction to entertain the

matter. See. Beatrice Mbilinyi vs. Ahmed Mabkhut Shabiby, Civil Application No. 475/01 of 2020, CAT at Dsm (unreported). In the circumstances, therefore, the District Court had jurisdiction to determine Civil Application No. 8 of 2023. Although it was not properly moved, the wrong citation is curable as explained above. The second issue is whether the District Court was justified to set aside its ex-parte decision in Civil Appeal No. 07 of 2023 dated 31st July 2023. From the outset, it should be noted that the filing of any documents in our court is both a judicial and administrative procedure. In his affidavit in support of the application to set aside the ex-parte decision, contrary to the appellant's counsel argument, the respondent in the 5th and 6th paragraphs of his affidavit, deponed that, he timely filed all the three copies of his submission opposing the appeal at the registry. Later, after the appeal was decided ex-parte, he went to make follow-ups and realized that his submission was by omission not inserted in the case file, hence went to complain administratively and was advised to file the application a decision of which is now challenged. Following such events, it is safe to rule out that, the trial magistrate in his own discretion which he exercised judiciously made his own inquiry and realized that the respondent's complaint was genuine hence, he realized

that the reason he based on in deciding to proceed ex-parte had no factual justification and that failure to insert the submission in the case file was not the fault of the respondent but of the registry officer who received them, and that the respondent was not supposed to be punished for the fault of another. This reason was sufficient for the 1st appellate Magistrate to depart from his ex-parte decision and to order the matter to be heard inter-partes. In that regard, I differ with the appellant's argument that the Magistrate acted as a witness and collected evidence for the respondent, what he did is what was required of him in his capacity as a trial magistrate and as an Page 9 of 11 administrator in ensuring that both parties are fairly heard in compliance with the principle of the rules of natural justice. Besides, the appellant has not told the court that, he has been prejudiced by the decision for the case to be heard inter-partes. Be as it may, I do not find any illegality in what the 1st appellate magistrate decided or any prejudice on the part of the appellant caused by the said decision that the appeal be heard inter-partes. For what is worth, considering parties are blood-related, their grievances will be fated if the appeal is heard inter-partes than if the same remains with the ex-parte decision. While agreeing with the principles in the case cited

hereinabove, but I tend to distinguish their application in the matter at hand, for the circumstances pertaining in this case is completely different from that in the case authorities cited. In the upshot, this appeal is found to be without merits and consequently dismissed and the decision of Civil Application No. 08 of 2023 is hereby upheld. The file be remitted back to the District Court for the continuation of the hearing of Civil Appeal No. 07 of 2023. Considering the fact that, parties are blood-related I give no orders as to costs. It is accordingly ordered. 10 d a te d and delivered at ARUSHA this l»day of December 2023. J.c . t i g a n g a

JUDGE Page 11 of 11