CIVIL APPEAL NO 285 OF 2022 ESTOMII ORONGAI VS

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MKUYE. 3.A.. RUMANYIKA. 3.A And MDEMU, J.A.) CIVIL APPEAL NO. 285 OF 2022 ESTOMIIORONGAI (Administrator of the Estate of the late ORONGAI NAILUGISHO or ORONGAI NAILUGIHO................... APPELLANT VERSUS EDWARD MEMIRIEKI................ ......... ..................... ...^RESPONDENT LOIBANGUTI MEMIRIEKI......... .....................................2ndRESPONDENT ASSINA SAID LYULU.............. ......................................3rdRESPONDENT ALLEN OLOTU....................... .......................................4™RESPONDENT MAPENDO KIWALE.................... ...................................5THRESPONDENT JOHN J. TARIMO................................. .........................6™RESPONDENT SALIMU MAULID...........................................................7™RESPONDENT YASSIN ALLY........................... .................................... 8™RESPONDENT KASSIM ALLY........................................ ...................... 9™RESPONDENT RAJABU BAHATI......................................................... 10™RESPONDENT MWANTIME JUMA....................................................... l l THRESPONDENT HAFIDHU MKINDI................................... ...................12NDRESPONDENT SAIDI SELEMAN1........................................................13rdRESPONDENT MWANAHAMISI HASSAN.................... ....................... 14™RESP0NDENT ZENA SELEMANI............................ ............................. 15™RESPONDENT YUSUF SALIM....................... ................................. 16™RESPONDENT ABDIJUMA MSUYA................. ................................... 17™RESPONDENT IDRISA JUMA............................................................. 18™RESPONDENT MOHAMED JUMA.........................................................19™RESPONDENT RISHED ALLY............................................................. 20™RESPONDENT SALIM M. MOSHA........................................................21srRESPONDENT ELISIFA MEORI............................................... ........ 22ndRESPONDENT ADAMU KIMARO......................................................... 23rdRESPONDENT DEO ASSEY.................................................................24™RESPONDENT ZAKEU DISMAS MATIKA.............................................. 25THRESPONDENT MENG'ARANA SAMORWON.......................................... 26THRESPONDENT SANGAYO MENG'ARANA............ ................................. 27™RESPONDENT SAMOROU MELANYI...................................................28th RESPONDENT RISHED ALLY............................................................. 29™RESPONDENT RISHED ALLY MKANGA................................. ..............30™RESPONDENT MILISHED ALLY MKANGA............................................ 31STRESPONDENT SALIMU MUNGA......................................................... 32ndRESPONDENT MEORI MENG'ARANA................................................... 33RDRESPONDENT EMMANUEL MSEMO............. .......... ............. 34™RESPPNDENT (Appeal from the judgment and decree of the High Court of Tanzania, at Arusha) (G w a& JJ dated the 25th day of January, 2022 in Land Case No. 20 of 2019 RULING OF THE COURT 17th& 24th February, 2025 MDEMU. J.A.: The appeal before us is challenging the decision of the High Court of Tanzania at Arusha in exercise of its original jurisdiction. In a suit filed as Land Case No. 20 of 2019 initiated by the appellant, the High Court (Gwae, J.) declared each of the respondents, lawful owners of a piece of land which the appellant claimed being trespassed by the respective respondent. In the High Court decision, the appellant did not establish, on balance of probabilities that, all pieces of land in the suit land were the properties of his late father one Orongai Nailugisho or Orongai Nailugiho (the deceased). The High Court's finding is premised on, one, the appellant did not call in evidence the surviving heirs. A neighbour, one Tiophilo Manyaa (PW2) who was called in evidence, vacated the suit premises since 1961 prior to the demise of the deceased. As such, he is dispossessed of material evidence on the post status of the suit land according to the learned trial Judge. Two, each of the respondents, either, through oral evidence, or sale agreements and or the production of title deeds, established to be the lawful owners of every piece of land which the appellant alleged in the plaint that it was trespassed by the respective defendants (now respondents). It was therefore decreed to that extent along with an order restraining the appellant and her agents from interfering the respondents in their ownership and enjoyment of the alleged pieces of land. The appellant was not happy with the High Court's finding, and as we intimated earlier on, he sought indulgence of this Court by way of an appeal. For reasons that we will soon put to light, we will not reproduce the three grounds of appeal as contained in the memorandum of appeal which was filed by the appellant on 22nd March, 2022. When the appeal was called on for hearing on 17th February, 2025 the appellant was represented by Mr. Lengai S. Loita, learned advocate. The 1st to 5th respondents had the services of Mr. Dismas Philipo Lume, also learned advocate. On their part, the 6th to 23rd respondents enjoyed the services of Mr. Elidaima Mbise, learned advocate whereas Messrs John Nicholaus Mseu and Jeremiah Samwel Mjema, learned advocates, appeared to represent the 24th and 25th respondents respectively. It is apparent in the record of appeal, that the 26th to 33rd respondents did not enter appearance because the notice of hearing was not served on them. Before hearing of the appeal could commence earnestly, we found it convenient that parties should address us on a point of law regarding service of the notice of appeal on the respondents. Mr. Loita commenced by conceding to have not served the 26th to 33rd respondents with the notice of appeal lodged on 11th February, 2022 because they did not file their written statement of defence in the trial court, making the suit against them to proceed ex-parte. Regarding service of the notice of appeal on the 1st to 5th respondents, Mr. Loita drew our attention at page 311 of the record of appeal contending that, advocate Mjema was served with the notice of appeal on behalf of advocate Lume and also for the 25th respondent. Regarding the 6th to 23rd respondents, Mr. Loita submitted by making reference to page 305 of the record of appeal that, they were served with both the notice of appeal and a letter requesting for copies of proceedings and judgment, though the record shows an endorsement to the request letter only and not the notice of appeal. He was however confident that, the notice of appeal was duly served together with the letter requesting for proceedings. He turned to the 24th respondent by readily conceding that, he was not served at all with the notice of appeal. When their turn to submit came, Mr. Lume was the first to respond. He submitted that, the 1st to 5th respondents were neither served in persons nor did he instruct Mr. Mjema to receive the notice of appeal on his and their behalf. He also said, the letter requesting for copies of proceedings was not served on the respondents to whom he is representing. He thus argued, the appeal is incompetent for violating rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). As conceded by the appellant's counsel, Mr. Mbise was served with a letter requesting for proceedings only without the notice of appeal as alleged by the appellant's counsel. He thus urged us to strike out the appeal with costs for being incompetent because of failure by the appellant to serve the 6th to 23rd respondents. Regarding service of the notice of appeal on the 24th respondent, Mr. Mseu welcomed the concession made by the appellant's counsel that, the said respondent was not served with the notice of appeal. As was to the other respondents' counsel, he equally urged us to strike out the appeal with costs for being incompetent. Mr. Mjema, on his part, refuted any service of the notice of appeal on the 25th respondent. He also refuted receipt of any notice of appeal for the 1st to 5th respondents on instruction of Mr. Lume. He added that, the endorsement appearing at page 311 of the record of appeal was inadvertently done by his subordinates in the address for service of Mr. Lume and that, he has his own address for service which the appellant's counsel had recently used in serving him with the record of appeal. He, in the end, joined forces with Messrs Lume, Mbise and Mseu that the appeal is incompetent on that account and it be struck out with costs. In rounding up, Mr. Loita invited us to invoke the provisions of rule 4 (2) (b) and (c) of the Rules in twofold, first that, taking the route of striking out the appeal merely on failure to serve the notice of appeal are matters of technicalities and that the action sought is not in the interest of justice. Second, that the matter was raised suo motu by the Court. To him, the respondents' counsel just took that advantage, a matter which he perceived to be unacceptable. In his argument, the respondents' counsel would have raised a preliminary objection, Mr. Loita added. From what we heard the learned counsel submitting for both the appellant and the respondents and having duly considered the record of appeal regarding service of both the notice of appeal and the letter by the appellant's counsel requesting for proceedings and the judgment, we note the following: first, the 26th to 33rd respondents were not served with both the notice of appeal and a letter requesting for copies of proceedings and judgment. Mr. Loita said, it was not necessary because the case against them in the High Court was heard ex-parte. That means, he never made any attempt to serve them. We think he slipped because Land Case No. 20 of 2019 before the High Court and Civil Appeal No. 285 of 2022 before us are two distinct cases in two different courts. They ought to have been served, else, the appellant was duty bound to indicate, by way of evidence, that he has failed to serve them. In TPB Bank Pic (Successor in Title to Tanzania Postal Bank v. Rehema Alatunyamadza (Civil Appeal No.155 of 2017) [2021] TZCA 46 (1 March 2021; TanzLII) where the case proceeded ex-parte in the lower court against one VIOVENA, the Court held at page 11 of the judgment that: "Therefore, the appellant was required to serve them with the notice o f appeal within fourteen days o f lodging it but he failed to do so. We do not agree with the counsel for the appellant that the respondents were not served with the notice o f appeal because the appellant does not know their proper address." Second, the 1st to 5th respondents were neither served with the notice of appeal nor a letter requesting for copies of proceedings and judgment. We are in agreement with Mr. Lume and Mr. Mjema that, there is no material in the appellant's counsel submission and the record of appeal bears a revelation to that effect because neither Mr. Lume nor the 1st to 5th respondents were served nor did Mr. Lume instruct Mr. Mjema to receive the notice of appeal on his behalf. Third, Mr. Mbise, for the 6th to 23rd respondents conceded service of a letter requesting for proceedings. This notwithstanding, he refuted service of the notice of appeal. Fourth, we also agree with both Mr. Mseu and Mr. Loita that the 24th respondent was not served with the notice of appeal, so was the 25th respondent either. As per the foregoing sequence of events, it is clear to us that whereas none of the respondents was served with both the notice of appeal and a request letter, all the respondents were not served with the notice of appeal at all. They were supposed to be served within fourteen days as we held in Williamson Diamonds Limited v. Salvatory Syridion & Another (Civil Appeal No.15 of 2015) [2016] TZCA 243 (12 April 2016; TanzLII), thus such inaction contravened rule 84 (1) of the Rules. See The National Bank of Commerce Limited and Another v. Ballast Construction Company Limited (Civil Appeal No.72 of 2017) [2019] TZCA 17 (22 February 2019; TanzLII). We equally decline to take Mr. Loita's stance that, where a party serves the other party a notice of appeal or a request letter, then it is automatic that that other party is deemed to have been duly served with the notice of appeal or request letter respectively. We note that, these are two distinct documents served under two distinct legal requirements. For example, whereas service of the notice of appeal is governed by rule 84 (1) of the Rules, a letter requesting for proceedings, judgment or ruling is governed by rule 90 (3) of the Rules. The two provisions also provide for different time frame within which service is to be effected. Next before us is the consequence for failure to discharge such a legal obligation. As we alluded to in the foregoing, rule 84 (1) of the Rules is clear to us that, the notice of appeal must be served on the respondents within fourteen days following its lodgement. As we demonstrated in the foregoing, none of the 36 respondents was ever served with the notice of appeal as legally required. In John Nyakimwi v. The Registered Trustees of Catholic Diocese of Musoma (Civil Application No.85/08 of 2017) [2019] TZCA 455 (3 December 2019: TanzLII) we posed a ‘ question as to whether failure to serve the notice of appeal on the respondent is fatal. Our reaction was in the affirmative and amounted to failure to take essential steps on the appellant's side. Of course, as we observed in Williamson Diamonds Limited v. Salvatory Syridion & Another (supra) and The National Bank of Commerce Limited & Another v. Ballast Construction Company Limited (supra), the unserved notice of appeal was rendered invalid and with no effect. The end of all, it renders the appeal incompetent. See Mokiri Damas Ngoja v. National Housing Corporation & Another (Civil Appeal No. 273 of 2018) [2021] TZCA 540 (30 September 2021; TanzLII). Before we pronounce ourselves on the way forward, given the infraction, it is worth noting that, Mr. Loita is not happy with any move leading to the striking out of the appeal merely on failure to serve the notice of appeal. To him, those are matters of technicalities. Of course, he did not come out clearly what he wanted of us to do and which principle of law he had in mind we should invoke for sailing through. However, gauging in his submission, he had in mind that, we should invoke the overriding objective principle. In The National Bank of Commerce Limited & Another v. Ballast Construction Company Limited (supra) at page 9 of the ruling, we observed the following: "We are therefore inclined to agree with Mr. Banzi that a copy o f the notice o f appeal was not served on the respondent hence contravening the mandatory provisions o f Rule 84 (1) o f the Rules. This being a mandatory requirement, we don't think that the overriding principle applies." [Emphasis supplied] We decline to take that path. Guided by the above position of this Court, we said, and worthy repeating that, none of the respondents was served with the notice of appeal lodged on 11th February, 2022. This in essence renders the appeal lodged on 24th March, 2022 incompetent, accordingly, we strike it out with no directives as to payment of costs. It is so ordered. DATED at ARUSHA this 22nd day of February, 2025. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL The Ruling delivered this 24th day of February, 2025 in the presence of Mr. Lengai S. Loita, learned counsel for the Appellant, Mr. Dismas Philipo Lume, learned counsel for the 1st - 5th Respondents, Mr. Elidaima Mbise, learned counsel for the 6th- 23rd Respondents, Mr. Jeremiah Samwel Mjema, learned counsel for the 25th Respondent and in the absence of 24th, 26th to 33rd Respondents; is hereby certified as a true copy of the original. F. Av MTARANIA DEPUTY REGISTRAR COURT OF APPEAL