GETRUDA DAVID KELELA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

SHINYANGA SUB REGISTRY

AT SHINYANGA CIVIL APPEAL No. 26628 OF 2024 (Arising from Misc. Application No. 51/2024 of Kahama District Land and Housing Tribunal) GETRUDA DAVID KELELA …………..…………………..APPELLANT

VERSUS JONATHAN MAZIKU ………..………………………..RESPONDENT

RULING 26th November, 2024 & 24th January, 2025. Massam, J: - The briefs facts of the case are that the appellant filed the Misc Land Application No 51/2024 at Kahama District Land and Housing Tribunal for extension of time in which she can file application for bill of costs out of time. The application was heard and the tribunal ruled out that there was no sufficient reason for extension of time and dismissed the application without costs. The appellant was aggrieved with that decision hence this appeal. When the matter came for hearing, the respondent raised a preliminary objection to wit; - 1. That, the appeal is incompetent for lacking a drawn order(decree) 1 2. That, the appeal is lodged with wrong title. Before hearing this appeal on merit this court found out that it is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and determined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save the time of the court and the parties by not going into the merits of the case because there is a point of law that would dispose of the matter summarily. See: the cases of Thabit Ramadhan Maziku and Kisuku Salum Kaptula vs. Amina Khamis Tyela and Mrajis wa Nyaraka Zanzibar, Civil Appeal No. 98 of 2011, The Bank of Tanzania Ltd

v. Devram P. Valambhia, Civil Application No. 15 of 2002, Khaji Abubakar Athumani vs Daud Lyakugile t/a DC Aluminium and Mwanza City Council, Civil Appeal No. 86 of 2018 and Modest Joseph Temba vs. Bakari Selemani Simba and two others, Civil Revision No. 223/17 of 2019 (all unreported). During the hearing of preliminary objection, on 26th November, 2024. Mr. Rwangobe advocate appeared for respondent while appellant appeared in person, unrepresented, by consensus they agreed to urge their P.O by way of written submission, the prayers were granted and 2 the court scheduled the dates as follows that respondent to file submissions on or before 10/12/2024. The appellant to file reply on 23/12/2024 and rejoinder if any on 30/12/2024 and ruling on 17/1/2024 and the court order was compiled with. Arguing the same Mr. Rwangobe started by submitting that on the first objection that the appeal is incompetent for lacking a drawn order (decree). He urged that it is requirement of the law that when a party is aggrieved by the decision of the court, on his appeal must attach a copy of decree. He backup his proposition by citing the case of Juma Ibrahim Mtale vs K.G Karmali (1983) TLR No. 50 where the court held that ‘’ In the absence of the copy of the decree renders the appeal incompetent’’ Also Mr. Rwangobe argued further that under order XXXIX rule 1 of the Civil Procedure Code Cap 33

reads that every appeal ought to be accompanied by a copy of the decree. Coming, to this case at hand he stated that the same has not been accompanied with decree or drawn order as per the requirement of the law so he prayed the same to be struck out. On the second limb of preliminary objection that the appeal is lodged with wrong title. Mr. Rwangobe argued that the appellant lodged 3 the appeal before this Honourable Court with a Memorandum of Appeal. This is bad in law as it is contrary to section 38(2) of the Land Dispute Courts Act Cap 216 RE 2019 which reads “Every appeal to high court shall be by way of petition and shall be filed in the District Land and Housing Tribunal from the decision, or order of which the appeal is brought’’. Moreover, Mr. Rwangobe cemented that this is mandatory requirement as it is evidenced that when the law uses the word shall in conferring a power such word shall be interpreted to mean that the function so conferred must be performed as it is provided under section 53(2) of Interpretation of Laws Act Cap 1 RE 2019. Finally, he argued that this appeal at hand is titled Memorandum of Appeal instead of Petition of Appeal, hence this appeal is incompetent and he prayed the same be struck out with costs. On his part, appellant responded that, it was not wrong to title the appeal as memorandum as both words to wit memorandum and petition can be used

interchangeably, so long as the use of memorandum of appeal instead of petition can be used interchangly, but also the use of the same doesn’t prejudice the right of parties as well as to deprive the appeal. He forties his argument by referring the case of 4 Musa Clement vs Atanas Mandalu Ntenwa, Land Appeal No 76 of 2022[2023] TZHC 17998 (Tanzlii) where it was held that by Massam J at the last page of the judgment that ’’………this court finds out that there was no difference between the use of memorandum of appeal and petition of appeal all words are the same and use of any of them cannot prejudice to the rights of the parties’’ On the second limb of preliminary objection that the appeal is incompetent as it was lodged without accompany a drawn order. The appellant concedes that the same ought to accompany the ruling and Memorandum of Appeal. He referred the case of Frolentina Philbert vs Verdiana Protace Mujwahuzi, Land case Appeal no. 59 of 2021 [2021] TZHC 11771(Tanzlii), a preliminary objection was raised on the point that the memorandum of appeal was misconceived and bar in law for being accompanied by a defective drawn order. Though the appeal was struck out for being incompetent, at the last paragraph of the last page of the typed judgment, the court held that; ‘’……….. for the interest of justice, the appellant is given 14 days within which to a file a proper appeal after

obtaining the proper drawn order’’ Finally, he prayed to struck out the appeal with no order as to costs, and further for interest of justice, fourteen (14 days) leave be granted to 5 the appellant so as to file a proper appeal after obtain the drawn order from the tribunal. After going through the written submission of both parties, the issue to determine is whether the preliminary objection has merit or not. Starting with the first objection that the appeal is incompetent for lacking a drawn order (decree). Mr. Rwangobe submitted that appeal must be accompanied with decree. He supported his argument by referring the case of Juma Ibrahim Mtale (supra) and order XXXIX rule 1 of the Civil Procedure Code Cap 33. Additionally, Mr. Rwangobe said that the appeal at hand has not been accompanied with decree or drawn order while being filed as the requirement of the law. On his side, the appellant concedes that the same ought to accompany the appeal. However, he referred the case of Frolentina Philbert (supra) to be granted 14 days within which to file a proper appeal. I have gone through submission from both parties and going through the records. The records revealed that the memorandum of 6 appeal was accompanied with ruling dated 27/9/2024.There is no decree or drawn order attached to the same. Now, under Order XXXIX Rule 1 of Civil Procedure Code provide that: "Every appeal shall

be preferred by Memorandum which shall be accompanied with a copy of decree appealed against" The more emphasis was done in the case of H.J. Stanley Ltd Vs. A. Ramadhani [1988] T.L.R 250, at page 252 adopted the same position that where a memorandum of appeal is not accompanied with a drawn decree or order, there is no legal presentation of the appeal at all and so, the appeal is incompetent and should be dismissed forthwith. Remarkably, in the case VIP Engineering & Marketing LTD Vs. Said Salim Bakhressa LTD, Civil Application No. 47 of 1996 gave breath to the application of certain procedural rules which must be complied with and the court held that: "There can be no rational dispute over the fact that procedural rules are enacted to be complied with, usually there is a legal principle behind every procedural rule, but those rules differ in importance. Some are vital and go to the root of the matter these cannot be broken, others are not of that character and can, therefore be over looked provided there is a substantial compliance with the rules read as a whole and provided no prejudice is occasioned''. 7 However, the cases of Floentina Philbert (supra) cited by the appellant is distinguishable with the case at hand because in that case the defective drawn order was attached that why the court granted 14 days within which to file a proper appeal but the case at hand there

is no dawn order accompanied. From the above observations, the decree or drawn order was not attached to the appeal and the procedure rules were not complied with. Thus, I find the first preliminary objection has merit and it is upheld. Coming to the second limb of preliminary objection that the appeal is lodged with wrong title. Mr. Rwangobe argued that the appellant lodged the appeal before this Honourable court with a Memorandum of Appeal. This is bad in law as it is contrary to section 38 (2) of the Land Dispute Courts Act Cap 216 RE 2019 which reads “Every appeal to high court shall be by way of petition and shall be filed in the District Land and housing Tribunal from the decision, or order of which the appeal is brought’’. Moreover, Mr. Rwangobe cemented that this is mandatory requirement as it is evidenced that when the law uses the word shall in conferring a power such word shall be interpreted to mean that the 8 function so conferred must be performed as it is provided under section 53(2) of Interpretation of Laws Act Cap 1 RE 2019. Finally, he argued that this appeal at hand is titled Memorandum of Appeal instead of Petition of Appeal, hence this appeal is incompetent and prayed the same be struck out with costs. On his side, the appellant responded that it was not wrong to title the appeal as memorandum as both words to wit memorandum and petition can be used

interchangeably, so long as the use of memorandum of appeal instead of petition can be used interchangly, but also the use of the same doesn’t prejudice the right of parties as well as to deprive the appeal. I have exhausted submission from both parties and going through the records. The records revealed that appeal is titled as memorandum of appeal. I differ with Mr. Rwangobe that a word ‘’shall’’ always means mandatory. See the case of Fortunatus Masha vs. Williamu Shija [1997] TLR 41 said as follows: - "We think that, the use of the word " shall" does not in every case make the provision mandatory. Whether the use of that word has such effect will depend on the circumstance of the case." 9 Also, in the case of Felician Mchuruza vs. Zindunza Mnaku [2013] T.L.R. 210 where Hon. Mwambegere, J. as he then was 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." Notably, in the case of Yoram Numa vs. Zakaria Numaland, Appeal No. 71 of 2019 Hon. Gwae, J. held that "More so, even if the Act provides to that effect, it my Page 12 of considered view that substantive justice does not

demand courts to dismiss cases merely relying on difference on a title of an appeal file in the court between the words "Petition" and "Memorandum of Appeal" as the same does not go to the root of the matter." Moreover, in the case of Basil Masare vs. Petro Michael [1996] TLR 227 where this Court, Hon. Mroso, J. as he then was, stated as follows: "If an appellant used the word 'memorandum' Instead of 'petition' in connection with his grounds of appeal in a case originating in 10 the primary court, that alone cannot render the appeal incompetent since that would be 'making a mountain out of a mouse mound". From the said cases I have cited above, this is court is supporting the submission from the appellant that the words memorandum of appeal and petition of appeal may be used interchangeably provided no prejudice is occasioned to the parties and the word "shall" is degraded to mean not mandatory and use the same does not prejudice the parties. Thus, second preliminary objection has no merit and it is hereby dismissed. Having so said and for the reasons so stated, second preliminary objection has no merit and is hereby dismissed while the first preliminary objection is meritorious the same is sustained. Consequently, I proceed to strike out the appeal without costs. It is so ordered. DATED at SHINYANGA this 24th day of January, 2025. R.B Massam Judge 11