HAMISI IDDI DUMA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA PC. CIVIL APPEAL NO. 35 OF 2023 (Arising from the decision of Kondoa District Court in Civil Revision No. 1 of 2022 dated 11/04/2023, Original Civil Case No. 11 of 2021 before Pahi Primary Court) HAMIS IDD DUMA…………..……….………………………………..…………APPELLANT Versus KHALIFA SALUM MLELA..…………………….……….………………..1ST RESPONDENT YONO AUCTION MART LIMITED………………….………………….2ND RESPONDENT

JUDGEMENT Date of last order: 23rd August, 2024. Date of Judgment: 04th October, 2024. E.E. KAKOLAKI, J. This is an appeal by the appellant seeking to displace the decision of the District Court of Kondoa in Civil Revision No. 1 of 2022, handed down on 11/04/2023. Briefly before Pahi Urban Primary Court within Kondoa District the 1st respondent herein in Civil Case No. 11 of 2021, successfully sued the appellant for destroying crops in his farm located Iresi village within Kondoa District where the appellant was ordered to pay him Tshs. 23,240,000 and costs of the case, in the decision rendered on 21/09/2021. The claimed crops were sesame, peas and maize planted in 15 acres. Displeased the appellant did not find it proper to challenge the above decision by way of appeal instead waited until when execution proceedings were initiated against him and the 1 2nd respondent served him with the 14 days’ notice for auctioning his property when he invited the District Court of Kondoa through Civil Revision No. 1 of 2022, to call, examine and revise the proceedings and orders of Pahi Primary Court in the said Civil Case No. 11 of 2021. However, lucky was not on his side as the Court having examined the trial court proceedings, judgment and orders and satisfied itself that the trial court was in full compliance with the law and procedures hence unmeritorious application, went further to

find the same was incompetent for being preferred in alternative to an appeal and proceeded to strike it out in its decision delivered on 11/04/2023. Disgruntled the appellant has preferred this appeal expressing his grievances in five (5) grounds of appeal going thus: 1. That, the District Court erred in law and fact by deciding the matter without considering that the primary court had jurisdiction to determine the matter in dispute.

2. That, the District Court erred in law and facts by deciding the matter without considering that the primary court is not an executing tribunal.

3. That, the District court erred in law and facts by deciding the matter without considering that the Appellant was not proved to have been legally summoned by a process server and heard during a visit of locus in quo. 2 4. That, the District Court erred in law and facts by deciding the matter without considering that the valuation report violates the law and the same is overtaken by event.

5. That, the District Court erred in law and facts by deciding the matter in favour of the Respondent without considering that even the findings of the visit of locus in quo reveals that the crops found belongs to the appellant. When the appeal was called on for hearing parties were ordered to proceed by way of written submission as it was the appellant only who had legal services well represented by Mr. Samwel Mcharo, learned advocate since the 1st and 2nd respondents proceeded unrepresented. However, it is the appellant only who managed to file the submission in chief timely as the 1st and 2nd respondents for no apparent reasons failed to comply with the court’s orders the result of which the Court ordered for ex-parte judgment against them. In the course of preparation of the judgment this Court noted an anomaly in the impugned ruling of the District Court of Kondoa, as having examined the proceedings, judgment and orders of Pahi Primary Court in Civil Case No. 11 of 2022 in which it was called for to examine and satisfied itself that, the trial court had complied with the procedures as required by the law hence unmeritorious application, did not finalise the matter on its merit instead made another finding that the application was incompetent for being preferred in alternative to appeal hence struck it out. Having so noted, the Court paused 3 and summoned parties to address

it on such defect in the judgment before proceeding to determine the appeal on merit in which parties appeared on 23/08/2024. The appellant was represented by his advocate Mr. Samwel Mcharo while the respondents proceeding unrepresented. Submitting on the issue raised suo motu by the Court Mr. Mcharo argued that, trial court was in error to hold the application was incompetent hence struck it out after having found the same to be devoid of merit. He said, it is settled law that where an application is incompetent before the Court the only remedy is to strike it out and not to proceed with hearing of the same and later on hold it unmeritorious like what the trial Court did in this matter. In his submission since the Court had already heard the application on merit and found it to be unmerited it ought to have dismissed the same instead of striking it out. He relied on the case of Ngoni Matengo Co-operative Marketing Union Ltd Vs. Ally Mohamed Osman (1959) E.A 577, the defunct East African Court of Appeal that gave distinction on the use of terms ‘strike out’ and 'dismiss'. That the case is struck out when it is incompetent before the court and dismissed when competent but heard and determined on merit. According to him striking out the case or application means the same is incompetent for determination by the Court. In view of the above he submitted, the trial court was in error

to take two courses at the same time, the remedy of which is to quash and set aside the impugned ruling and orders therein and proceed to order for determination of the application afresh 4 without costs, and so prayed. As for the 1st and 2nd respondents, both being laypersons entrusted this court with the mandate to investigate and examine the defects noted in the ruling and then decide on them while giving proper guidance and the way forward. I have carefully considered the submission by the parties. As the law stands, it is true and I shoulder up with Mr. Macharo’s submission that the District Court erroneously disposed of the matter in its ruling of 11/04/2023 when decided to strike out the application before it already found to be unmeritorious instead of dismissing it. The settled law is that, a matter is struck out from the court registry when it is improperly placed before the Court hence incapable of being disposed of on merit and is dismissed when it is competently before the Court and determined on merit. The distinction between the terms ‘strike out’ and ‘dismiss’ was set by the Court of Appeal in the case of Cyprian Mamboleo Hizza Vs. Eva Kiosso and Another, Civil Application No. 3 of 2010 when cited the decision of the Court of Appeal in Eastern Africa in the celebrated case of Ngoni- Matengo Cooperative Marketing Union Ltd Vs. Ali Mohamed Osman (1959) EA 577

where at page 580 in its effort to distinguish the meaning of "striking out" an appeal etc. and "dismissing" etc, Court observed thus: ’’...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 5 have done in each case was to ‘'strike out" the appeal as being incompetent, rather than to have "dismissed" it: for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable of being disposed of.’’ (Emphasis supplied) In my humble view the above referred distinction on the use of two terms ‘strike out’ and ‘dismiss’, applies to all matters be it of civil or criminal nature. Applying the said principle to the facts of this case, it is the findings of this Court that, the District Court of Kondoa having found the application had no any colour of merit ought to have dismissed it instead of going awry by finding the same incompetent and proceed to strike it out. Had the trial magistrate after having heard parties on the merit of the application detected the same was incompetent, the only remedy was to summon parties and invite them to address the Court on its competence before striking it out. Since the Court went amiss then its ruling is rendered invalid in law with no any effect

to the parties. It is from that finding I answer the above raised issue in negative that, it was improper for the Court to strike out the application. The answer to the said issue no doubt disposes of this appeal and therefore I need not deliberate on the other grounds of appeal raised by the appellant. In view of the above, the cumulative effect is to quash and set as aside the ruling of the District Court of Kondoa in Civil Revision No. 01 of 2022 dated 6 11/04/2023 and it orders. It is hereby ordered that, a fresh ruling be composed on the merit of the application or otherwise in accordance with the law, before another magistrate. The appeal is allowed to that extent. I order each party to bear own costs as the issue dissolving this appeal has been raised by the Court. Order accordingly. Dated at Dodoma this 04th of October, 2024. E. E. KAKOLAKI

JUGDE 04/10/2024. Court: Court: The Judgment has been delivered at Dodoma today on 04th day of October, 2024, in the presence of the Appellant in person, the 1st Respondents in person, Ms. Pendo Jackson, the 2nd Respondent’s principal officer and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI

JUGDE 04/10/2024. 7