HAMISI IDDI DUMA Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY)

AT DODOMA DC. CIVIL APPEAL NO. 22 OF 2023 (Arising from the decision of Kondoa District Court in Misc. Civil Application No. 5 of 2022 dated 11/04/2023) HAMIS IDD DUMA…………..……….………………………………..…………APPELLANT Versus KHALIFA SALUM MLELA…………………….……….………………….1ST RESPONDENT YONO AUCTION MART LIMITED………………….………………….2ND RESPONDENT

JUDGEMENT Date of last order: 23rd Aug, 2024. Date of Judgment: 4th Oct, 2024. E.E. KAKOLAKI, J. 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 at Iresi village within Kondoa District in Dodoma Region whereby the appellant was ordered to pay him Tshs. 23,240,000 and bear costs of the case, in the decision rendered on 21/09/2021. The claimed crops were sesame, peas and maize planted in 15 acres. In execution of the above decision the 1st respondent engaged the 2nd respondent who went on to serve the appellant with 14 days’ notice within which to settle the claimed amount or else his property be subjected to public auction without further notice. Displeased with the decision of Pahi Primary Court and 1st respondent’s move to execute it, the appellant opted to move the District Court of Kondoa through Civil Revision No. 1 of 2022, to call, 1 examine and revise the proceedings and orders of Pahi Primary Court in the said Civil Case No. 11 of 2021. Further to that, he lodged with the same court an application for stay of execution of the said Pahi Primary Court’s decision vide Misc. Civil Application No. 05 of 2022 pending hearing and determination of his revision application before the same Court in Civil Revision No. 1 of 2022. Parties were

ordered to dispose of the said application by way of written submission but only the appellant managed to comply with the court’s orders while the 1st and 2nd respondents defaulting to file their reply submissions in time hence the Court proceeded to set the ruling date. In its ruling delivered on 11/04/2023, relying on 1st respondent’s counter affidavit and basing on logic and common sense that, Court cannot order stay of execution in favour of the party who has been refusing to comply with the court’s orders for avoiding service of summons ruled that the application is incompetent, hence proceeded to strike it out with costs. Not amused the appellant has preferred this appeal fronting 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 2 legally summoned by a process server and heard during a visit of locus in quo.

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 is 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. The appellant appeared represented by Mr. Samwel Mcharo, learned advocate whereas the 1st and 2nd respondents proceeded on their own unrepresented. When the matter was scheduled for mention to establish parties’ compliance in filing their submissions it was noted that the 1st and 2nd respondents had failed to file their reply submission timely and in compliance with court orders the result of which the Court ordered for ex-parte judgment against them. However, in the course of preparation of the judgment the Court noted an irregularity in the impugned ruling of the District Court of Kondoa, as the Court having considered merits of the application and satisfied itself to be unmeritorious did not conclusively determine the matter on its merit instead made another finding that the application was incompetent as the applicant was avoiding summons hence 3 struck it out. Having so noted, the Court paused and raised an issue suo motu as to whether having found the application to be unmeritorious it was proper for trial court to strike it out on the ground of

incompetence. To respond to that issue parties were summoned to address the Court first on it before proceeding with determination of the appeal on merit as argued, in which all parties appeared on 23/08/2024. The appellant had the services of Mr. Samwel Macharo, learned advocate as usual while the 1st respondent appearing in person unrepresented and the 2nd respondents represented by her principal officer one Ezekiel Mwakagali. Having understood the issue raised by the Court suo motu Mr. Mcharo for the appellant submitted that, the trial court was in error to hold the application was incompetent hence struck it out after having found the application was barren of merit. He elucidated, the settled law is that where the 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. It was his submission that, since the Court had already heard the application on merit and found it is without merit, it ought to have dismissed the same instead of striking it out. In the case of Ngoni Matengo Co-operative Marketing Union Ltd Vs. Ally Mohamed Osman (1959) E.A 577, he argued the defunct East African Court of Appeal gave description on the use of the 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 4 on merit. To strike out the case or application he submitted, is equal to saying there was no competent case or application before the Court for determination. In view of the above submission he concluded 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 ruling and it orders and proceed to order for determination of the application afresh without costs. In his response to the same issue the 1st Respondent left matter to the Court for the same to examine and come up with proper decision the issue being legal and technical one to him. As to the 2nd Respondent, it was submitted that the 2nd respondent being responsible for executing court's orders only and given the fact that this Court is trusted then the matter was left in its hands to decide and give out the proper guidance in accordance with the law. Having closely followed the submission by the parties, I embrace Mr. Macharo’s submission that the District Court went astray in its decision rendered on 11/04/2023 when decided to strike out the application which it had 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 before the Court and therefore incapable of being disposed of on its merit and dismissed when it is competently before the Court

and determined on its merit. The distinction between the terms strike out and dismiss was made by the Court of Appeal in the case of Cyprian Mamboleo Hizza Vs. Eva 5 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" it etc, Court had this to say: ’’...This court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. W hat this court ought strictly to have done in each case w as 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, w hile the former phrase implies there w as no proper appeal capable of being disposed of.’’ (Emphasis supplied) The principle in the above cited case in my humble view applies to any other matter be it of civil or criminal nature. Applying the said principle to the circumstances of this case, the implication is that the struck out application subject of this appeal was improperly before the District Court of Kondoa, which is not the case since the same was already heard on merit and

found to have no merit. Had the trial magistrate felt that the application was incompetent after having heard parties on its merit, the remedy was to call the parties and invite them to address the Court on its competence before striking it out. Since the Court acted to the contrary the cumulative effect is to render its ruling invalid in law with no any effect to the parties. It is from 6 that finding I hold the raised issue above is answered in negative that it was improper for the Court to strike out the application. The answer to the said issue in my view disposes of this appeal. In view of the above, I proceed to quash and set as aside the ruling of the District Court of Kondoa in Misc. Civil Application No. 05 of 2022 dated 11/04/2023 and orders thereto. It is hereby ordered 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 disposing of the 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: 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 2nd Respondent’s principal officer and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI 7

JUGDE 04/10/2024. 8