JUDGMENT NKUMI MTIGWA RAISED ISSUES

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 9433 OF 2024 (Arising from the Judgement and Decree of the District Court of Kisarawe in Civil Case No. 01 of 2023 (Hon. Lukosi, SRM) dated 20th March 2024) ________________________ HANGU JAMBAU ....………………………................………..… APPELLANT VERSUS NKUMI MTIGWA………….……………..…...………..........… RESPONDENT JUDGEMENT Date of last order: 18th September 2024 Date of Judgement: 16th October 2024 MTEMBWA, J.: This appeal stems from Civil Case No. 1 of 2013 in the District Court of Kisarawe (herein “the trial Court”), where the Respondent herein commenced proceedings against the Appellant, claiming the sum of Tanzanian Shillings 50,000,000/= being compensation and Tanzanian Shillings 100,000,000/= as general damages. The Respondent also claimed for interest at 12% per annum on the decretal sum from the date of Judgment to the date of full payment and costs of the suit. Briefly, it is on record that the Respondent is the lawful owner of a farm situated at Shule Hamlei, Zegero Area, within Kisarawe District in 1 Coast Region, with coordinates 466878.9222815. On 29th April 2022, the Respondent received a call from his Farm Manager, who informed him that a large group of livestock had entered his farm. Following such invasion and destruction, the Farm Manager requested assistance from the Village Authority to embark the livestock from the farm. Later on, it was discovered that the livestock belonged to the Appellant. As such, the matter was reported to the Village Authority through the Ward Agricultural Office. While the matter was under negotiation with the assistance of the Ward Executive Officer, sometime in June 2022, the Appellant’s livestock was reported to have been on the Respondent's farm for the second time, thereby causing more significant destruction than before. This time, the Respondent decided to report the matter to the police. He was then advised to commence proceedings against the Appellant in a Court of law. Having considered the evidence adduced, the trial Court awarded the Respondent the sum of Tanzanian Shillings 15,000,000/= being general damages, Tanzanian Shillings 50,000,000/= being specific damages and costs of the suit. Dissatisfied, the Appellant has fronted the following grounds of appeal. 2 1. That, the trial Magistrate erred in law and in fact to decide the matter in favor of the Respondent who was represented by a person with no locus standi, upon failure to renew her practicing license for Advocates. 2. That, the trial Magistrate erred in law and fact to decide the matter in favor of the Respondent without the matter being proved on balance of probability. 3. That, the trial Magistrate erred both in law and in fact to decide the matter in favor of the Respondent without properly making evaluation of evidence adduced in the course of hearing. 4. That, the trial Magistrate erred in law and in fact to decide the matter in favor of the Respondent by making determination of issues which the Court had no jurisdiction. When the matter came up for orders on 29th May 2024, the Appellant was represented by Mr. Adam Kasengenya, holding briefs for Mr. Yusuph Mkanyali, both learned counsels. Mr. Kasengenya also had the briefs of Mr. Bilali Juma Bilali, the learned counsel for the Respondent. At Mr. Kasengenya’s request, an order to argue this Appeal by way of the written submissions was entered. However, the Respondent never complied with the agreed schedule. On 22nd August 2024, when the matter came for Judgment, the Appellant’s counsel was not present while the Respondent appeared in person. The Respondent complained that he had not been served with the Appellant’s written submissions in chief. His connection with Mr. Bilali 3 could not quickly be established. In such circumstances, for the interest of justice, I was constrained to vacate my previous orders on the filing schedule. Having reviewed the records, I am satisfied that the Respondent also adhered to the agreed schedule. When I was preparing this Judgement, I thought it wise to look into the competency of the Appeal. As such, I called the parties to address whether this appeal is competent on account of the failure to attach the Decree appealed from to the Memorandum of Appeal. On this, the Appellant was represented by Mr. Elphace Rweshabura, holding briefs with full instructions to proceed for Mr. Yusuph Mkanyali, the learned counsel. Mr. Bilali Juma Bilali, the learned counsel, represented the Respondent. When prompted, Mr. Elphace Rweshabura conceded to the mandatory requirement of the law that a copy of the Decree appealed therefrom must be attached to the Memorandum of appeal, short of which the same becomes incompetent. He implored this Court to strike out the Appeal with no order as to costs. On his part, Mr. Bilali Juma Bilali was not far from addressing this Court in terms of Order 39 Rule 1 (1) of the Civil Procedure Code, Cap 33, R.E 2019. He contended that, under the cited law, it is mandatory that a 4 memorandum of appeal must be accompanied by a copy of the judgment and decree appealed from. He was of the view that the only correct and available remedy is to strike out the Appeal for being incompetent. He didn't press for costs. Indeed, Order XXXIX rule 1 (1) of the Civil Procedure Code (supra) provides as follows; Every appeal shall be preferred in the form of a memorandum of appeal signed by the appellant or his advocate and presented to the High Court (hereinafter in this Order referred to as "the Court") or to such officer as it appoints in this behalf and the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Court dispenses therewith) of the judgment on which it is founded. It is a settled law that any party aggrieved by the judgment, decisions, or any other orders from the lower courts or tribunals may appeal against it to the superior courts. However, to appeal successfully, one must comply with certain procedural requirements. Some of procedural rules are mandatory and must be adhered to, while others may be overlooked. Justice Samatta (as he then was) in the case of VIP Engineering & Marketing LTD Vs. Said Salim Bakhressa LTD, Civil Application No. 47 of 1996, gave breath to the application of certain procedural rules that must be complied with. He guided the courts as hereunder; 5 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 Discussing the import of the above provision of the law, the Court in Munshiram & Co. vs. Star Soda Water Factory (1934) 16 K.L.R 50, had this to say; That O 39 r.1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from, and that where an appellant has failed to comply with this provision, the appeal is not properly before the court and must be dismissed. In Paul Charles Mhere vs. Felistos James Mwingwa (Probate Appeal No. 36 of 2020) [2021] TZHC 3063 (27 April 2021), this Court took a similar stand. It stated; This position is similar to the Kenyan position as was so decided in the case of Munshiram and Co. Vs. Star Soda Water Factory [1934] KLR 50 in which the Kenyan Supreme Court held that Order XXXIX rule 1 is mandatory in requiring every memorandum of appeal to be accompanied by a copy of the decree or order appealed from, and that where an appellant has failed to comply with this provision, the appeal is not properly before the court and must be dismissed. 6 It follows therefore that Order XXXIX Rule 1 of the Civil Procedure Code (supra) was not designed and or fashioned to leave the requirement to attach the Judgment and Decree to the Memorandum of Appeal at the liberty and wishes of the parties. It is couched in mandatory terms and imperative. As such, whoever wishes to appeal to the High Court when the District Court or Court of Resident Magistrate is exercising its original jurisdiction must mandatorily attach to the Memorandum of Appeal, a Judgement and Decree appealed from. In Upendo Eligi Kessy & Another vs. Honorata Eligi Kessy (Civil Appeal No. 512 of 2020) [2024] TZCA 110 (23 February 2024), the Court went further, with approval, to refer to an observation made earlier in the decision of the High Court in Gregory Raphael vs. Pastrory Rwehabula (2005) TLR 99 (HC) and stated; As it can be seen, attachment of a certified copy of judgment is not one of the contents of the petition of appeal as it sued to be in appeals originating from District Courts and Courts of Resident magistrate as is provided under 0.39 rule 1 of the Civil Procedure Code, 1966 which law is not applicable in Primary Courts. Failure to attach memorandum of appeal along with a copy of decree and judgment renders the appeal incompetent. Attachment of copies of decree and judgments is a condition precedent in instituting appeal originating from district courts and courts of resident magistrate. (emphasis mine) 7 Looking at the instant Memorandum of Appeal, the Appellant opted not to attach the Decree. I will not, therefore, hesitate to hold that the Appeal, in the circumstances, is incompetent for failure to attach a copy of the Decree appealed from. Being the vital document, this Court cannot proceed blindly to determine an incompetent appeal on the pretext that the original file will be called and looked upon. The Appellant’s counsel was obliged to discharge his duty by ensuring that the appeal accompanies the vital documents, including the Decree appealed from. Similarly, the overriding objective principle cannot be applied in the circumstances where the appeal itself is incompetent, nor can it be applied in disregard of the mandatory provisions of the law (see Njake Enterprises Limited vs. Blue Rock Limited & Another, Civil Appeal No. 69 of 2017 and Mwananchi Insurance Company Limited vs. Tanzania Insurance Regulatory Authority & Another, Civil appeal No. 290 of 2020, Court of Appeal at Dar es Salaam). From what I have discussed hereinabove, I see no reason to look into the grounds of appeal as raised by the Appellant. Having observed that the Appeal is incompetent, the only available remedy is to strike it out, which I hereby do. Considering the circumstances, there will be no order as to costs. 8 I order accordingly. DATED at DAR ES SALAAM this 16th October 2024. H.S. MTEMBWA JUDGE 9