20090623 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA .AT DAR ES SALAAM PC. CIVIL APPEAL NO. 98 OF 2008 ( Originating from Morogoro D/C Civil Appeal No. 67 /07) HIDAYA M. MLANGO ........... ........... APPELLANT VERSUS NURU MOHAMED KYAMILA ............. RESPONDENT Date of last Order 15/4/2009 Date of Judgment 23/06/2009 JUDGMENT SHANGWA, J. ,,-~! This appeal is against the decision of the District Court of Morogoro in Civil Appeal No. 67 of 2007 delivered on 25 th September, 2008 by A. H. Msumi, RM in which the Appellant's application for leave to appeal out of time against the decision of the ' ., 2 Urban Primary Court of Nunge at Morogoro 1n Civil (Matrimonial) Case No. 367 of 2007 was rejected. Learned counsel for the Appellant Mr. M. L. K. Kannonyele raised one ground of appeal against the decision of the District Court. It is as follows and I quote:- " That the Honourable Resident Magistrate at the Appellate District Court erred both in fact and in law in rejecting to admit the Appeal on grounds of unconstitutional technicalities at the expense of justice to the Detriment of the Appellant." On this ground, he prayed that the refusal by the District ( ' Court of Morogoro to admit the appeal be held by this Court to be invalid and requested this Court to order the · District Court to admit the appeal. First of all, let us look at the background of the appeal before this Court. It is as follows:- 3 On 15 th November, 2007, Mr. M. L. K. Kannonyele, Advocate presented for filing Civil Appeal No. 67 of 2007 against the decision of the Urban Primary Court of Nunge at Morogoro. He did so on behalf of his client Hidaya M. Mlango (Appellant). On 9th January, 2008, learned counsel for the Respondent Mr. Matto Phineas Leonard presented for filing a notice of Preliminary Objection against that appeal on ground that it had been filed out of time and without leave of the Court to do so. Both counsel argued the said Preliminary Objection by way of written submissions and on 28 th March, 2008 the District Court of Morogoro A. H. Msumi R.M. overruled it and ordered the Appellant to make a formal application for leave to appeal out of time. In compliance with the said Court's order, Mr. M. L. K. Kannonyele for the Appellant filed an application for late filing of an appeal. It appears that Mr. Matto Phineas Leonard for the Respondent raised a Preliminary Objection against the said application. On 4 th July, 2008, the District Court of Morogoro ordered that the said Preliminary Objection be argued by way of written submissions. Mr. 5 In my view, the question which arises from the background to this case 1s not whether the District Court of Morogoro A. H. Msumi, RM erred both in fact and in law in rejecting to admit the appeal on grounds of unconstitutional technicalities at the expense of justice to the detriment of the Appellant as pleaded by counsel for the Appellant in his Petition of appeal before this Court. It 1s whether or not the said court erred both in fact and in law 1n rejecting the Appellant's application for leave to appeal out of time on grounds of unconstitutional technicality. In his lengthy and detailed written submissions, Mr. M. L. K. Kannonyele left no stone unturned. In brief, he vehemently argued that although he failed to file his reply submissions on the Preliminary objection as ordered by the District Court, the said Court A. H. Msumi, RM unconstitutionally misapplied Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963 G. N. No. 312 of 1964. In support of his argument, he referred this Court to the case of Judge in charge High Court Arusha and Attorney General Vs Nin Munuo Nguni Civil Appeal No. 45 of 1998 (unreported) in which the Court of Appeal of Tanzania observed inter - alia that " . . . it is trite Law that procedural irregularities 6 should.not vitiate proceedings if no injustice has been occasioned .. . that rules of procedures are hand maids of justice and should not be used to defeat justice." In a way, he also referred this Court to Article 107 A - (2) of the Constitution of the United Republic of Tanzania which Provides as follows: " 1 07 A - (2) katika kutoa maamuzr ya mashauri ya madai na jinai kwa kuzingatia sheria mahakama zitafuata kanuni zifuatazo, yaani: (a) ............................ . (b) ····························· (c) ...... ······················· (d) ............................ . (e) Kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka." Mr. M. L. K. Kannonyele translated the above quoted provision of the Constitution as follows: 7 (2) In the determination of Civil and Criminal matters according to law, the Courts shall have regard to the following principles, that is to say: (a) ·························· ······· (b) (c) ...... ············ ....................... · (d) (e) Administering justice without being constrained unduly by technical requirements which are capable of preventing justice. Furthermore, Mr. M. L. K. Kannonyele contended that his . omission to accompany a copy of .t}:ie Petition of appeal with the application for leave to appeal out of time did not occasion any injustice to the opposite party in the case because both the Court 'and the opposite party had already been seized with a copy of the intended appeal. Finally, he requested the Court to quash the ruling of the District Court. Counsel for the Respondent submitted in reply that the Appellant's appeal was filed out of time and that the 8 submission and contention made by Mr. M. L. K. Kannonyele for the Appellant are irrelevant. He said that counsel for the Appellant cannot hide under the Principle enunciated in the case of the Judge i/ c High Court Arusha and Attorney General Vs Nin Munuo Nguni Civil Appeal No. 45 of 1998 (unreported). He said also that the error by the Appellant to file her appeal out of time is an unforgivable sin and that the role of rules of procedure in the administration of justice is fundamental in that it does facilitate the _administration of justice. Further more, he said that the District Court of Morogoro properly discharged its duties but that Mr. M. L. K. Kannonyele for the Appellant made several errors which he named to be as fallows: 1. Filing the Appeal out of time. ,. 2. Filing the Memorandum of Appeal instead of the Petition of Appeal. 3. Filing a defective application for extension of time to the District Court. 9 4. Negligent failures by counsel to file submissions on Preliminary objection that resulted into unopposed striking out of Misc. Ci1Jil Application No. 4 of 2008. In this case, the question as to whether or not the appeal was filed within time was resolved by the District Court of Morogoro which ruled that the appeal from the decision of the Urban ,' Primary Court of Nunge was lodged out of time and ordered the · Appellant to apply for extension of time to file the same. I wish to mention here that the errors by counsel for the Appellant and or his failures to file submissions on the Preliminary objection are not in issue here. As a matter of fact, this Court has not been called upon to judge the errors of Mr. M. L. K. Kannonyele in lodging his client's .. appeal before the District Court out of time or his failures in . 1 replying to the Preliminary objection raised by counsel for the Respondent. What this Court has been called upon to do by counsel for the Appellant is to determine as to whether or not the District Court of 10 Mor~goro A. H. Msumi, RM. was correct in his decision of refusing to grant the Appellant's application for leave to appeal out of time. As already stated, counsel for the Appellant argued that the learned Magistrate A. H. Msumi, RM erred on refusing to grant his application on grounds of what he called " unconstitutional technicalities." The major reason which was given by A. H. Msumi, RM for rejecting to grant his application _for le~ve to appeal out of time is that it was not accompanied by the petition of appeal and that his failure to do so contravened the mandatory Provision of Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963, GN 312 of 1964 which provides inter - alia as fallows: " An application for leave to appeal out of time to a District Court from a decision or order of the Primary Court shall be accompanied by the petition of appeal . .. " In the light of the above quoted provision of law, I think that A. H. Msumi, RM did not err in fact or in law by refusing to grant the Appellant's application. As a matter of fact, the Appellant's 11 application for leave to appeal out of time against the decision of the .Urban Primary. Court of Nunge at Morogoro in Civil (Matrimonial) Case No. 367 of 2007 was not accompanied by the petition of appeal. For that matter, it cannot be said that A. H. Msumi, RM did commit any error of law. He followed the law. The question which arises here is whether or not by refusing to grant the Appellant's application for leave to appeal out of time, A. H. Msumi, RM did not conform to the Constitutional Principle which is laid down under Article 107 A - (2) (e) of the Constitution of the United Republic· of . Tanzania, 1977 where it is provided that in administering justice, the Courts of law have to administer justice without being constrained unduly by technical requirements which are capable of defeating justice. In my opinion, there is nothing in this case which shows that A. H. Msumi, RM in refusing to grant the Appellant's Application, he was unduly constrained by Rule 3 of the Civil Procedure (Appeals in Proceedings originating in Primary Courts) Rules, 1963 GN No. 312 of 1964. The Appellant's counsel should blame himself for not having complied with it. The technical requirement which is laid down in it is a hand main of justice. Thus, the Appellant was supposed to comply with it. 12 What I can say here is that in applying Rule 3 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963 A. H. Msumi, RM misapplied it in the sense that instead of striking out the Appellant's application for leave to appeal out of time on grounds of its incompetency, he dismissed it. In order to rectify the situation and for the sake of justice, I hereby quash the District Court's dismissal order of the Appellant's application for leave to appeal out of time against the decision of the Urban Primary Court of Nunge at Morogoro in Civil (Matrimonial) Case No. 367 of 2007 and order the Appellant to file a proper application for leave to appeal out of time against the said decision which should be accompanied by the petition of appeal as required by law. For this reason, I allow this appeal to the extent as mentioned above. Each party to bear its own costs. . l 13 ~ A.Shangwa JUDGE 23/6/2009 Delivered in open Court this 23 rd day of June, 2009 in the presence of Mr. M. L. K. Kannonyele for the Appellant and Mr. M. L. K. Kannonyele for Mr. Kashumbugu for Mr. Matto for the Respondent. ~~ A.Shangwa JUDGE 23/6/2009 -'~- . - . . ·..:..-:::-:- ---