israel enosy fungo vs victor valentine chibwana and another 2020 tzhc 1247 29 may 2020

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM PC CIVIL APPEAL NO. 21 OF 2020 (Arising from the Ruling of Kinondoni District Court in Misc. Civil Application No. 119 of 2019 dated 26th November, 2019 before Hon L. SILLAYO, RM, Original Probate and Administration Cause No. 81 of 2016 in Kinondoni Primary Court) ISRAEL ENOSY FUNGO..... ........ .........................APPELLANT VERSUS VICTOR VALENTINE CHIBWANA Alias VALENTINE CHIBWA.......... ............. .... RESPONDENT JUDGMENT 27th May & 29th May, 2020. E. E. KAKOLAKI J This is the first appeal in respect of the decision of Kinondoni District Court in Misc. Civil Application No. 119 of 2019 proclaimed in favour of the respondent. Discontented the appellant Is before this court canvassed with four grounds of appeal as registered hereunder: 1. That, the trial magistrate erred in law and facts by holding that the suit was brought by using a wrong provision. 2. That, the trial magistrate erred in law and facts by not adjudicating on arguments raised and discussed by the parties. 3. That, the trial Magistrate erred in law and facts by nt consideraing that the decision which the Appellant sought to set aside was wrongly given. 4. That, the trial Magistrate erred in law by issuing a ruling that does not meet the requirement of the law. The facts giving rise to this appeal are briefly stated as follows. Before the District Court of Kinondoni the respondent filed an application in Misc. Application No. 90 of 2018 for extension of time to appeal out of time against the decision of the Kinondoni Primary Court in Probate and Administration Cause No. 81 of 2016. During its hearing the appellant defaulted to file submission opposing the application as a result the application was heard ex-parte and granted. Dissatisfied the appellant filed the application in Misc. Application No. 119 of 2019 in the same court for setting aside the ex-parte order. Again he lost as the same was found incompetent for wrong citation of the law applicable thus struck out. It is from that decision which aggrieved the appellant this appeal is preferred before this court. The appeal was contested by the respondent who in addition filed the Notice of Preliminary Point of Objection that the appeal before this court is incompetent as the decision sought to be appealed against is not appealable. The preliminary objection was to be disposed first before the going into the merits of the appeal. When the appeal came for hearing on 16/04/2020 parties sought court's leave to argue it by way of written submissions. The appellant was under representation of Mr. Lucky Mgimba learned advocate whereas the respondent was represented by Mr. Thomas Brash learned advocate. The court issued filling schedule in which parties comply with. Submission in chief in support of the preliminary point of objection was to be filed by 30/04/2020, reply to the submission by the appellant on or before 15/05/2020 and rejoinder submission if any by the respondent on or before 22/05/2020. The matter was therefore fixed for mention on 27/05/2020 with view of setting a ruling date. Up to that date it is only respondent's submission in chief in support of the preliminary objection which was already filed. On 27/05/2020 one Miss Neema Kimambo learned advocate appeared in court holding brief for Mr. Lucky Mgimba advocate for the appellant and Mr. Erick Simon advocate was also holding brief for Mr. Thomas Brash advocate for the respondent. Miss Kimambo informed the court of the appellant's failure to file reply submission in time as Mr. Mgimba had fell sick and up to that date he was still unwell. However, she did not seek any extension of time to file a reply instead she submitted that the appellant after going through the respondent's submission was conceding to the preliminary objection raised. She only prayed for waiver of costs for the reasons that the appellant's advocate having fallen sick could not file the reply timely. Responding to Miss Kimambo's submission Mr. Simon appreciated the appellant's concession to the preliminary objection and added that he had no quarrel with that. Nevertheless, he picked up an issue with Miss Kimambo's prayer for waiver of costs. On that he submitted that the respondent had incurred costs already in prosecuting this appeal which was negligently preferred by the appellant. That the reason of sickness of Mr. Mgimba advanced by Miss Kimambo had no any connection with the appellant's decision of filing this appeal negligently and suffer the respondent loss in terms of money and time. For the foregoing reasons he prayed for the appellant to be condemned to costs after the appeal has been struck out for being incompetent. I now turn out to determine the point of objection. In his submission in support of the preliminary objection raised Mr. Brush pointed out that the decision which the appellant is seeking to appeal against is not appealable. That as the application in Misc. Application No. 119 of 2019 was struck out for being incompetent the remedy was not appeal but rather file a fresh application in the same court after rectification of the defect noted in the former. To support his position he referred this Court to the case of The Honourable Attorney General and 3 Others Versus Nobert Yamsebo, Consolidated Civil Appeals No. 1 and 5 of 2013 where the Court of Appeal cited its decision in the case of Pita Kumpap Ltd Versus Mohamed I.A. Abdul Hussein, Civil Application No. 128 of 2004 C/F No. 69 of 2005 (unreported) and said: When a court strikes out a matter that does not mean that the matter has been refused. AH that the court says is that for some reasons the matter is incompetent and so, there is nothing before the court for adjudication. So, the proper cause of action is to rectify the error and go back to the same court as Abduihussein has done." I am in agreement with Mr. Brash's submission in which the appellant's advocate has also conceded to that the said application having been struck out the recourse was to go and rectify the errors noted and come back to the same court but this time subject to prescribed limitation period of time. I therefore find the respondent's preliminary objection meritorious and is hereby sustained. With regard to the prayer of waiver of costs by the appellant which Is contested by the respondent for lacking justification, I am also in agreement with the respondent counsel's submission that sickness cannot justify waiver of costs in this matter as the appeal was filed out sheer negligence. The appellant being represented by the advocate ought to have known that the decision he was appealing against is not appealable and concentrate on the available remedies. By filing this appeal in my opinion the appellant lacked diligence and forced the respondent to unnecessarily suffer costs for prosecution of this appeal. He therefore deserves to be condemned to costs. In the circumstances and for the foregoing reasons, I hold that the appeal before this court is incompetent for being wrongly filed in this court and is hereby struck out with costs. It is so ordered. DATED at DAR ES SALAAM this 29th day of May, 2020. 29/5/2020 Delivered at Dar es Salaam this 29th day of May, 2020 in the presence of Miss Neema Kimambo advocate for the appellant and Mr. Thomas Brash assisted by Mr. Erick Simon advocate for the respondent and Ms. Lulu Masasi, Court clerk. Right of appeal explained E. JUDGE 29/05/2020 6