janeti malongoza vs aden bahati mayala and another 2023 tzhc 16421 28 march 2023

IN THE HIGH COURT OF TANZANIA (SONGEA DISTRICT REGISTRY)

AT SONGEA LAND APPEAL NO. 19 OF 2022 (Originating from Land Case No. 10 of2021, Songea District Land and Housing Tribunal) JANETI MALONGOZA................................................................. APPELLANT

VERSUS ADEN BAHATI MAYALA................................................... 1st RESPONDENT OWARD JEREMIA SANGA................................................ 2nd RESPONDENT

RULING 02/03/2023 & 28/03/2023 E.B LU VAN DA, J. The Appellant above mentioned filed this appeal to challenge the order of the Songea District Land and Housing Tribunal (herein after referred as the tribunal) dated 29th November, 2022. The tribunal dismissed the application on the ground that the applicant therein refused to defend himself after her advocate failed to appear without a proper notice. When a copy of a memorandum of the appeal was served to the Respondents Counsel the latter lodged a notice of preliminary objection, thus: i This appeal is incompetent for contravening the law. By consent of the parties,s the point of preliminary objection was argued by way of written submission. Both parties were represented respectively. Mr. Dickson Ndunguru learned advocate represented the Respondents while the Applicant was represented by Mr. Eliseus Ndunguru the learned advocate. The Counsel for the Respondents submitted that, the appeal is incompetent for contravening the law on the reason that; One, the Appellant had not attached the judgement and the decree appealed from, he cited the provision of Order XXXIX Rule 1 (1) of the Civil Procedure Code [Cap 33 Revised Edition 2019] which he think the Appellant contravened. The Counsel submitted that in this appeal the memorandum of appeal had not been accompanied with decree or judgement hence make this appeal incompetent. To

support his submission he cited the case of MIC Tanzania Limited versus Hamisi Mwinyijuma and 2 Others, Civil Appeal No. 64 of 2026 (sic, 2016), High Court of Tanzania at Dar es Salaam (unreported). He prayed this appeal to be struck out with cost for being incompetent. 2 In response, the Counsel for the applicant conceded erroneously to mislead this court by writing the phrase "judgement and decree" instead of "dismissal order" that's why he attached the said order. It is the Counsel for the Appellant views that, the remedy to the situation is for the court to order the amendment so that the court would proceeds to hear substantive issues. He cited the case of Mondorosi Village Council and 2 Others versus Tanzania Breweries Limited and 4 Others, Civil Appeal No. 17 of 2017, Court of Appeal of Tanzania at Arusha (unreported). I agree with the Counsel for the Respondents that, Order XXXIX Rule 1 (1) of the Civil Procedure Code {supra} requires the memorandum of appeal to be accompanied by a judgement and decree appealed from. The provision coached in mandatory form, which mean it is not an option to attach the said documents but mandatory requirements. The word SHALL in the provision proves that, see also section 53 (2) of the Interpretation of Laws Act [Cap 1 Revised Edition 2019], for easy reference it provides inter alia that: (2) Where in a written law the word "shall" is

used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed. 3 From the record the Appellant Is appealing against the order of the tribunal dismissing his application under Rule 13 (2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003, on the ground that he refused to defend himself after non- appearance of his advocate for two consecutive days without good cause. Therefore the applicant cannot have neither a judgement nor a decree in relation to the matter at hand. Notwithstanding the provision of Order XXXIX Rule 1 (1) of the Civil Procedure Code {supra} the same law under the provision of section 74 (1) (i) allows the aggrieved party to appeal against an order expressly allowed by rules. For easy reference I quote; 74-(l) An appeal shall He to the High Court from the following orders of the District Courts, Resident Magistrate's Courts and any other tribunal, the decisions of which are appealable to the High Court, and save as otherwise expressly provided in this code Or by any law for the time being in force from no other order- fl) any order made under rules from which an appeal is expressly allowed by rules, [emphasis 4 added] That being the case, the Appellant was aggrieved with the order delivered by the tribunal in which the law under rule 13 (4) of the Land Disputes Courts

(The District Land and Housing Tribunal), (supra) expressly allow the aggrieved party to appeal to the High Court, that what the Appellant did. Due to the nature of the matter the Appellant cannot have a judgement nor a decree to attach but the dismissal order which is attached to his memorandum of appeal. The Counsel for the Appellant conceded to has erroneously written the phrase "judgement and decree" instead of "dismissal order". I join hand with the Counsel that the omission is a minor error which is curable by way of amendment under the provision of section 3A of Civil Procedure Code [Cap 33 Revised Edition 2019]. The point of preliminary objection is hereby overruled. The appellants memorandum of appeal be amended. Order accordingly. 5