joshua samwel vs yahaya kidagwe 2022 tzhc 15225 13 december 2022

IN THE HIGH COURT OF TANZANIA

TABORA DISTRICT REGISTRY

AT TABORA PC CIVIL APPEAL NO. 20 OF 2020 (Originating from Urambo De. Civil Appeal No. 24/2018 & Org Urambo Urban Court Civil Case No. 86/2018) JOSHUA SAMWEL.......... APPELLANT

VERSUS YAHAYAKIDAGWE_ _ .__ _ RESPONDENT

JUDGMENT Date of Last Order: 4/11/2022 Date of Delivery: 13/12/2022 AMOUR S. KHAMIS, J: Joshua Samwel is aggrieved by Judgement of the District Court of Urambo in Civil Appeal No. 24/2018 which upheld a decision of the Urambo Urban Primary Court in favour of Yahaya Kidagwe, the respondent herein. Therefore, he filed the present appeal on four (4) grounds, thus: 1. That, the District Resident Magistrate grossly erred both in law and in fact for deciding civil appeal in the District Court with change of Magistrates without i stating reasons for change and there is no letter of the predecessor do depart from hearing the said appeal. Since the said appeal was commenced before Honorable Anna Chilongola, Resident Magistrate who read and explained the said appeal to parties as it is witnessed on the course list of the Court attached to this petition. But surprisingly was decided by Honorable H.M Momba, Resident Magistrate.

2. That the District Resident Magistrate grossly erred both in law and in fact deciding civil appeal in the District Court without determining grounds of appeal nor stating reasons for departure, under this premise, it is the cardinal principle of natural justice that when determining appeal to deal with grounds of appeal unless reasons are stated.

3. That the trial magistrate grossly erred both in law and in fact for conducting and deciding civil suit in the primary Court which is time barred. Since the plaintiff, now respondent, when he was adducing evidence in the trial Court as evidenced on the trial court judgment dated on 31/10/2018 at page 1 of which we wish to quote " tarehe 26 November 2010 akiwa na mdhamini walifika ofisi ya chama cha msingi na alirndhamini tndaiwa mifuko 20 ya NPK ukiwepo uongozi wa chama”. Under this premise, the law governing limitation of civil suit arising from contracts 2 provides for 6 years limitation but the said suit was commenced after 8 years from 2010 to 2018.

4. That, the trial Magistrate grossly erred both in law and in fact for deciding the case of which the plaintiff now respondent has no cause of action against the appellant. Since when he was testifying before the trial Court under oath he stated that, on 26th November 2010 the parties went to Itundu AMCOS where he stood as a trustee of the appellant when he was taking agriculture implements. As evidenced at page one of the trial judgment of which we wish to quote “tarehe 26th Novemba 2010 akiwa na mdaiwa walifika ofisi ya chama cha msingi na alimdhamini mdaiwa mifuko 20 ya NPK ukiwepo uongozi wa chama cha msingi”. Under this premise the agreement of borrowing agriculture implements was contracted between the appellant and Itundu AMCOS but not between appellant and respondent. Upon service of the summons and copy of Petition of Appeal on the respondent he filed a Reply to the Petition of Appeal in which, among others, raised a preliminary point of law that the Petition of Appeal had contravened Section 44(1) of the Advocates Act, Cap 341, R:E 2019. The preliminary objection was canvassed by way of written submissions. Whereas the appellant appeared in person, Mr. Kanisius Ndunguru, learned advocate, acted for the respondent. 3 Both parties complied to the timeline set by the Court through a video conference technology and therefore, all submissions were timely presented in

Court. I have examined the Petition of Appeal filed on 7th June 2019 which show that it was drawn and filed by Joshua Samwcl, the appellant herein. In addition, an entity known as it was endorsed on 06/06/2019 by a representative of Certified Community Retief Foundation of P. O. Box 75, Urambo. I have also considered parties’ rival written submissions on record in respect of the preliminary objection. Order VI Rule 14 of the CIVIL PROCEDURE CODE, CAP 33, R.E 2019 provides that every pleading shall be signed by the party and his advocate (if any) or by any person duly authorized by him to sign the same. Section 44(1) of the ADVOCATES ACT, CAP 341, R.E 2019 provides that: '‘Every person who draws or prepares any instrument in contravention of Section 43 shall endorse or cause to be endorsed therein his name and address; and any such person omitting so to do or falsely endorsing or causing to be endorsed any of the said requirements shall be liable on conviction to a fine not exceeding two hundred shillings” 4 While interpreting the above provision, this Court in SOOD BATENGA V HANS AINGAYA MACHA, LAND CASE NO. 66/2013, (unreported) among others, held that: “The endorsement of Court pleadings is an irregularity in procedure and so the pleadings endorsed by persons not enrolled as a legal practitioner or advocates renders such process/pleadings defective”. In the present case,

despite of writing that the petition of appeal was drawn and filed by the appellant, Joshua Samwel, it was not endorsed by him. Instead, the same was stamped with a stamp of CERTIFIED COMMUNITY RELIEF FOUNDATION of P.O. BOX 75, URAMBO and was also signed by an officer of Certified Community Relief Foundation whose name was not disclosed. Since Certified Community Relief Foundation is not a registered advocate in terms of the Advocates Act, it has no powers to endorse and or stamp pleadings prepared for and on behalf of another party. Without express legal authority to do so. Furthermore, Certified Community Relief Foundation is not a representative of Joshua Samwel in terms of Order VI Rule 14 of the Civil Procedure Code, Cap 33, R.E 2019 because records show that there is no power of attorney issued by the appellant to that effect. For the stated reasons, the preliminary objection raised is hereby sustained and the appeal is struck out with no order for costs. 5 It is so ordered. UR S. KHAMIS

JUDGE 13/12/2022 Judgment .delivered in Chamber in presence of Mr. Saikon Justine, advocate for the respondent and in absence of the appellant. 6