CIVIL APPEAL NO 381 OF 2021 JOURNEY ABDALLAH RAMADHANI VS HASSAN ABUBAKAR MWICHUMU

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. 3.A.. MAIGE, 3.A. And KHAMIS. J.A.) CIVIL APPEAL NO. 381 OF 2021 JOURNEY ABDALLAH RAMADHANI (Administrator of Abdallah Ramadhani Kibelenge) ...... .................... .......... APPELLANT VERSUS HASSAN ABUBAKAR MWICHUMU ........................... ............... RESPONDENT (Appeal from the ruling and drawn order of the High Court of Tanzania, (Land Division) at Dares Salaam) (M akanLL) dated 26h day of July, 2021 in Misc. Land No. 596 of 2019 RULING OF THE COURT 12th & 16th August, 2024 MAIGE. J.A.: The appellant herein has filed the instant appeal as the legal representative of the late Abdallah Ramadhani Kibelenge, herein after referred to "the deceased." In accordance with a copy of the letters of administration appearing at page 159 of the record of appeal which was issued on 16th August, 2021, the appellant was appointed as such by the Primary Court of Mbagala vide M irathi No. 229 of 2021. The appeal at hand is against a decision of the High Court Land Division (the High Court) refusing to extend time within which to appeal against the decision of the District Land and Housing Tribunal for Temeke (the trial tribunal). In both the decision of the trial tribunal and that of the High Court appearing at pages 89 and 145 of the record, the applicant was Abdallah Hittler Ramadhani and the respondent Hassan Abubakar Mwichumu. The name of the appellant herein did not feature out at all. In that background, it did not, therefore, come as a surprise to us when the respondent raised a notice of preliminary objection to the effect that the appellant cannot institute the appeal as he was not a party to the proceedings before the High Court. At the hearing, Mr. Alex Enock, learned advocate, appeared for the appellant whereas, Mr. Simba Pius Kipengele, also learned advocate, appeared for the respondent. Right from the outset, Mr. Enock conceded that the appeal is not in order. He, however, prayed, which was conceded by Mr. Kipengele, for leave under rule 111 of the Tanzania Court of Appeal Rules, 2009 (the Rules, to file a supplementary record of appeal to include the proceedings in the probate and administration court which would indicate that the appellant's predecessor one Abdallah Ramadhani Kibelenge and Abdallah 2 Hitler Ramadhani is one and the same person. In the first place, we agree with the counsel that, for being brought by a legal representative of a person whose name is not in the decision appealed against, the appeal at hand is defective. The counsel have, by consent, urged us to allow the appellant to file a supplementary record of appeal to include the proceedings in probate and administration cause that would establish that the appellant's predecessor and the applicant in the decisions and proceedings of the tribunal and the High Court are the same person. We shall consider herein whether the defect can be cured by an amendment. The issue involved in this point is whether an appeal can be preferred at the instance of a person whose name is neither in the decisions nor proceedings of the lower courts. This, in our view, is a pure point of law which affects the jurisdiction of the Court because the appellate jurisdiction of the Court is limited to appeals between the parties in the proceedings of the courts below or their successors. Such a point, we think, cannot be resolved by mere consent of the parties because before resolving a dispute, any court of law is inherently obliged to ascertain if the same falls squirely within its jurisdiction or otherwise legally maintainable. See for instance, Abdallah Ally Selemani t/a 3 Ottawa Enterprises (1987) & Another v. Tabata Petrol Station Co. LTD & Another (Civil Appeal No. 89 of 2017) [2019] TZCA 636 (29 August 2018; TANZLII) where we said; "This is m ainly because, as we have earlier on stated, jurisdiction is conferred by statute so that even if the parties agree , they cannot confer jurisdiction to a court that does not have" In this matter, the deceased on whose behalf the appeal is purported to have been brought, was neither a party to the decision and proceedings of the High Court nor in the judgment and proceedings of the trial tribunal. We heard Mr. Enock arguing that, the deceased used the two names interchangeably. When asked whether his contention has any factual foundation from the record, he admitted that it has not. He argued, however that, his contention is traceable from the proceedings in the probate and administration cause which, if allowed, he was prepared to bring them by way of a supplementary record of appeal. With respect, such prayer cannot be brought at this stage. Regard being that the name of the deceased even in the letters of administration is different from that of the appellant in the decisions and proceedings of the two courts below. That being the case, whether the two names are of the same person is a factual issue which was to be proved at the two courts below rather than being raised by mere arguments from the bar. It can, therefore, not be resolved under rule 111 of the Rules as the counsel would like it to be. For those reasons, we find the instant appeal fatally defective and we accordingly strike it out. Considering the concurrent submission of the counsel, we shall not make an order as to costs. Order accordingly. DATED at DAR ES SALAAM this 14th day of August, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Ruling delivered this 16th day of August, 2024 in the presence of Mr. Alex Enock, learned counsel for the Appellant and Respondent in person, is hereby certified as a true copy of the original. I St ]J. J. KAMALA ^ ^ ^ y ^ D E P U T Y REGISTRAR ♦ COURT OF APPEAL 5