Ruling Juma Zebedayo

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000032089 OF 2024 JUMA ZEBEDAYO .............................. COMPLAINANT / APPELLANT / APPLICANT /

PLAINTIFF

VERSUS GERVAS LUKAS .............................. RESPONDENT / DEFENDANT

RULING NKWABI, J, 08 & 08/03/2025 On 31/10/2024, the District Land and Housing Tribunal for Kasulu granted an application for execution with costs against the appellant. It was executing a decision of a ward Tribunal for Msambara ward. The respondent herein won the application. The District Land and Housing Tribunal ordered the appellant to give vacant possession within 14 days, the land which had been declared to be the property of Gervas Lucas. Failure to give vacant possession, a Tribunal broker would forcefully evict the judgment debtor. Aggrieved by the drawn order of the District Land and Housing Tribunal, the appellant filed this appeal in this Court. It has two grounds of appeal. He is asking this Court to grant him the reliefs I emulate: 1. The appeal be allowed.

2. The decision of the tribunal be quashed and set aside.

3. Any other or further reliefs that this Honourable Court may deem fit and just to grant. When the appeal was called on for hearing, the appellant was represented by Mr. Hamis Kimilomilo, learned counsel while the respondent was represented by Ms. Veronica John, also learned counsel. Page. 1 I, having gone through the petition of appeal, I called upon the counsel for the parties to address me on the concern that: “It appears the appeal is incompetent as no drawn order is attached to the petition of appeal.” Mr. Kimilomilo readily conceded that the petition of appeal is truly lacking the drawn order (decree). He prayed to withdraw the appeal with for leave to refile. He also beseeched this Court for an order that each party to bear their own costs. Ms. John was of a different opinion. She objected the prayer under Order XXXIX Rule 1(1) of the CPC. She explained her resistance that the appellant had to accompany a copy of the decree and judgment. She parroted Word Internation Ltd v. Carier Options, Civil Appeal No. 25/2021, HC, Arusha. She invited me to strike out the appeal with costs. Mr. Kimilomolo reiterate his earlier prayer he had asked the Court on the ground that the cited case by his learned sister is distinguishable to the present case because the matter has been raised suo motu by the Court. In fact, when I called upon the counsel to address me, I had in my mind the

position of the law as stated in Ngoni Matengo Co-operative Marketing Union Limited v. Ali Mohamed Osma [1959] E.A. 577 where it was underscored that: “In the present case therefore, when the appeal came before the court, it was incompetent for lack of necessary decree ... this court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive and not properly constituted appeal at all. What this court ought to have done in each case, was to ‘strike out’ the appeal as being incompetent, rather than to have dismissed it; for the latter phrase implies that a competent appeal has been disposed of while the former phrase implies that there was no proper appeal capable of being disposed of.” [Emphasis added]. See also Yusuf Shaban Matimbwa v. Exim Bank (T) Limited & 2 Others, Civil Application No. 162/12 of 2021 CAT 7/10/2022. The latter case quoted with endorsement Ngoni Matengo’s case (supra). Having indicated as above, it is clear that the appeal is incompetent as the appellant did not attach a copy of the drawn order which is sought to be appealed. As to the way forward, Ms. John suggested that the appeal be struck out with costs. Mr. Kimilomilo is impressing upon this Court to withdraw the appeal with leave to refile without an order for costs as the matter was raised by the Court suo motu. Page. 2 According to case law, the correct remedy is to

strike out the appeal as it is incompetent. See Petrofuel (T) Limited v. Bahdela Company Limited, Civil Appeal No. 318 of 2020, CAT, dated 21/02/2025, where it was held that: “It is glaring from the reasoned ruling of the learned trial Judge that having sustained the preliminary objection raised by the respondent, this meant that he had acknowledged that the appellant’s winding up petition was incompetent. Therefore, the said petition was thus, not capable of being dismissed as it was not determined on merits. We are fortified in that regard, because it is settled law that, where a suit, an appeal or application is found to be incompetent, the remedy is to strike it out instead of dismissing it.” Finally, the appeal is struck out for being incompetent. I make no order as to costs as the oddity was raised by this Court suo motu. It is so ruled. Dated at KIGOMA this 8th of April 2025 . J. NKWABI

JUDGE OF THE HIGH COURT Page. 3