linda cosmas vs george shida others 2023 tzca 17439 21 july 2023

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA I CORAM: LILA. J.A.. FIKIRINI. J.A. And MURUKE. J.A.1 CIVIL APPPLICATION NO. 183/08 OF 2020

LINDA COSMAS APPLICANT

VERSUS GEORGE SHIDA..................................................... .1st RESPONDENT SUKAH SECURITY CO.(T) LTD............................. 2nd RESPONDENT SWALEHE LYASUKA, alias LYASUKAH SWALEHE 3 rd RESPONDENT (Application for leave to appeal against the Ruling of the High Court of Tanzania at Mwanza) (Maevekwa. J.~) dated 28th day of June, 2019 in Civil Revision No. 16 of 2018

RULING OF THE COURT 18th & 21st July, 2023 LILA. J.A: This is a second bite application following the applicant's application for leave to appeal to the Court being refused by the High Court in Misc. Civil Application No. 109 of 2019. In that application the applicant was seeking for leave to appeal against the High Court decision in HC: Civil Application No. 16 of 2018 which dismissed the applicant's application for revision. The revision application was geared towards revising the decision of the Resident Magistrates' Court of Mwanza in RM Civil Case No. 7 of 2018 for allegedly wrongly marking as withdrawn the applicant's suit. The appellant still intends to pursue his quest to challenge the High Court decision before the Court hence the present application for leave on a second bite. The background of the application before the Court, traces its origin from the alleged occurrence in the chambers of a Senior Resident Magistrate when the applicant's case was called on for hearing on 26/07/2018. The details of what transpired is outlined in paragraphs 2 to 21 of the applicant's affidavit in support of the application. As the contents mostly constitute serious accusations against the conducts of the presiding magistrate in handling the court proceedings and which, we think, could effectively be dealt with administratively, we find it unnecessary to recite them. Suffice it to say

that, at the end, the suit was marked withdrawn at the instance of the applicant. Claiming that there was falsification of the proceedings in that they did not reflect the truth of what transpired, the applicant preferred a review to the High Court which was dismissed in HC: Civil Application No. 16 of 2018. HC: Civil Application No. 16 of 2018 was resisted by the 1st respondent through a counter affidavit and a notice of preliminary objection which raised two points of objections that the court lacked jurisdiction to entertain the application on the ground that the Senior Resident Magistrate's order did not finally and conclusively determine the matter before the court hence interlocutory to which a review does not lie under section 79(2) of the CPC. Another point was that the affidavit supporting the applicant's application was incurably defective for showing that he took oath instead of being affirmed, he being a Muslim. The learned judge heard the two points of objection by way of written submissions and in her ruling, she made reference to the parties' submissions and at page 64 of the record of appeal, she indicated that: - "In h is rejoinder Mr. Aiphonce subm itted that the objection has m erits because it is regarding ju risd iction o f the court which contains pure points o f law as the order o f the court withdrawing the su it is n ot subjected to revision as the

applicant h im self prayed to withdraw the case. Mr. Aiphonce stated that the cited case o f Mukisa B iscu it (supra) is differentiated from the facts which he has pleaded as it applies where if they are first pleaded in a su it and there is no other record o f the court in respect o f the sam e su it which states o r read to 3 the pleaded facts. W hile in the instant application, there is the previous record o f the court. Concerning the second p o in t o f objection, Mr. Aiphonce insisted that the applicant has sworn and affirm ed and a t the sam e tim e in the sam e affidavit. He sa id the applicant could choose to sw ear o r affirm . Mr. Aiphonce stated that the case o f DSM Education (supra) is distinguishable to the circum stances o f the application a t hand. He concluded by stating that such irregularity goes to the root o f the entire affid avit and m aking the sam e incurable defective. He prayed fo r th is court to upheld the prelim inary objection." The learned judge sustained the first point of objection holding, after fully quoting the provisions of section 79 of the CPC, that: - "Guided by the above provision o f the law, m y firm opinion is that as long as the m atter was not determ ined on m erit, the applicant cannot file an application fo r revision. Since once a case is withdrawn, there is nothing that rem ains pending in the cou rt." The appellant is

enthusiastic to challenge that decision but cannot access the Court without leave to appeal in terms of section 5 (1) (c) of the Appellate Jurisdiction Act (the AJA). In compliance with that requirement, the applicant moved the High Court to grant him leave in Misc. Civil Application No. 109 of 2019 but his quest bounced as his application was refused. Although we could not have a glance of the grounds upon which the application was based, we could deduce the the same in the learned judge's ruling at page 80 of the record of appeal which reads: 7 have gone through the applicant's affid avit and in particular paragraph 37 and I have found that th e a p p lic a n ts ' g ro u n d s fo r le a v e to [a p p e a l to ] th e C o u rt o f A p p e a l a re m a in ly b a se d on th e p o in t o f fa c t in c lu d in g th e g ro u n d s ta te d u n d e r p a ra g ra p h 3 7 (e ) th a t th is c o u rt n am ed one A lp h o n ce w ho w as n o t [ a ] p a rt[y ] to th e m a tte r, h e a p p e a re d in th e R u lin g a s a p e rso n w ho re -jo in e d , it is a c le ric a l e rro r w h ich c o u ld b e c u re d b y w a y o f re v ie w sin c e th e su b m issio n is th e sa m e sa v e fo r th e n am e of th e p e rso n w ho m ade th e su b m issio n . Thus, the sam e does not am ount to the p o in t of law. Therefore, the sam e is hereby disregarded."(Em phasis added). The learned judge then

proceeded to determine the application stating that: - "In the present case, under scrutiny, th e a p p lic a n t's a p p lic a tio n in re s p e c t to HC. C iv il R e v isio n N o. 1 6 o f 2 0 1 8 w as s tru c k o u t a fte r th is c o u rt s u s ta in e d th e p re lim in a ry o b je ctio n o f th e 1st re sp o n d e n t w h ich w as b a se d on th e p o in t o f la w . I t is in d is p u ta b le th a t th e a p p lic a n t h a d w ith d ra w n h is case in re s p e c t to R M C iv il C ase No. 0 7 o f 2018 at th e R e sid e n t M a g istra te C ourt. T herefore, th e a p p lic a n t ca n n o t file an a p p lic a tio n fo r re v is io n in a m a tte r w h ich h e co n ce d e d a n d th e sam e is c le a rly s ta te d in th e c o u rt re co rd s. It should be known that the court records accurately represent what happened as it was held in the case o f H a lfa n S u d i v. A b ie za C h o c h ili [1998] TLR 527 it was held that: "A court record is a serious docum ent; it should not be lig h tly im peached (ii) there is alw ays a presum ption that a court record accurately represents what happened". Guided by the above provision, it is d e a r th a t th e a p p lic a n t w ith d re w h is case fo r b e in g re s -ju d ic a ta , a n d h e is th e one a p p lie d fo r re v isio n . In m y view, th e re is n o p rim a fa c ie ca se that is fit to be brought before the Court o

f Appeal". (Emphasis added). Before the Court for hearing of the application, were the applicant and the 1st respondent only who appeared in persons and unrepresented. The 2nd and 3rd respondents did not feature in Court. Notices to appear directed to them were returned with remarks from the process server that they have declined to sign because they are not concerned with the case. We, on our part, treated the conduct to be a deliberate refusal to enter appearance and, in terms of Rule 63(2) of the Tanzania Court of Appeal Rules, 2009, we proceeded with the hearing in their absence. As the applicant and the 1st respondent had earlier on lodged written submissions, they both adopted them without further elaborating them. However, the applicant rose to bring to the attention of the Court on the yawning defect on the affidavit in reply by the 1st respondent that it was not indicated whether he was known by the commissioner for oaths before whom he swore the affidavit or was introduced to him by another person. He pressed that the defect is fatal rendering the reply affidavit incurably defective and should be expunged from the record leaving the application uncontested. Such a contention sailed unchallenged by the 1st respondent who, after adopting his written submission, said he had nothing to add leaving it for the Court to decide. As the practice of attending first to a legal

point of objection is now a deep-rooted principle needing no citation of an authority, we shall abide to it and hence we shall first consider the objection raised by the applicant. Admittedly, validity of an affidavit had been a subject of discussion in a chain of cases. But, an objection in this respect seems to be novel as we could, in our short research, not lay a hand on any authority about it. That notwithstanding, we think, the point of objection, in a way, invites the Court to consider what are the essentials of a jurat of attestation. For that reason, we cannot avoid making reference to section 8 of the Notaries Public and Commissioner for Oaths Act, Cap. 12 R.E. 2022 (the Act) which governs the manner of attesting to an affidavit. It provides: - "8. Every notary pu blic and com m issioners fo r oaths before whom any oath o r affid avit is taken o r made under the A ct s h a ll state truly in the ju ra t o f attestation a t w h a t p la c e a n d on w h a t d a te th e o a th o r a ffid a v it is ta k e n o r m ade". (Em phasis added). 8 With utmost lucidity, the import of this provision was explained in Director of Public Prosecutions vs Dodoli Kapufi and Another, Criminal Application No. 11 of 2008 (unreported) that: - "The word "jurat" has its origin in the iatin word "jurare" which m eant "to swear". In its brevity a ju ra t is a certification added to an affid avit

o r deposition stating when, where and before what authority (whom ) the affid avit was m ade...Such authority usually, a Notary Public and/or Com m issioner fo r Oath, has to certify three m atters, nam ely: - (i) that the person s ig n in g the docum ent d id so in h is presence, (ii) that the s ig n e r appeared before him on the date and a t the place indicated thereon, and (Hi) that he adm inistered an oath o r affirm ation to the sig n e r, who sw ore to or affirm ed the contents o f the docum ent." The Court, citing the case of Wananchi Marine Products Ltd vs. Owners Motor Vessels, Civil Case No. 123 of 1996, High Court Dar es salaam, Aziz Bashir vs. Ms Juliana John Rasta & Two Others, Misc. Civil Application No. 23 of 2003, High Court Arusha, Zuberi Musa v. Shinyanga Town Council, (CAT) Civil Application No. 100 of 2004 (all unreported) and D.P. Shapriya & co. Ltd vs. Bish International B.V [2002] E.A. 47, proceeded to state the consequences of an omission of any of the above requirements in these words: - "Total absence o f the ju rat, or om ission to show the date and place where the oath was adm inistered o r the affirm ation taken, o r the name o f the authority and/or the signature o f the deponent against the ju rat, renders the a ffid avit incurably defective . " The Court categorically ruled that the requirement to strictly comply with section 8 of Cap. 12 is

mandatory and not a shear technicality and that regularities in the form of a jurat cannot be waived at all by parties (See D.B. Shapriya's case). A reading of section 8 of the Act and the cited cases reveals that not any irregularity would have a serious effect of rendering a jurat of attestation incurably defective. In very clear terms, they are to the effect that it is only failure to show when, where and before what authority (whom) the affidavit was taken which are the only serious deficiencies which render a jurat of attestation and an affidavit as a whole incurably defective subject to be expunged. It therefore goes 10 without saying that the defect complained of by the applicant is not one of such serious omissions. The applicant's complained omission, although its omission should be discouraged, is not fatal affecting the validity of the affidavit in reply. We shall therefore proceed to determine the application on merits. It is, however, worth taking note, at the very outset, that the 1st appellant's impugned reply affidavit and reply submission simply provided the background of the matter with a conclusion that the judge's decision was in line with section 79(2) of the CPA, quite surprisingly, and that there is no legal issue attracting the attention of the Court. No details and reasons were given for taking that stance. It is therefore of little assistance to

the Court. Conversely, the applicant lodged a detailed and well-researched submission and we commend him for a splendid work done on the subject matter of this application. Without prejudging the merits of the intended appeal, two things stem out clearly from the two quoted parts of the learned judge's ruling in respect of an application for leave to appeal to the Court. These are: - 1. That, the applicant raised two issues for consideration by the Court that is, one; the learned judge introduced into the her li ruling on the review application a name of one Alphonce who was not a party to the application and, two; that his application for review was dismissed after sustaining a point of objection that he withdrew the same while he actually did not.

2. That, the learned judge proceeded, in her ruling, to resolve (determine) the two points the applicant had placed before the learned judge as basis of his application for leave to appeal to the Court and made a finding on them that it was clerical error which could be rectified by way of review and that the law barred the applicant to apply for revision on a matter he personally withdrew from the court, respectively. It is plain that the learned judge's approach to the application was itself problematic. It is visibly clear that she miscomprehended the principles governing grant of application for leave to appeal she had acknowledged earlier in her ruling as she personally cited the case of Sango Bay Estates Ltd & Others vs Dresdner Bank [1971] EA 17 and Gaudensia Mzungu vs IDM Mzumbe, Civil Application No. 94 of 1994 (unreported) and with that misconception, gauged such principles against the facts of the application before her. As rightly argued by the applicant in his submission, the principles enunciated by the Court in the case of British Broadcasting 12 Corporation vs Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004 as was cited in the case of Rutagatina C.L. vs. The Advocates Committee and Another, Civil Application No. 98 of 2010 (both unreported) gave guidance on factors to be considered in the determination of applications of this nature, thus: - " Needless

to say, leave to appeal is not autom atic. It is within the discretion o f the court to grant o r refuse leave. The discretion must, how ever ju d iciou sly exercised and on the m aterials before the court. A s a m after o f general principle, leave to appeal w ill be granted where the grounds o f appeal raise issues o f general im portance or a novel p o in t o f law o r where the grounds show a prim a facie or arguable appeal (see: B u ck ie v H o lm e s (1926) ALL £ R. 90 a t page 91). However, where the grounds o f appeal are frivolous, vexatious o r useless o r hypothetical, no leave w ill be granted." On the authority above, grant of an application of this kind is conditional. The applicant is required to show that ’the grounds o f appeal raise issues o f general im portance o r a novel p o in t o f law or where the grounds show a prim a facie o r arguable app eal.' In compliance with the conditions set forth above, the applicant, placed 13 the two issues above before the learned judge so that she could be obliged to grant him leave to appeal. The learned judge, acting under a misconception that the two issues ought to have been points law, found the two issues to be factual hence did not meet the conditions for grant of leave to appeal to the Court and thereby refused to grant leave to appeal. On the authority above and as rightly submitted by the applicant in his

submission, factual issues of general importance are also grounds that may move the court to grant leave. A serious examination of the entire background of the matter and the learned judge's decision dismissing the revision application and refusing to grant leave to appeal, as above quoted, make the two issues raised by applicant crucial and of great importance calling for the Court's consideration and guidance. In addition, in the present application, the applicant has, in paragraph 41 of the supporting affidavit, listed down the intended grounds of appeal stating that: - "That, I am desirous to appeal from the Ruling o f the High Court (Hon. A. Z. Mgeyekwa, J.) dated the 2 8 h day o f June, 2019, in (HC) C ivil Revision No. 16 o f 2018. The said Ruling contains several irregularities, im proprieties and ille g a litie s as p er the follow ing 9 grounds o f m y intended appeal: 14 a) That the learned High Court Judge erred in law when she om itted to consider and effectively deal with or determ ine the applicant's w ritten subm issions regarding the 1st respondent's prelim inary objection. b) That, the learned High Court Judge erred in law when she considered only the w ritten subm ission in support o f the 1st respondent and com pletely ignored the w ritten subm issions o f the applicant. c) That, the learned High Court Judge erred in law when she om itted to hold that the

com plained order dated 26/07/2018 in RM C ivil Case No. 7 o f 2018 had the effect o f fin a lly and conclusively disposing o f that suit. d) That, the learned High Court Judge erred in law when she om itted to observe and hold that in arguing and determ ining the 1st point o f law in the 1st respondent's prelim inary objection, a ll the facts which were pleaded by the applicant in the supporting affid avit had to be assum ed as correct and not otherwise. e) That, the learned High Court Judge erred in law and in fact to introduce one Mr. Aiphonce, who is a stranger to th is matter, as a person who m ade the rejoinder subm issions in the High Court. 15 f) That, the learned High Court Judge erred in law when she sustained the 1st respondent's prelim inary objection and dism issed the application. g) That, the learned High Court Judge erred in law when she le ft undeterm ined the 2nd p o in t o f law in the 1st respondent's prelim inary objection. h) That, the learned High Court Judge erred in law when she om itted to consider and determ ine the revision application under the cited enabling provisions in the cham ber summons. i) That, the learned High Court Judge erred in law and in fa ct when she om itted to say anything regarding the uncooperative behaviour o f the 2nd and J d respondents in this m atter". These grounds of appeal bear correlation with the applicant's complaints

and issues earlier placed before the learned judge for consideration so as to move her to exercise her discretion to grant leave to appeal to the Court. They seek to challenge the judge's decision to dismiss the applicant's application for revision. Had the learned judge given the two points a serious consideration and properly applied the principles governing grant of leave to appeal to the Court, she would have decided otherwise. Instead, she miserably strayed into error to dwell into resolving the two issues which act is a 16 contravention of the settled principle of law that the court's mandate in applications of this nature is limited to only determining if the issues or grounds of appeal raise serious issues of law or fact arguable before the Court. Such courts are precluded from engaging into determining the merits or otherwise of the issues or grounds raised. For clarity and to remind the learned judges faced with these applications, we let the Court's wisdom in the case of The Regional Manager - TANROADS Lindi vs DB Shapriya and Company Ltd, Civil Application No. 29 of 2012 (unreported) guide them that: - "It is now settled that a Court hearing an application should restrain from considering substantive issues that are to be dealt with by the appellate Court. This is so in order to avoid m aking decisions on substantive issues before the appeal its e lf is h eard

..." In all, and with due respect to the learned judge, we hold that she overstepped her mandate when she determined the issues raised. Her engagement in that exercise was a clear manifestation of the fact that the issues raised by the applicant were matters arguable before the Court. She had, therefore, no option but to exercise her discretion judiciously and grant the applicant the sought leave to appeal to the Court. 17 In fine, we grant the application and grant the applicant leave to appeal to the Court against the High Court decision in HC: Civil Application No. 16 of 2018 (Cited as (HC) Civil Revision No. 16 of 2018 in the Drawn Order at page 70 of the record) with costs. DATED at MWANZA this 20th day of July, 2023. S. A. LILA

JUSTICE OF APPEAL P. S. FIKIRINI

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The Ruling delivered this 21st day of July, 2023 in the presence of the applicant in person and 1st respondent in person and in the absence for 2nd and 3rd Respondents, is hereby certified as a true copy of the original.

DEPUTY REGISTRAR

COURT OF APPEAL