MAJUTO ALLY V GOODLUCK HAMIS AND ANOTHER

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY

AT TABORA CIVIL APPEAL NO. 27069 OF 2023 {Arising from Civil Revision No, 03 of2023, Kaiiua District Court Originating from Execution Proceedings in Civil Case No. 01 of2023 before Kaliua Primary Court) MAJUTO ALLY ........... ,...... APPELLANT

VERSUS GOODLUCK HAMIS....................................... .......... 1st RESPONDENT WILLIAM TABULU ............ ....... ............................................ 2nd RESPONDENT

RULING Date of Last Order 01/10/2024 Date of Delivery: 30/10/2024 KADILU, J. Before Kaliua Primary Court, the appellant filed a civil case against the respondents claiming a refund of TZS. 5,100,000/= paid to the 1st respondent as expenses for making furniture for the appellant namely, 20 doors and 60 desks. The 2nd respondent guaranteed a contract between the appellant and the 1st respondent by offering his piece of land as collateral. The 1st respondent failed to honour the agreement between him and the appellant hence, the dispute arose. After hearing both parties, the trial court decided the case in favour of the appellant. The appellant executed the court's decree, which aggrieved the respondents. The respondents filed an application for revision in Kaliua District Court challenging execution proceedings. The district court nullified execution proceedings and ordered reimbursement of TZS. 5,100,000/= to the 1st respondent. Dissatisfied, the appellant filed the instant appeal in this court armed with the following grounds: i 1. That, the Resident Magistrate erred in law for holding that the court fee was not paid in an application for execution without allowing the appellant to be heard on that raised issue while he paid the court fee with receipt No. 31967680 issued by Kaiiua Primary Court.

2. That, the Resident Magistrate Court erred in law to determine on merit Civil Revision No. 03 of 2023 without first determining the point of preliminary objection which was raised by the appellant, 3. That, the Resident Magistrate erred in law to determine Revision No. 03 of2023 which was preferred instead of appeal without legaljustification or exceptions being shown.

4. That, the Resident Magistrate erred in law for ordering a refund of TZS. 5, 100,000/= to the 1st respondent for the reason that the court fee was not paid while the appellant's claim was justifiable and he already paid the claimed debt. Before hearing the appeal, the 1st respondent raised a preliminary objection (P.O.) to the effect that the appeal was wrongly filed in this court. During the hearing of the P.O., the appellant was represented by the learned Counsel Ms. Stella Nyakyi, whereas Mr. Kashindye Lucas also the learned Advocate, represented the 1st respondent, while the 2nd respondent had no legal representation. Submitting on the P.O., Mr. Kashindye stated that the appeal offended Section 25 (1) of the Magistrate's Court Act [Cap, 11 R.E. 2019] read together with Rule 5 (3) of the Civil Procedure (Appeals Originating in Primary Courts) Rules. G.N. No. 312 of 1964 which directs all appeals from District Courts to the High Court in cases that originated from Primary Courts, to be filed in the District Court. The District Court is obliged to transmit its records and those Of the Primary Court to the High Court. He referred to the case of TabuAmri Manungwa & Another in Kurwa Seif & Another, 2 Civil Appeal Nd. 7613 of 2024, High Court at Mwanza, in which it was held that Rule 5 (3) of G.N. No. 312 of 1964 is coached in mandatory terms hence, the appeal that contravenes

it deserves to be struck out. Mr. Kashindye also cited the case of Wolfgang Z. Ngalapa k ConradZacharia Ngalapa (administrator of the estate ofthe late Zacharia Conrad Ngalapa), Probate Appeal No. 15of2022t High Court of Tanzania at Morogoro where this position was discussed. According to Mr. Kashindye, since the instant appeal was filed in the High Court directly, it contravened the mandatory requirement of the law. He added that the E-Filing Rules do not permit a party to file an appeal directly to the High Court if the matter originated from the Primary Court. He, therefore, urged the court to strike out the appeal with costs. Ms. Stella submitted that she filed the appeal in the High Court because at that time the court was migrating from using papers to an electronic Case management system (E-cms). She elaborated that the District Court of Kaliua failed to admit the appeal on E-cms so, the appellant was directed to file it in the High Court. According to Ms. Stella, no law prevents the High Court from determining the appeal which was filed directly without involving the District Court. She argued that the essence of Rule 5 (3) of G.N. No. 312 of 1964 is to enable the lower courts to transmit records of appeal to the High Court. She urged the court not to punish the appellant for the problems of the E-cms. She prayed for the court to dismiss the preliminary objection

and determine the appeal on merit. When the 2nd respondent was given the floor, 3 he urged the court to dismiss the preliminary objection and determine the appeal because this court has the discretion to do so. In a brief rejoinder, Mr. Kashindye contended that Advocate for the appellant had conceded that the appeal was filed directly to the High Court. She had not stated if the law was amended to permit her to do so. As she has said nothing about the authorities he had cited, Mr, Kashindye prayed for the preliminary objection to be sustained and the appeal to be dismissed with costs. Having set out the facts of the case, and submissions by Counsel for the parties, now I have to determine whether the appeal is properly placed before this court. The point of preliminary objection is based on Section 25 (1) (b) of the Magistrates7 Courts Act which provides that every appeal from the District Court has to be filed in the High Court within 30 days from the date of judgment delivery. Further, Rule 5 (3) of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, G.N. No. 312 of 1964, provides that when a petition of appeal to the High Court is filed in the District Court, the District Court is obliged to cause the date of filing to be endorsed on the petition before dispatching it to the High Court. Like Rule 5 (3) of G.N. No. 312 of 1964, Section 25 (4) of

the Magistrates' Courts Act: stipulates that upon receipt of a petition of appeal, the District Court should forthwith dispatch it, together with the record of the proceedings in the primary court and the district court, to the High Court. In the instant appeal, two things are clear. First, the case originated in Kaliua Primary Court as Civil Case No. QI of 2023. Second, the appeal was filed directly in the High Court on 06/12/2023. Ms. Stella argued that there is no 4 law prohibiting the High Court from determining the appeal that was filed in it directly instead of filing it in the District Court. With due respect to the learned Advocate, Section 25 (3) of the Magistrates' Courts Act is crafted in mandatory terms. It provides as follows: "Every appeal to the High Court shall be by way ofpetition and shall be filed in the district court from the decision or order in respect of which the appeal is brought..." This Court held in the case of Wolfgang Z. Ngalapa v. Conrad Zacharia Ngalapa (administrator of the estate of the late Zacharia Conrad Ngalapa), (supra) that the rationale behind the above provisions is to facilitate and speed up the process of appeal originating from Primary Courts by avoiding the unnecessary delay in calling for the records of proceedings from the lower courts. Since the appeal at hand was filed before the High Court Registry, the filing contravened the

mandatory requirement of the above-quoted provisions of law. Thus, I am unable to agree with Ms. Stella that there is no law preventing the High Court from entertaining the appeal filed directly without involving the District Court. The learned Advocate submitted in addition that she filed the appeal in the High Court because at that time the court was shifting from using papers to an electronic case management system (E-cms). Again, a mere shift from paper-based to E-cms cannot be an excuse for violating the procedural rules and this court is not prepared to endorse it. Ms. Stella elaborated that the District Court of Kailua failed to admit the appeal on E- cms so, the appellant was directed to file it directly in the High 5 Court. However, she produced no proof for the assertation hence, it remained a mere statement from the bar. For the above reasons and based on the above-cited authorities, I uphold the preliminary objection raised by the Advocate for the 1st respondent that, this appeal is incompetent before this court. Accordingly, I proceed to strike it out with costs. Order accordingly. KADILU, MJ.

JUDGE 30/10/2024 Ruling delivered in chamber on the 30th day of October, 2024 in the presence of Mr. Hassan Kilingo holding brief for Ms. Stella Nyakyi, Advocate for the appellant, and Mr. William Tabulu, the 2nd respondent.

JUDGE 30/10/2024 6