MARWA NYAMBURUKEKE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS LAND APPEAL NO. 000016893 OF 2024 BETWEEN MARWA NYAMBURUKEKE.................................................................... APPELLANT VERSUS MWITA SOROBEA....................................................................... 1st RESPONDENT MWAJUMA SOROBEA................................................................. 2nd RESPONDENT RULING OF THE COURT 10/02/2025 & 04/03/2025 Kafanabo, J.: This is a ruling in respect of the preliminary objections registered against an appeal that emanates from a decision of the District Land and Housing Tribunal, at Musoma in the Mara Region (hereinafter referred to as the 'Tribunal') in Application No. 55 of 2024, dated 25th June 2024. The Appellant herein instituted the said application in the Tribunal claiming to be declared a lawful owner of the land in dispute. However, before the application could be heard on merits, the Respondents herein raised preliminary objections some of which were upheld by the Tribunal, and the application was struck out. The Appellant being aggrieved with the decision of the Tribunal preferred an appeal to this Court marshalling five (05) grounds of appeal. It follows that for the reasons that will become i apparent shortly, the said grounds of appeal will not be reproduced in this ruling. It is on record that the Respondents, upon being served with the petition of appeal preferred a notice of preliminary objection raising the preliminary points of law whose substance is as follows: (a) The appeal is incompetent and bad in law for being preferred from an order which is not appealable (the order that struck out the application). (b) The appeal is incompetent and bad in law for being preferred against an ex-parte decision contrary to the law. (c) the Appellant has filed an appeal against a person who has no locus standi. In disposing of the preliminary objections Mr. Baraka Makowe entered an appearance for the Appellants and Mr. Ostack Mligo entered an appearance for the Respondent. By consensus of the learned advocates of both parties, the preliminary objections were argued by written submissions. Commencing with the 1st limb of the preliminary objection Mr. Mligo submitted that, this appeal has emanated from an order that struck out the application, which is not appealable. It was further argued that the remedy available for the matter that has been struck out is to file a fresh suit or application at the court or tribunal of competent jurisdiction in accordance with the law, and not appealing against the impugned order. The case of Masolwa D. Masalu v The Attorney General and Another Civil Appeal No 21 of 2017 (unreported) was cited to bolster the submission. 2 matter and thus appeal was properly preferred. However, the Respondents' counsel was of the different view that the appeal was struck out and not dismissed. The solution to resolving the entanglement as regards the meaning of the word 'Hnafukuzwd is twofold. One is considering the settled practice of Courts when determining the competency of application or suits at a preliminary stage, i.e. what is the order that is, by practice and customarily, given by the Courts according to precedents in place when it is ruled that the matter before the Court is incompetent, and when the rights of the parties are yet to be determined on merits. Two would be what is the literal/dictionary meaning of the word 'Hnafukuzwd. Commencing with the well-established practice of Courts in our jurisdiction, it is trite law that when the suit or application is determined based on preliminaries, especially when it is ruled to be incompetent and when the substantive matter (dispute), or suit is not determined on merits rather on technical aspects, save for matters of time limitation, the suit or application should not be dismissed, but it should be struck out. The aim is that since the initial application was not determined on merits that is the rights of the parties have not been determined, then by striking out the matter the complainant is accorded another opportunity to pursue his rights if he so wishes. This takes this Court to the point that the Tribunal, under normal circumstances, and given the settled position of the law on the area, would not be expected to dismiss the Application, but to strike out the same 4 The Appellants' counsel, opposing the 1st limb of the preliminary objection submitted that the Appellants acting under a wrong impression, by itself, cannot change the Court's record. He submitted that the Tribunal dismissed the case and did not strike out the case and thus the Respondents' counsel submission was focused on what was not on the Court's records. It was further submitted that it could be a mistake made by the Appellant's counsel that he cited the case was struck out, yet the same cannot be an excuse for the other party not to consider the correct Court's record. Since the matter was dismissed, the authorities cited in supporting the position that an order emanating from striking out of the matter is not appealable are irrelevant and distinguishable. Furnished with the learned counsels submissions, it is a view of this Court that the crux of the matter regarding the 1st limb of the preliminary objection lies in determining whether Application No. 55 of 2024 was dismissed or struck out by the Tribunal in its decision dated 25/06/2024. The two learned counsels differ in the interpretation of the term used by the Tribunal in its final order when upholding the preliminary objections, the relevant order was written in the Kiswahili language. The Tribunal heard the preliminary objections and in upholding the same it held that "Kwa mnasaba huo, shauri Hnafukuzwa mahakamani, kwa gharamd'. The word that has brought controversy amongst the learned counsels for the parties is the word "Hnafukuzwa" this is a word in the Kiswahili language that may bear numerous meanings depending on the context in which it is used. The Appellants' counsel was of the view that by using the word 'Unafukuzwa' the Tribunal 'dismissed' the application, which brought about the finality of the 3 "(from) 1 fukuza, ondosha (hasa katika kazi). 2 (allow to go) ruhusu, fungulia. 3 toa fikrani, puuza; (leg) futa, tup'dia mbali the judge ~ed the case jaji aiifuta kesi. 4 (of cricket) toa. dismissal n. dismiss!b/e adj." In light of the foregoing translation of the word dismiss, especially translation number 3, which is highlighted in the dictionary as the legal meaning, the Kiswahili words or phrases that could be translated to mean the 'dismissal' of the application or suit in the legal context are either 'futa' or 'tupilia mbali'. The Kiswahili word 'fukuza' when translated to English could also mean 'dismiss' but not in the context of determining the fate of proceedings in Court. In light of the above, the word 'linafukuzwa'as used in the decision of the Tribunal and considering the context under which the decision was given where the rights of the parties were not determined on merits, did not mean that the application was dismissed, rather it was struck out which was also well understood by the Appellant's learned counsel as indicated in the first ground of appeal. Having ruled that the application was struck out and not dismissed, this Court is now called upon to determine whether it was proper for the Appellants to appeal to this Court against the order striking out the Application. There is a plethora of authorities that make it clear that an appeal cannot lie against an order striking out a suit or an application because the rights of the parties are yet to be determined on merits. 6 because the rights of the parties were yet to be determined. See the cases of Director General NSSF v. Consolata Mwakisu, Civil Appeal No. 329 of 2018, Ngoni Matengo Cooperative Marketing Union Limited v. Ali Mohamed Osmman [1959] EA 577 and 01am Uganda Limited v. Tanzania Harbours Authority, Civil Appeal No. 57 of 2007. Moreover, the word 'iinafukuzwa'as used in the Tribunal's decision comes from the word 'fukuzwd whose origin is the Kiswahili word 'fukuza'. The translation of the word 'fukuza' from Kiswahili to English as expounded in a MobiTuki dictionary accessed at https://swahili-dictionary.com/swahili- english/fukuza fukuzwa is that: '7 dismiss, rusticate, expeii. 2 chase away, oust, repeii, drive off, eject from, pursue: ~ jeshini banish; ~ wavamizi expeii invaders. 3 hound, course: ~ nchini deport: ~ kazi relieve sb of work; ~ mwizi go in pursuit of a thief, chase a thief (tde) fukuzia; (tdk) fukuzika; (tdn) fukuzana; (tds) fukuzisha; (tdw) fukuzwa. " However, in the above options of the translations of the word ' fukuza' there is no legal meaning of the word 'fukuzd in the context of terminating legal proceedings when the word is translated from Kiswahili to English. Then the Court is compelled to consider the reverse order of the translation, that is translation of the word dismiss from English to Kiswahili, again in a MobiTuki dictionary accessed at https://swahili-dictionary.com/english- swahili/dismiss dismiss, on 28/02/2025, the word dismiss was translated to Kiswahili as: 5 [1959] 1, E.A. 577 the matter was incompetent which means there was no proper application capable of being disposed of The established practice is that the applicant in an application which has been struck out is at liberty to file another competent application before the same court before opting to appeal as it has appeared in this appeal." See also the cases of Tanzania Standard Ltd vs Minister for Labour Employment & Youth & Others (Civil Appeal No. 46 of 2016) [2019] TZCA 422 (20 November 2019) and Mustapha Songambele vs Republic (Criminal Application No. 3 of 2016) [2019] TZCA 101 (6 May 2019). Moreover, the order in respect of which the appeal was preferred is not amongst the appealable orders listed under Order XL of the Civil Procedure Code, Cap. 33 R.E. 2019. In light of the above authorities, it is clear that since the Appellant's application was not dismissed, but struck out by the Tribunal, the Appellant's appropriate remedy was to file a fresh application in the Tribunal according to relevant laws. Filing an appeal against the decision of the Tribunal striking out the application was thus superfluous. Therefore, the first limb of the preliminary objection is upheld. Given that the determination of the first limb of the preliminary objection is sufficient to dispose of this appeal, this Court will not enen/ate itself by plunging into a futile exercise of determining the remaining limbs of the preliminary objection. 8 In the case of Masolwa D. Masalu vs The Attorney General & Others (Civil Appeal No. 21 of 2017) [2022] TZCA 15 (10 February 2022) the Court of Appeal held that: "Most importantly, in the circumstances of this appeal, since the ruling and order of the High Court did not finally determine the rights of the parties as prescribed by law, the striking out of the application for non-citation of the enabling provision of the law did not dose the door to the appellant to approach the same court for redress through a properly constituted fresh application. In short, considering the nature of proceedings in the record of appeal, the ruling and order of the High Court does not give the appellant an automatic right ofappeal to this Court either in terms of section 57 of the LIA or section 17 (5) of Cap. 310. In this regard, we are settled that the appellant was bound to return to the High Court for a fresh application if he wished as the previous application, whose ruling is a subject of this appeal, was struck out and not dismissed. " Moreover, in the case of Joseph Mahona @ Joseph Mbije @ Maghembe Mboje and Another v. The Republic, Criminal Appeal No. 215 of 2008 (unreported), as referred and quoted in the Case of Masolwa D. Masalu (supra), it was held that: 'In the instant case, the matter before the High Court was not dismissed but struck out. That implies according to Ngoni Matengo Co-operative Marketing Union Ltd v. AH Mohamed Osman 7 In the final analysis, this Court finds that the appeal is incompetent, and it is hereby struck out. Given the nature of the decision made by the Tribunal, each party shall bear their costs. It is so ordered. The judgment was delivered in the presence of Mr. Ostack Mligo, Advocate holding brief of Mr. Baraka Makowe, Advocate for the Appellant and in the presence of Mr. Ostack Mligo, Advocate for the Respondents. Judge 04/03/2025 9