mary sengo vs ibrahim kilapo 2023 tzhc 19298 31 may 2023

IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGOPn MISCELLANEOUS APPLICATION NO. 33 OF 2022 (Arising from CiviiAppealNo. 10of2021,In the High Courtof Tanzania,at Morogoro,from the decision ofthe District CourtofMorogoro,at Morogoro in PC CivilAppeal No.31 of2020,original- Urban Primary Courtin Civil Cause No. 238 of2020) ^'^'^^SENGO 1-APPLICANT

VERSUS

IBRAHIM KILAPO RESPONDENT

RULING 31« May, 2023 CHABA,J. This is an application for a certificate of points of law filed under section 5 (1)(c)of the Appellate Jurisdiction Act[G\P. 141 R. E, 2019](the AJA) whereby the appiicant, Mary Sengo is seeking leave to appeal to the Court of Appeal of Tanzania (the CAT)intending to challenge the decision of this Court(Ngwembe, J.) in Civil Appeal No. 10 of 2021 delivered on 27''^ day of June, 2022. In essence, the application is intended for this Court to certify that there is a point(s) of law involved which needs intervention and determination by the CAT. The application is made by way of a chamber summons supported by an affidavit sworn by the applicant which gives the grounds thereof. On the other Page 1 of 9 hand, respondent, Ibrahim Kilapo vehemently opposed the application. These grounds are as follows: - (0 That, the appealfrom the District CourtofMorogoro, at Morogoro to the High Court(T), at Morogoro was Wed out oftime without ieave ofthe Court. (ii) That, the Judge ofthe High Court(T)erred in iaw when he determined Civii Appeal No. 10 of2021, which was out oftime withoutjurisdiction. (Hi) That, the Honourable Judge of the High Court(T) erred in iaw when granted costs to the appellant which they did not piead for. During the hearing of the application, by consensus, parties agreed to dispose of the application by way of written submissions, and Prof. C.

BInamungu, learned advocate appeared for the applicant, while Mr. Hans Mwasakyeni, also learned advocate entered appearance for the respondent. Arguing in support of the application, Prof. Binamungu submitted that, appeals originating from Primary Courts to the High Court of Tanzania are governed by the section 25(1)(b)and (3) of the Magistrates Courts Act[CAP. 11 R. E, 2019]. He said, the provision of the law provides that, appeals shall be filed within thirty days after the date of the decision or order appealed therefrom this Court. He added that, the above provision of the law is read together with section 60(1)(c) of the Law of Interpretation Act [CAP. 1 R. E, 2019] which excludes the thirtieth day. He went on submitting that, applying Page 2 of 9 the law cited above to the matter at hand, the Hon. Judge who dealt with the appeal on page six (6) of the impugned judgment stated that: - These two sections are dear tike a brightest day tight unencumbered by douds, that the thirty days shaii not inciude the date of delivery of judgment. Therefore, mathematicaiiy, the date which started to count was 4" December, 2020 up to 4^ January, 2021 was equai to 30 days. In essence, this appeal takes it, as was filed within time thus valid and capable ofbeing determined by this Courts From the above submission, the learned advocate accentuated that, the first obvious arithmetical error

in the above extract, Is where the Hon. Judge inadvertently, considered the month of December, 2020 to be of 30 days while it was 31 days. That alone, for the judgment delivered on 3"^ day of December, 2020, the counting of days start on the 4^^ day of December, 2020, hence filing a case on 4^ January, 2021, according to him, pushes the days from 30 to 31. This anomaly alone, shows that the matter was filed out of time, i.e., out of 30 days. The second point in connection with the impugned decision is that, the appeal was required to be filed within 30 days. This means if the normal counting of 30 days runs from 4^^ December, 2020, the 30 days comes to an end on 2"^ January, 2021. This second day of January, 2021 was the last day to file his appeal. In his view, filing it on 4*^^ January, 2021, manually was out Page 3 of 9 of time. Accordingly, he prayed that one of the grounds of appeal to be certified by this Court should be read as follows: 1. That, the High Court erred in iaw gwhen determined Civii Appeai No. 10 of 2021 which was hied out oftime withoutjurisdiction". Arguing on the second ground, which states that the High Court granted reliefs in form of costs while the same were not prayed for. Prof. Binamungu contended that, on page 11 of the impugned decision, the Hon. Judge stated that: "The respondent is condemned to pay costs of this appeai and costs of the Courts

beiow ". According to him, this relief was not prayed for by the respondent. Referring to the petition of appeal, the counsel averred that, the same was filed on 4''^ January, 2021 read in part thus: "The appeiiantprays this Honourabie Courtto(in)grantcosts ofthis appeal....". In his view, the appellant never prayed for costs below. By this very fact, the act of this Court granting the costs in the Courts below was contrary to law. To support and strengthen his contention, the counsel referred this Court to the case of AMI Tanzania Limited V. Prosper Joseph Mseie, Civil Appeal No. 159 of 2020, CAT - DSM (unreported), where the CAT at p. 25 held among other things that; "reliefsnot prayed for shouid not be granted". He added that, this authority is in line with another decision by the CAT in the case of NBC Limited &IMMMA Advocate V. Bruno Swalo, Civil Appeal No. 331 of 2019 CAT - Mbeya (unreported), wherein the Court ruled that, parties are bound by their own pieadings. Page 4 of 9 He ended his submission by asking this Court to grant leave to appeai to the CAT on the point of law that: - "Tlhe High Court erred in /aw when granted costs be/ow the High Court to the respondent while the same were not prayed foC\ Responding to the applicant's submission in respect of the first point of law, Mr. Hans Mwasakyeni conceded that, the decision of the District Court was deiivered on the

3'''^ day of December, 2020 and counting of days commenced on 4» day of December, 2020 and that the 2"" day of January, 2021 was on Saturday. He however, disagreed with the applicant that the appeal was filed out of time for a reason that, the 2"" day of January, 2021 was a Saturday and thus the y day of January, 2021 was on Sunday and hence the only avenue the appellant / respondent had per the law was to file the appeai on the 4»' January, 2021 which was a Monday. To cement on the above position, Mr. Mwasyakeni cited the provision of section 60 (2) of the Interpretation of Laws Act[CAP. 1 R. E, 2019] which excludes Saturdays and Sundays in computation of limitation period and concluded that the applicant has not adduced sufficient grounds to warrant this court grant leave of appeai to the CAT. As regards to the second ground, the learned counsel submitted that, the third prayer in the petition of appeai and the submission in chief of the appeal as per the records demonstrate that, prayer for costs of the appeai were prayed and granted. Page 5 of 9 In the end, Mr. Mwasakyeni prayed this Court to dismiss the application with costs. I have keenly perused the documents and considered briefly the submissions made by both parties including an affidavit filed by the applicant. The main issue for consideration, in my considered view is, whether the raised points of law are worthy for

determination by the CAT. However before delving into the submissions of both parties, I have noted an irregularity in the chamber summons which goes to the root of the application itself. Looking at the chamber summons, it is crystal clear that, this application has been preferred under section 5 (1) (c) of the Appeliate Jurisdiction Act [Cap]. 141 R. E, 2019] which provides that: - 'Section 5(1)- In dvii proceedings, except where any other written iaw for the time being in force provides otherwise, an appeaishaii He to the Court of Appeal: - (c) with the leave of the High Court or of the Court ofAppeal, against every other decree, order, judgment, decision or finding of the High Court". However, it is a general law that, appeals originating from Primary Courts are governed by section 5 (2)(c) of the Appellate Jurisdiction Act [CAP. 141 R. E, 2019] which requires the party to obtain a certification on the point of law. The law says, I quote; Page 6 of 9 'No appealshall He againstany decision or order ofthe High CourtIn any proceedings under head(c)ofPartIII ofthe Magistrate's Courts Act, unless the High Court certifies thata point oflaw Is Involved In the decision or order," Coming to the matter at hand, the applicant is intending to challenge the decision of this Court which was entered by my learned brethren Hon. Ngwembe, J., in the exercise of his second appellate

jurisdiction on a matter which originated from Morogoro Urban Primary Court in Civil Case No. 238 of 2020. In my view, the learned counsel for the applicant should have therefore applied for a certification of points of law and not leave to appeal to the CAT, hence wrongly cited the provision of section 5(1)(c). In the circumstance, this appiication has suffered from wrong citation, and hence improperly before me and before this Court as the same is misconceived. Having so stated, the next question is what then is the fate of this application? In numerous cases, this Court has held that wrong citation of the law or rule, renders the application Incompetent. [See: Edward Bachwa & 3 Others v. The Attorney General & Another, Civil Application No. 128 of 2006,(CAT) (unreported), China Henan International Co-operation Group v. Salvand K.A. Rwegasira (2006) TLR 220, 221 and Alice Mselle v. The Consolidated Holding Corporation, Civil Application No. 11 of 2002 CAT (unreported)]. For instance, in the case of China Henan International Co operation Group (supra), the CAT had the following to state: Page 7 of 9 'We need not be delayed in this aspect. It is now settled that wrong citation ofa provision ofiaw or ruie under which the appiication is made renders the application incompetent As already observed^ in numerous cases, this Court has held that wrong citation ofthe iaw or ruie,

renders the application incompetent See forinstance, Aioyce Mselie i/ The ConsolidatedHolding Corporation, Civii Appiication No. 11 of2002, M/Sliabiia Industries Ltd. &2Others v Tanzania InvestmentBank& Another, CiviiAppiication No. 159 of2004 and Naibu Katibu Mkuu(CCM) v MohamedIbrahim Versi & Son, Civii Appiication No. 3of2003". The Court went on to hold thus: 'We do not accept Mr. Ndyanabo's contention that the error was technicai which does notgo to the root of the matter. On the contrary, we are of the settled view that this is a fundamental matter which goes to the root of the matter. Ruie 57(1)is the foundation upon which appiication for reference to the Court is made. Once the appiication is based on wrong legal foundation, itis bound to collapse."(Emphasis added) Similarly, in Aioyce Mselie v. The Consolidated Holding Corporation (supra), the CAT held: - "There is an unbroken chain ofauthorities ofthis Court to the effect that the wrong citation of a provision of iaw under which an appiication is ma^ renders the appiication incompetent..." Page 8 of 9 On the strength of the authorities cited above, I am satisfied that wrong citation of provision of the law in the chamber summons by the applicant as exhibited above, amounted to a fundamental procedural error which renders the application to be incurably defective, hence incompetent before the Court. I therefore, struck out the application with costs. It is so ordered. DATED at MOROGORO this 31^ day of May, 2023. "Ma/ M. J. Ch ba

JUDGE 31/05/2023 Page 9 of 9