MOHAMED MADARAKA 222 Edited

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

AT BABATI PC CIVIL APPEAL NO. 5172 OF 2024 (Originating from Land Application No. 23 of 2023 Magugu Primary Court, Babati District Court Appeal No. 26 of 2024.) MOHAMED MADARAKA.................................................. APPELLANT

VERSUS JUMANNE JUMA.............................................................. RESPONDENT

JUDGMENT ltfh & l$h June, 2024 Kahyoza, J.: Mohamed Madaraka sued Jumanne Juma before the primary court for civil claim. He lost the claims and appealed to the district court. The district court dismissed the appeal for Mohamed Madaraka's failure to file the written submissions and for want of merit. Aggrieved, Mohamed Madaraka appealed to this Court raising three grounds of appeal. Two of his grounds of appeal raised the issue whether the procedure and the law were complied. He complained mistakenly I guess, against the trial court's failure to observe the law. This being a second appeal, Mohamed Madaraka's complaint could be against the first appellate court and not against the trial court. I take it that it was a slip of a pen. The respondent enjoyed the services of Mr. Mniko advocate. Mr. Mniko raised an issue that the appeal was not properly before this Court as the appellant was required to apply before the district court to set aside the order dismissing the appeal. However, on being probed on the first appellate court's finding that the appeal had no merit whether that did not amount to determining the appeal on merit, he believed it might have considered the appeal on merit. He was emphatic that the first appellate court dismissed the appeal for the appellant's failure to file written submission. The appellant had nothing to elaborate on the issue raised. As the record

of the first appellate court's bears testimony, the court dismissed the appeal for two reasons; one, the appellant's failure to file the written submission, and two, after considering the appeal he found that it had no merit. As to the first grounds for dismissing the appeal, I totally agree with the first appellate court that failure to file submissions tantamount to failure to appear and prosecute the appeal. I cannot fault the first appellate court. 2 See the holding of this Court in Harold Maleko v. Harry Mwasanjala, DC Civil Appeal No. 16 of 2000, (HC-Mbeya, unreported) in which Makanja, J. (as he then was) held that- ”7) hold, therefore that the failure to file written submission inside the time prescribed by the court order was inexcusable and amounted to failure to prosecute the appeal. Accordingly, the appeal is dismissed with costs." The second reasons for dismissing the appeal was that after considering the appeal, the first appellate court found the appeal had meritless. It is common practice that a court cannot find an appeal or any matter to have no merit unless it has considered it on substance. Thus, it is beyond dispute that the first appellate court considered the appeal on merit. This Court's finding that the first appellate considered the appeal on merit is not out of blues but it is supported by the record. The first appellate court's records- "The recourse

is dismissed (sic) of appeal, in the end I agree with Mr. Kilobwa that this Court will have a different view of considering the grounds of appeal for a determination, I reject all the grounds of appeal for luck or merit" 3 Construing the above quotation, it is clear that Mr. Kilobwa prayed the first appellate court to dismiss the appeal for appellant's failure to file the written submission. The court declined to grant the prayer and decided to consider the grounds of appeal. Having considered the grounds of appeal, the first appellate court found and merit and dismissed the appeal. It is trite law that a first appeal is in the form of a re-hearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings of fact, if necessary. See the decisions of the Court of Appeal in Future Century Ltd v. TANESCO, Civil Appeal No. 5 of 2009, and Makubi Dogani v. Ngodongo Maganga, Civil Appeal No. 78 of 2019 (all unreported). The Court of Appeal held in Future Century Ltd v. TANESCO, (supra) that- "It is part of our jurisprudence that a first appellate court is entitled to re-evaluate the entire evidence adduced at the trial and subject it to critical scrutiny and arrive at its independent decision." as the respondent did not argue it." In the instant case, the first appellate neither considered the grounds of appeal nor

re-evaluated the evidence and made its findings. It simply jumped to a conclusion that after considering the grounds of appeal, all 4 grounds of appeal have no merit. The first appellate court abdicated its duty. Failure of the first appellate court to re-evaluate the evidence and consider the grounds of appeal render this second appellate court incompetent to canvass on matters not considered and discussed by the first appellate court. The first appellant court rushed to the finding that the appeal has no merit without substantiating its conclusion. Thus, it did not write a judgment in the legal context. A court's judgment must contain a decision and the reason(s) for its decision. It is trite law that, a second appellate court does not take fresh evidence or is it mandated to discuss issues not raised and discussed by courts below. This stance was taken by the Court of Appeal in the case of Farida and Another Vs. Domina Kagaruki, Civil Appeal No. 136/2006, thus- "It is the general principle that the appellate court cannot consider or deal with issues that were not canvassed, pleaded and not raised at the lower court." In the end, I find the judgment and decree of the first appellate court unsubstantiated. Consequently, I set them aside and order first appellate court to re-consider the matter (the appeal) and make findings as per the 5 law. A party aggrieved by the outcome of the court will take necessary steps. I make no order as to costs. It is ordered accordingly. Dated at Babati this 18th day of June, 2024. J. R. Kahyoza Judge Court: The judgment delivered in the presence of the appellant and Mr. Mniko advocate for the Respondent® Ms. Fatina (RMA) present. J. R. Kahyoza Judge 19.6.2024 6