mohamed salimin vs jumanne omary mapesa 2006 tzhc 275 17 august 2006

IN THE HIGH COURT OF TANZANIA AT DODOMA MISC. CIVIL APPL. NO. 49 OF 2005 (Originating from (DC) Civil Appeal No. 10 of 2005, Original Civil Case No. 27 of 2003 in the District Court of Dodoma.) MOHAMED SALIMIN ........... APPLICANT Versus JUMANNE OMARY M APESA..... RESPONDENT. 17/8/2006 & 19/9/2005: RULING MASANCHE. 3: When we got set to hear this application, for leave to appeal to the Court of Appeal, an application made by Mohamed Salimin assisted by Dr. Lamwai, learned advocate, the advocate for the respondents, Mr. Nyabiri raised what he himself called a preliminary objection. We got set to hear his preliminary objection. Let me put down what he told me, and how I recorded it: "Nvabiri We have a preliminary objection. The application is incompetent. A person who was vital was not joined. Application brought under Appellate Jurisdiction Act - Rule 44 of Appeal Rules. Application should have been served on the person to be affected (S.77(1) of Court of Appeal Rules 1979). LART ought to heVE been joined. They could be condemned unheard. The affidavit of the applicant questions, the powers of LART in selling the building. So, LART are an important party. [Omari Farook Kamaldine V Justina R. Kahwa (1996) TLR 100] - against natural justice to condemn a person without giving him a hearing. This application is defective, and incompetent. It should be struck out with costs. " Then Lamwai, advocate for the applicant replied, said, (quoting him the way I recorded him): "The objection has come prematurely. Objection against service of notice was at a time when the appeal is heard and a party is not served. It comes at the appellate stage. We have not reached that stage. From the word "go", in the District Court, LART were not a party. The judgment of the High Court contains the issues. No issue is framed against LART. The fraud is being alleged against the present respondent. Rule 77 (I) of court of Appeal Rules cannot be used to save a person who did not take part in the lower Courts. The case cited of Farook was a case of a person who claimed a vehicle but was not in the pleadings. It was a case of non-joinder. The issue here is the interpretation of Rule 77(1) - it does not say of a person who does not use "shall" or "may. It uses the word "seem". Third Party was not an issue in the lower Court. Section 5 (1) (c) of the Appellate Jurisdiction Act does not say that we can argue this in an application for leave to appeal. But, read this together with Rule 46 (1) and (3) of the Appellate Rules. Notice of appeal and Notice of Service are two entirely different things. The preliminary objection should be over - ruled." Nyabiri, advocate then replied: "We want to see the sale of LART - whether it was lawful [Kantibhai M. Patel v Dahya Bhai Civil Appeal No. 58/97 of Court of Appeal - Mwanza]". I have read the record quite meticulously. I must say that I entirely agree with Dr. Lamwai. I, sitting here, to decide whether to forward the record to the Court of Appeal, for an appeal, may not adjudicate upon the matter Mr. Nyabiri talks of. That matter or those matters - of joinder or misjoinder, are matters that could be raised in the Court of Appeal. Spry V. P. pointed out in Sanqo Bay Ltd V. Dresdner Bank [1971] E.A. C.A. 17, at p.20 that: leave to appeal from an order in civil proceedings will normally be granted where prima-facie it appears that there are grounds of appeal which merit serious judicial considerations 9$ That was an observation in a case where the appeal sought, was to the Court of Appeal for East Africa, from the High Court. I am aware of a decision of the Court of Appeal for Tanzania, the case of Agnes Severini v. Mussa R. Mdoe Civil Appeal No. 19 of 1989 (Kisanga J.A.), where, it is said that a High Court Judge, in an application of this nature, is: "enjoined by law to go further and spell out clearly what those points of law were. It was wrong for him to leave for the Court of Appeal to guess what those points were." The points of law for determination as drafted by the learned counsel for the applicant, would, I think, be the appropriate ones. Leave to appeal to the Court of Appeal for Tanzania in granted. Note that I have over - ruled the preliminary objection raised by the learned advocate, and I have, without much ado, gone further to consider the actual application for leave, and, using the same arguments provided to me by both counsels, have made up my mind that the matter be sent to the Court of Appeal for determination. (J.E.C. MASANCHE) /JUDGE 19th September 2006 Applicant - Mohamed Salimin - Present. Respondent - Absent.