national housing corporation vs asgarali habib kassam manji 2017 tzca 331 11 july 2017

IN THE COURT OF APPEAL OF TANZANIA AT TANGA ( CORAM : LUANDA, J.A.. MZIRAY, J.A.. And NDIKA. 3.A .) CIVIL APPEAL NO. 112 OF 2016 NATIONAL HOUSING CO R PO R ATIO N ................................................... APPELLANT VERSUS ASGARALI HABIB KASSAM MANJI......................................................RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Tanga) (Mussa, 3.) dated 10th day of June 2013 in Misc. Civil Application No. 52 of 2009 RULING OF THE COURT 3rd & 11th July 2017 & LUANDA, J.A.: We wish to begin by giving the historical background of this appeal. It is this. Way back in 1971, the Government of The United Republic of Tanzania nationalized a number of houses and placed under the management of the defunct Registrar of Buildings now under The National Housing Corporation (The NHC). Among the houses taken under that exercise is a house standing on plot 50/IKB II Market Street, Tanga City the property of one Habib Kassam Manji, now the deceased, the parent of the respondent. The respondent and his family remained in the said house but not as owners, they were tenants and so they had to pay rents. In 1990's the deceased pleaded to the President of the United Republic of Tanzania for the return of his house. There are correspondences indicating the President to have ordered the return of the house. However, that decision was not carried out to its conclusion. The respondent, it would appear, after the death of the deceased, filed a suit in the Resident Magistrate's Court of Tanga at Tanga on 5/2/2003 for a number of declaratory reliefs, the major one, being he be declared as the lawful owner of the suit premises. The trial Resident Magistrate Court dismissed his claim. Dissatisfied, he successfully appealed to the High Court of Tanzania ( Mkwawa, J). The above present appellant is aggrieved by that decision and intends to appeal to this Court. The appellant filed a notice of appeal and took other essential steps to lodge the appeal. One of such step was to seek leave in the High Court pursuant to the Appellate Jurisdiction Act, Cap. 141 R.E 2002 (the AJA). The appellant did so vide Misc. Civil Application No 42 of 2006. But that application was struck out by Mussa, J (as he then was) following a preliminary point of objection taken out by the respondent. As time for filing for leave to appeal had lapsed, the appellant could not file a fresh application for leave to appeal without first seeking an extension of time to file the same. So, the appellant filed an application for extension of time by way of 2 Chamber summons supported by an affidavit vide Misc. Civil Application No. 52 of 2009. We reproduce the relevant portion of the chamber summons which reads as follows:- IN TH E H IG H C O U R T O F TAN ZAN IA A T TANGA M ISC . C IV IL A P P LIC A T IO N N O 5 2 O F 2 0 0 9 (Arising out o f C ivil Appeal No. 22 o f2004 a t the High Court o f Tanzania a t Tanga and O riginal C ivil Case No. 5 o f2003) In the m atter o f an application for extension o f tim e to file an application for leave to Appeal to the Court o f Appeal o f Tanzania out o f time BETW EEN NATIONAL HOUSING CORPORATION .... APPLICANT AND ASGARALI HABIB KASSIM MANJI.....RESPONDENT C H A M B ER S SU M M O N S (Made Under Section 1I f 1) o f the Appellate Jurisdiction A ct Cap. 141 and Rules 43 (a) and 44 o f the Tanzania Court o f Appeal Rules And Any other Enabling Provision o f the law ) LET ALL PARTIES CONCERNED, appear before the Honourable Judge, in Chamber, on the.....I4 h day o f A p ril, 2010 a t 9:00 O'clock in the forenoon or soon thereafter, as the Court may direct, when the 3 Counsel for the Applicant may be heard on an application for the follow ing orders:- (a) That H is LORDSHIP may be please to grant an extension o f time for the Applicant to file an application for leave to appeal to the Court o f Appeal o f Tanzania, against the decision in C ivilAppeal No. 22 o f2004 which was delivered on I9 h December, 2006. (b) That, the cost o f this application, be costs in the main. [Emphasis Supplied] The matter was once again assigned to Mussa, J (as he then was) who declined to grant the extension of time to enable the appellant to file the application for leave. He dismissed the application for failure to give sufficient or good reason for the delay. It is this dismissal of the application for extension of time which is the subject matter of this appeal. On 18/8/2016 before the appeal came for hearing, the respondent through Mr. Godfrey Ukwong'a learned Counsel, filed a preliminary objection consisting of four points namely:- 1. The Notice o f Appeal by the appellant has been made without the citing o f the provision o f the law hence being a defective notice o f appeal. R e f-ru le 83(6) o f the Court o fAppeal Rules, 2009. 4 2. The appeal has been filed without due notice o f appeal and the letter calling for records served on the Respondent herein- Ref. Rule 84(1) and (2) o f the Court o f appeal Rules,2009. 3. The record o f appeal was served on the respondent out o f tim e and without leave o f the Court. R ef rule 97(1) o f the Court o f Appeal Rules,2009 4. An appeal is not a proper procedure o f obtaining leave to appeal hence this appeal having been misconceived. Ref. rules 45(a) and (b), 47, 48 and 49(3) o f the Court o f Appeal Rules. When the appeal was called on for hearing and before Mr. Ukwong'a addressed us on the preliminary points he had raised, Mr. Semi Malimi learned advocate for the appellant tried to impress upon us that the respondent is not the proper party in these proceedings. Clarifying, he said at some stage in the trial Court, the respondent was represented by one Mussa Athumani Mkange. So, the proper party ought to be Mussa Athumani Mkange and not the respondent. We wish to point out at the outset that the course taken by Mr. Malimi is not correct. The proper procedure is that if a party in the proceedings in 5 which a preliminary objection has been taken out against him and he also wish to raise an objection in the proceedings he can raise it after he had first replied to the point raised by the adversary party. To raise an objection before the hearing of the point of objection which was raised earlier is tantamount to raising an objection over an objection. That was not proper. In any case the point raised has no merit whatsoever as all along the respondent featured in all the proceedings as the proper party. That said, we now turn to the objection raised by the respondent. Mr. Malimi conceded all the points raised. On our part we have the following observation. As to the first point, namely failure to cite the enabling provision of the law under which provision of the Court of Appeal Rules, 2009 (the Rules) the notice of appeal was made, we find this objection devoid of any merit. It is true that the notice of appeal does not cite Rule 83 at all as is contained in Form D in the First Schedule. But Rule 83 does not confer jurisdiction to the Court to entertain the appeal. It merely assists the parties as to what contents a notice of appeal should contain. So the citing of Rule 83 is not a legal requirement for a notice of appeal to be valid as contended by Mr. Ukwong'a. The respondents cited four cases of this Court to back up his contention. But the four cases are irrelevant. In Nicomedos Kajungu & 1511 Others V Bulyankhulu Gold Mine (T) Ltd, Civil Appeal No. 116 of 2012 (unreported) a preliminary point was taken out that the notice of appeal was neither signed nor dated. The appeal was struck out for failure to comply with Rule 83(6) of the Rules. Whereas in Citibank (T) Ltd v. Tanzania Telecommunication Co. Ltd and 4 Others, Civil Appeal No. 64 of 2003 (Unreported) and Fabian Akonaay v Matias Davite, Civil Application No. 11 of 2003 (unreported) the applicants did not cite the enabling provisions from which the Court derives the power to hear and determine the application. The applications were struck out. The case of Transport Equipment Ltd v Devram Valambia (1995) TLR 161 has nothing to do with our case under discussion. The issue raised and discussed was when the revisional power of the Court can be exercised. Turning to the 2nd and 3rd points of objection namely failure to serve the respondent with both the notice of appeal and the record of appeal in time, it is the submission of Mr. Ukwong'a which Mr. Malimi conceded the appellant to have neither served the respondent with the notice of appeal nor served the record of appeal in time. It is now settled that failure to serve a notice of appeal on a respondent is taken as failure to take essential step to prosecute the appeal (See D.P. Valambhia v Transport Equipment Ltd (1992) TLR 246. As regards the 4th point, Mr. Ukwong'a submitted that upon dismissal of Misc Civil Application No 52/2009 the applicant had the option of making further application to the Court and seek for extension of time and upon obtaining the same proceed formally to apply for the necessary leave to appeal. He did not cite the enabling provision to do so. Alternatively the appellant had other options under rules 45(a) and (b) of the Rules, he concluded. First and foremost the appellant is not sure as what course ought to have been taken in view of the above submission. But the matter is further complicated because the High Court did not hear the application on merit and refuse to grant leave. Probably that might be the reason to come to this Court on appeal so that if the appellant succeeds, then the High Court will entertain the application for leave on merit. If we go by this scenario, the course taken might be correct. On the other hand there is another option of seeking extension of time in this Court. So long as there are two scenarios on the matter it cannot be taken that the issue falls squarely under the ambit of a preliminary point of objection. A preliminary objection consists and consists only a pure point of law. It cannot be raised if a point of law raised is uncertain. (See Mukisa 8 Biscuit Manufacturing Co. Ltd v West End Distributors (1969) E A 696). In view of the foregoing, we are not prepared to treat the 4th point of objection as a clear point of law. In sum, we strike out the appeal for failure to serve the notice of appeal and record of memorandum of appeal in time with costs. It is so ordered. DATED at TANGA this 10th day of July 2017. B.M. LUANDA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL G A M . NDIKA JUSTICE OF APPEAL I certify that this is a true copy of the original. E^MKW IZU REGISTRAR COURT OF APPEAL