nyarandu msidada mpinda vs paulo joseph chacha 2024 tzhc 202 9 february 2024

V THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB-REGISTRY) AT MOROGORO PC. CIVIL APPEAL NO. 3 OF 2023 (Arising from the decision of Kilosa District Court, at Kilosa in Civil Appeal Case No. 24 of 2022 &. Originating from Civil Case No. 14 of 2022 at Masanze Primary Court within the District of Kilosa) BETWEEN NYARANDU MSIDADA MPINDA APPELLANT VERSUS PAULO JOSEPH CHACHA RESPONDENT RULING 8'^^ Febr, 2024 M.J. Chaba, J. This second appeal stemmed from the decision of Masanze Primary Court (the trial Court) within the District Court of Kilosa, at Kilosa. At first, the respondent herein sued the appellant before the trial Court claiming for TZS, 23,000,000/= being an amount of money that he gave the appellant with the purpose of assisting him for the period of five years from 2016 to 2020 after being suspended from his work. It appears that, the parties entered into an agreement (MAKUBALIANO YA KUAZIMA PESA in Swahili language) as borrower and lender respectively, of the money in question and accordingly documented. Page 1 of 10 and secured by un-surveyed land (residential licence) made under section 23 of the Land Act,[CAP. 334 R.E. 2019] dated 2"^ day of May, 2014. At the height of trial, on the 30*^^ March, 2022 the trial Court made its decision in favour of the respondent herein. Aggrieved by the decision of the trial Court, the appellant herein preferred an appeal to the District Court of Kilosa, at Kilosa via Civil Appeal No. 24 of 2022. Upon dealt with this appeal, on 8^^ April, 2022, the District Court dismissed the appellant's appeal with costs for lacking merits. . Still aggrieved, on the 4'^ April, 2023 the appellant preferred this second appeal in this Court determined to challenge the decision of the first appellate Court. In the memorandum of appeal, the appellant raised three grounds of appeal as follows: 1. That, the Court erred both in law and fact in upholding the decision of the Primary Court declaring the respondent to have proved the case on balance of probability, hence entitled to the payment of Tanzania Shillings 24,000,000/= without clear evidence being tendered to prove the assertion; 2. That, the Court erred both in law and fact by ignoring other grounds of appeal and only considering the first and fourth grounds of appeal; ' \r " ■' Page 2 of 10 3. That, the Court erred both in law and fact by failure to analyze the evidence tendered by the respondent and find the same to be insufficient to prove the allegation against the appellant. When the matter was called on for hearing of the appeal, with the parties' consent, it was agreed that this appeal be disposed of by way of written submissions. Ms. Kanisia Komba, learned advocate entered appearance for the appellant while the respondent appeared In person, and unrepresented. However, for reasons to be apparent shortly, I shall neither deliberate on these three grounds of appeal, nor consider the parties',submissions in support of/ and against .the appeal before this Court. I say .so because, during perusal of the records and in due course of composing my .judgment based on merit or otherwise, .1 noticed a serious irregularity that affects the competence of the present appeal and jurisdiction of this Court. . Reverting to the Court records, it is undisputed fact that this,appeal.springs from. Masanze.-.Prirnary;Court. .Being,an appeal from the,decision of the Primary Court, the same ought to have been channeled through the,.District Court of Kilosa, at Kilosa and not the way it directly reached in. the registry of this Court (High Court) by the appellant who filed the appeal contrary to the laws governing appeals of this nature. According to the records,,this appeal yvas filed in the registry of this Court on 4^"^ April, 2023 and duly receiyed by the registry ■ ' ■ 'Page 3 of 10 ■ '' ■ '■ | officer, signed and stamped. The payment was made on 2023-04-04 at 19:05:17 hours through Payment Control Number - 991400862042. On the same day, the appellant was issued with Receipt Number - EC10176031707 from Bill Reference Number 923094171233171. In view of the above details, it is crystal clear that, this appeal was lodged before this Court contrary to the mandatory procedural requirements as provided under' section 25 (3) and (4) of the Magistrate's Courts Act (supra) as well as Rules 4(1) & (2) and 5 (3) & (4) of The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, Government Notice No. 312 of 1964. It is worth noting that. The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. No. 312 of 1964) provides for the form and contents of the appeal (Rule 4), and registration of appeal (Rule 5). Whereas, section 25 (3) and (4) of The Magistrates' Courts Act (supra) provides thus: - "Section 25(3) - Every appeal to the High Court shaii be by way ofpetition and shall be filed in the district courtfrom the decision or order in respect of which the appealis brought: Provided thaf the Director ofPublic Prosecutions may fiie an appeal in the High Court and, where he so files an appeal, he shall give notice thereof to the district court and the Page 4 of 10 district court shaii forthwith dispatch the record of proceedings in the primary court and the district court to the High Court". (4) Upon receipt of a petition under this section the district court shaii forthwith dispatch the petition, together with the record of the proceedings in the primary court and the district court, to the High Court. On the other hand, The Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1964 (GN.'No. 312,of 1964), articulates.under Rule 4 (1) &(2) and 5 (3) &(4) thus: ■ ■ "Ruie 4(IJ - Every petition of appeal to a district court from a decision or order of a primary court and evety petition of appeal to the high court from a decision or order ofa district • ' ■ ' ■ court in the exercise ofits appellate or revisiona!jurisdiction • ■ : shall:set out precisely and under distinct heads numbered consecutively the grounds of objection to the decision or order appealed against and shall be sighed by the appellant or his agent. 4,(2)Every petition ofappeal to the High Court shaii be filed in duplicate. 5. Registration ofappeals:. , . Page 5 of 10 . (1)NA; (2)NA; (3) When a petition ofappeai to the High Court is fiied in the district court, the district court shaii cause the date of fiiing to be endorsed on the petition before dispatching it to the High Court. (1) When a petition of appeal is received in the High Court, it shaii immediately be numbered and entered in a register to be keptfor that purpose T The above provisions of the law have been interpreted by the Court of Appeal of Tanzania and this Court through various decisions. I am inspired by the decision of this Court in the case of Kikundi Cha Wanawake wa Nguvu (Tausi Tengewa) Vs. Aziza Mtaaiamu & 4 Others (Civil Appeal No. 35 of 2022) [2023] TZHC 21010 (18 September 2023) (Extracted from www.tanzlii.orqT where the Court observed inter-alia\hdX.\ - "...Now, taking cognizance of the. above cited authorities and guiding provisions ofthe iaw, it is my considered view that, non-compHance with the mandatory iegai procedural _ requirement in particular, direct institution of an appeai against the decision of the District Court exercising its Page 6 of 10 ,, /■ / appellate Jurisdiction over matters originating from Primary Court to the High Court is Incurably fatal and cannot be salvaged by the overriding objective principle.... Corresponding observation was expounded in the case of Sophia Mdee Vs. Andrew Mdee & 3 Others, Civil Appeal No. 5 of 2015, GAT sitting at Arusha (unreported). , As to the consequences of violating the relevant procedural requirements of the law, I find it apposite to take inspiration from the decision of this Court in the case of MIkhae! .loaehim Tumaini Mgalo Vs. Jitesh Jayantil Ladwa (Civil Case 18 of 2021) [2022] TZHC 13881 (7 October 2022), which cited the decision of the Court of Appeal of Tanzania in the case of Commissioner General Tanzania Revenue Authority Vs. JSC Atomredmetzoloto (Armz) (Consolidated Civil Appeals 78 of 2018) [2019] TZCA 533(16 April 2019), wherein the Court of Appeal of Tanzania observed that: ■ '■ "Jurisdiction Is a creature of statute and as such, it cannot be '' assumed of exercised oh the basis of likes and dislikes of the ■ ^ parties: That's is why the court has in number of occasions :.y ;: ; : Insisted that the question of jurisdiction is fundamental in. j - Page 7 of 10 court proceedings and can be raised at any stage even at the appeiiate stage. The court suo moto can raise it, in adjudication the initial question to he determined is whether or not the court or tribunal is vested with requisite jurisdiction." The Court further stated that: - "An appeal is a creature oflaw where a person intending to iodge an appeal before the higher Court must do so in accordance with the iaw". From the foregoing, it is crystal clear that an appeal to this Court (High Court) emanating from Primary Court, shall be made by way of petition and has to be filed in the District Court whose decision is the subject of the appeal. Upon receipt of a petition, it is the duty of the District Court to dispatch the petition together with the record of the proceedings of both Lower Courts to the High Court for appeal purposes. It follows therefore that, filing an appeal of this kind directly to this Court without adhering to the relevant procedural laws, is fatal and incurably defective. The rationale behind the above provision is to facilitate and speed up the process of appeal originating from the Primary Court by avoiding unnecessary delay in calling the records of proceedings frorn the Lower Page 8 of 10 Courts. [See: Edward l^rugusi Vs. Enos Haogi Masaiu, PC. Civs! Appeal Mo. 50 of 2021 HCT at Mwanza (unreported)]. For the reasons stated above, it is my finding that this appeal is incompetent before this Court, and this Court lacks the requisite jurisdiction to entertain and determine the appeal. Consequently, I hereby strike it out with no order ,as to,costs., Jhe appellant if.;,so^yyishes, she :is.;.at. liberty to file a, fresh memorandum of appeaMn accordance,with the jaw governing appeals originating from the Primary Court to the High Court (GN. No. 312 of IQM), and the Law of Limitation,Act [CAP. 8.9, R.E. 2019]. It is so ordered. . • ..DATEP^at MOROGORO this day of February, 2023. ; . M.J. Chaba I . 1; "; i! JUDGE- ,■ i! 8/02/2024 Page 9 of 10 Court: Ruling deiivered in Chamber's this 8^*^ day of February, 2024 in the presence of the Respondent who appeared in person through Video Conference facility linked from the District Court of Kilosa, at Kilosa and in the absence of the Appellant. S.P. Kihawa yj V DEPUTY REGISTRAR 8/02/2024 Court: Right of the parties to appeal to the Court of Appeal of Tanzania fully explained. awa DEPUTY REGISTRAR 8/02/2024 Page 10 of 10