OMARI MSAFIRI OMARI Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CIVIL APPEAL NO. 20121 OF 2024 (Arising from the decision of the District Court of Dodoma at Dodoma in Misc. Civil Application No. 8447 of 2024 dated 31st July, 2024, Originating from Civil Appeal No. 41 of 2023) OMARI MSAFIRI OMARI….……..……………………………………………APPELLANT VERSUS HARUNA IDD KALANDAMYA ……………………………………………..RESPONDENT JUDGEMENT Date of last Order: 11th December, 2024 Date of Judgment: 19th December, 2024 E.E. KAKOLAKI, J. The appellant in this appeal is discontented with the decision of the District Court of Dodoma at Dodoma in Misc. Civil Application No. 8447 of 2024 handed down on 31st July, 2024, granting respondent’s application for setting aside the dismissal order and re- admission of Civil Appeal No. 41 of 2023, that was dismissed on 15th April, 2023 for want of prosecution, in an 1 application preferred under Order XLIII Rule 2 and Order IX Rule 6(1) of the Civil Procedure Code, [Cap. 33 R.E 2019] and any other enabling provisions. He has expressed his dissatisfaction in three (3) grounds of appeal going thus: 1. That, the Honourable Magistrate erred in law and in facts in not holding that the Respondent did not show sufficient cause/good cause for his non-appearance for restoration of the Appeal No. 41 of 2023 as required by the law. 2. That, the Honourable Magistrate erred in law and in fact to acknowledge that Respondent’s counsel was present in the Court because the appellant’s counsel did not dispute that fact meanwhile the appellant vehemently disputed those facts in his counter affidavit. 3. That, the Honourable Magistrate erred in law and facts in condemning the appellant’s counsel in her ruling that she had duty to fellow counsel to notify him when the case had been called which she did not do in the circumstances, however the appellant’s counsel never appeared during the material date and time of disissal of Appeal No. 42 of 2023 in court as the record shows. 2 On the strength of the above stated grounds the appellant is praying this Court to allow the appeal by quashing restoration order of the appeal and other subsequent orders, with costs. It is worth noting from the outset basing on the available record that, the dismissed and restored appeal by the respondent before the District Court of Dodoma in Civil Appeal No. 41 of 2023, originated from the primary court decision. When the appeal was called on for hearing both parties appeared represented and were heard viva voce. The appellant hired legal services from advocate Josephine P. Mnzava while the respondent enjoying the service of Mr. Sadiki Sadiki, both learned counsels. Addressing the court in favour of the appeal Ms. Mnzava submitted on each ground of appeal. Additionally, she pointed out to the Court that, in granting the application for re-admission of the dismissed appeal originating from the primary court, the trial Court misdirected itself when invoked the provisions of the Civil Procedure Code, [Cap. 33 R.E 2019] (the CPC) as seen at page 4 of the impugned ruling instead of the applicable law which is Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. 312 of 1964. That aside she argued further that, even the Court clothed with jurisdiction to restore or re-admit the dismissed appeal by the District 3 Court under the said Rule 17 of GN. No. 312 of 1964, is the High Court and not the District Court, hence prayed this Court to find the appeal meritorious and proceed to allow it with costs. In response Ms. Sadiki while admitting that the applicable law in the circumstances of this case was GN. 312 of 1964, he resisted the submission by the appellant that, citation of the provisions of CPC by respondent and the District Court affected the impugned ruling since the District Court is clothed with jurisdiction to entertain application of that nature. According to him in the awake of the principle of overriding objectives wrong citation or none citation no longer vitiates proceedings or affect Court’s jurisdiction to entertain the application in as long as it is possessed with powers under the law to entertain it which in this case is Rule 17 of GN. 312 of 1964. As to which Court is seized with the jurisdiction to entertain an application for setting aside dismissal order and re-admission of the dismissed appeal by the District Court, for want of prosecution, he insisted as per the interpretation of words ‘Appellate Court’ referred in Rule 17 as provided under Rule 2 of GN. No. 312 of 1964 is the High Court or District Court as the case may be, hence in this matter the proper court to entertain the said application was the District Court where the appeal was lying. In view 4 of the above submission the learned counsel urged this Court to dismiss the ground and the entire appeal with costs. In rejoinder submission on the points argued above Ms. Mnzava reiterated her submission and maintained her prayer for the Court to allow the appeal. I have dispassionately considered the conflicting arguments by the parties and took time to review the impugned decision as well as the pleadings before the District Court of Dodoma. From the pleadings there is no dispute that, the application for setting aside dismissal order and re-admission of Civil Appeal No. 41 of 2023 before District Court of Dodoma, was preferred under Order XLIII Rule 2 and Order IX Rule 6(1) of the Civil Procedure Code, [Cap. 33 R.E 2019] and any other enabling provisions. Parties are also at one that, the dismissed appeal was originating from the decision of the Primary Court hence the applicable law ought to be the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. 312 of 1964 and not the CPC. They only part their ways on two issues as whether the District Court was justified to grant the application under the CPC and whether the District Court was clothed with the Jurisdiction to entertain the said application. 5 I will start with the second issue where Ms. Mnzava is contending that, the proper court for setting aside the dismissal order by the District Court and re-admission of the appeal as provided under Rule 17 of GN. No. 312 of 1964 is the High Court and no the District Court. With due respect I disagree with Ms. Mnzava’s proposition and in so doing I take the liberty of reproducing Rule 17 of GN. No. 312 of 1964, for more clarity which reads thus: 17. Re-admission of appeal dismissed for default Where an appeal has been dismissed under subrule (2) of 13 in default of appearance by the appellant, he or his agent may apply to the appellate court for the re-admission of the appeal; and if the court is satisfied that he was prevented by any sufficient cause from appearing either personally or by agent when the appeal was called on for hearing it may re-admit the appeal on such terms as to costs or otherwise as it thinks fit. (Emphasis supplied). From the above exposition of the law, it is patent clear to this Court that, a party or his/her agent seeking for re-admission of the dismissed appeal may apply to the “appellate court’’. The words ‘appellate court’ is defined under Rule 2 of the same Rules in GN. No. 312 of 1964 to mean High Court or District Court as the case may be. The use of the words ‘as the case may be’ in my considered view depends on which Court between the two above 6 mentioned appellate courts, the dismissed appeal is lying. When the appeal is lying in the District Court as an appellate Court and dismissed for want of prosecution under sub rule (2) of Rule 13 to GN. No. 312 of 1964, then the Court clothed with jurisdiction to hear and determine the application for setting aside dismissal order and re-admission of the dismissed appeal shall be the same Court that dismissed it and not the High Court as Ms. Mnzava would want this Court to believe. It is from that firm view I dismiss Ms. Mnzava’s proposition instead adopt Mr. Sadiki’s in that the District Court was properly seized with powers to hear and determine the application. Next for determination is whether the District Court was justified to grant the application before it using the CPC. Without wasting this Court’s time and mincing words, I answer the issue in negative. As alluded to above, the applicable law for re-admission of the dismissed appeal for want of prosecution in which its proceedings originate from the Primary Court is Rule 17 of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, GN. 312 of 1964, which is already cited above. It is trite law that, courts of law in our jurisdiction are duty bound to apply and properly interpret the law of the land. Any misapplication and/or misinterpretation of the law by the country vitiates not only the proceedings but also affects the 7 decisions emanating from vitiated proceedings and therefore superior court is duty bound to interfere and remedy the situation by ensuring proper application and interpretation of the law. In that settled legal stance, I find solace in the Court of Appeal decision in the case of Marwa Mahende Vs. R, Criminal Appeal No. 133 of 1994 (CAT-unreported) where the Court observed that: "We think . . . the duty of the Court is to apply and interpret the laws of the country. The superior courts have the additional duty of ensuring proper application of the laws by the courts below" (Emphasis supplied). Similar observation was aired in the case of Adelina Koku Anifa and Another Vs. Byarugaba Alex, Civil Appeal No. 46 of 2019 (CAT unreported) where the Court of Appeal had this to comment: It is certain therefore, that where the lower court may have not observed the demands of any particular provision of law in a case, the Court cannot justifiably close its eyes on such glaring illegality because it has duty to ensure proper application of the laws by the subordinate courts and/or tribunals. In view of that settled law as above stated the sub-issue her is what should be done under the circumstances where the District Court applied the provisions of CPC instead of GN No. 312 of 1964 in granting the application 8 for setting aside dismissal order and re-admission of the dismissed appeal originating from the Primary Court. While I am in agreement with Mr. Sadiki’s proposition that, in the awake of the principle of overriding objectives noncitation or wrong citation of the law does not affect competence of the application or any matter before the Court in as long as the said Court is seized with jurisdiction to entertain it, I find the principle not to stretch to cover the situation where the Court misapply and misinterpret the law when making decision since the Court is duty bound to apply and interpret the law properly. Under the circumstances and guided by the principles in Marwa Mahende (supra) and Adelina Koku Anifa & Another (supra), I find this Court as appellate court cannot justifiably close its eyes on such glaring illegality because it has duty to ensure proper application of the laws by the subordinate courts and/or tribunals. As alluded to above in granting the said application the District Court ought to have applied the provisions of Rule 17 of the Rules GN No. 312 of 1964 and not that of the CPC. Since the applicable law was misapplied, I hold such act affected even the decision reached by the Court thus rendering the impugned ruling of the District Court in Misc. Civil Application No. 8347 of 2024, dated 31/07/2024, a nullity. As the raised issue above is answered in negative, I find the same to have the effect of 9 disposing of this appeal as this appeal is incompetent for being premised on a nullity. I shall thus not deal with the merit of other grounds of appeal for avoiding academic exercise. All said and done, this appeal succeeds as the ruling of the District Court of Dodoma in Misc. Civil Application No. 8347 of 2024, dated 31/07/2024, is quashed and the subsequent orders thereto set aside. The respondent is at liberty to bring a fresh application if he so wishes, but subject to law of limitation. Given the nature of the dispute, I order each party to bear own costs. It is so ordered. Dated at Dodoma this 19th of December, 2024. E. E. KAKOLAKI JUGDE 19/12/2024. Court: The Judgment has been delivered at Dodoma today on 19 th day of December, 2024, in the presence of Ms. Josephine P. Mnzava, Advocate for the appellant, Mr. Sadiki Sadiki, advocate for the respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. 10 E. E. KAKOLAKI JUGDE 19/12/2024. 11