RAMADHAN NKOKO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA LAND APPEAL NO. 000018269 OF 2024 RAMADHANI NKOKO KALIHOSE .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS MKUPI KIBHALA .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 21 & 21/03/2025 Parties to this appeal presented themselves before the trial tribunal for their dispute over a piece of land to be resolved. The respondent filed the land application while the appellant filed a reply to the land application. The respondent claimed therein that he has been in use of the piece of land since the year 1974. He alleged that he had been allocated by his father by being given a potion from the land which was acquired by his father one Kitambwa @ Kibhala Mtelele. It was only in 2023 when the appellant claimed that the respondent had encroached/trespassed into his land and started cultivating it. He prayed for declaration that the respondent is owner of pieces of land which have the size of 4 acres. In response, the appellant averred that the disputed piece of land was originally owned by the family of the appellant, on the demise of his father one Nkoko, the family decided to leave the piece of land under the supervision (mwangalizi) of PW.2, the respondent’s brother, the son of their sister one Jeremia James Padili who used the pieces of land in dispute since the year 1972 to the year 2022. Among other reliefs the appellant prayed the respondent vacates the disputed piece of land and hands the same to the appellant as the piece of land is the property of the family of the deceased Nkoko while the respondent is a trespasser (mvamizi). After entertaining the land application, the trial tribunal, in its unanimous verdict, decided in favour of the respondent. It declared the respondent the legal owner of the disputed piece of land and awarded the respondent costs. Page. 1 The appellant appealed to this Court. He has five grounds of appeal which he is of the view that they would hand him victory. The respondent resisted the appeal. The appeal was heard by way of written submissions, but for a reason that would be apparent shortly, I would not deal with the grounds of appeal as well as the submissions for and against the appeal. When the parties appeared today for judgment, I called upon them to address the Court on the question whether the appeal is competent before this Court though the petition of appeal was lodged in this Court without being accompanied with the copy of the decree which is appealed against. Mr. Mwangati, readily conceded and beseeched this Court to permit him to withdraw the appeal with leave to refile. The concession and the prayer made by Mr. Mwangati were well received by the respondent who told the Court he had no objection. I have gone through a number of decided cases namely, Petrolube Tanzania Limited & Another v. Fuchs Oil Middle East Limited, Civil Application No. 58/16 of 2023, CAT, Inter-Consult Limited v. Mrs. Nora Kassanga & Another, Civil Appeal No. 79 of 2015, CAT and Ngoni Matengo Co- operative Marketing Union Limited v. Ali Mohamed Osma [1959] E.A. 577 where it was underscored that: “In the present case therefore, when the appeal came before the court, it was incompetent for lack of necessary decree ... this court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive and not properly constituted appeal at all. What this court ought to have done in each case, was to ‘strike out’ the appeal as being incompetent, rather than to have dismissed it; for the latter phrase implies that a competent appeal has been disposed of while the former phrase implies that there was no proper appeal capable of being disposed of.” [Emphasis added]. The position in Osma’s was restated in Petrofuel (T) Limited v. Bahdela Company Limited, Civil Appeal No. 318 of 2020, CAT, dated 21/02/2025. Truly, the rationale for ruling, incompetent, a matter which is lodged before a court of law or tribunal where decree not attached, is to check against entertaining an application or an appeal where the decree could be bearing a name of a stranger to that is in the original suit, leads decision in an appeal or application to be quashed and its orders set aside. See Stanslaus Nganyagwa v. Seif Hamoud & Another, Civil Application No. 110/2 of 2017 (CAT) dated 20/04/2018 (unreported), though in an application for stay of execution, the Court stated that: Page. 2 “In view of the concession made by the parties on the matter raised by the Court suo motu, we find the application before us incompetent for failure to attach a copy of ... and decree from the High Court’s decision. In the circumstances, we are constrained to find no competent application before us. ...” It is trite law that access to justice does not mean the mere filing of pleadings and paying the required court fees, but it also includes the right to present one’s case or defence before the courts as amplified in Julius Ishengoma Ndyanabo v. Attorney General [2004] T.L.R. 14 CAT. With the above observations, I rule that the appeal is incompetent for the reason assigned herein above. As to the way forward, I part ways with Mr. Mwangati on the order he sought I permit him to withdraw the appeal. I feel backed by the authority of MIC Tanzania Ltd v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103/2004, (CAT), where it was underscored that: The nothingness of incompetent proceedings was underscored by this Court in the case LEONSI SILAYO NGALAI V HON. JUSTINE ALFRED SALAKAMA AND THE ATTORNEY GENERAL, CIVIL APPEAL NO 38 OF 1996 (unreported) This court said: … The second aspect is whether this Court may adjourn an appeal which is incompetent, in order to allow the appellant to take necessary steps to cure the incompetency. This court has said it before that an incompetent appeal amounts to no appeal. It follows therefore that the court cannot adjourn what it does not have. Under such circumstances, what the court does is to strike the purported appeal off the register (emphasis is ours). So as there was no application before the High Court, according to the ruling of the learned judge, it was an exercise in futility to purport to determine it on the merits. No valid and enforceable orders could be made in application which was not before the High Court. It is the position of the law that where a suit, appeal, or application is struck out, a party who had filed the appeal may re-file the same without requesting for a leave and without being granted one because the matter was not determined on merits. I proceed to strike out the appeal off the Court’s register. As the ruling is based on a matter raised by the Court suo motu, I make no order as to costs. It is so ruled. Page. 3 Dated at KIGOMA this 21st of March 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 4