salum shabani vs rajabu pazi mgeni 2018 tzhclandd 383 18 june 2018

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO 194 of 2017 SALUM SHABANI................................................................APPELLANT VERSUS RAJABU PAZI MGENI.................................................... RESPONDENT Date of Last Order: 08.05.2018 Date of Ruling: 18.06.2018 RULING S.A.N WAMBURA, J: Aggrieved by the decision of the District Land and Housing Tribunal of Temeke, the appellant Salum Shabani filed four grounds of appeal being;- J. That in view of the record, the court below omitted to determine the preliminary objection raised by the appellant. 2. That the Court below committed error by suo motto raising and determine a point of law after hearing of the preliminary objection raised by the appellant. 3. That the Court committed error by making conclusions on the point of law raised suo motto by it and proceeding to dismiss the preliminary objection based on such conclusions. 4. That in view of the record, in fact there was existing judicial bias. i He thus prayed that the said decision be quashed and the appeal be upheld with costs. The respondent Rajabu Pazi Mgeni through his Advocate Mr. Mashaka Ngole challenged the appeal by raising a preliminary objection on a point of law to the effect that; That an order to wit the appeal before the Court is preferred against it being an interlocutory order, the appeal before the Court is incompetent for violating the provisions of section 74 (2) of the Civil Procedure Code, Cap. 33 R.E. 2002. As the appellant appeared in person unrepresented, with leave of this court, the appeal was disposed of by way of written submissions. I thank both parties for adhering to the schedule. Mr. Ngole contended that the decision subject to this appeal was delivered on the 22nd September 2017 and consequently the case was set for hearing on the 15th December 2017 but before the said date, the appellant appealed against the said decision to this court. He stated that at the District Land and Housing Tribunal, the trial Chairman dismissed the preliminary objection raised by the appellant against the respondent to the effect that the respondent herein has no locus standi to institute the matter. Mr. Ngole was of the view that the said Order is not appealable since it had no effect of disposing of the case. That the appellant was supposed to wait until the case is finally determined by the Tribunal so as for him to appeal. He referred this Court to Section 74 (2) of the Civil Procedure Code, Cap. 33 R.E.2002. In rebuttable the appellant averred that the order appealed against is not an interlocutory order. He therefore prayed for the objection to be struck out with costs. In reply, Mr. Ngole reiterated his earlier submission in chief and prayed for the dismissal of the suit with costs. Having carefully gone through the rival submissions of both parties, and considered the relevant law, I believe that the fundamental question is whether the decision subject to this appeal was fully canvassed and finally determined by the Tribunal. 3 In Order to respond to this I have sought guidance from the case of Bozson vs. Artrincham Urban District Council (1903) 1KB 547 where at page 548 Lord Alverston stated that:- "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if if does not, it is then, in my opinion, an interlocutory order" [Emphasis is mine]. The test adopted in Bozson's case is in accordance with the provision of Section 74 (2) of the Civil Procedure Code Cap. 33 R.E. 2002. In the present appeal, the decision of the District Land and Housing Tribunal dismissing the preliminary objection raised by the appellant herein did not finally determine the matter as it was held in the case of Tanzania Motor Services Ltd & Others Vs. Mehar Singh t/a Thaker Singh Civil Appeal No. 115 of 2005, CAT Dodoma Registry (unreported). The hearing of the suit was ordered to proceed on 15/12/2017 but before that date, the appellant filed this appeal contrary to Section 74 (2) of the Civil Procedure Code. In the circumstances, I sustain the preliminary objection raised by Mr. Mashaka Ngole learned Counsel for the respondent. The appeal is accordingly struck out with costs for incompetence, as the matter is prematurely filed at this Court. ^lUDGE 18.06.2018