sikunjema mgaya 3 others vs jumanne r mahenge 2 others 2022 tzhc 14822 23 november 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA IRINGA DISTRICT REGISTRY AT IRINGA (PC) PROBATE AND ADMINISTRATION APPEAL NO. 2 OF 2022 (From the District Court of Iringai, at Iringa in Probate and Administration Appeal No. 1 of 2021, Originating in Probate and Administration Cause No. 15 of 2015, in the Primary Court of Iringa District, at Bomani). BETWEEN 1. SIKUNJEMA MGAYA.......... .. .......Ist APPELLANT 2. ENELINA SANGA.......... ........... 2nd APPELLANT 3. MAJUTO MAHENGE......... ................. .3RD APPELLANT 4. AIDA RODRICK MAHENGE...................... .............4 th APPELLANT Versus; 1. JUMANNE R. MAHENGE......... ......... .......1 st RESPONDENT 2. JANE R. MAHENGE........................... ....2H” RESPONDENT 3. HAPPY R. MAHENGE................................................ .....3*D RESPONDENT RULING 30th August & 23rd November, 2022. UTAMWA, J. This is a ruling on a preliminary objection (The PO) raised by the respondents and on some legal issues raised by the court suo moto on the competency of the present appeal. The appellants, SIKUNJEMA MGAYA, ENELINA SANGA, MAJUTO MAHENGE and AIDA RODRICK MAHENGE, hereinafter referred to as the first, second, third and fourth appellants Page 1 of 13 respectively, were aggrieved by the ruling (impugned ruling) of the District Court of Iringa District, at Iringa (The District Court) in Probate and Administration Appeal No, 1 of 2021. They thus, filed the present appeal before this court. A brief background of the matter goes thus; the respondents herein, JUMANNE R. MAHENGE, JANE R. MAHENGE and HAPPY R. MAHENGE, henceforth the first, second and third respondent correspondingly, were appointed by the Primary Court of Iringa District, at Bomani (The trial court) to administer the estate of the late Rodrick Mkoli Mahenge. That was done in Probate and Administration Cause No. 15 of 2015. The appellants were dissatisfied with the appointment of the respondents. They thus, filed an application before the trial court to have the appellants' appointment revoked. The trial court made its decision, but the appellants were aggrieved by it and appealed to the District Court. Their appeal was dismissed. Still aggrieved, they lodged the present appeal based on three grounds which are irrelevant in this ruling. The respondents, did not only resist the present appeal, but they also raised the PO mentioned above against it. The PO was based on the following two limbs: i. That, the appellant's appeal is incurably defective for being improperly filed of which the appeal is grounded contrary to Order XXXIX Rule 3 and Order XL Rule 1 of the Civil Procedure Code, Cap. 33 RE. 2019 (The CPC). Page 2 of 13 ii. That; this appeal before this honourable court is bad in law for being preferred by way of appeal while it emanates from interlocutory order contrary to section 74(1), (2) of the CPC. This court also suspected that the present appeal was incompetent before it since it was filed directly to this court instead of being filed in the District Court as required by the law. The court therefore, directed the parties to argue the PO together with the following two court issues it had raised suo motif. i. Whether the present appeal is competent for being filed directly to this court instead of being filed in the District Court, being a matter originating in the trial court (Primary Court). ii. Which orders should this court make depending on the answer to the first court issue. During the hearing of the PO and the court issues, the appellants were represented by Mr. Shaba Mtung'e, learned counsel. On the other hand, the respondents were represented by Mr. Emmanuel Chengula, learned advocate. The matter proceeded by way of written submissions. In his submissions in chief, the learned counsel for the respondent argued on the first limb of the PO that, it is undisputed that the appellants filed the present appeal against the impugned ruling of the District Court following the PO raised by the respondents. The PO was based on the claim that the appellants had no focus standito lodge the appeal before the District Court. The impugned ruling which upheld the PO did not however, finally dispose of the contested appeal before the District Court. The appellants Page 3 of 13 have therefor, offended section 74(2) of the CPC which essentially prohibits appeals against interlocutory orders. The impugned ruling is thus, not appealable for being interlocutory in nature. He supported this legal position by the cases of Bozson v. Altrincham Urban District Council (1903) 1 KB 547 and Tunu Mwapachu and 3 Others v. National Development Corporation and Another, Civil Appeal No. 155 of 2018, Court of Appeal of Tanzania (CAT) at Dar es Salaam (unreported). The respondents' counsel submitted further in respect of the second limb of the PO that, the appellants had no focus standi before the District Court. This was because, they were mere witnesses before the trial court. They thus, had no right to appeal to the District Court. On the first court issue, the respondents' counsel submitted that, it is trite law that an appeal of this nature must be filed in the District Court. The same causes the date of filing to be endorsed on the petition as provided under Rule 5 (3) and (4) of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules. The appeal before this court is misplaced since it was not filed in the proper court, i.e. the District Court. In relation to the second court issue, the respondents' counsel urged this court to dismiss the appeal with costs for avoidance unnecessary applications which damage the respondent's economy. By way of replying submissions, the appellants' advocate argued in respect of the first and second limbs of the PO that, section 74(1) and (2) of the CPC allow appeal from interlocutory orders where the order has the effect of finally determining a suit. The impugned ruling affected the finality Page 4 of 13 of the suit because, it violated the appellants' right to be heard. Another reason was that, the pleadings of the trial court show that the applicants were four, but the District Court records shows that the caveator was only one. The appellants were thus, deprived of their right to be heard, which said course is improper in law. He supported this particular contention by the case of Bozson v. Altrincham Urban District Council (1903) 1 KB 547. He added that, the impugned ruling does not also show as to whether the appeal was struck out or dismissed. It was also the contention by the appellants' counsel that, the impugned ruling limited the parties to file a new case or continue with the appeal because it nullified the appeal without dismissing it or striking it out. The only remedy available for the appellants was thus, to file the present appeal as the law provides under section 74(1) and (2) of the CPC. On the first and second court issues, the learned advocate for the appellants conceded that the law provides that of the present appeal should have been filed in the District Court. However, Rule 8 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018 provides for electronic filing of all pleadings, petitions, applications, appeals and other documents. The electronic fifing system only allows a party to file a matter directly to a specific court he/she wants to file the matter. There is no requirement for bringing a hard copy as provided under Rule 9 and 10 of the Electronic Filing Rules. He was thus, required to file a softcopy only. This is because, rule 20(1) of the Electronic Filing Rules provide that an advocate shall file hard copy upon being permitted by the Magistrate. Rule 5(1), (2), (3) and (4) Of the Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Page 5 of 13 Rules GN. No. 312 of 1964 is overtaken by the Electronic Filling Rules which were enacted in 2018. He also argued that, the registry officer had the duty to direct him to file his appeal to the District Court as according to the GN. 312 of 1964, not such directive were made to the appellants. The learned advocate for the appellants thus, urged this court to do away with technicalities as provided under Article 107A (2)(e) of the Constitution of the United Republic of Tanzania/ 1977 (The Constitution) which directs Courts to dispense justice without being tied up with technicalities. I have considered the petition of appeal, the record, submissions by both sides of the case and the law. I will firstly consider the court issues because, if the first court issue will be answered negatively, it will have effect of disposing the entire appeal. In relation to the first court issue, I am of the settled view that, the law is settled that appeals to this court in civil matters originating from primary courts should be filed in the District Court. In turn, the District Court forwards the appeal to this court. This is the mandatory procedure provided for under section 25(3) and (4) Of the Magistrates' Court Act, Cap. 11, henceforth the MCA. There is also no dispute between the parties that the appellants' petition of appeal in the present matter was filed in this court directly. This is also evidenced by the Court's stamp on the petition of appeal. In my view therefore, it cannot be argued that the present appeal was filed according to the provisions of the MCA cited above. Page 6 of 13 The appellants' contention that the electronic filing system only directs one to file a case to the High Court is baseless. This is because, the electronic filing system which was introduced by the subsidiary legislation cited above by the counsel for the appellant, did not come to overrule the procedures set by other laws, especial in statutes like the MCA. The advent of that system was intended to promote the legislative objectives of such other laws. It is also the law that, a subsidiary legislation shall not be inconsistent with the provisions of any Act of Parliament otherwise, it shall be void to the extent of any such inconsistency; see section 36(1) of the Interpretation of Laws Act, Cap. I RE. 2019. Moreover, the excuse advanced by the appellants' counsel that the registry officer of this court (clerk) did not direct him (the counsel) to file the matter in the District Court is, in my opinion, lame. This is so because, such omission by the registry officer will not change the law. Besides, the learned counsel was supposed to know where to file the appeal for his clients, Advocates, as court officers are presumed to know the law. The inadvertence or inaction (if any) of a registry officer will not thus, relieve an advocate when performing his/her duties according to law. Furthermore, like I observed in the case of Ramadhani Omary Chomola v. Johnstone Zakayo Banda, PC. Civil Appeal No. 9 of 2018, High Court of Tanzania/ at Tabora (unreported) in which the appellant had committed the irregularity similar to the one under discussion, the requirement to file an appeal of this nature in the District Court is not cosmetic. Section 25 (4) of Cap. 11 gives a clue of the rationale for the requirement. It provides that, upon receipt of a petition of appeal, the District Page 7 of 13 Court should forthwith dispatch the petition, together with the record of the proceedings of the primary court and the district court, to the High Court. The requirement therefore, envisages the fact that, at the time of filing an appeal of this nature, the District Court is presumed to be the custodian of its record and that of the primary court. The District Court thus, upon the petition being filed before it, promptly prepares the records and dispatches them to the High Court. It is also my view that, filing the petition of appeal in the District Court also operates as a means of giving notice of appeal to the District Court by an aggrieved party in order that it (the District Court) can prepare the record for purposes of the appeal. This view is based on the fact that, the law provides no any other means for giving such notice. The above envisaged preparation of the record by the District Court, in my settled opinion, includes typing the proceedings and the judgment of both the primary court and the District Court. It follows therefore that, filing appeals of this nature directly in the High Court, which does not keep the records of the District Court and primary court at the time of filing the same, will amount to giving room to unnecessary delays of cases. Again, condoning this un-authorised practice of filing such appeals in this court against the law, will amount to tolerating random procedures of appeals and a bad precedent. One of the role of the rules of procedure is to make the law certain, predictable and consistent. The above envisaged random procedure will thus, lead to chaos in courts, hence injustice. One of the eminent dangers of condoning the practice adopted by the appellants in the case at hand is that, in appeals of this nature, the wining party before Page 8 of 13 the District Court who is certain with the law, may be expecting the appeal (if any) to be filed in the District Court. He may thus, keep on following up the matter there to check if there is any appeal filed by the adverse party so that he/she can prepare himself/herself for defending his/her rights. Now, if the aggrieved party (by a decision of the District Court) files an appeal in the High Court directly, the winning party will not easily know that there is an appeal against him. He will thus, be taken by surprise and ambushed by that procedure, which is not known to the law, hence injustice will be caused to him/her. In my further concerted opinion, the irregularity committed by the appellant cannot be saved by the principle of overridden objective. This principle has been underscored in our written laws. It essentially requires courts to deal with cases justly, speedily and have regard to substantive justice as opposed to procedural technicalities. The principle was also underscored by the Court of appeal of Tanzania (The CAT) in the case of Yakobo Magoiga Kichere v. Peninah Yusuph, Civil Appeal No. 55 of 2017, CAT at Mwanza (unreported) and many other decisions by the same court. The reasons for my above finding that the error in this appeal cannot be cured by virtue of the principle of overriding objective are as follows: in the first place, its effect is serious. This is because, it introduces a strange procedure for filing appeals of this nature. If this course is condoned by this court, it will makes the law uncertain and unpredictable as observed earlier. It will also course lack of uniformity in applying the law in our jurisdiction. Page 9 of 13 Indeed, it is common ground that, for the law to be effective, it must be certain and predictable. It must also be applied evenly all over the country. Another reason for my view highlighted above is that, the irregularity committed by the appellant also offends the mandatory and vital rules of procedure set by the law cited earlier for appeals of this nature. Procedural laws were not enacted or made for cosmetic purposes. They are vehicles of parties' rights and justice. They are also significant for maintaining uniformity, certainty, stability and predictability of the law. These are crucial aspects in the process of adjudication in a legal system of any just society like ours. Procedural laws therefore, have to be respected and observed for the noble role they play in serving the interests of justice. They should not be floated at the whims of the parties or on uniformed advice. Otherwise, procedural laws will be rendered nugatory and mere poetic verses which lack the requisite binding force. If disrespect to them is not seriously controlled by courts of this land, matters in our courts will be handled arbitrarily and randomly, hence chaos and injustice will prevail as hinted before. Indeed, by underscoring the above view, I am not advocating for courts to be overwhelmed by procedural technicalities in dispensing justice. The point I want to bring home is that, the existence of what I may call the anti- technicalities principle (which said legal principle prohibits courts from being overwhelmed by procedural technicalities in dispensing justice) does not mean that procedural rules should be disregarded altogether. Rather, it emphasizes respect to them except where they become a threat to justice, Page 10 of 13 which is not the case in the matter at hand. No wonder courts have emphasized respect to procedural rules in opportune circumstances; see for example, the cases of Bahadir Sharif Rashid and 2 others v. Mansour Sharif Rashid and another. Civil Application No. 127 of 2006, CAT at Dar es Salaam (Unreported) and Thomas David Kirumbuyo and another v. Tanzania Telecommunication Co. Ltd, Civil Application No. 1 of 2005, CAT at Dar es Salaam (unreported). I also did so in the Ramadhani Omary case (supra). The CAT in the case of Zuberi Mussa v. Shinyanga Town Council, Civil Application No. 100 of 2004, Court of Appeal of Tanzania at Mwanza (unreported), also made useful remarks on procedural laws. It observed that, even the provisions of Article 107A (2) (e) of the Constitution which prohibit courts from being overwhelmed by procedural technicalities (i.e. which underscore the anti-technicalities principle highlighted earlier), did not mean that procedural rules should be disregarded. It follows thus, that, the contention by the learned counsel for the appellants that the irregularity under consideration was a technical error, is not tenable. Instead, I take its effect to be fatal to the present appeal as rightly contended by the learned counsel for the respondent. I consequently answer the first court issue negatively that, the present appeal is incompetent for being filed directly to this court instead of being filed in the District Court, being a matter originating in the trial court (Primary Court). This answer calls for the consideration of the second issue as per the adjudicating plan set earlier. Page 11 of 13 The second court issue will not detain me much. It is the law that, courts do not have the requisite mandate to entertain incompetent matters. Now, since I have held above that the present appeal is incompetent, I cannot entertain it. The law also guides that, the only legal remedy for an incompetent matter is to strike it out and not to dismiss it as proposed by the learned counsel for the respondent. This is the proper order to be made by this court in relation to the appeal at hand. This finding thus, serves as an answer to the second court issue. Having made the above findings, I find myself not obliged to test the PO raised by the respondent since such findings are capable enough of disposing of the entire appeal. Otherwise, I will be performing a superfluous or academic exercise which is not the primary objective of this process of adjudication. I accordingly make the following orders: I strike out the present appeal. Each party shall bear its own costs since the matter has been finalized on court issues raised by this court suo motu. If the appellants still wish, they shall file a proper appeal according to the law, but subject to the Page 12 of 13 23/11/2022. CORAM; JHK. Utamwa, J. For Appellants: All present and Mr. Shaba Mtung'e, advocate. For Respondent: Absent. BC; Gloria, M. Court: Ruling delivered in the presence of all the appellants and Mr. Shaba Mtung'e, advocate for the appellants, in court, this 23rd November, 2022. Page 13 of 13