YADIEL SADOCK MLONGECHA VS REGISTERED OF PEFA KIGOMA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA MISCELLANEOUS LAND APPLICATION NO. 000005383 OF 2025 YADIEL SADOCK MLONGECHA(AS PERSONAL LEGAL REPRESENTATIVE OF THE LATE REV. SADOCK YAKOBO MLONGECHA) .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS REGISTERED TRUSTEES OF PEFA,KIGOMA .............................. RESPONDENT / DEFENDANT RULING NKWABI, J, 12 & 12/03/2025 The applicant, under a certificate of extreme urgency, has approached this Court under the provisions of Order XXXIX Rule 5(1) and 3(a) (b) and (c), section 68 (e) of the Civil Procedure Code, Cap. 33 R.E. 2019. The chamber summons has been taken out at the instance of applicant and is supported by an affidavit duly sworn by Mr. Method Raymond Gabriel Kabuguzi, learned advocate. The applicant has the prayers I emulate: 1. This honourable Court be pleased to grant an order staying the execution of the decree in the said Land Application No. 56 of 2012 of the District Land and Housing Tribunal for Kigoma pending hearing and determination of the said Land Appeal No. 3568 of 2025 before this honourable Court. 2. Costs of this application. 3. Any other relief(s) as this Court deems fit, equitable and convenient to grant to the applicant be provided for. When the application was called on for hearing, the applicant was represented by Mr. Method Raymond Gabriel Kabuguzi learned counsel. On the respondent’s side, neither the respondent nor counsel for the respondent appeared, owing to the explanation by Mr. Kabuguzi that they had not been serve. When Mr. Kabuguzi pressed for adjournment, I prompted him in the following words: Page. 1 “It appears that this Court has no jurisdiction to adjourn the matter as it appears to be incompetent for lack of attachment of the copy of the decree which is sought to be stayed.” Mr. Kabuguzi effortlessly conceded and pleaded with the Court to withdraw the application as it is incompetent for lack of attaching a copy of the decree which is sought to be executed. He further beseeched the Court for leave to refile the application. When I prompted Mr. Kabuguzi to address the Court on the competence of the application, I had in my mind a number of authorities which guide what is to be done in the circumstances. One of them is Yusuf Shaban Matimbwa v. Exim Bank (T) Limited & 2 Others, Civil Application No. 162/12 of 2021 CAT 7/10/2022 which cited with approval the decision inNgoni 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 rationale for attaching a copy of the decree sought to be stayed in an application of this nature is not far- fetched. The copy of the decree is necessary for the Court that is entertaining that application to ascertain whether there is in fact, that decree. It would also assist the Court in determining whether the parties are relevant. It assists also the Court to determine whether the application is time barred or not as was stated in Rashid Twalib Makonyora & Others v. Salim Twalib Makonyora, Civil Application No. 21 of 2015, CAT, 9/12/2015. In that application, the Court of Appeal ruled that: “The appropriate Rule is Rule 48(4). The applicant did not serve the respondent within the prescribed time of 14 days. The application is incompetent. The same is struck out with costs.” By praying to withdraw the application, it appears, Mr. Kabuguzi was quite awake of the position of the law that the overriding objective principle could not be invoked to assist the applicant in the circumstances of this application. This is in accordance with Puma Energy Tanzania Ltd v. Ruby Roadways (T) Ltd, Civil Appeal No. 3 of 2018, CAT (unreported) where it was handed down authoritatively that: “… Overriding objective is not meant to overhaul the rules of procedure but facilitate their application … The overriding objective is not a panacea for all ills and in every situation. A foundation of its application must be properly laid and the benefits of its application judicially ascertained.” Page. 2 Needless to say, here that parties who intend to lodge suits, appeals or applications in courts of law should remember the decision in VIP Engineering & Marketing Ltd v. Said Salim Bakhressa Ltd, Civil Application No. 47 of 1996 CAT (unreported) where it was pressed home that: “There can be no rational dispute over the fact that, procedural rules are enacted to be complied with. Usually there is legal principle behind every procedural rule. But those rules differ in importance. Some are vital and go to the root of the matter; those cannot be broken. Others are not of that character; and can therefore be overlooked provided that there is a substantial compliance with the rules as a whole and provided no prejudice is occasioned.” The obligation to make sure that the suits, applications or appeals are correctly instituted (without being incompetent) could be seen in the decision of the Court of Appeal of Tanzania in Mohamed Salimini v. Jumanne Omary Mapesa, Civil Appeal No. 345 of 2019 (unreported) where the Court of Appeal of Tanzania underscored that: “Suffice to state, having in mind the duty to ensure there is a decree and judgment attached to the record of appeal as stated in section 19(2) of the LLA falls on the appellant, there is also a duty to apply for a decree within the time prescribed for appeal. In the present case, after the trial court decree was struck out by the Court, the duty to procure a correct and proper decree was upon the appellant, and this duty was expected to be exercised within reasonable time while mindful of the time prescribed for lodging and appeal before the High Court … is ninety (90) days. Section 19(2) of the Law of Limitation Act, Cap. 89 R.E. 2019 does not remove the duty of the aggrieved party wishing to appeal within 90 days as specified under paragraph 1 part 11 of the schedule to the Law of Limitation Act … under the circumstances, section 19(2) of the Law of Limitation Act would not any way have protected the applicant to the appeal. … the 90 days prescribed by the law were still undisturbed when in pursuance of a proper decree, as alluded to earlier in this judgment, the duty to seek for a decree on time was on the appellant who was to benefit from this, and this duty was not absolved by reason that the decree which he was provided with was later found to be defective.” At the time I was prompting the counsel for the applicant to address the Court on the oddity the application appeared to suffer, I was also mindful of the position of the law that an incompetent matter in a court of law cannot be adjourned as stated in MIC Tanzania Ltd v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103/2004, (CAT), where the Court of Appeal of Tanzania was unambiguous that: Page. 3 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. To wrap it all up, having stated as above, I entirely endorse the prayer of the counsel for the applicant and order that the application for stay of execution is marked withdrawn at the instance of the counsel for the applicant. The applicant is entitled for leave to refile under the decision in Blue Star Services Station v. Jackson Musseti t/a Musseti Enterprises [1999] T.L.R. 80 and the provisions of Order XXIII Rule 1 (2) (b) of Civil Procedure Code. Leave to refile the application for stay of execution is granted. I make no order as to costs as the respondent has not appeared. It is so ordered. Dated at KIGOMA this 12th of March 2025 . J. NKWABI JUDGE OF THE HIGH COURT Page. 4