20170810 TZCA Dar es Salaam

I IN THE COURT OF APPEAL OF TANZANIA AI DAR ES SALAAM (CORAM: MUSSA, J.A., MUGASHA, J.A., And MWAMBEGELE, J_,.A,) CIVIL APPEAL NO. 105 OF 2014 YAHYA ATHUMANI KISSESA ............................................. APPELLANT VERSUS HADIJA OMARI ATHUMANI --, · ASHA OMARI ATHUMANI SELEMANI OMARI ATHUMANL r··--•····················•••••··••· RESPONDENTS [Appeal from the Ruling and Drawn Order of the High Court of Tanzania {Land Division) at Dar es Salaam) {Chinguwile, J.) Dated the 12th day of February, 2010 .. in Land Case No. 64 of 2007 JUDGMENT OF THE COURT 4th & 18th August, 2017 MWAMBEGELE, J.A.: The appellant filed a suit in the High Court of Tanzania (Land Division - henceforth "the High Court'') in which he sued the respondents for, inter alia, general and specific damages. That suit 1 was finalized on a preliminary objection to the effect that the court had no jurisdiction to try the case. Having upheld the preliminary objection, the High Court dismissed the suit with costs. The ruling did not make the appellant happy. He thus appealed to this Court on the following three grounds of appeal: "1. The trial Judge erred in law and in fact to hold that the Honourable Court has no Jurisdiction to entertain the matter. 2. The trial Judge erred in law and in fact to fail to hold that since the cause of action arose from the demolition of the house in dispute then the court has jurisdiction to entertain the suit. 2 3. Cost of this appeal and in the court below be paid to the appellant'~ At the hearing of the appeal before us on 04.08.2017, the appellant and respondents were, respectively, represented by Mr. Amini Mshana and Mr. Mohamed Kapilima, learned advocates. When we accorded audience to Mr. Mshana to address us on the grounds of the appeal, the learned counsel intimated to us that he was abandoning the first and second grounds. However, he quickly prayed under rule 113 (1) of the Tanzania Court of Appeal Rules, 2009 (henceforth "the Rules") to argue another ground of appeal which did not feature in the Memorandum of Appeal. The said ground seeks to contend that the High Court should have struck out the suit; not dismissing it as happened. As Mr. Kapilima had no objection to the withdrawal of the two grounds as well as to the flanking application, we granted Mr. Mshana's prayer. The 3 appellant, therefore, argued, substantially, only one ground which was fronted with leave of the Court. Mr. Mshana, on the ground fronted with leave of the Court, was very brief in his arguments but to the point. He argued that the High Court did not hear the suit in its merits; it sustained the preliminary objection to the effect that it had no jurisdiction to entertain the suit it being not a land related matter. Because it did not hear the suit in its merits, he submitted, the learned Judge ought to have struck it out instead of dismissing it as happened. To buttress his arguments, the learned counsel cited to us an unreported decision of the High Court of Wolfram B. Haule v. Friginia Ole Mashale, Land Appeal No. 81 of 2011 wherein the cases of Ngoni-Matengo Cooperative Marketing Union Ltd v. Alimamohamed Osman [1959] 1 EA 577 and unreported decisions of the Court of Abdallah Hassan v. VODACOM (T), Civil 4 Appeal No. 18 of 2008 and Thomas Kirumbuyo and Another v. Tanzania Telecommunications Co. Ltd., Civil Application No. 1 of 2005 on the point were discussed. The learned counsel thus urged the Court to quash the dismissal order of the High and in its stead order that the suit should have been struck out. On his part, Mr. Kapilima for the respondent, also brief and to the point, was of the view that the dismissal order by the High Court was quite apposite. We have considered the arguments of both learned counsel for the parties. Having so done, we state at the very outset that we accede to the arguments fronted by Mr. Mshana for the appellant. The learned counsel for the parties are at one that the suit before the High Court was incompetent for want of jurisdiction. The only point of controversy on which these trained minds have locked horns 5 is the dismissal order. While Mr. Mshana for the appellant is of the view that the learned Judge, having sustained the preliminary objection and therefore did not hear the suit on its merits, she ought to have made a striking out order, Mr. Kapilima is of the stern view that the dismissal order was appropriate. The circumstances under which the court may "strike out" or "dismiss" an incompetent suit, application or appeal as the case may, be were succinctly articulated by the erstwhile Court of Appeal for East Africa in the Ngoni-Matengo case (supra); a decision cited by the High Court in Wolfram Haule; a case referred to and supplied to by Mr. Mshana for the appellant. In Ngoni-Matengo, the defunct Court of Appeal for East Africa grappled with an akin situation. The issue before that court was whether an incompetent appeal is "dismissed" or "struck out". The distinction was 99ne by 6 Windham, J.A speaking on behalf of Sir Kenneth O'Connor, P. and Gould, J.A at p. 580 with a clarity that merits quotation: II when the appeal came before this court it was incompetent for lack of the necessary decree This court according!½ had no Jurisdiction to entertain it what was before the court being abortive/ and not a properly constituted appeal at all. What this Court ought strictly to have done ... was to ''strike out" the appeal as being incompetent, rather than to have "dismissed// it; for the latter phrase implies that a co111petent appeal has been disposed of while 7 ~ -----·- --·· ·- - . .... - -~- ·- ---- . . .- -. . the former phrase Implies that there was no proper appeal capable of being disposed of ... " [Emphasis supplied]. The above position was followed by the Court as the correct position of the law in Thomas Kirumbuyo and Abdallah Hassan (supra). In these two decisions, the Court reiterated and emphasized the well-structured articulation in Ngoni-Matengo respecting the distinction between "dismissing" and "striking out" an appeal. In Abdallah Hassan, following Thomas Kirumbuyo, the Court observed: "From the outset and without prejudice/ it is to be observed that the learned Judge having upheld the preliminary objection that the application was hopelessly out of 8 ----- - - - - - - - - - - - · - · · - --- ------- ·- ------------------ • In the case at hand, the High Court upheld the preliminary objection without hearing the suit on its merits. On the authorities cited above, we are of a firm view that, having not heard the suit on its merits, it was incumbent upon the learned Judge to strike it out, for, dismissing it as happened, presupposes that the suit was heard on the merits. The dismissal order was therefore misconceived. For the avoidance of doubt, we are aware that the Ngoni- Matengo case was dealing with an appeal. We are equally aware that Thomas Kirumbuyo and Abdallah Hassan were seized of applications. However, we are certain in our minds that the legal position is applicable to the present situation as well. The above stated and done, we quash and set aside the dismissal order of the High Court in Land Case No. 64 of 2007 and, in lieu-thereof, replace it with one for striking -tl9e suit out. 10 • The appeal is therefore allowed to the extent stated above with costs. Order accordingly. DATED at DAR ES SALAAM this 10th day of August, 2017. K. M. MUSSA JUSTICE OF APPEAL S.E.A.MUGASHA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. R PPEAL 11