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

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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).

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 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

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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

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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)

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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.

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 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

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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

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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.

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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,

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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.

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 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

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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.

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