IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

f CO RAM; MWANPAMBO, J.A.. MASHAKA, J.A And MDEMU, J.A/1

CIVIL APPEAL NO. 98 OF 2021

CAMEL OIL (T) LTD APPELLANT

VERSUS

BAHATI MOSHI MASABILE.................. 1st RESPONDENT

BILO STAR DEBT COLLECTOR CO. LTD 2nd RESPONDENT
(Appeal from the decision of the High Court of Tanzania, at Mwanza)

(Mashauri, J.)

dated the 24th day of November, 2020

in
Civil Appeal No. 46 of 2020

JUDGMENT OF THE COURT

5* & 16th July, 2024

MDEMII, J.A.:

Before the trial court was a suit for unlawful invasion in the 1st

respondent's business premises, Ndono Filling Station by the appellant

who, in the course, took control over the said filling station and as a result,

business operations of the 1st respondent had to stop. The 1st respondent's

filling station was located at Ushirombo area in Geita Region. It thus filed a

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suit in the District Court of Bukombe claiming a total of TZS 42,626,800.00

being loss of business and TZS 50,000,000.00 as general damages.

On 31st July, 2019, the District Court of Bukombe decreed the sum of

TZS 12,628,800.00 for loss of business and TZS 50,000,000.00 as general

damages in favour of the 1st respondent. The appellant was not happy with

that outcome. The appellant's first attempt to appeal to the High Court

was unsuccessful because the appeal was struck out for being

incompetent. Yet the second attempt to appeal was also fruitless because

the High Court dismissed the appeal on account that it was out of time.

The latter followed the sustenance of a preliminary objection raised by the

1st respondent. Essentially, this is the subject of the instant appeal on one

ground as hereunder:

"That, the honorable Judge erred in law for holding that

the date for filin g a document in court is the date when
the prerequisite court fees is paid and not when the
document is electronically subm itted through
electronically filing system ."

We heard the counsel for the parties on 5th July, 2024. The appellant

had the services of Mr. Godfrey Martin Basasingohe, learned advocate

whereas the 1st respondent was represented by Mr. Egbert Colonel

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 Mujungu, also learned advocate. The second respondent did not enter

appearance. On this one, in terms of rule 4 (2) (b) of the Tanzania Court of

Appeal Rules, 2009, Mr. Basasingohe moved us for leave to amend the

record of appeal by removing the name of the 2nd respondent. The reason

he advanced to us was that, in both courts below, the case against the 2nd

respondent proceeded exparte, the reason why it failed to serve him in the

instant appeal. On that account, we granted the prayer to that effect and

accordingly, the name of the 2nd respondent was struck out from the

record.

Reverting to the hearing, both counsel informed the Court to have

their respective written submissions they had filed to constitute part of

their oral submission. They also had an opportunity to clarify orally. For

reasons to follow soon, both written and oral submissions by the learned

counsel in support of and against the raised ground of appeal will not have

a place in this judgment. Instead, we will focus on what we asked the

learned counsel to address us on one issue, that is, whether or not the

preliminary objection to the effect that the appeal by the appellant was

time bared raised in the High Court was competent. As we said earlier on,

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this preliminary objection was sustained by the High Court rendering the

dismissal of the appeal for being time barred.

Submitting on this point, the learned counsel for the appellant argued

in brief that, the said preliminary objection required evidence, preferably,

in the form of an electronic print out in order to establish if at all the

alleged appeal was filed electronically or not. In the absence of that

evidence, according to the learned counsel, the High Court was

incapacitated to determine the objection in which case therefore, it

rendered the said objection incompetent. He added by referring us to page

168 of the record of appeal that, it is the respondent herein who invited

the court to securitize the electronic print out. He thus concluded in this

regard that, as the preliminary objection required evidence to prove it,

what the learned Judge ought to have done was to determine it in the

course of composing the judgement after hearing the merits instead of

dismissing the appeal as it was.

On his part, Mr. Mujungu briefly argued that, the High Court rightly

determined the preliminary objection by making reference to the pleadings

placed before it. He fortified his argument by referring us to the case of

Mpale Kaba Mpokf v. The Advocates Committee, Civil Appeal No.

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 6438 of 2024 [2024] TZHC 5522 (4th June, 2024, TANZLII). He, in the

end, therefore concluded that the preliminary objection was rightly

determined because it was on a pure point of law.

That being the rival argument of the parties for and against the

raised point of contention, we register our stance in the line taken in

Mukisa Biscuits Manufacturing Co. Ltd. v. West End Distributors

Ltd. [1969] E.A. 696 at page 701 that:

"A prelim inary objection is in the nature o f what used to

be a demurrer. It raises a pure point o f taw which is
argued on the assumption that, a ll the facts pleaded by
the other side are correct. It cannot be raised if any fact
has to be ascertained or if what is sought is the exercise
o fju d icial discretion."

Referring to the foregoing principle, this Court in Soitsambu Village

Council v. Tanzania Breweries Ltd and Tanzania Conservation

Limited (Civil Appeal No.105 of 2011) [2012] TZCA 255 (17th May, 2012

TANZLII) stated as follows:

"A prelim inary objection should be free from facts calling

for proo f or requiring evidence to be adduced for its
verification. Where a court needs to investigate facts,
such an issue cannot be raised as a prelim inary

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 objection on a point o f iaw. The court must therefore
insist on the adoption o f the proper procedure for
entertaining applications for prelim inary objections. It
w ill treat as prelim inary objections only those points
that are pure iawf unascertained by facts or evidence,
especially disputed points o f fact or evidence. The
objector should not condescend to the affidavits or
other documents accompanying the pleadings to
support the objection such as exhibits."

This being the trite law regarding what would be the nature of a

preliminary objection, the question which quickly comes in our mind is

whether the preliminary objection raised in the High Court that the appeal

was time barred could have been ascertained without evidence. The hot

debatebetween the parties were in threefold. One, the appeal was filed

electronically. This argument was posed by the appellant. Two, the appeal

was filed manually, being the argument by the respondent. In this latter

argument, the basis was on the court stamp in the memorandum of

appeal. The appellant argued that, at the time electronic filing system was

introduced, parties were allowed, after the electronic filing, to present hard

copies to registry for endorsement. The endorsement was to bear a date it

was presented and not a date when it was electronically filed. Three,

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 control number for payment of court fees would only be issued when the

electronically filed document reaches the Registrar. Specific on the

requirement of the print out to prove electronic filing, it was argued at

page 168 of the record of appeal that:

"/f is mandatory that every document m ust be paid for

but the appellant's counsel never made out anything
when h is memorandum o f appeal was paid for the court
fees. He ju st presented the print out but gone through
the prin t out, there is nowhere indicated who lodged it in
the system. Counsel for the appellant m entioned h is
user's name but it is not featuring in the prin t out, but
perusing the rules on electronic filing system, the Chief
Registrar is the controller o f the system, but looking a t
the p rin t out, there is no any verification indicating
whether the document was printed from the system ."

We note in the foregoing excerpt and as we also alluded to above,

the said preliminary objection required evidence to prove the following:

one, was the memorandum of appeal filed electronically or manually? Two,

was the electronic print out generated from the system? Three, which

endorsement date between the electronic filing date and that of the

physical submission of a hard copy did the memorandum of appeal bear?

Four, was the control number for payment of court fees generated from

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 the system? Five, was the control number Issued after electronic filing of

the document or upon receipt of the electronically filed document by the

Registrar?

For sure, we are not intending to respond to any of those raised

questions. We have raised them because it is through them, we hold that,

the preliminary objection falls short of the criteria for its existence. As it is,

evidence is required for proof of what was raised as a preliminary objection.

This is what Mr. Basasingohe argued and urged us to hold so and we think

he is right. Again, they are pertinent questions because they make the

objection not legally allowable in the eyes of the law. We cannot therefore

do more than what we did in the case of Soitsambu Village Council v.

Tanzania Breweries Ltd and Tanzania Conservation Limited (supra),

that the raised preliminary objection is not free from facts or evidence

calling for proof. The High Court, so to speak, was not mandated to

entertain the said preliminary objection.

Consequently, exercising our revisional powers under section 4 (2) of

the Appellate Jurisdiction Act, Cap. 141, we nullify the proceedings and the

decision of the High Court which dismissed the appeal of the appellant and

make an order that the hearing of Civil Appeal No. 46 of 2020 should

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 proceed accordingly. This point suffices to dispose of the entire appeal, as

such, we find It unnecessary to deliberate on the ground of appeal raised by

the appellant. We order accordingly.

DATED at MWANZA this 16th day of July, 2024.

L. J. S. MWANDAMBO
JUSTICE OF APPEAL

L. L. MASHAKA
JUSTICE OF APPEAL

G. J. MDEMU
JUSTICE OF APPEAL

Judgment delivered this 16th day of July, 2024 in the presence of Mr.

Steven Kitale, holding brief for Mr. Godfrey Martin Basasingohe, learned

Counsel for the Appellant and also holding brief for Mr. Egbert Mujungu,

learned counsel for the Respondents, is hereby certified as a true copy of

the original.

C. M. MAGESA
DEPUTY REGISTRAR
COURT OF APPEAL