Haroub M. Shamis & Others vs Omari Rubasa (Civil Appeal No. 1137 of 2024) [2026] TZCA 625 (3 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARIJA. J.A.. KENTE. 3.A. And MURUKE, J.A.l CIVIL APPEAL NO. 1137 OF 2024 RUKIA K. AHMED HAROUB M. SHAMIS NASORO MOHAMED .1 st APPELLANT 2 nd APPELLANT 3 rd APPELLANT VERSUS OMARIRUBASA RESPONDENT (Appeal from the Judgment and decree of the Resident Magistrate's Court of Dar es Salaam at Kinondoni) fRwehumbiza, PRM - Ext. Jur.^ dated the 19th day of May, 2023 in 25th February & 3rd June, 2026 MWARIJA. J.A.: In this appeal, the appellants, Haroub M. Shamis, Rukia K. Ahmed and Nasoro Mohamed (the 1s t -3rd appellants respectively) are challenging the decision of the Resident Magistrate's Court of Dar es Salaam at Kinondoni/Kivukoni in Land Appeal No. 191 of 2022 decided by Rwehumbiza, PRM (Ext. Jur). The appeal to that court arose from the decision of the District Land and Housing Tribunal at Temeke (the DLHT) in Land Application No. 177 of 2021. The 1s t and the 2n d Land Appeal No. 191 of 2022 RULING OF THE COURT respondents had sued the respondent, Omari Rubasa claiming for arrears of rent amounting to TZS 8,000,000.00 together with costs and expenses incurred by them in keeping and later shifting from the suit premises the respondents' properties for safe keeping, adding up to a total of TZS 10,000,000.000. They also claimed for the costs of the case. The respondent denied the claim and raised a counterclaim contending that, he rented the suit premises from the 3r d respondent, paid six months rent of TZS 6,480,000/= and later renovated the premises by installing electricity and fixing steel gates. Later in 2020, misunderstandings arose between them causing the respondent's business to dwindle. He contended further that, while contemplating on the appropriate steps to take so as to solve the dispute between him and the 3rd respondent, the 1s t and 2n d respondents trespassed into the premises, removed all his properties valued at TZS 100,000,000.00 and rented the suit premised to another person. He prayed for a declaration that the 1s t and 2n d respondents were trespassers and claimed for payment of a total of TZS 20,000,000.00 as compensation of his properties, costs of renovating the premises and for installing electricity as well as general damages for the trespass. Having heard the evidence of two witnesses for the appellants in support of the application and two witnesses for the respondent in opposition thereof and in support of the counterclaim, while the claims by the appellants were dismissed with cost on the ground of absence of a tenancy agreement between them and the respondent, the counterclaim was allowed without an order as to costs. The appellants were ordered to issue to the respondent a tenancy agreement after payment by him, of the rent found to have been due to the tune of TZS 6,928,000.00. Aggrieved by the decision of the DLHT in which he was ordered to pay the stated amount of TZS 6,928,000.00 as rent due, the respondent appealed to the High Court where upon, the appeal was transferred to the Resident Magistrate's Court. His appeal was successful. The learned Principal Resident Magistrate (Ext. Jur.) reversed that decision. He found that, the 1s t and 2n d appellants were trespassers. They were consequently ordered to pay the respondent a compensation of TZS 260,000,000.00 for his damaged properties. The court also ordered, inter alia that, the respondent be re-instated into the 11 rooms which he had earlier on rented in the suit premises and used to operate a shop business. He was also awarded the costs of the case. The decision of the learned Principal Resident Magistrate (Ext. Jur.) aggrieved the appellants hence this appeal which is based on eleven (11) grounds of complaint. Upon service on them of the record and memorandum of appeal, the respondent lodged two notices of preliminary objections in terms of rule 107 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The 1s t notice filed on 5/2/2025 consists of the following two grounds of objection: ”(i) As far as Civil Application No, 942/17 o f 2023 is still pending in this court since 14/2/2023 as shown on page 193-305 o f the record o f appeal and not withdrawn under the provisions o f rule 58 (1), (2) and (3) o f the Rules, the appeal is premature and this court has no jurisdiction to hear and determine the above appeal lodged on 21/10/2024 [see Yowwe Virginia Ruth Chopra v. Ms. Lake Duiuti Estate Limited (2016) TLSR 86]. (ii)The record o f appeal contravenes the mandatory provisions o f rules 96 (1) (k), (2) (f) and (3) o f the Rules because Civil Application No. 942/17 o f 2023 has been included without any relevance or justified cause." In the second or additional preliminary objection filed on 19/2/2026, the respondent contends that: "The appeal contravenes mandatory provisions o f rule 90 (1) (c) o f the Tanzania Court o f Appeal Rules, 2009 as amended by GN No. 188 o f 2024 as there is no security for costs o f the appeal deposited before this court." When the appeal was called on for hearing, the appellants were represented by Mr. Juma Kiwanga assisted by Ms. Pendo Ngowi and Mr. Melkior Sanga, all learned counsel. On his part, the respondent was represented by Mr. Kassim Nyangarika, also learned counsel. Guided by established practise, the Court proceeded to hear first, the preliminary objections. Mr. Nyangarika argued the two notices of preliminary objection together. He submitted briefly that; filing of this appeal while the application for revision lodged by the appellants to challenge the decision of the High Court dismissing the appellants' application for leave to appeal was still pending, rendered the appeal incompetent. Citing the case of Yowwe Virginia Ruth Chopra v. Ms. Lake Duluti Estate Limited [2016] TLSR 86, the learned counsel argued that, the filing of the appeal amounted to abuse of the court process. He went on to argue that, the appeal is incompetent for contravening the provisions of rule 96 (1) (k), (2) (f) and (3) as well as rule 90 (1) (c) of the Rules as amended by GN. No. 188 of 2024. The gist of the complaint is; first, that the appeal was lodged while Civil Application No. 942/17 of 2023 was still pending and secondly, that the said Civil Application was included in the record of appeal without a relevant or justifiable cause. Rule 96 (1) (k) (2) (f) and (3) of the Rules upon which the two complaints were based states that: "96 (1). For purposes o f an appeal from the High Court or a tribunal in its original jurisdiction, the record o f appeal shall subject to the provisions o f sub-rule (3), contain copies o f the following documents: (a) - (j).... N/A (k) Such other documents, if any, as may be necessary for the proper determination o f the appeal, including any interlocutory proceedings which may be directly relevant, save that the copies referred to in paragraph (d), (e) and (f) shall exclude copies o f any documents or any o f their parts that are not relevant to the matter in controversy on the appeal. (2). For the purpose o f any appeal from the High Court in its appellate jurisdiction, the record o f appeal shall contain documents relating to the proceedings in the trial court corresponding as nearly as may be to those set out in sub-rule (1) and shall contain also the following documents relating to the appeal to the first appellate court- (a) - (e)....N/A (f) the notice o f appeal. (3) A Justice or Registrar o f the High Court or tribunalmay\ on the application o f any party, direct which documents or parts o f documents should be excluded from the record, application for which direction may be made informally." Thirdly, it was the respondent's complaint that, the security for costs of the appeal provided under rule 90 (1) (c) of the Rules was not shown to have been paid. In reply to the submissions made in support of the points of the preliminary objection, Mr. Ngowi started by opposing the points raised arguing that, the same do not qualify as pure points of law. With regard to the contention of pendency of Civil Application No. 942/17 of 2023 and payment of security for the costs of the appeal, he submitted that, to establish that the said Civil Application is pending or otherwise and whether security for the costs of the appeal was paid, will require evidence. He thus argued that, in the circumstances, the cited case of Yowwe Virginia Ruth (supra) cited in support of ground (i) of the first preliminary objection, is distinguishable. With regard to inclusion of Civil Application No. 942/17 of 2023, he argued that, the same does not render the appeal incompetent because the document may be expunged from the record. Having considered the arguments of the learned counsel for the parties, we hasten to express our agreement with the appellants' counsel that the grounds concerning the pendency of Civil Application No. 942/17 of 2023 and payment of security for the costs of the appeal are matters of facts, not raising pure points of law. It requires evidence to ascertain the truth or otherwise of the allegations relied upon by the learned counsel for the respondent The principle as enunciated in the famous case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 699 is that, a preliminary objection must be based on a pure point of law which can dispose of a matter against which the point has been raised without requiring evidence to ascertain the facts thereof. The argument that the payment receipt must have been included in the record is similarly not correct. Payment 8 receipt is not one of the documentsspecified under rule 96 (1)and(2) of the Rules. Rule 90 (1) of the Rules provides the conditions for instituting an appeal, including the requirement to pay security for the costs thereof. It states as follows: "90 - (1). Subject to the provisions or rule 128, an appeal shall be instituted by lodging in the appropriate registry, within sixty days o f the date when the notice o f appeal was lodged with- (a) a memorandum o f appeal in quintuplicate; (b) a record o f appeal in quintuplicate; (c) security for the costs o f the appeal ." When there is a dispute that any of the three conditions above has not be complied with, evidence will be required because, it is not a requirement of the law that all those documents must be included in the record of appeal such that, for instance, the record should contain all the five copies to prove compliance with the requirement of lodging the stated number of copies of the record of appeal or memorandum of appeal. For these reasons, we do not find merit in the two points of objection raised by the respondent. With regard to inclusion of Civil Application No. 942/17 of 2023 in the record of appeal, we agree with the appellants' counsel that, the presence of a copy of that application in the record does not render the appeal incompetent. No authority was cited to support the contention that, inclusion of unnecessary document in a record of appeal renders the appeal incompetent. Under rule 96 (3) of the Rules, the document may be excluded from the record upon an application by any of the parties. A record of appeal becomes incompetent only if any of the essential documents necessary for determination of appeal, as provided under rule 96 (1) and (2) of the Rules, are omitted. That ground of the preliminary objection is also devoid of merit and is thus overruled. There were also rival arguments regarding inclusion of documents which are in Kiswahili language, which documents have not been translated into English Language. We understand that the point was based on rule 96 (1) (f) of the Rules relating to an appeal from the High Court in its original jurisdiction. In any case, the current position of the law is that, not only the proceedings of the court should be conducted in Kiswahili but also Kiswahili should be used in writing the decisions. This is in accordance to section 86 of the interpretation of Laws Act, Chapter 1 of the 10 Revised Laws. By that section, which was introduced vide the Written Laws (Miscellaneous Amendment) Act, 2021, Kiswahili has been made the language of the courts not only in conducting and recording the proceedings but also in writing judgments or orders. The introduced provision; that is, section 86 (1) - (4) of the Revision Edition, 2023, states as follows: "86 - (1). Notwithstanding any other written law, the language o f courts, tribunals and other bodies charged with the duties o f dispensing justice shall be Kiswahili. (2). Without prejudice to subsection (1), courts, tribunals and other bodies charged with a duty o f dispensing justice may, where the interests o f justice requires, use English language in the proceedings and decisions. (3). Where English language is used in the proceedings and decisions, such proceedings and decisions shall be translated and authenticated in Kiswahili language. (4). Where proceedings or a decision is translated in Kiswahili language and there occurs a conflict or doubt as to the meaning o f any word or expression, the language which the proceedings or decision was recorded shall take precedence." ii It is clear from the reproduced section above that; it is now the documents which are in English language that require to be translated into Kiswahili. For these reasons, we do not, as well, find merit in that ground of the preliminary objection. In the event, we find that the preliminary objections lack merit and are thus hereby overruled. DATED at DODOMA this 1s t day of June, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered virtually this 3rd day of June, 2026 in the presence of Ms. Pendo Alphonce Ngowi, learned counsel for the appellants, Mr. Kassim Mmbaga Nyangarika, learned counsel for the respondent and Ms. Tabitha Mwita, Court Clerk, is hereby certified as a