Nasor Hamis Nasor vs Regina Ishemwambura (Civil Appeal No. 552 of 2024) [2024] TZCA 1086 (12 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LILA, J.A.. FIKIRINI. J.A.. And MLACHA. J.A.^ CIVIL APPEAL NO. 552 OF 2024 NASOR HAMIS N A S O R .............................................................. ......... APPELLANT VERSUS REGINA ISHEM W AM BURA..............................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania (Land Division) at Dar es Salaam) (Luvanda. 3.^ dated the 19th day of April, 2024 in Land Case No. 47 of 2014 RULING OF THE COURT 30th October & 12th November, 2024 MLACHA. J.A.: The appellant, Nasor Hamis Nasor was the 1st defendant in the High Court of Tanzania (Land Division) at Dar es Salaam, in Land Case No. 47 of 2014. With him were John Martin Mwanga and Fisha Mashoo who were the 2n d and 3rd defendants, respectively. The respondent, Regina Ishemwabura was the plaintiff. It was the plaintiff's case that she is the lawful owner of the house on plot No. 705, Block F, formerly identified as house on plot No. 94A, Drive in Cinema, Msasani, along old Bagamoyo road, Dar es Salaam. The High Court (Luvanda, J.) found for the plaintiff/respondent who was

declared the lawful owner of the land. Aggrieved by the finding and decision, he has come to this Court by way of appeal, challenging the decision. When the appeal was placed before the Court for hearing, the Court was invited to determine 3 grounds of preliminary objections, notice of which was earlier on filed and served to the appellant. They read thus;

1. That, the notice o f appeal lodged on l& h A p ril 2024 and Hied form ing p a rt o f the record a t pages 566 - 5 6 7 does not reflect the judgm ent and decree by leaving out the other two defendants, Fisha Mashoo and M artin Mwanga.
2. The memorandum o f appeal and the record o f appeal a t pages 1-5 is also in respect o f Regina Ishemwabura only and does not include the other defendants, Fisha Mashoo and M artin Mwanga who were parties a t the tria l court.
3. The record o f appeal contains an incorrect certificate o f correctness o f record o f the original record as it contains a judgm ent containing alterations a t pages 551 - 554 and contains docum ents form ing different records o f pending cases before this court under C ivil Appeal No. 83 o f2024 and C ivil Reference No. 08 o f2024. Messrs. Tarimo Methodius Melkior and Kessy Ngau, learned advocates, appeared for the appellant, whereas the respondent had the services of Mr. Joseph Rutabingwa, also learned advocate. Counsel were invited to address the Court on the preliminary points of objection.

On taking the floor, Mr. Rutabingwa contented that it was not correct to lodge the appeal against one person while the record and judgment of the lower court show that there were three people. He contended further that, attaching an annotated copy of the judgment in the record of appeal made the record defective. His focus was on rule 83 (1) and rule 84 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) upon which he built his contention that it was wrong to file the appeal against one person while the case had three people. There was no reference to the requirements of rule 107 of the Rule. He argued the Court to strike out the appeal with costs. Submitting in reply Mr. Tarimo contended that the points raised do not qualify to be preliminary points of objection within the meaning of the case of Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd (1969) 1 EA 696, because they don't contain the specific provisions of the law which were contravened. He added that, even when they can be taken to be valid points of law, for which he disputes, yet, they will not qualify to be preliminary points of objection because they don't have the effect of disposing of the appeal; they may only end up with amendment orders. He based his submission on rule 107 of the Rules and urged the Court to dismiss the preliminary objections. We had time to read the record and consider the submissions of the learned advocates. We think we should start by examining principles

governing preliminary objections generally. The leading case in this area is the case of Mukisa Biscuits Manufacturing Co. Ltd (supra) where it was stated as under; '!A prelim inary objection is in the nature o f what used to be demurrer. It raises a pure point of law which is argued on the assum ption that a ll the facts pleaded by the other side are correct I t cannot be raised if any fact has to be ascertained or if what is sought is the exercise o f ju d icia l discretion ... a prelim inary objection consists o f a point of law which raises by dear implication out of pleadings, and if argued as a preliminary point may dispose of the suit Exam ples are an objection to the jurisdiction o f the court or a plea o f lim itation or as subm ission that the parties are bound by the contract giving rise to the su it to refer the su it to arbitration." (Em phasis supplied) Principles developed in this case have been applied in many decisions of the Court including; Citibank (T) Ltd v. Tanzania Telecommunications Co. Ltd & 4 others, Civil Application No. 64 of 2006, Tanzania Telecommunications Company Limited v. Vedasto Ngashwa & 4 Others, Civil Application No. 67 of 2009, Jackline Hamson Ghikas v. Mlatie Richie Assey, [2022] TZCA 438 (18 July 2022) TanzLII

and Moto Matiko Mabanga vs Ophir Energy Pic & Others [2021] TZCA 599 (22 October 2021). In Jackline Hamson Ghikas (supra) it was stated; "We have in m ind fo r instance what we held in Tanzania Telecommunications Company Limited v. Vedasto Ngashwa & 4 Others, C ivii Application No. 67 o f2009 (unreported). Reaffirm ing with greater em phasis the position taken by the Court o f Appeal fo r East A frica in Mukisa Biscuits (supra), we categorically said that ■ a prelim inary objection m ust satisfy three conditions viz; one, the p oin t o f law raised m ust either be pleaded or m ust arise as a dear im plication from the proceedings; two, that it m ust be a pure point o f law which does not require dose exam ination or scrutiny o f the affidavit and counter affidavits and three, the determ ination o f such a p oin t o f law in issue m ust not depend on the court's discretion". Preliminary objections before the Court, must abide to the requirements of rule 107 of the Rules. It reads thus;

1. A respondent intending to rely upon a prelim inary objection to the hearing o f the appeal or application sh all give the appellant or applicant three dear days' notice thereof before hearing, setting out the grounds o f objection such as the specific law, principle or decision relied upon, and sh all file five such copies o f the notice with the Registrar

within the same tim e and copies of the law or decision, as the case may be, shall be attached to the notice. 2. A respondent shall not rely upon a preliminary objection unless such objection consists of a point of law which, if argued and sustained, may dispose of the appeal or application 3. A respondent raising a prelim inary objection sh aii provide such necessary particulars to enabie the Court and the other party to grasp the nature and scope o f such objection. (Em phasis suppiied) Rule 107 has 4 conditions which must be met cumulatively: One, the grounds must be based on a specific law, principle or decision of the Court. That is to say, each ground must state a specific law, principle or decision of the Court up on which it is based; two, the copies of the law or decision of the Court must be attached to the notice of objection; three, the grounds must provide the necessary particulars to enable the Court and the other party to grasp the nature and scope of the objection. Four, the point of law, principle or decision of the Court raised, must have the effect of disposing of the appeal or application. The grounds of objection in the case at hand contain mere statements. No specific provision of the law, principle or decision of the Court is cited. No provision of the law or decision is attached in the notice of appeal. Neither is there any indication that the grounds can dispose of the appeal.

At most, as correctly observed by Mr. Tarimo, they can lead to orders of amendments. They therefore failed short of the requirements of the law as provided under rule 107 of the Rules. As there is lack of compliance to rule 107 of the Rules, with respect to Mr. Rutabingwa, we will desist to make a finding on the preliminary objection, which we proceed to dismiss with costs. Meanwhile the hearing of the appeal is adjourned in terms of rule 38A (1) of the Rules to the nearest sessions of the Court as shall be fixed by the Registrar. It is ordered so. DATED at DAR ES SALAAM this 11th day of November, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 12th day of November, 2024 in the presence of Mr. Tarimo Methodius Melkior, learned counsel for the Appellant and Mr. Petro Frederick Musimwa, learned counsel for the Respondent, is hereby certified as a true copy of the original.