Amina Hussein Bukoko vs Tamimu Mrisho Kiuya & Another (Civil Appeal No. 745 of 2023) [2024] TZCA 835 (28 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A.. FIKIRINI. J.A, And KENTE. j j n CIVIL APPEAL NO. 745 OF 2023 AMINA HUSSEIN BUKOKO ....................... VERSUS APPELLANT TAMIMU MRISHO KIUYA (As Administrator of The Estate of the late RAJIA MRISHO KIUYA). TABORA MUNICIPAL DIRECTOR .................. . ■1st RESPONDENT 2n d RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at FIKIRINI. J.A.: The genesis of this appeal is a dispute over Plot No. 67 Block "DD" Mosque Street, Tabora. It all started with the 1st respondent, Tamimu Mrisho Kiuya (as administrator of the estate of the late Rajia Mrisho Kiuya) suing the appellant, Amina Hussein Bukoko and the 2n d respondent, Municipal Director Tabora, claiming for cancellation of the allocation made to the appellant, her eviction and demolition of structure thereon. The suit was heard inter parties after an order that hearing to proceed ex parte was set aside vide Miscellaneous Civil Application No. Tabora) (Rumanvika. J.^ Dated 09th day of September, 2015 in Land Case No. 14 of 2012 RULING OF THE COURT 21st & 28“' August, 2024

57 of 2014. The 1st respondent won. Aggrieved, the appellant preferred the present appeal. Prior to the hearing of the appeal, which was registered as Civil Appeal No. 745 of 2023, the respondents had lodged notices of preliminary objection. The 1st respondent raised five (5) grounds, of which three (3) were abandoned, that is, the 2nd, 3rd, and 4th grounds, as intimated by Ms. Stella Thomas Nyakyi, learned advocate recently engaged to represent the party. The 2n d respondent had four (4) grounds of objection. When the appeal came up for hearing, Mr. Kamaliza Kamoga Kayaga, learned advocate, appeared on behalf of the appellant. In contrast, Ms. Stella Thomas Nyakyi, learned advocate, as indicated above, appeared for the 1st respondent. Messrs. Gerald F. Njoka, learned Senior State Attorney, Gureni N. Mapande, and Victor 1 Mhana, both learned State Attorneys, appeared for the respondent. At the earnest, Mr. Kayaga conceded to the preliminary objection raised. He based his concession on three grounds: that the certificate of delay on page 258 of the record of appeal (the record) was defective, that there was a missing record, and lastly, that nowhere on record is there proof that the second respondent was served with a letter written

to the Registrar of the High Court requesting to be furnished with the necessary documents. Admitting the appeal is time barred and acknowledging that the remedy available was to strike it out, he urged the Court, that it being the highest Court in the land, to take a different approach. His recommended approach was that, instead of striking out the appeal already before it, the Court being seized with the record should take the liberty to examine it and resolve the controverted issue. Furthering his submission and persuading us, he intimated that this would not be the first time for the highest Court to take a different approach by invoking its revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 Revised Laws (AJA). Fortifying his proposition, he referred the Court to the case of Inter-Consult Limited v. Mrs. Kassanga & Ano [2019] T. L. R. 372, in which the Court exercised its revisional powers conferred under section 4 (2) of the AJA. His submission did not end there. As the learned Counsel also cited the case Yahaya Selemani Mralya {Adm inistrator o f the estate o f the late Selem ani Mralya) v. Stephano Sijia & 2 Others, Civil Appeal No. 316 of 2017 (unreported), the Court being seized with the record and on 3

the face of it, had noted a serious irregularity in the High Court proceedings, proceeded to resolve it. Enticing the Court and possibly the adverse party, Mr. Kayaga hinted that the appellant would not press for costs. The court asked the respondents their opinion on the propriety of Mr. Kayaga's prayer, in light of the issue of the right to be heard. Mr. Njoka objected to the grant of the prayer, submitting that it would jeopardize the interests of their clients. He thus maintained that the appeal be struck out with costs for being time-barred. Ms. Nyakyi, equally opposed Mr. Kayaga's grant of the prayer. Her assigned reasons are that one, the learned Counsel has not pointed out those irregularities. Two, the respondents would not have been heard. Lastly, she stressed that the prayer had no room since there is no competent appeal before the Court. In his brief rejoinder, the learned Counsel underscored that since this Court has been bestowed jurisdiction under section 4 (2) of AJA, no one should block it from exercising those powers. As for the issue of the right to be heard, he contended that he would consider himself to have been heard since the matter before the Court has been resolved one way or the other.

Having thoroughly considered the submissions by the learned Counsel for the parties, we do not think the issue will detain us long. First, as conceded by the learned Counsel for the parties, the appeal is time-barred for failure to show proof that the second respondent was served with the letter to the Registrar High Court requesting to be availed with the necessary appeal documents, in compliance with the rule 90 (1) of the Rules. Essentially, that would have been the end of this appeal, as it would have suffered the wrath of being struck out. The other two omissions were not fatal as they are curable upon the grant of leave under rule 96 (7) of the Rules, which permits filing a Supplementary Record of Appeal. We do not think resorting to section 4 (2) of the AJA, would save the appeal, which is already time barred. The provision states thus:- "(2) For a ll purposes o f and incidental to the hearing and determ ination o f any appeal in the exercise o f the jurisdiction conferred upon it by this Act, the Court o f Appeal shall, in addition to any power, authority and jurisdiction conferred by this Act, have the power o f revision and the power, authority and jurisdiction vested in the Court from which the appeal is brought" 5

While we admit there might be an issue or issues that this Court, vested with jurisdiction, could have entertained, knowing and abiding by the rules which govern proceedings before this Court, we believe that a jurisdictional issue, which is paramount in any court proceedings, once it has been raised and conceded to, there is nothing which can be done. Taking a different route suggested by Mr. Kayaga, admittedly, while there is that possibility, we do not see the need for hurry, which could interfere with the application of rule 90 (1) of the Rules, which governs lodgment of appeals. In the case of Sadallah Ibrahim Sadallah v Nemganga Sadallah & Ano, Civil Appeal No. 351 of 2019 (unreported), the facts are the same, the appeal was lodged out of sixty (60) days prescribed, the appellant's Counsel conceded but invited the Court to consider permitting the appellant to argue the appeal under rule 4 (2) (a) of the Rules. The Court agreed with the Counsel for the parties that the appeal was out of time and, therefore, rule 4 (2) (a) of the Rules could not save the situation. In the present appeal, likewise, though the invoked provision are different, but relying on the concession made by Mr. Kayaga on the objection raised by the respondents as to the competence of the appeal, in which he also conceded that the remedy is to strike the appeal out, 6

we think, that should be the right course to take. First, to keep in line with what the rules provide and second, to avoid trapping ourselves in the quagmire which will later ensue on the failure to observe the cardinal principle of natural justice on the right to be heard, which concern had been voiced by the learned Counsel for the respondents. We shall, therefore, not even embark on considering the two referred cases. In light of the above, we declare the appeal time barred and accordingly strike it out with costs. DATED at DAR ES SALAAM this 26th day of August, 2024. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL Judgment delivered this 28th day of August, 2024 in presence of Mr. Kamaliza Kayaga, learned counsel for the Appellant and holding brief for Ms. Stela Nyakyi, learned counsel for the 1st Respondent and Mr. Mapande, learned State Attorney for the 2n d Respondent/Republic linked via video conference from High Court Tabora is hereby certified as a true copy of the original.