Suleiman Mbarouk vs Haroub Mohamed Salum (Civil Appeal No. 7210 of 2026) [2026] TZHC 2554 (22 May 2026)

1 IN THE HIGH COURT OF TANZANIA (MTWARA SUB REGISTRY) AT MTWARA CIVIL APPEAL NO. 7210 OF 2026 CASE REFERENCE NO. 202603201000007210 (Arising from the decision of the District Court of Mtwara at Mtwara dated 02 nd February, 2026 in Small Claim No. 703 of 2026 before Hon. L.M. Jang’adu, SRM.) SULEIMAN MBAROUK..……. ….…………………………. ....................... APPELLANT VERSUS HAROUB MOHAMED SALUM…..................................................... RESPONDENT JUDGMENT Date of Last Order: 05 th May, 2026. Date of Judgment: 22 nd May, 2026. E. E. KAKOLAK I, J The appellant herein is seeking to displace the decision of the District Court of Mtwara at Mtwara in Small Claim No. 703 of 20256, handed down on 2 nd March 2026, dismissing his claims against the respondent after sustaining the preliminary points of objection raised by the respondent. He has expressed his discontent on two grounds, which can be summarised as follows: 2 1. That the trial magistrate erred in law and misdirected himself in dismissing his suit instead of striking it out after sustaining the preliminary objection on points of law raised by the respondent. 2. That the trial magistrate erred in law in evaluating the evidence from the appellant’s side, whilst the matter was not heard on merit. It is on the basis of the above grounds of appeal that this Court is invited to allow the appeal and nullify the whole proceedings and the decision reached by the trial Court. Briefly, as discerned from the trial Court record, before the trial Court, the appellant filed a Small Claim matter against the Respondent for his allegedly illegal act of applying technics of undue influence, coercion and misrepresentation against him which led him to involuntarily enter into, sign and execute a Deed of Settlement and register a consent Judgment dated on the 11 th December 2025 before Mtwara/Mikindani Primary Court acknowledging that he received the respondent's monies total Tanzanians shillings 50,000,000/= for the purpose of buying him cashew nuts, and handed with properties and assets valued total Tanzanians shillings 9,520,000/= therefore a consent judgment on a total claim of Tshs. 59,520,000/=. He thus sought relief among others, a declaratory order that 3 the respondent’s act was illegal and that the whole proceedings before the Mikindani Primary court leading to a consent judgment are a nullity, hence nullified, and the consent judgment be set aside with costs. When the claims were served to the respondent, the same were vehemently challenged, and in addition to that, he raised a preliminary objection on six (6) grounds, which were argued in the written form. After consideration of both parties’ submissions, the trial court sustained them and proceeded to dismiss the suit with costs, hence the present appeal on the above-stated grounds. Upon admission of this appeal, the appellant was issued with the summons to serve the respondent and complied by filing the returned summons annexed with the affidavit duly affirmed by the process server, Saad Said Lwambo, exhibiting to the Court that the respondent refused to sign the summons. When the matter was called for hearing, the appellant, who appeared represented by Mr Mohamed Ndenyanga, learned Advocate, based on the affidavit by the process server, moved the Court for an order of exparte hearing following the respondent’s refusal of service, the prayer which was granted after consideration of all the circumstances, and proceeded to hear the appellant ex-parte. 4 Submitting in favour of the appeal, Mr Ndenyanga, sought leave of the Court to argue both grounds conjunctively and contended that, when submitting on the said points of preliminary objection before the trial Court, the respondent prayed for the matter to be struck out for want of competence, but the trial magistrate, who sustained them, wrongly dismissed the suit instead of striking it out. He went on to submit that the trial Court erroneously went further to touch and determine the merits of the application without affording the parties the right to be heard, hence denial of their right to be heard. To back up his stance, the Court was referred to the case of Tanzania Motor Services Ltd & Others vs Mehar Singh t/a Thaker Singh (Civil Appeal 115 of 2005) [2006] TZCA 5 (21 July 2006), where the Court of Appeal sought guidance from the case of Bozson v. Artrincham Urban District Council (1903) 1KB 547 on what cane be treated as final order or judgment and the interlocutory order. The Court was further called to attention of the decision of the Court in Elias Germanus Mkoba Vs. Mohamed Omary Mkubwa , Land Appeal No. 24415 of 2025, where the Court at page 6 discussed the consequences of dismissing and striking the matter from the court. The learned counsel thus 5 prayed the Court to find merit in this appeal by quashing and setting aside the trial Court’s decision. The Court had ample time to visit the trial Court’s proceedings and the impugned ruling dated 2 nd March 2026 in a bid to investigate the appellant’s complaints. The issues for determination, therefore, are one, whether the trial Court wrongly dismissed the appellant’s suit instead of striking it out and second, whether the suit was determined on its merit. To start with the first issue, it is an uncontroverted fact that in his reply to the appellant’s claim, the respondent raised five preliminary points of objection against the appellant’s suit, which were disposed of by way of submission. Again, it is a settled fact that, after hearing both parties, the trial court sustained the said preliminary objection, the effect of which was to dismiss the suit with costs. In so doing, the trial Court ruled, and I quote it verbatim: Finally deciding that the preliminary objections raised by the respondent as I have exposed above have merits, henceforth sustains. Consequently, the claim filed by the claimant is hereby dismissed with costs. It is so ordered. L.M. JANG’ANDU, SRM 27.2.2026 6 It is learnt from the above trial Court’s decision that all points of objection raised by the respondent were sustained by the trial magistrate. It is also apparent on record, as can also be deduced from the impugned ruling, that the said preliminary points of objection were challenging the competence of the suit. To be straight to the point, the same were to the effect that, one, the matter is incompetent for contravening the mandatory provisions of Rule 5(1) of the Magistrates’ Courts (Small Claims Procedure) Rules, GN. No. 159/ 2022. Second, the matter is incompetent before the court for failure to disclose cause of action and third, that the matter is wrongly before the court since there is a specified procedure to challenge decisions of Primary Courts. The fourth was that the matter is wrongly before the court for lack of jurisdiction, while the fifth read that the matter is fatally defective for failure to join the necessary party. In the sixth, the respondent contended that the Statement of Claim is untenable and fatally defective for being prepared by an unqualified person. As it is the competence of the suit which was brought into question, sustaining the objections raised meant nothing but endorsing the respondent’s contention that the suit was incompetent before the Court, though the trial Court did not so conclude. Now, what is the remedy for an incompetent matter before the Court? The law is settled that, an 7 incompetent matter is abortive before the Court, hence deserves to be struck out and not a subject of dismissal. It is so, as the abortive or incompetent matter cannot be determined on its merit for being improperly before the Court. Expounding on similar subject matter, the Court of Appeal in the case of Cyprian Mamboleo Hiza Vs. Eva Kioso and Another , (Civil Application 3 of 2010) [2011] TZCA 40 (28 March 2011) had this to say: ’’…This court, accordingly, has no jurisdiction to entertain it, what was before the Court being abortive and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to ’’strike out’’ the appeal as being incompetent, rather than to have ’’dismissed’’ it; for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies there was no proper appeal capable of being disposed of.’’ In the present matter, since the raised preliminary objections challenge the competence of the Small Claims (suit) by the appellant, the same was rendered incompetent before the Court. The proper course for the trial magistrate was to strike it out and not to dismiss it. The Court therefore finds that the learned trial magistrate strayed in dismissing the said suit. The first issue is therefore answered in affirmative. 8 Next in determination is the second issue, whether the trial magistrate determined the suit on its merit, thereby denying the parties their right to be heard. It is settled law that denial of the right to be heard is fatal and renders defective the entire proceedings when established. The effect goes further to affect the proceedings, even if the same decision would have been attained had the parties been accorded their right to be heard. See the cases of Abbas Sherally and Another Vs. Abdul Sultan Haji Mohamed Fazalboy , (Civil Application No. 133 of 2002) [2005] TZCA 105 (17 November 2005) and M/s Flycatcher Safaris Ltd Hon. Minister for Lands & Human Settlements Developments & Another (Civil Appeal No. 142 of 2017) [2021] TZCA 546 (30 September 2021). In the present matter, having reviewed the impugned ruling, the Court could not unveil any evidence justifying the appellant’s assertion that the trial Court traversed through and determined the suit on its merit. Mr Ndenyanga, also, when submitting, failed to draw this Court’s attention to the merits of the suit alleged to have been determined; instead, he took cover behind the general blanket but empty assertion that parties were not heard. This Court appreciates that what the learned trial magistrate did was correct, after his critical analysis of both parties’ submission and their determination. He thus 9 sailed through the ship using a proper compass. The Court does not find merit in that complaint as the issue is answered in the negative. In the end, based on the findings of the first issue, this appeal has merit. I invoke the revisionary powers bestowed upon this Court under section 44(1)(b) of the Magistrate Court’s Act, [Cap. 11 R.E 2023], and proceed to set aside the dismissal order imposed by the trial Court in Small Claim No. 703 of 2026 and substitute it with an order striking out the suit for want of competence. The appeal is therefore allowed to that extent. Each party shall bear its own costs. Order accordingly. Dated at Mtwara, this 22 nd day of May, 2026. E. E. KAKOLAKI JUGDE 22/05/2026. Court: The Judgment has been delivered at Mtwara today on the 22 nd day of May, 2026, through video conference in the presence of Mr. Mohamed Ndenyanga, advocate for the appellant, the appellant in person and Ms Asha Mboga, Court clerk and in the absence of the Respondent. 10 Right of appeal explained. E. E. KAKOLAKI JUGDE 22/05/2026.