IN THE COURT OF APPEAL OF TANZANIA

AT BUKOBA

(CORAM: MWARIJA. J.A., MUGASHA. J.A.. And MKUYE, J.A.^

CIVIL APPEAL NO. 225 OF 2018

YAHYA KHAMIS..... ..................................................................... APPELLANT

VERSUS

1. HAMIDA HAJIIDD ]
2. ADVENTINA ANDREA [
.................................................... RESPONDENTS
3. DIOCLES MARTIN

(Appeal from the decision of the High Court of Tanzania

at Bukoba)

(Matoqolo, 3.)

dated the 18th October, 2016

in
HC. Land Case Appeal No. 50 of 2014

JUDGMENT OF THE COURT

10th & 16th May, 2019

MKUYE. J.A.:

This appeal arises from the decision of the High Court of Tanzania at

Bukoba in Land Appeal Case No. 50 (Matogolo, J.) dated 18th October 2016

which upheld the decision of the District Land and Housing Tribunal for

Kagera in Bukoba (DLHT) in Land Application No. 213 of 2012. The facts

giving rise to this appeal are that the appellant Yahaya Khamis

(Administrator of estate of the late Iddi Seifi) filed a Land Application in the
DLHT against the respondents Hamida Haji Idd (1st respondent) for having

sold a disputed land to Adventina Andrea and Diodes Martin (the 2nd and

3rd respondents). In the said application the appellant prayed for the reliefs

as follows: a declaration that the sale agreement among the respondents is

null and void; a declaration that the suit land is a clan land; an order for

eviction to the 2nd and 3rd respondents; and the costs of the application.

The respondents through their joint written statement of defence

resisted the application on account that the 1st respondent had a good title

to pass to the co-respondents (2nd and 3rd respondents) since the suit land

was not a clan land but she inherited it from her deceased husband. The

hearing of the matter commenced whereupon the appellant gave his

testimony as shown at pages 44-46, 48-49 and 54-56 of the record of

appeal. It appears that in the course of hearing, the Chairman realized that

there were two conflicting wills in relation to the administration of the

deceased's estate particularly, on the disputed land. Hence, the DLHT

referred the parties to the primary court in order to sort out the matter and

proceeded with striking out the application without costs. In this regard,

we find it appropriate to reproduce part of the DLHT's Order as hereunder:

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 "In the event, I hereby refer the parties to the
Primary Court which will find out which "will" is valid
in law and thereafter the administrator will have an
opportunity to sue any necessary party before this
tribunal. In the upshot this application is struck out
without costs. It is so ordered."

Aggrieved by that order the appellant appealed to the High Court but

his appeal was dismissed. While admitting that the matter was not finally

determined it found out that the DLHT properly struck out the application

to enable the primary court with competent jurisdiction sort out the issue

of the conflicting wills before either party could sue. The High Court in part

stated as follows:

"... Application No. 213 o f 2012 which was filed by

the appellant before the DLHT o f Bukoba was not
finally determined. But it was struck out after the
Tribunal Chairman had learnt that there were two
competing wills alleged to be prepared by the
deceased before he met his death... Striking out the
application does not mean that the matter was
finally determined. The parties are still at liberty to
refile the application before the DLHT after the
validity o f the will is determined... There is nothing

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 wrong with the procedure because by ascertaining
which is valid and which cannot be acted upon,
according to that will the necessary parties who the
appellant can sue can also be easily ascertained."

Still aggrieved by the decision of the High Court, the appellant has

brought the appeal to this Court. He also filed written submissions in

support of the appeal which he sought to adopt to form part of his

submission.

Though the appellant has fronted eight grounds of appeal, after

having examined them we are of the considered view that the appeal can

conveniently be disposed of by determining grounds 2, 7 and 8 which

hinge on the issue of whether the first appellate court erred in upholding

the DLHT's decision of striking out the application before its final

determination.

At the hearing of the appeal, the appellant appeared in person and

unrepresented and so were the respondents.

Before proceeding with the hearing of the appeal on merit, the

respondents intimated the Court that they were only served with a notice

of hearing without the memorandum of appeal. On the other hand, the

appellant informed the Court that he had effected service through Mr.

Lameck John Erasto, the learned counsel who had represented them at the

High Court. After the respondents had denied to have engaged any

advocate in the present appeal, and upon a short dialogue with the Court,

they agreed to proceed with hearing.

When given an opportunity to amplify his complaint, the appellant

assailed the first appellate court for upholding the trial Tribunal's decision

of striking out the land application without costs. He pointed out that, after

learning that there were two conflicting wills which needed the primary

courts' determination on their validity, the DLHT ought to have stayed or

adjourned the said Application pending such determination instead of

striking it out. He added that, striking out the application had the

implication of time limitation and more expenses should he be required to

go back to the DLHT. In those circumstances, he urged the Court to allow

the appeal, quash the lower court's decision and remit the matter to the

DLHT for continuation from where it ended.

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 On their part, the respondents conceded to the argument raised by

the appellant. They were of the view that, that was a proper move having

in mind that the matter has taken too long.

Having considered the appellant's argument which has not been

objected to by the respondents, we think, the issue which needs to be

determined is whether or otherwise the DLHT properly struck out the land

application which was partly heard instead of staying it.

In that regard, we have found it proper to examine albeit briefly as

to what entails "striking out", "struck out" or "strike out" (the phrases

being used interchangeably).

It is noteworthy that, in our laws, there is no clear/definite definition

of what constitutes "striking out", "struck out" or "strike out". However,

this Court in the case of Juma Nhandi v. Republic, Criminal Appeal No.

289 of 2012 (unreported) has endeavoured or tried to give explanation of

the term "strike out" when making a distinction between "striking out" and

"dismissing". While citing with approval the case of Ngoni - Matengo Co­

operative Marketing Union Ltd v. Ali Mohamed Osman [1959 E.A.

577, in which the erstwhile Court of Appeal for East Africa discussed the
distinction between "striking out" and "dismissing" an appeal, the Court

had this to say in relation to "striking out":-

"This Court, accordingly, had 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 11dismissed" it; for the latter implies that a
competent appeal has been disposed of, while the
former phrase implies that there was no
proper appeal capable of being disposed of.
But it is the substance o f the matter that must be
looked at, rather than the words used..."

[Emphasis added]

Similarly, in the case of Emmanuel Luoga v. Republic, Criminal

Appeal No. 281 of 2013 (unreported) where the Court had an occasion of

dealing with the issue whether it was proper for the first appellate court to

dismiss the appeal which was incompetent, it was stated as follows:

"We are o f the view that, upon being satisfied that

the appeal was incompetent for reason it had

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 assigned, it ought to struck out the appeal instead
o f dismissing it The reason is dear that by
dismissing the appealit implies that there was a
competent appeal before it which was heard and
determined on merit which is not the case."

Also in the case of Amon Malewo v. Diocese of Mbeya (R.C),

Civil Appeal No. 22 of 2013 (unreported), the Court refused to adjourn and

struck out the appeal which was incompetent before it. It is stated as

follows:

"After all it is trite law that any court o f law cannot

adjourn what is not competently before it

All said and done, we hold this appeal to be

incompetent. We strike it out with no order as to
costs."

We have cited all these authorities so as to emphasis that ordinarily,

the remedy of a matter which is incompetent before the Court is to be

struck out. The reason for striking it out is that such matter is abortive or

rather is incapable of being heard or even to be adjourned. In other words,

it carries the implication that there is no matter at all before the Court.

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 On the other hand, "stay" according to Blacks' Law Dictionary means

"the postponement or halting of a proceeding, judgment, or the like; or an

order to suspend all or part of a judicial proceeding or a judgment resulting

from that proceeding". (See - Blacks7 Law Dictionary/ Eighth Edition

Bryan A. Garner at page 4432). This implies that the matter to be stayed

must be valid or competent before the Court.

Also, in WIKIPEDIA, "a stay of proceedings" is described as a ruling

by the court in civil and criminal procedure, halting further legal process in

a trial or other legal proceedings. It also states that the court can

subsequently lift the stay and resume proceedings based on events taking

place after the stay is ordered. However, a stay is sometimes used as a

device to postpone proceedings indefinitely. (See - http//en.m

Wikipedia, org).

In the Malawian case of Mulli Brother Ltd v. Malawi Savings

Bank Ltd, (48 of 2014) [2015] MWSC 467, which we seek inspiration, the

Supreme Court described the term "stay" as follows:

"As we understand it, a stay is the act o f

temporarily stopping a judicial proceeding through
the order o f a court. It is a suspension o f a case or
 a suspension o f a particular proceeding within a
case. A judge may grant a stay on the motion o f a
party to the case or issue a stay sua sponte,
without the request o f a party. Courts will grant a
stay in a case when it is necessary to secure the
rights o f a party".

The said Court went on to say that:

"However, a stay o f proceedings is the stoppage o f

an entire case or a specific proceeding within a
case. This type o f stay is used to postpone a case
until a party complies with a court order or
procedure. For instance, if a party is required to
deposit collateral with the court before a case
begins, the court may order the proceedings stayed
for a certain period o f time until the money or
property is delivered to the court. Further, a court
may stay a proceeding for a number o f reasons.
One common reason is that another action is
under way that may affect the case or the
rights of the parties in the case..."

[Emphasis supplied]

Yet in a Kenyan case of Kenya Wildlife Service v James

Mutembei, Civil Appeal No 40 of 2018 eKLR, the High Court cited the

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passages in Halsbury's Law of England, 4th Edition Vol. 37 page 330

and 332 stated as follows:

"The stay o f proceedings is a serious, grave and

fundamental interruption in the right that a party
has to conduct his litigation towards the trial on the
basis o f the substantive merits o f his case, and
therefore the court's general practice is that a stay
o f proceedings should not be imposed unless the
proceeding beyond all reasonable doubt ought not
to be allowed to continue."

"This is a power which, it has been emphasized,

ought to be exercised sparingly, and only in
exceptional cases."

"It will be exercised where the proceedings are

shown to be frivolous, vexatious or harassing or to
be manifestly groundless or in which there is clearly
no cause o f action in law or in equity. The applicant
for a stay on this ground must show not merely that
the plaintiff might not, or probably would not,
succeed but that he could not possibly succeed on
the basis o f the pleading and the facts o f the case."

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 Unfortunately, there is no provision which deals with stay of

proceedings under the Land Disputes Courts Act, Cap 216 R.E 2002 (

the LDC Act) or the Land Disputes Courts (the District Land and

Housing Tribunal) Regulations, 2003 (G.N. No 174 of 2003)(the DLHT

Regulations) which governed the matter in dispute. The only provision

covering stay of suits is section 8 of the Civil Procedure Code, Cap 33

R.E 2002 (the CPC). It as states follows:

"No court shall proceed with the trial o f any suit in

which the matter in issue is also directly and
substantially in issue in a previously instituted suit
between the same parties, or between parties
under whom they or any o f them claim litigating
under the same or any other court in Tanzania
having jurisdiction to grant the relief claimed."

The above cited provision, however, does not cover the situation at

hand where the Chairman herein referred the parties to the Primary Court

for determination of the validity of wills and there was no matter

continuing in that court (primary court). The question which has taxed our

mind, moreso, since there is no provision for stay of proceedings under the

LDC Act and DLHT Regulations is whether in the situation where the DLHT

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referred the matter to the primary court, could have proceeded with

striking out the matter before it. We think no. This is so because, as we

have alluded to earlier on, striking out is applied where the matter is

incompetent before the court.

Incidentally, section 51 (1) and (2) permits the HC and the DLHT to

apply the provisions of CPC where there is a lacunae. In this regard the

High Court in the case of Kobil Tanzania Limited v Mariam Kisangi

and Another, Commercial Application No. 12 OF 2007 (unreported), of

which we are inspired, stated as follows:

"J/7 a situation where there is no procedure to cater

for a certain situationthe court is obliged to use its
common sense; justice, equity and good conscience
and resolve the problem before it to further the
interests o f justice and prevent abuse o f the
process (See SARKAR ON CODE OF CIVIL
PROCEDURE 10th ed. p. 9). And that is the
philosophy behind the court's inherent powers
under s. 95 o f the Civil Procedure Code Act 1966."

In that case, the Court stayed the proceedings on a matter before it

under section 95 of the CPC, because there was a Land Case No. 34 of

2006 between the parties at the Land Division of the High Court; and a
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pending Civil Application No. 48 of 2007 between the same parties, for

leave to appeal against the Ruling of that court dated 16/1/2007 in Misc.

Commercial Application No. 38 of 2006 which dismissed an application for

temporary injunction pending reference to arbitration in the Court of

Appeal. Apart from that there was another matter before it with the same

substance in controversy between the same parties, that is, the rights and

obligations of the parties under the Lease Agreement and the Dealership

Agreement.

In the matter under consideration, the subject matter involved a sale

of parcel of land by the 1st respondent to the 2nd and 3rd respondent

illegally. Its ownership was yet to be determined and it was a subject in a

dispute before the DLHT. However, in the course of hearing, it was

confronted with two conflicting wills which could lead the DLHT not resolve

the land dispute before it. Nevertheless, we have been unable to glean in

the record of appeal where the application was found to be problematic or

incompetent before the Tribunal which warranted the same to be struck

out. It is our considered view that, even if there was no provision catering

for the situation, the DLHT could have invoked section 95 of the CPC to

stay the proceedings.

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 We have also examined the reasoning of the first appellate judge in

upholding the DLHT's decision. In our view, he seemed not to have been

perturbed by the DLHT's order striking the application. He said that there

was nothing wrong with the striking out order since parties would

recommence the case before the DLHT after the issue of the conflicting

wills is determined. He did not consider the time limitation on the accrual

of the right of action as the dispute related to land sold on 20/06/2012. But

on our part we consider it to be very crucial more so when taking into

account that the appellant had committed no wrong and it was not

established that his application was not incompetent before the Tribunal.

In the circumstances where Land Application No. 213 of 2012 was not

incompetent, we think, it was not proper for the DLHT to strike it out

instead of staying the proceeding thereof until the issue of the two

conflicting wills is determined by the primary court which had competent

jurisdiction to deal with it.

With the above reasoning, we agree with the parties that the DLHT

ought to have stayed the proceedings of the application. In the same vain,

with respect, it was not proper for the High Court to uphold the DLHT's

decision of striking out the application on account of having referred the

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parties to the primary court for the determination of the validity of the wills

while the application was not incompetent before it.

In view of what we have endeavoured to demonstrate above, we

allow the appeal. We set aside the DLHTs striking out order and substitute

it with an order of stay of proceedings of Land Application No. 213 of 2012

pending the determination of validity of the conflicting wills by the primary

court.

DATED at BUKOBA this 16th day of May, 2019.

A. G. MWARDA
JUSTICE OF APPEAL

S. E.A. MUGASHA
JUSTICE OF APPEAL

^ R . K. MKUYE
f ^ P JUSTICE OF APPEAL

I certify that this (is a true copy of the original.

i

S. J. KAINDA
DEPUTY REGISTRAR
COURT OF APPEAL

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