Mwalusanya, J.: There are two applications filed by the
applicant Mr. Simon Kabaka Daniel through his advocate Mr. Magongo. The first A application is for leave to appeal to the Tanzania Court of Appeal on the ground that a point of law is involved fit for consideration by that court. The second application is for a stay of execution pending the final determination of the intended appeal before the Tanzania Court of Appeal. The twelve respondents resisted the two applications in B person.
As regrds the second application it appears this court has no jurisdiction to entertain it. The application for the stay of execution is reportedly made under rule 9(2)(b) of the Tanzania Court of Appeal Rules GN. No. 102/1979. But the said rule says that the C application has to be made to the 'court' which is defined to mean the Tanzania Court of Appeal. I am therefore unable to entertain this application.
As regards the first application counsel for the applicant Mr. Magongo made gallant efforts in arguing the case of his client but I am afraid, no point of law has been made D out fit for consideration by the Tanzania Court of Appeal. The main plank of his argument is that the practice of attachment of cattle before judgment and placing them in the custody of the plaintiffs in civil suits in Tarime District, is a practice which E amounts to a recognised customary law of the Kuria tribe. Both parties in this case are Kurias. So he argues that the District Court and the High Court should not have disturbed the decision of the Primary Court which placed the cattle in the custody of the plaintiff before judgment. He contended that the District Court and High Court F should have appreciated that this matter was governed by the principles of Kuria customary law to the exclusion of principles derived from English law to wit rule 17 of the Primary Courts Civil Procedure Rules and cited in support the case of Maagwi Kimito v Gibeno Warema: C.A.T. (MZA) Civil Appeal No. 20 of 1984 G (unreported) as well as s.9 of the Judicature and Application of Laws Ordinance Cap 453. The District Court had held that the practice of attachment of cattle before judgment and placing them in the custody of the plaintiff was contrary to the express provisions of rule 17 of the Primary Courts Civil Procedure Rules. That rule holds that if there is any attachment before judgment, then the attached cattle are to be placed in H the custody of the court and the plaintiff bears the costs of their upkeep. The High Court nodded in agreement, that, that was the correct statement of the law.
From the foregoing it is clear that Mr. Magongo has missed the point. First there was I no question of any Kuria customary law
which was involved here. What we had was simply a practice by the Primary Courts in A Tarime District attaching cattle before judgment and placing them in the custody of the plaintiff. That was done by the courts and not by any order of a specific tribal community in Tarime District. To say that there was any customary law involved in the process is not only vulgar and specious but just a figment of the fertile imagination of B Mr. Magongo. The Primary Courts by their regular practice cannot make a customary law for the people in the area as it has been urged upon me.
In any case even if there was a Kuria customary law which allows attachment of cattle C before judgment and placing them in the custody of plaintiff, I would still hold that, that customary law in question is no longer good law as it has been superseded by statutory law vis. rule 17 of the Primary Courts Civil Procedure Rules. It is clearly stated under the proviso to s. 9(3) of the Judicature and Application of Laws Ordinance Cap 453 that: D
Provided that the court shall not apply any rule or practice of customary law which is ... superseded by any Ordinance or Act of Tanzania. E
And, the case of Maagwi Kimito (supra) which has been cited by counsel is very clear on this point as on page 8 of the judgment it stated:
The customary laws of this country, now have the same status in our courts as any law, F subject only to the Constitution and any statutory law that may provide to the contrary.
I have underlined for emphasis the crucial words in the above quotation. Now in the G case at hand, it is crystal clear that there is a contrary statutory law which has superceded any Kuria customary law on the matter and that statutory law is rule 17 of the Primary Courts Civil Procedure Rules. Moreover it is naive on the part of Mr. Magongo to argue that rule 17 of the Primary Courts Civil Procedure Rules is derived Hfrom some English Rule as those Civil Procedure Rules were passed by our Parliament or its agents. That sufficiently disposes of the main argument of Mr. Magongo.
There was another point that the applicant had not been heard before the District Court made the Revision Order in upsetting the judgment of the Primary Court. Mr. Magongo I said that was contrary to s. 22(3) of the Magistrate's Court Act No. 2 of 1984. I concede
that, that was an irregularity, but it is curable under s. 37(2) of the Magistrate's Court A Act as it did not occasion any failure of justice. This is because even if the applicant was heard, the District Court was duty bound to follow the express provisions of rule 17 of the Primary Courts Civil Procedure Rules which are loud and clear.
In the event I find that the first application raised no point of law fit for consideration by B the Tanzania Court of Appeal and therefore leave to appeal is refused. The two applications are dismissed with costs.
C Order accordingly.
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