Court name
Court of Appeal of Tanzania
Case number
Civil Case 54 of 1996

Zainab Somji & Another vs Minister of Housing & Lands (Civil Case 54 of 1996) [1997] TZCA 18 (04 July 1997);

Law report citations
1997 TLR 187 (TZCA)
Media neutral citation
[1997] TZCA 18

Lubuva JA:
In this appeal Zainab J M Somji through her authorised attorney is appealing against the decision of B the High Court of Zanzibar (Dahoma J) dated 26 February 1997. In Civil Case No 54 of 1996 before the Regional Court at Vuga, Zanzibar, the appellant had filed a suit against the respondent seeking vacant possession of house No 3362 situated at Mwembeladu within the municipality of C Zanzibar. The respondent had leased the house to tenants who were staying in it. At the commencement of the hearing of the suit before the Regional Court, a preliminary objection was raised by the respondent on the grounds that the suit does not disclose cause of action and that the D suit is time barred. After analysing the submissions of both parties, the learned regional magistrate overruled the objection. It was further held that as there were no triable issues, judgment was passed in favour of the appellant. An order for vacant possession of the house was issued. From that decision, in a three point memorandum of appeal the respondent appealed to the High E Court of Zanzibar. The learned judge, held that the appeal was not properly before the Court, he rejected it. This appeal is against that decision.
In this appeal, the appellant and the respondent are respectively represented by Mr Aja Patel, F learned counsel and Mr Uhuru Khalfan learned State Attorney before the Courts below. The memorandum of appeal filed by Mr Patel, comprised four grounds of appeal. Before us, at the commencement of the hearing of the appeal, Mr Patel, learned counsel in what appeared to us as candid professional frankness confessed that he was in difficulty as to how to proceed with this G appeal. This is because, he said, the manner in which the appeal was determined and the decision arrived at by the learned judge was confusing. Upon the Court's inquiry as to which part of the record is referred to as the judgment, Mr Patel was quick to respond to the effect that, that is one of H the aspects which is indicative of the confusion surroundings this case.
Following Mr Patel's submission on the alleged confusion in the case, the Court invited the learned counsel for both parties to address us on the alleged confusion and the unsatisfactory way in which I the appeal was handled at the High Court of Zanzibar and how to proceed with the appeal. In further elaboration, Mr Patel,

learned counsel referred to pp 40 and 41 of the record of appeal. That part of the record concerns A the proceedings of the hearing of the appeal on 26 February 1997. From the proceedings he said, two things emerge. Firstly, the first paragraph at p 40 to the effect that the suit was not instituted according to Ord III Rule 3 of the Civil Procedure Decree regarding the acknowledgement of the B power of attorney was not stated by him, Mr Patel or Mr Uhuru. He said it was introduced by the Court. Secondly, the decision by the learned judge rejecting the appeal does not indicate whether it is a judgment, ruling or order. For that reason, he said, it was difficult to show which part of the C proceedings is the judgment and which is not. He further pointed out that the appeal having been rejected in such a manner the hearing of the appeal before the High Court on merit was left unheard. Consequently, he submitted, it is not clear as to the effect of the High Court decision on the Regional Magistrate's decision. He invited the Court to set aside the decision of the High Court D so that the decision of the Regional Court in which the appellant was successful could be executed.
Mr Uhuru, learned State Attorney also addressed us. He supported Mr Patel on the fact that the issue relating to the power of attorney was introduced by the Court, it was not one of the grounds of E appeal. He was of the firm view that as there was no judgment indicated in writing, the appeal was not properly before this Court because Rule 89(2)(iv) of the Court's rules was not complied with. That is, no copy of the judgment or order was contained in the record of appeal. He urged the Court to invoke Rule 3 and order the matter to be remitted to the High Court with direction to hear F the appeal on merit.
We have given close and anxious consideration to the submissions by the learned counsel for both parties. A glance through the record at pp 40 and 41 reveals a confusing state of the matter as G correctly observed by the learned counsel. We agree with the submission by Mr Patel that the decision of the learned judge on appeal is in such a format that it is difficult to tell where the proceedings of the appeal end and the start of the judgment, ruling order or decision on the matter. This can be seen from the following extract at p 41: H
   `Mr Patel:
      Mr Uhuru should have taken an objection as sorn (sic) as he first represented the appellant on 7.11.1995.
      On hearing both the advocates the Court is still of the opinion that the suit was instituted contrary to Ord III r. I 3 of Civil

A       Procedure Rules and therefore this appeal is not before the Court and is rejected.
      Sgd. Saleh A. Dahoma -- Judge
B While we agree that there is no indication in writing to show that it was either a judgment, ruling or order of the learned judge in essence or perception of the matter is as follows: That the learned judge took the view that as the suit was being instituted by the appellant, a woman through her authorised attorney, the power of attorney was not acknowledge in terms of Ord III Rule 3 of the C Zanzibar Civil Procedure Decree, Cap 8. With that view, the learned judge therefore held that there was nothing before him ie the appeal was not properly before the Court. Consequently, the appeal was rejected. it is to be observed however, that as can be seen from the extract above, the learned D judge did not say this in so many words. That in our understanding was the import of the decision. Both Mr Patel, learned counsel and Mr Uhuru, learned State Attorney had expressed the view that the decision as extracted, was confusing, it was not easy to tell if it was a judgment, order or ruling. On this, we think it is relevant to examine closely the submissions by Mr Patel and Mr Uhuru on the E issue of the validity of the power of attorney. It was their submission that it was brought up by the learned judge himself at the commencement of the hearing of the appeal. That to our minds, is indicative of the learned judge's anxiety to ensure himself of the propriety of the acknowledgement F of the power of attorney. Before going into the merits of the appeal, the learned judge made a decision on that point. Though it was not indicated, we are firmly of the view that it was an interlocutory order in which the learned judge decided to reject the appeal, the subject of complaint G in this appeal. It was on the basis of this order that the decree was extracted and duly signed by the learned judge.
Next we intend to deal with the propriety of the interlocutory order issued. As pointed out earlier, it H was the view of the learned judge that under Ord III Rule 3 of the Civil Procedure Decree, as the power of attorney was not acknowledged, it was invalid and so, he rejected the appeal. This we are convinced was done by the learned judge by oversight or in complete ignorance of the proviso to Rule 6 of Ord III of the Civil Procedure Decree. under that proviso, if a woman resides outside I Zanzibar which was then referred as to the Protectorate, it is not necessary to acknowledge

the power of attorney in the way that the learned judge envisaged. It is enough to have an A authenticated power of attorney here in Zanzibar. In this case, it is our view that the power of attorney could be received and acted upon here in Zanzibar. With respect, the learned judge erred and misdirected himself in law in rejecting the power of attorney on the basis of Ord III Rule 3 of the Civil Procedure Decree. B
Finally, we come to the issue whether Rule 89(2)(iv) was complied with. This is important because if the rule was not complied with then the appeal would not be competently before us. Mr Uhuru, learned State Attorney was of the view that Rule 89(2)(iv) was not complied with. He however C invited us to invoke Rule 3 in order to dispense with the requirement of Rule 89. We think Mr Uhuru is right in that suggestion. In view of the circumstances of the case, we are in agreement with Mr Uhuru in invoking our powers under Rule 3 and dispense with the requirement of Rule 89. This we have done in dealing with this appeal. D
Consequently, on a proper application of the law and the acceptance of the power of attorney which was rejected in error, the fall back position is that the appeal which was before the High Court would still remain undetermined on merit. Accordingly, for the foregoing reasons the decision of the High E Court of 26 February 1997 rejecting the appeal is quashed and set aside. It is further ordered that the matter be remitted to the High Court with direction to hear the appeal on merit by another judge. It is so ordered.
In conclusion, we wish to make the following observation. In order to avoid confusion of this kind F and time wasting inconvenience, judicial officers particularly at the Regional and High Court level would well be advised as far as possible to conform with the elementary guidelines set out under Ord XXIII Rule 3 of the Civil Procedure Decree in writing Court decisions. G