Civil Reference No. 7 of 2004
The appellants (Charles Chama, Muzola Kaisholi and Kadugu Kahindi) had sued the respondents (the Regional Manager TRA - Kagera, the District Commissioner - Karagwe, the District Immigration Officer - Karagwe, and the Attorney General) in the High Court of Tanzania at Bukoba (Civil Case No. 2 of 2006), claiming damages for the illegal seizure and sale of cattle allegedly belonging to them, together with general damages and costs. The respondents denied that the seized cattle belonged to the appellants. Although the case was heard by Kibela, J., judgment was composed and delivered by Khaday, J., who found that the appellants had failed to prove their claims and dismissed the suit. Aggrieved, the appellants lodged an appeal to the Court of Appeal. Before the appeal could be heard on merits, the respondents filed a notice of preliminary objection contending that the appeal was incompetent because the Memorandum and Record of Appeal, though lodged on 15/1/2018, were allegedly served on the respondents only on 7/5/2018, well beyond the seven-day period prescribed by Rule 97(1) of the Tanzania Court of Appeal Rules, 2009. The appellants disputed this, asserting that service was effected on 17/1/2018, within the prescribed time.
Whether the preliminary objection raised by the respondents - that the appeal was incompetent for failure to serve the Memorandum and Record of Appeal within the time prescribed under Rule 97(1) of the Tanzania Court of Appeal Rules, 2009 - raised a pure point of law capable of being determined as a preliminary objection, given that the actual date of service was disputed by the parties.
For the respondents, Mr. Mrisha submitted that the documents were lodged on 15/1/2018 but served on the respondents only on 7/5/2018, over three months later, in clear violation of the mandatory seven-day service requirement under Rule 97(1) of the Rules. He relied on National Housing Corporation v. Asgarali Habib Kassam Manji to argue that, being a mandatory provision, non-compliance rendered the appeal incompetent and liable to be struck out with costs. In rejoinder, he conceded that the notice of objection contained no documentary proof of the alleged late service date and sought leave to tender evidence from the bar to establish it, a request the Court declined. He ultimately left the matter for the Court's determination. For the appellants, Mr. Kabunga submitted that the objection was misconceived because the respondents had not proved that service was effected outside the prescribed period; in fact, the documents were served on 17/1/2018, within time. He argued that since resolution of the objection required proof of the actual date of service - a factual matter - it could not be treated as a pure point of law, and that the burden of proving late service lay on the respondents who alleged it.
The Court of Appeal (Mwarija, Mugasha and Mkuye, JJ.A.) held that the preliminary objection did not raise a pure point of law because the date on which the Memorandum and Record of Appeal were served on the respondents was disputed and unascertained, requiring evidence to resolve. Applying the principle in Mukisa Biscuit Manufacturers Ltd v. West End Distributors Ltd [1969] EA 696 and its own precedents in Gaspar Peter v. Mtwara Urban Water Supply Authority (MTUWASA) and Ms. Safia Ahmed Okash v. Ms. Sikudhani Amiri & 82 Others (citing Mohamed Enterprises (T) Limited v. Masoud Mohamed Nasser and Oil and Another v. Iddi Simba), the Court reiterated that a preliminary objection can only be sustained where it raises a pure point of law; where it involves mixed questions of law and fact requiring proof by affidavit or oral evidence, it must fail. Since Mr. Mrisha conceded that no documentary proof of the alleged late service accompanied the notice of objection, and the appellants disputed the claimed date, the factual dispute rendered the objection unsuitable for determination as a preliminary point of law. The Court declined to allow counsel to tender evidence from the bar to cure this defect. Consequently, the preliminary objection was overruled with costs.
This ruling reaffirms the well-established principle, traceable to Mukisa Biscuit Manufacturers Ltd v. West End Distributors Ltd, that a preliminary objection must be based on a pure point of law and cannot be sustained where its resolution depends on disputed facts requiring evidence. It further illustrates the Tanzanian Court of Appeal's consistent application of this doctrine in the specific context of objections alleging non-compliance with service timelines under Rule 97(1) of the Court of Appeal Rules, as previously applied in Gaspar Peter v. MTUWASA and Ms. Safia Ahmed Okash v. Ms. Sikudhani Amiri & 82 Others. The decision underscores that parties raising objections premised on factual assertions, such as the date of service, must substantiate them with proper evidence (e.g., affidavits) rather than relying on unsupported assertions in a notice of objection, and that counsel cannot cure such evidentiary gaps by introducing evidence from the bar during oral submissions.
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