africa media group vs yusufu bakari tamimu 2010 tzhc 258 25 march 2010

IN THE HIGH COURT OF TANZANIA

AT PAR ES SALAAM CIVIL APPEAL NO. 184 OF 2008 AFRICA MEDIA GROUP......................... APPELLANT

VERSUS YUSUFU BAKARI TAMIMU...................RESPONDENT

JUDGMENT Rugazia, J. The appellant having been aggrieved by the decision of the district Court filed this appeal laying three grounds which are: (a) THAT, given the circumstance regarding the application by the respondent to reopen his case the trial Hounourable Magistrate erred in law and fact in allowing the respondent to reopen his case without considering the preliminary objection raised by the appellant. (b) THAT, having regard to the evidence adduced the respondent had failed to establish his case on the balance of probability. (c) THAT, having regard to the pleadings and evidence adduced the trial Learned Resident magistrate erred in law and fact in finding for the respondent and allowing damages to the plaintiff. l In submission in support of the first ground of appeal the appellant submitted that when the matter in the trial court came for defence hearing in 17th May 2006, the Respondent’s Counsel prayed to file a formal application to re-open the case which was closed on the 4th day of May 2006. The trial court set a scheduling order whereby the chamber summons was to be filed by 26th May, 2006 and counter affidavit by 5th June, 2006. The respondent, it was submitted, failed to file it only to do that on 11th July, 2006 and served upon the appellant on 27th July, 2006 at 7.28 p.m. The appellant then filed counter-affidavit and points of preliminary objection which

were ordered to be disposed of by way of written submissions. The appellant filed the submissions but the respondent never filed his in reply. The court then set a date of Ruling. That when the matter came for ruling on 20th day of April, 2007, the respondent was allowed to proceed with other witnesses, i.e. reopening the respondent's case. It was submitted that it was wrong for the trial magistrate to allow the respondent to reopen his case without considering the objection raised and the conduct of the appellant (?) in the prosecution of his case - I think it is meant respondent. The appellant submitted, rightly so, that in the procedure and practice, hearing of the preliminary objection takes predence. It was contended that the objection was not duly determined by the trial court. Turning to the preliminary objections, Counsel for appellant reproduced them as: 1. The trial court was not properly moved, 2. The affidavit was telling lies thus could not be relied open (sic).

3. The application was incompetent having been filed hopelessly out of time. It was asserted that the enabling provision was not cited except for section 95 of the Civil Procedure Code, Cap 33 R.E. 2002 which is just a provision for the inherent powers of the courts. It was therefore asserted that the application was incompetent and thus the trial court was not entitled to grant it but to 3 strike it out. Counsel prayed to adopt their submissions in the trial court for the said points of preliminary objections and prayed further that this ground has merits and thus basing on it alone the appeal may be granted with costs. Finally, the appellant contended that the law knows recalling of witnesses but not reopening the closed case of any party, let alone the fact that the trial court erred in not considering the objection when the respondent had failed to file his submissions. It was asserted, rightly so, that failure to file submissions amounts to failure to appear referring to the case of Hamis Fujo vs Omari Said Land Case No. 250 of 2005 HC Land Division DSM (unreported). In reply, the respondent lamented how his defence Counsel abandoned him in the course of the trial and being a layman he had to prepare a chamber summons which attracted preliminary objections. According to him, ruling in respect of preliminary objections was delivered and the preliminary objections were

overruled. I went through the Ruling 4 of the trial court and what the trial court found and the basis thereof. What is apparent from the Ruling is that the .magistrate was openly sympathisizing with the plaintiff now respondent, for having been abandoned by his defence Counsel in the course of the trial. Part of his ruling said and I quote: “The first contention is that the c/summons has been filed without quoting any section in addition to s. 95 Civil Procedure Code. This is claimed to be an incurable defect. I agree that it has now been well established that the courts must be properly moved by quoting proper sections of the law under which the application is made”. Very surprisingly, that marked the end of the matter and no finding was made. This was despite the numerous authorities cited to him. One of such cases was TANESCO Ltd and IPTL vs Permanent Secretaries of the Ministry of Energy and Finance Consolidated Application Nos. 19, 27 of 1999 CAT (unreported) where the court had this to say on the application of section 95 of the Civil Procedure" Code: 5 “As I understand it, this section does not confer any jurisdiction of the High Court or subordinate courts thereto, j^, What it was intended to do, and does, is it save inherent powers of those courts” A It was remarked at page 17 of the ruling that prima facie, section 95 constituted no authority for the High Court to

entertain the application. In the light of the foregoing, it hardly needs to be overemphasized, therefore, that it cannot be said that the application was properly before the court for non-citation of an enabling provision. It is now settled and the trial magistrate is fully aware that, non-citing of a proper provision of the law renders the application incompetent and the court has no room to manoeuvre but to strike it out. In Citibank Tanzania Ltd vs TTCL & 4 Others Civil Application No. 64 of 2003 - CAT (unreported) the applicant cited section 4 of The Appellate Jurisdiction Act, Cap 141 which has subsections and this is what the court said: 6 “Admittedly, the applicant has cited section 4 of the Act which is an enabling provision, that is a provision which vests in the Court, inter alia, with power to exercise revisional jurisdiction. The applicant however did not go far enough and mention a specific subsection that was applicable...it hardly needs to be overemphasized that in a notice of motion, an applicant must state the specific provision of the law under which the applicant wants to move the court to exercise its jurisdiction” The court went on to hold finally putting the matter to rest: “....since the applicant did not cite a specific subsection under section 4 of The appellate Jurisdiction Act, 1979 as amended, under which the court could exercise its

revisional jurisdiction, the application is misconceived and incompetent. We sustain the preliminary objection and strike out the application with costs” As it is evident, in the above quoted case, there was citation of an enabling provision but that was not sufficient to save the application. In the instant matter, the situation is even worse because no enabling provision was cited which reason, on its own, was sufficient to have the application struck out. 7 As yL that was not enough, the said application A was filed out of time and no extension of time was sought and obtained. No court of law can close its eyes and let parties who do not abide by the law get away with it under the guise of sympathy. The trial magistrate had to make a finding on this point and he was duty bound to do so. This was another ground upon which the court should have struck out the application. To cap it all, ' the applicant did not file his submissions in reply to the submission by the respondent/defendant in support of the preliminary objections. Going by the various authorities of this court, and they were availed to the trial magistrate, failure by the applicant to file the submissions amounted to conceding. What was expected of the trial magistrate was to uphold the preliminary objections - see Juma Chibaya and 17 Others vs Williamson Diamonds Ltd. & Another Land Case No. 162 of 2004 (HC) Land

Division - DSM (unreported). 8 The seriousness of failure to file submissions need no overemphasis than what was echoed by the Court of Appeal of Tanzania in the case of Tanganyika Motors Ltd & Others vs Bhaduli Shamji Civil Application No. 65 of 2001 where it held, inter alia, “....Submissions which have been filed two days after the scheduled date have to be ignored by the court” If a party who files submissions late without court leave is made to suffer the consequences, it is beyond my comprehension how a defaulter can get a lenient treatment by a court of law. In his ruling, the trial magistrate who appear to have taken note of the legal position pertaining to the preliminary objections which were raised, purported to use the discretion of the court to call additional witnesses, in the interest of justice. In reaching such a decision, the trial magistrate purported to invoke the provisions of Order XVI rule 14 of the Civil Procedure Code, Cap. 33 R.E. 2002 which provides: 9 “ 14. Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the court at any time thinks it necessary to examine any person other than a party to the suit and not called as a witness by a part to the suit the court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his

possession, on a day to be appointed, and may examine him as a witness or require him to produce such document”. It is plain that the trial magistrate was totally wrong in that, it is not the court which summoned the witnesses - it was the plaintiff who was granted leave to summon additional witnesses which is not the spirit behind the above provision. And this was done by what was coined as re-opening the case, a procedure, with respect, unknown in our law. In sum, the magistrate erred in the way he purported to handle the preliminary objections and his decision cannot be allowed to stand. In the upshot, the decision is upset and, consequently, all the proceeding declared a nullity. 10 It is ordered that the case be tried de novo before another magistrate of competent jurisdiction. With this decision, other grounds of appeal lose significance. Costs to the appellant. P. A. Rugazia

JUDGE 25/3/2010 Judgment delivered. Mr. Rweyongeza Advocate for appellant. Respondent in person. P. A. Rugazia

JUDGE 25/3/2010