JUDGMENT Alexander Milinga vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA PC. CIVIL APPEAL NO. 20538 OF 2024 (Arising from Mbinga District Court in Civil Appeal No. 4427 of 2024, Original Civil Case No. 50 of 2023 of Mbinga Urban Primary Court) ALEXANDER MILINGA ……….…..…………………………………………. APPELLANT VERSUS ESTHER HERMAN HAULE ….…………………………………………….. RESPONDENT JUDGMENT 29th November & 30th December, 2024. KAWISHE, J.: This is a second appeal. The first appeal was lodged before Mbinga District Court (the first appellate court) vide Civil Appeal No. 4427 of 2024 which arose from Mbinga Urban Primary Court (trial court) in Civil Case No. 50 of 2023. Still dissatisfied with the decision of the first appellate court, the appellant filed an appeal before this court. He has knocked the doors of 1 this court armed with three grounds of appeal. For easy of reference and clarity, I find it to be important to reproduce the grounds of appeal as I hereby do: 1. That the first appellate court erred in law and facts when it concurred with the trial court while the respondent failed to provide any valid evidence before the trial court. 2. That the first appellate court erred in law when it held that there was a valid contract basing on the assumption of existence of friendship between the appellant and the respondent. 3. That the first appellate court erred in law when it failed to hold that the respondent did not produce before the trial court material evidence while they were within their reach. Basing on the above grounds of appeal, the appellant prayed for this appeal to be allowed and the respondent be ordered to pay the costs. The appeal was resisted by the respondent. Briefly, the facts leading to this appeal are as follows: Before the trial court, the respondent sued the appellant claiming to be paid TZS. 10,000,000.00, the sum of money she offered to the appellant as a loan to clear his bank debt way back in 2019. In his part, the appellant denied the allegations made by the respondent. To prove her claims, in addition to her testimony, the respondent paraded two other witnesses. She also tendered 2 her bank account statement (exhibit P1) and a Certificate of Occupancy with Title No. 38154-MBYLR bearing the name of the appellant which was offered to her as a security for the loan (exhibit P2). On the other hand, the appellant was the sole witness and he tendered the Government Gazzete (ISSN – 0323) of 11th September, 2020 and Daily Newspaper in which he advertised on the loss of his Certificate of Occupancy. Upon full trial, the trial court found the respondent to have managed to prove her claim and ordered the appellant to pay the claimed amount. The appellant also was ordered to pay the costs of the suit. Dissatisfied with the decision of the trial court, the appellant unsuccessful appealed before the first appellate court which sustained the decision of the trial court. In this appeal, both parties were represented. The appellant was represented by Mr. Eliseus Ndunguru, learned advocate whereas the respondent had the legal services of Mr. Edmund Mnyawami, the learned advocate. By the parties’ consent, the appeal was disposed of by way of written submission. Both parties adhered to the orders scheduled by this court. 3 After the parties’ submissions the court was duty bound to determine the merits of this appeal. When I was composing the judgment on this appeal, upon perusal of the trial court’s proceedings, I realized that the trial magistrate dismissed the matter for want of prosecution. At a later date, the matter resumed and proceeded to the end. There is no application to restore neither an order to that extent. Since the trial court first dismissed and later continued with the suit without any necessary steps to restore the same, constituted an illegality. The illegality of the proceedings after the dismissal and the orders thereat were the point of discussion. Bearing in mind that, this matter was raised suo motto by this court, parties were invited to address the court on the same. On 29th November, 2024 the appeal came for judgment but was not delivered, instead the learned counsel for the parties were invited to address the court on the same. Mr. Edmund Mnyawami, learned advocate appeared for the respondent whereas, Mr. Hajj Ramadhan learned advocate appeared for the appellant. They prayed for short adjournment which this court granted. The matter resumed on the same day and the advocates were ready to address the court accordingly. 4 Mr. Edmund Mnyawami, advocate for the respondent was the first to take over. He submitted that, this is a court of record hence, its records must be kept properly. He added that, the trial court’s records clearly show that the matter was dismissed and never restored however, it proceeded. He asserted that, in his view, it is clear that, there is illegality on the face of record. Apart from admitting that there was illegality in the proceedings of the trial court, Mr. Mnyawami was quick to shield his client by stating that, the respondent believes that she still has right on the main suit in her claim as the mistake was on the part of the trial court. That, the trial court did not state anything on how it proceeded with matter after the dismissal order. He prayed to this court not to punish his client as she has a claim of right. On his turn, Mr. Hajj Ramadhan, learned counsel for the appellant submitted that, in his view, the trial court erred in law by proceeding with a matter which was dismissed without any order to restore the same. Mr. Hajj averred that, the decision made thereafter was nullity. He prayed to this court to set aside the judgment of the trial court by invoking its revisional jurisdiction. Mr. Hajj added that, the first appellate court’s decision based on the trial court’s decision while it was nullity. Thus, the 5 first appellate court’s decision is prone to be declared nullity. He contended that, on those reasons, the appeal be dismissed and since it was an error on the part of the respondent who was the plaintiff in the trial court, his client be awarded with costs. In rejoinder, Mr. Mnyawami insisted that, the illegality was not occasioned by the respondent. That it was from the court’s side either by mistake or in anyway, the trial court continued with the matter. He reiterated his submission in chief. He added that, may this court be pleased to allow the matter to start afresh. I have followed carefully the submissions made by the learned advocates on the issue raised suo motto by this court. The advocates agree that, there was illegality on the proceedings of the trial court. Also, the judgments resulted therefrom are nullity. As I stated earlier, the trial court’s proceedings show that, the proceeding was dismissed for want of prosecution. For the interest of clarity, I have the liberty to reproduce a part of the trial court’s proceedings hereunder: “TAREHE 25/8/2023 6 MBELE YA: N.G. LUPEMBE – RM C/C. S.N. KINYAKI MDAI: HAYUPO MDAIWA- YUPO I.K.S N.G LUPEMBE – RM 25/8/2023 AMRI: Dai limefutwa chini ya f.22 Kanuni za Utaratibu wa Madai katika M/Mwanzo Na. 55/1963 N.G LUPEMBE – RM 25/8/2023” The quotation hereinabove is the proceedings on the date the claim was dismissed, simply translated, Order: Suit dismissed under rule 22 of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules No. 55/1963 (the Rules). After this dismissal order without any explanation, the matter was called again and proceeded on 10/10/2023. A part of the proceedings is reproduced below: “TAREHE: 10/10/2023 MBELE YA: N.G LUPEMBE – RM C/C. S.N. KENYAKI 7 MDAI MDAIWA Wapo wanawakilishwa” The trial court’s records show that on 10/10/2023 the parties appeared and were represented by learned advocates before the trial court. Mr. Frank Kapinga appeared for the respondent and Mr. Jofrey Sangana appeared for the appellant. The matter proceeded to hearing. The trial court’s proceedings are silent as to what happened in between 25/8/2023 and 10/10/2023. Since the proceedings do not state whether there was an order to restore the same, and given the fact that the same trial magistrate proceeded with the matter, I agree with the learned advocates submissions that the proceedings of the trial court and the subsequent judgments are nullity. In dismissing the claim, the learned trial magistrate applied rule 22 of the Rules which states: Where neither party appears when the proceeding is called for hearing, the court may order that the proceeding be dismissed or may adjourn it to another day, and shall direct that notice of such adjourned hearing be served on the parties. This rule provides for circumstances where neither party appears. To the contrary, the trial court’s proceedings depict that the respondent was present in court. It was the complainant who is the respondent in this 8 appeal who missed in court. In my view, although the proceedings are silent on the stage of the suit, it is not clear whether it was for mention or hearing. In that situation the trial court faced, the proper rule to be applied was rule 24 of the Rules which provides: Where the defendant appears and the claimant does not appear when the only proceeding is called on for hearing, the court shall order that the proceeding be dismissed, unless the defendant admits the claim or any part thereof, in which case the court shall make such order as may be appropriate. [Emphasis is mine]. However, wrong citation of the enabling rule, does not render the dismissal order a nullity. Even if the trial magistrate could not cite the enabling provision, still could dismiss the claim as it is within the mandate of the trial court. The question that follows is what was the impact of the dismissal order to the claim. The answer is straight forward. Once a case has been dismissed it is as good as there is no case before the court. Therefore, the claimant was to apply to the trial court for setting aside the dismissal order. This is conspicuously provided for under rule 28 of the Rules which provides: 9 Where a proceeding has been dismissed by reason of the non- attendance of the claimant, the claimant may, subject to the provisions of any law for the time being in force relating to the limitation of proceedings, bring a fresh proceeding or he may apply for an order to set aside the dismissal, and if the court is satisfied that it is reasonable having regard to all the circumstances of the case to make such order, the court shall make an order setting aside the dismissal and shall appoint a day for the hearing of the proceeding. [Emphasis added]. The provisions of the rule cited explicitly provide that there had to be fresh proceeding or application for an order to set aside the dismissal. As I stated earlier, the proceedings are silent if any of the two requirements were met by the claimant. From the records available, no application for restoration was made neither a fresh proceeding was preferred. The same case number and proceedings are depicted in the case file. This anomaly should have been discovered by the first appellate court, Mbinga District Court which upheld the decision of the trial court. Had it been that, the first appellate court was aware of the procedural irregularity it could have raised it suo motto. It was in a position of hearing from the horses’ mouth as the same advocates who prosecuted the claim before the trial court climbed the ladder to the first appellate court. It is my considered opinion that, the first appellate court did not notice the same. Such a scenario was 10 discussed by the Court of Appeal in the case of Badru Issa Badru vs. Omary Kilendu (Civil Appeal No. 180 of 2021) [2024] TZCA 50 (TanzLII) stating that: “On the basis of the above stated reasons, and considering that this aspect went unnoticed by the first appellate court, we agree and hold that the score of the alleged variety of irregularity committed by the Tribunal, the decision of the High Court cannot survive as it resulted from nullity proceedings of the Tribunal. We therefore nullify the proceedings and judgment of the Tribunal and that of the High Court because they stemmed from a nullity.” Borrowing from the reasoning of the Court of Appeal in the quoted passage, I have no option but apply the same blade. In the instant appeal, the proceeding before the trial court was dismissed. Without any order to restore the same, it was called and proceeded to the final determination. In my view, since the proceeding was dismissed and not restored, it was no longer a valid complaint before the trial court. In simple words, there was no proceeding before the trial court after the dismissal order. The remedy as stated by the Rules, was to apply and get an order for restoration of the proceeding or filing a fresh proceeding. Unfortunately, that was not done and unwittingly, the first appellate court adopted the same fruit of the non-existing suit. Ultimately, the judgment and orders of 11 the trial court and the first appellate were born from nullity proceeding. I therefore, nullify the proceedings and judgment of the trial court and that of the first appellate court because they stemmed from a nullity. In the upshot, the appeal is dismissed for being a result of nullity proceeding. The trial court dismissed and resumed the matter without any order. Consequently, I am hesitant to punish any of the parties to this appeal. Thus, no order as to costs. DATED and DELIVERED at SONGEA this 30th day of December, 2024. E. L. KAWISHE JUDGE COURT: Judgment delivered in the presence of Mr. Edmund Mnyawami, learned advocate for the respondent and in the presence of the parties. Right of appeal explained. E. L. KAWISHE JUDGE 30/12/2024 12