RICKY1

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO 13906 OF 2024 (Arising from the judgment of the District Court of Ilala at Kinyerezi in a Civil Case No. 29 of 2020 before Hon. G. E. Nkwera SRM) ALGHUBRA MARINE SERVICE LTD ……………………. APPELLANT VERSUS RICKY JOSSE EMMANUEL ……………………….……. RESPONDENT RULING MKWIZU,J The genesis of this appeal is a contract entered into on 26th November 2019 by the plaintiff (now the respondent) and the 1st Defendant (now the appellant) regarding the shipment of 100 boxes of eggs, amounting to a total of 5,000 eggs. This shipment was intended to be exported from Dar es Salaam to Comoros. As part of the terms of the agreement, the plaintiff asserts that he remitted a payment of TZS 5,000,000 to the 2nd Defendant (not a party to this appeal), who acted as an agent for the 1st Defendant, facilitating the execution of the agreement in writing. The plaint stated that the cargo was scheduled for export on 3 December 2019, aboard the vessel identified as "JOZAN II," with all operational execution overseen by Trade Waves Investments Co. Ltd., an entity organised and acting on behalf of the Defendants. However, the Plaintiff claimed that the shipment was not dispatched until 2 January 2020. As a direct result of this delay, the cargo quality deteriorated significantly during the extended period, leading to substantial financial losses associated with the entire consignment. He sought redress from the defendants, asserting claims for breach of contract based on their alleged negligence and failure to perform under the terms of the agreement. In contrast, the Defendants, including the respondent in this appeal, categorically deny the allegations presented by the Plaintiff. They contend that they never entered into any agreement with the Plaintiff and dispute the authenticity of the documents submitted by the Plaintiff, which they claim are forged. After the trial, the magistrate determined that a contractual agreement existed between Plaintiff and the 1st Defendant regarding the transportation of eggs. The magistrate found that the 1st Defendant had breached this agreement by failing to honour the terms, thereby confirming the Plaintiff's claims. The 1st Defendant's failure to transport the eggs resulted in the deterioration of the cargo. Consequently, it was determined that the 1st Defendant was at fault, while the 2nd Defendant acted in good faith on behalf of the 1st Defendant. As a result, the plaintiff was awarded reliefs, including TZS 50,560,000 in damages for breach of contract, TZS 20,000,000 for general damages, an interest rate of 7% per annum from the date of judgment until the decree is satisfied, and an order for the 1st Defendant to cover the costs of the suit. The Appellant, being the original 1st Defendant, is aggrieved and is appealing against the Judgment and Decree on the following grounds:- 1. That, the proceedings of the trial Court is nullity for reasons of improper departure from the scheduling order. That, the trial Magistrate erred in law for failure to take necessary steps to cure the defects in the proceedings. 2. That, the District Magistrate erred both in law and facts to make findings that there was an agreement for the transportation of cargoe of eggs from Dar es Salaam to Comoro between the Appellant and Respondent. 3. That, the trial Magistrate misdirected herself to declare that the Appellant has breached the agreement executed between him and the Respondent. 4. That, the Trial Magistrate erred both in law and facts to grant the Respondent reliefs claimed in the plaint for the allegations that, he is entitled to. If the trial Magistrate directed its mind to the law and evidence she would hold that the Respondent evidence has been manufactured, as the reports of the eggs admitted as Exh. PE-3 alleged the cargoe of egg arrived at Comoro, which is subject matter at the trial court indicated to have no any relation with the Respondent. 5. The Trial Magistrate erred both in law and fact by improperly interpreting and/or misguiding herself on the principles relating to proof of the special damages. 6. That the Trial Magistrate Court erred both in law and facts to declare the Respondent has proved its case against the Appellant in the standard required by the law. 7. That the trial Magistrate misdirected herself to act biased during the hearing of the matter. 8. The trial Magistrate erred in law and fact for failing to understand the doctrine relating to the Principal Agent relationship. The written submissions disposed of the appeal. Mr. Ally Jamal, an esteemed advocate, represented the appellant, while Ms. Jacquiline Jackson represented the respondent. I thank both counsels for their thorough and well-researched submissions, which were submitted within the allotted timeframe. However, for the reasons outlined below, I shall refrain from delving into the specifics of those submissions now. I will only return to them if the need arises during these proceedings. I thoroughly revisited the submissions from the parties, the grounds for the appeal, and the complete trial court records. During my examination of the documents, before making any determinations regarding the grounds of appeal, two issues cropped into the court’s attention 1. the omission to cite PETER MBAWALA, who was appearing as a 2nd defendant during the trial as a party to this appeal 2. The validity of the trial court's order setting aside the court's proceedings. The order was given on 25, 2022 when composing a ruling in response to the 2nd defendant's counsel's prayer to enter a default judgment against the 3rd party for failure to file a WSD. According to the 2nd defendant’s counsel, after a notice was published in the Mwananchi Newspaper on 25th September 2020, the 3rd party made an appearance in court and sought leave to file a WSD, but then disappeared. The trial magistrate issued a ruling. In that process, he realised that leave was granted for the 1st, 2nd, and 3rd parties, but the prayer was not specific about which 3rd party was referred to, and the said notes sought were neither served nor filed in court. As the matter had progressed to a hearing stage, the parties were consulted regarding this issue, leading to an order that set aside the proceedings from September 9, 2020, the date of the first pretrial conference, up to and including the date of the order, March 25, 2022, which encompasses the evidence of PW1 that had already been recorded. When summoned to address the court on the issue of the appeal's competence today, Mr Khalid Mzee, the advocate holding brief for Mr Ally Jamal on behalf of the appellant, readily conceded that the appeal is incompetent for omitting a party who was involved in the trial court records. He was, however, of the view that this court has power, under Order 39, Rule 3 of the CPC, read together with Section 95 of the CPC, to order an amendment of the memorandum of appeal, allowing both parties a right to be heard. On the other hand, Ms Jacquiline's advocate held a different view. Citing Civil Application No. 116/01/2021, Salim Amour Diwani v. Vice-Chancellor Nelson Mandela African Institution of Science and Technology and the Attorney General, she argued that an appeal made without all parties from the previous proceedings is incompetent and liable to be struck out. I have considered the party's submissions on this point; it is not controverted that the appeal before me now omits to cite the name Peter Mbawala, the then 2nd defendant at the trial court. As rightly stated by the respondent's counsel, it is a trite law that parties in proceedings should, at any given time, appear as they did in previous proceedings unless there is a reason not to do so. This is the position of the Court of Appeal in the cited case Isack Wilfred Kasanga v. Standard Chartered Bank Limited, Civil Application No. 453/2019 where it was held: “…We are of the stance that this should always be the position, that parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that. We are in that respect, guided by our decision in Hellena Adam Elisha @ Hellen Silas Masui v. Yahaya Shabani & Another, Civil Application No. 118/01 of 2019 (unreported), in which the case of Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527, was cited…” Speaking on the rationale for this rule at pages 10 and 11 the Court in the above case said: “Three, for the avoidance of a multiplicity of endless cases, it is practical to maintain the parties, and once there is an issue, that issue is dealt with at once rather than separately, simply because one party's name was omitted while they had a right to be heard. Inspired by the decision of this Court in an almost similar situation, in the case of TPB Bank Pic (Successor in Title of Tanzania Postal Bank) v. Rehema Alatunyamadza & 2 Others, Civil Appeal No. 155 of 2017 (unreported),when discussing whether a party can be joined at an appeal stage, which although not an issue at hand, but the parity of reasoning speaks volume when the Court said: "It is our considered opinion that justice demands that Viovena be served with a notice of appeal and joined as a party to this appeai. This is because the orders sought by the appellant in this appeal will legally affect Viovena and it is also desirable for the avoidance of a multiplicity of endless cases" [Emphasis added] We are thus in agreement ...that parties cannot be allowed to dismantle the proceedings by choosing who to implead and who not to join”( Emphasis added) The above position was emphasised by the Court of Appeal in Salim Amour Diwani v Vice Chancellor Nelson Mandela African Institution of Science and Technology and the Attorney General ( Supra) that: “...parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that. The reasons for omitting Peter Mbawala from this appeal have not been disclosed to the court. Regrettably, this court proceeded to hear the parties present, and the defect in question was only identified during the drafting of the judgment. The appellant's counsel is suggesting that there is room for amendment at this stage under Order XXXIX rule (3) of the CPC. I have read the rule. This provision does not contemplate circumstances where a hearing has already taken place. Its applicability is limited solely to the period preceding the commencement of the appeal hearing. Given that the hearing has already been conducted, I must conclude that the appeal is fundamentally incompetent. Therefore, I find it necessary to strike it out with immediate effect. This point suffices to dispose of the appeal, making it unnecessary to determine the second issue at this stage. Since the court raised the point suo moto, each party is ordered to bear its own costs. DATED at DAR ES SALAAM, this 24th MARCH 2025 E. Y Mkwizu Judge 24/ 3 / 2025