as al jabry investment limited vs hilal mohamed salum 2023 tzhc 18876 30 june 2023

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL APPEAL NO. 105 OF 2022 (Appeal from the Judgment and Decree of District Court of Temeke at Temeke, in Civil Case No. 66 of 2020 dated 12th July, 2022, before Hon. Madili -RM,) AS AL-JABRY INVESTMENT LTD……….…………………………………...APPELLANT VERSUS HILAL MOHAMED SALUM…………….……..……………………….……RESPONDENT JUDGMENT Date of last Order: 07/06/2023 Date of judgment: 30/06/2023 E.E. KAKOLAKI, J. This appeal originates from Civil Case No. 66 of 2020 before the District Court of Temeke, in which the respondent sued the appellant claiming among other things for the payment of sum of Tshs. 45,600,000/= arising from breach of contract. The brief background of the matter as scanned from the record goes thus, appellant and respondent entered into oral contract for collection of garbage within Temeke Municipality with the understanding that, the respondent had to contribute a car for the venture. It was alleged that the respondent gave Scania tipper, with registration No. T.614 DCA for 1 a consideration of Tsh.89,600,000/= but the appellant managed to pay her only Tshs. 44,000,000/= and later on 17,000,000. Thus, the outstanding amount of Tsh. 28,600,000/=. After full trial, the court entered judgment in favour of the respondent, in which the appellant was ordered to pay the respondent Tanzanian Shillings 28,600,000 being the outstanding amount, General damages at the tune of Tsh. 3,000,000 and interest of 7% per annum from the date of judgment to the date of satisfaction of the decree and costs of the suit. The said decision which did not please the appellant triggered the present appeal in which he has advanced five grounds of grievances, going thus: 1. That the trial magistrate being a successor magistrate erred in law and fact by failure to appreciate the role of a successor magistrate by directing the parties to lodge new pleadings and treat the case as if it had commenced afresh while pleadings were already complete on record. 2. That the trial magistrate erred in law and fact by admitting in evidence a letter from Temeke Municipal Council which was directed to the respondent in relation to a stranger to the suit contrary to the rules of admissibility of documentary evidence. 2 3. That the trial magistrate erred in law and fact by shifting a burden of proof to the appellant. 4. That the trial magistrate erred in law and fact by holding that, the respondent had proved a suit to the balance of probability while there was no any evidence to support any of the Respondent’s allegations. 5. That the trial magistrate erred in law and fact by disregarding and failing to consider the defence case. On the strength of the above grounds of appeal, the appellant implores this Court to allow the appeal by quashing and set aside the whole of the above said decision of the District Court and order for cost of this appeal and in the lower court. In this appeal Mr. Deogratias Ogunde and Ms. Sophia Bhoke both learned advocates appeared for the parties respectively. By consensus, hearing of the appeal was done by way of written submissions. As allude to above, appellant had 5 grounds of appeal, and I will start with the first ground of appeal which in my view, if well addressed is likely to dispose of the appeal. In support of this ground, it was Mr. Ogunde’s submission that, the trial record shows that, on 20/12/2021, Hon Mushi, Rm (predecessor magistrate) ordered for amendment of the plaint in which the respondent/plaintiff filed 3 the amended plaint on 21/12/2021 followed by appellant/defendant’s written statement of defence to the amended plaint on 13/01/2021, before Hon. Mushi, RM was transferred to another duty station, hence the case re- assigned to Hon. Madili, RM (the successor magistrate). He contended that, to the appellant’s surprise on 11/02/2022 the successor magistrate ordered parties to file new pleadings the order which according him was a serious error on the following two reasons. Firstly, the order was ultra as the provisions of Order VI Rule 17 of the Civil Procedure Code, [Cap 33 R.E 2019] (the CPC) restricted court’s powers to order for amendment of the pleadings at any stage and not to disregard previous pleadings on record and for filing of fresh ones. Secondly, he argued, the successor Magistrate was bound by the orders already on record thus functus officio in so far as the issue of filing of pleadings was concerned. To buttress his position, he cited to the Court the case of The International Airlines of the United Arabs Vs. Nassor Nassor, Civil Appeal No.379 of 2019, and the case of John Barnaba Machera Vs. North Mara Gold Mine Limited, Civil Appeal No. 2014 of 2019, (both CAT-unreported). He thus urged the Court to find merit in this ground and allow the appeal. 4 Responding to the appellant’s submission Ms. Bhoke while admitting that, its true on 11/02/2022 the successor magistrate ordered the parties to file new pleadings, was quick to counter that, the order was issued before all parties and the appellant did not raise any concern or objection to be recorded on the file. She took the view that, since the appellant acquiesced on that fact it was improper for her to raise such new point at the appellate stage. She supported her stance with the case of Kenedy Makuza Vs. Monalia Microfinance Ltd, Pc Civil Appeal No. 01/2021 HC-Unreported). Ms. Bhoke further cited the provisions of Order XVIII Rule 10 of the Civil Procedure Code, [Cap 33 R.E 2019], (the CPC) and recanted the argument by Mr. Ogunde that the successor magistrate was not allowed to order for filing of afresh pleadings, as the law allows the successor magistrate to order the pleadings to be filed afresh. She supported her position with the cases of Inter- Consult Limited vs Mrs.Nora Kassanga and Mathew Ibrahim Kasanga, Civil Appeal No. 79 of 2015, and M/S Flycatcher Safaris Ltd vs Hon. Minister for Land Human Settlement Development, Hon Attorney General, Civil Appeal No. 142 of 2017 (both CAT-unreported) in which the Court of Appeal explained the gist of order XVII Rule 10 of the CPC to allow the successor magistrate to take over from where the 5 predecessor magistrate/judge ended by assign the reasons. It was his call that this ground be dismissed for want of prosecution. In rejoinder submission, Mr. Ogunde contended that, all what the trial magistrate could have done was to order for amendment of the pleadings as per Order VI rule 17 of the CPC and not filing of fresh pleadings. He took the view that, the predecessor magistrate had already ordered amendment of plaint, and the amended pleadings were already on the record thus, the successor magistrate was functus officio in so far as filing of pleadings was concerned. In his further argument he said, the provisions of Order XVIII Rule 10 do not allow the successor magistrate to order for filing of pleadings afresh in disregard to the already existing on record rather require the successor magistrate/judge to deal with evidence or memorandum taken by the predecessor magistrate as if the same was taken by him (the successor magistrate). According to him, Order XVIII Rule 10 could be of more relevance had the appellant complaint been that the successor magistrate did not assign reasons for taking over the case, which is not. Concerning the cases cited by Ms. Bhoke, he noted the same are distinguishable to the fact at hand. Otherwise he reiterated his submission in chief. 6 I have keenly examined and considered the fighting submissions by the parties in light of this ground of appeal with the weight it deserves. I have also inquisitively perused the lower court records with view of understanding the nature of parties’ dispute for the proper determination of the allegation raised. The issue which this Court is called for determination is whether it was proper for the successor magistrate to order the filing of new pleadings. Mr. Ogunde is of the view that, it was not proper while Ms. Sophia is of the contrary view that it was proper as the law under Order XVIII Rule 10 allows the Court to so act and that, the appellant was raising a new issue at the appellate stage. To disentangle parties from the locked horns, I find it apposite to quote the provisions of Order XVIII Rule 10 of the CPC. The provisions of Order XVIII Rule 10 of the CPC provides: 10.-(1) Where a judge or magistrate is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if such evidence or memorandum has been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it. (2) The provisions of sub-rule (1) shall, so 7 far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 21. My understanding of the said provision of law is that, the successor magistrate/judge is given a discretion deal with the evidence or memorandum already taken down by the predecessor as if the same had been take down by him. This position of the law is also adumbrated in the cases of Inter- Consult Limited (supra) and M/S Flycatcher Safaris Ltd (supra), in which in the case of Inter- Consult Limited (supra), the Court of Appeal in explaining the gist of Order XVIII Rule 10, had this to say: In situation like this, we think that Order XVII rule 10 (1) of the CPC is pertinent. It empowers the judges or magistrates in certain circumstances to take over or deal with the evidence taken by other judges or magistrate in civil matters. In the latter case of M/S Flycatcher Safaris Ltd (supra) it was held that: ’’…undoubtedly, the above provision allows a successor judge or magistrate to take over and proceed to hear a matter to its conclusion where another judge or magistrate is prevented from proceeding and concluding the matter by death, transfer or any cause. Case law has interpreted the above provision as requiring a successor judge or magistrate who over a matter where a witness or witnesses have testified to record the reasons for taking over the hearing of the case.’’ 8 Glancing at the record, in particular at page 11 of the typed proceedings it is apparent that, after the predecessor magistrate was transferred to another duty station when he had proceeded with the suit ex-parte and recorded evidence of two witnesses, without ex-parte order after dismissing the appellant/defendant’s preliminary objection on 15/12/2020, the respondent/plaintiff prayed for the case to start afresh so as to allow the successor magistrate to master the facts and proceedings and that is when the trial magistrate ordered parties to file new pleadings instead of the prayed order though the same was not also grantable. For easy reference this is what transpired in the trial court’s proceedings of 3rd February, 2022, and I quote: 03/2/2022 Coram: Hon. Madili -RM Plaintiff: present Defendant: present CC: Simango Court: Parties are addressed under order XVIII Rule 10 of Civil Procedure Code Cap 33 R.E 2019 9 Plaintiff: It is a completed suit let us start afresh in order for the magistrate to master the fact and proceedings Defendant: I have no objection Court: let matter start afresh as parties wishes Order: 1. Mention on 02.08.2022. 2. Plaint to be filed on 10.02.2022. 3. Written statement of defence on 25.02.2022. 4. Parties to appear. Sgd by Hon. Madili – RM. 13/02/2022 In my profound view under the cited Order XVIII Rule 10 of the CPC by the trial court above, the trial magistrate had no jurisdiction to order the filing of new pleading as to so act is tantamount to ordering filling of a new suit, the jurisdiction which the court did not possess. Even under the circumstances when parties had prayed for the case to start afresh, the successor magistrate retained the discretion to do but using the available pleadings, as provided for under Order XVIII Rule 10 of the CPC and the authorities cited above, and in the event pleadings had any defects parties 10 were at liberty to pray for the amendment of the same under order VI Rule 17 of the CPC as rightly submitted by Mr. Ogunda and not otherwise. I thus hold the successor magistrate acted beyond her jurisdiction and for that matter the issue above is answered in negative. The above notwithstanding it is further noted by the Court that, on 21/12/2020 the trial court (predecessor magistrate) dismissed the appellant/defendant’s preliminary objection and proceeded to order for hearing of the plaintiff’s case which proceeded ex-parte without an order entered first to that effect. I so doing the trial court pronounced itself and I quote the proceedings of that day as found at page 4 of the typed proceedings: 21/12/2020 Coram: Hon. Mushi – SRM. Plaintiff: Present Defendant: Absent CC: Tumaine Plaintiff: Your hounor, the matter comes up for ruling, defendants are not present without notice. 11 Court: It appears defendant has no further interest in this objection. I dismiss the same with costs. Order: 1. Hearing on 2.12.2020 2. Parties to appear Sgd by Hon. Madili – RM. 21/12/2022 Basing on the above excerpt, I am of the profound view that, the trial magistrate having dismissed the preliminary objection by the appellant/defendant and having retained her written statement of defence ought to have ordered for first pre-trial conference in terms of Order VIII Rule 18(1) of the CPC, instead of ordering for hearing which also proceeded ex-parte on 14/01/2021 and in infraction of the law as it was done without any prior order to that effect. Such defect and the one noted above I hold vitiated the whole proceedings thereafter including the impugned judgment, thus deserving to be quashed and set aside. It is worth noting that, the question of jurisdiction of the Court is so fundamental as it goes to the very authority of the court to adjudicate upon cases, the principle is well articulated in the case of Fanuel Mantiri 12 Ng’unda Vs. Herman M. Ng’unda and Others [1995] TLR 155 (CAT), where the Court of Appeal had this to say: The question of jurisdiction of any court is basic, it goes to the very root of the court to adjudicate upon cases of different nature. The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. It is risky and unsafe for the court to proceed on assumption that the court has jurisdiction to adjudicate upon case. (Emphasis supplied) As pointed out above, Ms. Sophia tried to impress upon the court that, since the appellant was in court and did not raise any objection the she is estopped from raising a new ground at this appellate stage. With due respect to Ms. Sophia I am not prepared to purchase his proposition, as the defects obtained in the lower court proceedings goes to the jurisdiction of the court, and that the matters touching jurisdiction of the Court can be raised at any stage even at the appellate stage. In view of the above discussion and findings i find merit in the appellant’s first grounds of appeal and since the same is sufficient to dispose of the appeal, I see no need to determine the remaining grounds of appeal. 13 In the premises and having found that the defects in the proceedings from 21/02/2022 vitiated the whole proceedings on that day and thereafter plus impugned decision, I hereby allow this appeal. I invoke the revisional powers bestowed to this Court under section 44(1)(b) of the Magistrates Courts Act, [Cap. 11 R.E 2019] and proceed to quash the entire proceedings of the case and set aside the Judgment and Decree of the Temeke District Court in Civil Case No. 66 of 2020 dated 12/07/2022. Consequently, I remit back the file to Temeke District Court for the same to start afresh using the formerly filed proceedings. Since the parties are not to blame on what transpired, I hereby order each party to bear its own costs. It is so ordered. Dated at Dar es Salaam this 30th June, 2023. E. E. KAKOLAKI JUDGE 30/06/2023. 14 The Judgment has been delivered at Dar es Salaam today 30th day of June, 2023 in the presence of Mr. Deogratias Ogunde, advocate for the appellant, the respondent in person and Mr. Oscar Msaki, Court clerk. Right of Appeal explained. E. E. KAKOLAKI JUDGE 30/06/2023. 15