20111005 TZCA Mwanza

IN THE COURT OF APPEAL OF TANZANIA ATMWANZA CIVIL APPEAL NO. 85 OF 2010 (CORAM : RUTAKANGWA, J.A., KIMARO, J.A., And ORIYO, J.A.) YAZID KASSIM t/ a YAZID AUTO ELECTRIC REPAIRS ..................APPELLANT VERSUS THE ATTORNEY GENERAL ............................................................RESPONDENT (Appeal from the judgment of the High Court of Tanzania at Bukoba) (Lyimo, J.) dated the 19th day of December, 2008 in Civil Case NO. 6 of 2001 JUDGMENT OF THE COURT 3 & 11 October, 2011 KIMARO, J.A.: Yazid Kassim and two othe'rs were charged in the District Court of Bukoba with the offence of attempt to commit arson contrary to section 320 of the ~Penal Code, [CAP 16 R.E.2002.]. They were alleged to have on the 8th March, 1997 at about 2.30 hours at Rwanishenye Police Line in Bukoba District, attempted to set fire on a motor vehicle with registration 1 -.,, NO. BK 6775, a Toyota Stout belonging to No. C. 451 S/Sgt. Ramadhani. They were all acquitted after the trial court held the accused persons were wrongly charged because under section 319 of CAP 16 a motor vehicle was not one' of the properties which could form subject of the charge of attempted arson under section 320 of CAP 16. Subsequently, Yazid Kassim t/a YAZID AUTO ELECTRIC REPAIRS filed Civil Case No. 6 of 2001 in the High Court of Tanzania at Bukoba against No. C. 451 S/SGT. RAMADHANI, IDELFORCE EMIL AND THE HON. ATTORNEY GENERAL as first to third defendants respectively in which he claimed for an amount of T.shillings 50,011,000/= being special and general damages for malicious prosecution, interest and costs. The appellant alleged at paragraph 5 of his plaint that on the 8th March 1997, after· midnight, No. C 451 S/Sgt. Ramadhani acting in his capacity as a policeman, while accompanied by Idelforce Emil and other persons who ""'-- were members of Sungusungu, went to the appellant's house on a pretext that the appellant was a suspect in the offence of attempted arson. At paragraph 6 the appellant averred that he was searched without any search warrant, and his cash. T shillings 1, 683, 650/=, spare parts worthy T. shillings 299,200/= and shop commodities amounting to 2 T.shillings 194, 190/= were unlawfully taken from him but they were never surrendered · to the Police as required by the law. The appellant had further averred that in the process of taking his properties he was beaten and humiliated in the presence of his family and neighbours. That was the reason for praying for the special and general damages. The record of appeal shows that the case took unusually a long period, before summonses were issued to the defendants for purposes of setting the proceedings into motion. The 1st and 3rd respondents filed a joint written statement of defence on 11 th March 2002. Responding to the written statement of defence, the appellant filed a preliminary objection claiming among other things that, the written statement of defence was filed out of the 21 days allowed by the law for filing the same. The learned trial judge upheld this preliminary objection. Citing section 6(3) of the Government Proceedings Act, [CAP 5 R.E.2002] the learned trial judge held that the suit was one which was essentially against the government and so it was the Attorney General who was the only necessary party. He struck out the suit against the other respondents and ordered the case to proceed against the Attorney General ex parte because he did not file the written statement of defence in time, which 3 according to the learned judge had to be filed latest by 6th March 2002. The learned trial judge made the order to allow the appellant to proceed with his case ex parte under Order VIII Rule 14 (2)(b) of the Civil Procedure Code 1966 [CAP 33.R.E.2002]: The case was then heard ex parte. After the trial the appellant's suit was dismissed on the ground that there was no connection between the charges that the appellant faced in the District Court of Bukoba and the losses which he claimed to have suffered. Aggrieved by that decision the appellant has filed this appeal. In his six point memorandum of appeal, the appellant first challenged the issues framed by the trial court claiming th~t they did not cover the entire plaintiff's claim. Second, there was no justification for dismissing the suit because it was not controverted by the respondent. Third, the burden was not on the plaintiff to prove the case in the subordinate court. Fourth, the facts of the case of Amina Mpimbe V Ramadhani Kiwe [1990] T.L.R. 6 relied upon by the trial court to determine the appellant's claim were distinguishable from the facts of the appellant's case. Sixth, learned trial judge erred in law in holding that the appellant was not entitled to special and general damages. 4 During the hearing of the appeal the appellant appeared in person. The respondent was represented by Mr. Edgar Luoga learned Senior State Attorney and Ms Bibiana Kileo, learned State Attorney. The appellant filed very long written submission to support his appeal under Rule 106(1) of the Court of Appeal Rules 2009 which may, for reasons which will become apparent, be not useful in determining his appeal. By saying so it is not meant to discourage the appellant. The only reason is that in determining any issue before the Court, the Court is bound by the relevant provisions of the law governing the same. This is what article 107B (2) of the Constitution of the United Republic of Tanzania [CAP 2.R.E.2002] says. In the course of the hearing of the appeal, the appellant insisted that the learned trial judge erred in not granting the remedy he had prayed for. He said there was sufficient evidence to prove his case. He prayed that the appeal be allowed. Responding to the appellant's submission Mr. Luoga learned State ' Attorney faulted the learned trial judge for allowing the appellant to proceed ex parte against the Attorney General while the appellant had not complied with the mandatory provisions governing the circumstances under which the appellant could be allowed to proceed ex parte against the 5 Attorney General. He said it was wrong for the learned trial judge to allow the appellant to proceed with the case ex parte against the Attorney General under Order VIII rule 14(2) (b) of CAP 33 . The learned State Attorney said since the Attorney Genera.I had defaulted to file the written statement of defence in time, the provision that was available for use by the appellant for proceeding ex parte against the Attorney General was Order VIII rule 14(3) of CAP 33. Under the said provisions, the learned State Attorney contended, the appellant had to file a written application to the trial court to request for .an order to proceed ex parte against the Attorney General. After filing his application, the next step that had to be taken by the trial court was to serve the Attorney General, and give him the date of the hearing set for the application, so that he would show whether he had good cause for failing to present his written statement of defence in time. It was after the trial court was satisfied that the Attorney General failed to give sufficient cause for failing to file his written statement in time, that the trial court would grant the appellant leave to prove his case ex parte but not before. Mr. Luoga said that the said provisions were brought to the attention of the leaned judge when arguing the preliminary objection, but he did not consider ttiem. He prayed that 6 the appeal be dismissed with costs and the proceedings of the trial Court be· nullified from the date when the trial court erred in allowing the appellant's application to proceed ex parte on the oral application. In a brief reply, the appellant prayed that the appeal be allowed as he was not the one who was at fault. He said he prayed orally to the trial Court to proceed ex parte against the Attorney General and that prayer was allowed. In the alternative he requested the Court to do what it considers justifiable under the circ·umstances. The only issue before the Court is whether the trial court was right in allowing the appellant to proceed ex parte against the Attorney General , under the circumstances of this case. The Attorney General was the defendant in the trial court. Both the appellant and the learned State Attorney conceded during the hearing of the appeal that he defaulted in filing the written statement of defence. But he said that a wrong provision was invoked in allowing the appellant to I proceed ex parte against the Attorney General. The appropriate provisions which should have been invoked according to the learned State Attorney, 7 were Order VIII Rules 14(3) and (4) of CAP 33. The provisions of Order VIII Rule 14(3) reads: Notwithstanding anything in this rule, where the Attorney General is required to present a written statement of defence or a reply and fails to present the same within the time fixed by the court or within a period specified in the summons, or, where the period has been extended by the court, within the period of such extension, the plaintiff or the defendant , as the case may be, may apply in writing for leave to adduce ex parte proof of his claim or counter claim, and the court shall there upon fix a day for hearing of the application and shall direct the notice of the application and of such day be given to the Attorney General. (Emphasis is added) The provision cited above is clear that an application to proceed ex parte against the Attorney General has to be made in writing by a party 8 who wishes to take that procedure. It could be the plaintiff who wishes to prove his plaint ex parte or a defendant who wishes to prove his counter claim ex parte against the Attorney General. It is mandatory for the trial court to serve the Attorney General with the said notice and the date fixed for the hearing of such an application. Subsequent to compliance with such a procedure, the provisions of Order VIII Rule 14(4) of CAP 33 gives a direction to the trial court on what should be done. It states: Where the Attorney General appears at the hearing of the application under sub rule (3) hereof and assigns good cause for the non- presentation of the written statement of defence or the reply, the court shall upon such terms as it may direct, as to costs or otherwise, extend, or further extend the period within which the written statement of defence or the reply shall be presented'and in any other case may pronounce Judgment upon ex parte proof of the claim or may make such order in relation to the 9 . suit or counter claim , as the case may be , as it thinks fit. It is apparent from the provisions of Order VIII rule 14 (4) of CAP 33 that before the trial court could grant the appellant an order to proceed ex parte against the Attorney General, it was mandatory to have a written application by the appellant, and the Attorney General had to be informed of the date of the hearing of such application . It was after the Attorney General had failed to show cause for not presenting his written statement of defence in time, or after the extension that was granted to him, that the appellant could be allowed to proceed by proving the case ex parte against the Attorney General. This procedure was not complied with. The Court has repeated several times that a mandatory procedure has to be complied with. This was not done. The order which allowed the appellant to proceed ex parte against the Attorney General was unlawfully given as no lawful application was before the Court. We thus quash and set aside all the proceedings of the High Court starting from 13th July 2006 when the trial court allowed the appellant to proceed ex parte on the oral application. The trial court should proceed with the case in accordance with the law from that stage. It is accordingly ordered. Since none of the parties is to 10 be blamed for the orders that the trial court made, we make no order for costs. DATED at MWANZA this 05 th day of October, 2011 E. M. K. RUTAKANGWA JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL K. K. ORIYO JUSTICE OF APPEAL I certify that this is the true copy of the original C: j)s: ~('~ -J.S. MGETTA DEPUTY REGISTRAR COURT OF APPEAL 11