china chonqing international construction ltd tabora branch cico and 4 others vs joseph jasper machumu and 2 others 2020 tzhc 4534 17 december 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT TABORA CIVIL APPEAL NO. 07 OF 2019 {Arising from Original Civil Case No. 11 of 2017 from District Court of Tabora at Tabora and Misc. Civil Application No. 7 of 2019} CHINA CHONQING INTERNATIONAL CONSTRUCTION LTD TABORA BRANCH (CICO) & 4 OTHER................ APPELLANT VERSUS JOSEPH JASPER MACHUMU & 2 OTHERS................... RESPONDENT JUDGMENT KIHWELO, J. The Judgment in this matter was reserved by my late brother, Bongole, J, who unfortunately did not live to compose it. Sadly, the record has been re-assigned to me. The appellant herein filed an appeal before this Court challenging the decision of the District Court of Tabora in Miscellaneous Civil Application No. 7 of 2019 delivered on the 21st August 2019. In support of the appeal the appellant filed a memorandum of appeal with the following grounds: 1. That, while the appellant's Misc. Civil Application No. 7 of 2019 before the District Court seeks for extension of time to i apply out of time to set aside Ex parte judgment in Civil Case No. 10 of 2017 Tabora District Court and subsequent to extension of time the ex parte judgment be set aside, then the learned magistrate erred in law and fact to dismiss the said application setting reasons in the decision that the application lacks merit while the merit of the said application was never heard. 2. That, in presence (sic) of Court of Appeal of Tanzania decision, Zanzibar Shipping Corporation versus Mkunazini General Traders, Civil Application No. 3 of 2011 Court of Appeal of Tanzania at Zanzibar (Unreported) to the effect that an application which is dismissed on the strength of Preliminary Objection raised against it without hearing and determining the merits of that application is tantamount to struck out, the authority which was never considered anyhow in the ruling, then the learned magistrate erred in law and fact to dismiss Misc. Civil Application No. 7 of 2019 upon the Respondent's raised Preliminary Objection that Misc. Civil Application No. 7 of 2019 at hand is res judicata. Consequently, the appellants prayed for orders that: 1. That, this appeal be allowed by reversing the ruling of the District Court and orders thereto. 2 2. That, Misc. Civil Application No. 7 of 2019 Tabora District Court be declared to be competent before the court. 3. Costs of this appeal be provided for. 4. Any other relief this honorable court may deem fit so to grant. Before this Court the appellants were represented by Mr. Mussa Kasimu, learned Counsel from RMK Advocates whereas Mr. Emmanuel B. Musyani represented the respondents, learned Counsel. With leave of the Court the application was disposed through written submissions which were duly filed in compliance to the Court's schedule. The background to this appeal is briefly that on 5th June 2017 the appellants were sued by the respondents for wrongful prosecution in the District Court of Tabora in Civil Case No. 10 of 2017. Records indicates that the matter was determined ex parte and consequently an ex parte judgment was entered against all defendants (now appellants) and that was on 3rd October 2017. Two months later on 30th November 2017 the appellants filed Miscellaneous Civil Application No. 17 of 2017 to the same court praying for an order to set aside the ex parte judgment but unfortunately on 3rd July 2018 the application faced a big blow as it was dismissed for being time barred. 3 Dissatisfied seventeen months later that is on 11th February 2019 the appellants filed another application that is Miscellaneous Civil Application No. 7 of 2019 in the District Court of Tabora seeking extension of time and setting aside ex parte judgment, the application was dismissed for alleged lack of merits hence the present appeal. In support of the application Mr. Musa Kasim learned Counsel was fairly brief and to the point. He valiantly argued that in application No. 7 of 2019 the appellants were applying for extension of time to apply out of time to set aside an ex parte judgment in Civil Case No. 10 of 2017 and in case the extension of time is to be granted then the court be pleased to set aside an ex parte judgment in Civil Case No. 10 of 2017. He lucidly argued that before the said application could be heard on merit it was faced by Preliminary Objection on point of law raised by the respondents herein to the effect that the same was res-judicata as there was another application pertaining to the same facts and issues which was fully and finally determined and that is Misc. Civil Application No. 17 of 2017. He forcefully argued that, instead of determining the Preliminary Objection raised by the respondents the Magistrate rather determined the application on matters which were 4 premature. He strenuously submitted that looking at the findings of the District Court it is vivid that the District Court did not determine the raised Preliminary Objection at all as there is no finding to that effect. Submitting in support of the second ground of appeal in relation to the issue of res-judicata Mr. Kassim vehemently submitted that application No. 17 of 2017 was filed seeking for an order to set aside the ex parte judgment and not extension of time, since it was filed out of time and without leave of the court and it was dismissed and therefore the merits of that application was neither argued by the parties nor determined by the court. He went on to argue that application No. 7 of 2019 is quite different because it is in relation to the extension of time and there is no point in time when the application for extension of time was ever applied for by the appellants in Miscellaneous Civil Application No. 17 of 2017. In response Mr. Musyani, learned Counsel for the respondents strongly went to submit that the magistrate correctly determined the application to the effect that if at all there were any illegalities on the impugned decision or on the face of record in Civil Case No. 10 of 2017 they ought to have appealed to the High Court or seek revision. 5 He spiritedly went on to argue that the allegation that the appellants were not given right to be heard is an afterthought as parties were fully accorded the right to be heard as written submissions were duly filed in Court and the appellants did make reply to the Preliminary Objection. Further Mr. Musyani, argued that it is not true that in Miscellaneous Civil Application No. 7 of 2019 the appellants were seeking to set aside ex parte judgment only but the appellants were seeking both extension of time and setting aside an ex parte judgment so the application was res-judicata as it was also subject of Miscellaneous Civil Application No. 17 of 2017 which was already heard and determined by a court of competent jurisdiction. He forcefully argued that the appellants' application was dismissed and not struck out and the remedy for dismissal order is to appeal and the appellants cannot in law commence a fresh proceeding on the same subject matter as it is prohibited by section 9 of the Civil Procedure Code Cap 33 R.E 2002 under principle of res judicata. In rejoinder Mr. Kassim reiterated that the issue that was before the learned Magistrate in Miscellaneous Civil Application 6 No. 7 of 2019 was an objection raised by the respondents that the said impugned application was res judicata due to the former which was determined under Miscellaneous Civil Application No. 17 of 2017 but nothing was said by the Magistrate about the raised Preliminary Point of Objection. Responding to the issue of dismissal of the application, Mr. Kassim admittedly agreed that the application was dismissed by the court for the reason that it was only time barred and there is no one who was aggrieved by that finding of the District Court to say that they could appeal. Mr. Kassim insisted that, the latter application is different from the former. Whereas the latter application was about extension of time, the former related to setting aside ex parte judgment only. I have carefully followed the arguments of the learned trained minds and in my considered opinion there remains one issue for my consideration and that is none other than whether or not the instant appeal is meritorious. In order to answer that, I need to seek an answer to two questions. One, is did the trial Magistrate determine Miscellaneous Civil Application No. 7 of 2019 and Two, is did Miscellaneous Civil Application No. 7 of 2019 fall under the principle of res judicata. 7 A cursory perusal of court records in Miscellaneous Civil Application No. 7 of 2019 it reveals that the respondents in that application raised a Preliminary Point of Objection to the effect that the application is res judicata for the matter had already being finally and conclusively decided by a court of competent jurisdiction. A further perusal of the court records reveals that on 29th April 2019 the court scheduled the Preliminary Objection to be disposed of by way of written submissions which were duly complied with and later the court reserved the matter for ruling. It is common practice that whenever a point of preliminary objection is raised the main case must be stayed pending final determination of the preliminary objection. Unfortunately, in the instant case the learned magistrate determined the substantive application before disposing of the preliminary objection, the ruling delivered by the learned magistrate does not state whether the Preliminary Objection is upheld or overruled instead the magistrate went on to dismiss the substantive application for the reason that it lacks merit. Coming to the second question as to whether Miscellaneous Civil Application No. 7 of 2019 falls under res judicata, the answer is simple; since the issue of res judicata was the point for determination in the trial court and till now it stands 8 undetermined there is no way this Court as an appellate court can determine that matter. As a matter of public policy parties would wish to see litigation come to an end, since the error was committed by the court itself I find it equitable and just to order that Miscellaneous Civil Application No. 7 of 2019 be restored for the court to determine the pending Preliminary Objection. That said and done, the appeal is allowed. No order for cost. JUDGE 10/12/2020 9 Date : 17/12/2020 Coram : Hon. B.R. Nyaki, DR Appellant : Mr. Musa Kassim, Advocate for the Appellant. Respondents 1st: Absent 2nd: Absent Bench Clerk: Grace Mkemwa, RMA Mr. Musa Kassim - For Judgment, I am ready. Court: Judgement delivered this 17th day of December, 2020 in the presence of Mr. Musa Kassim, Advocate for the Appellants but in absence of the Respondents. Right of appeal explained fully. B.R. Nyaki DEPUTY REGISTRAR HIGH COURT - TABORA