christmas elimikia swai and others vs tanzania electric supply co limited and another 2023 tzca 187 11 april 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWARI3A. J.A.. KWARIKO. J.A. And FIKIRINI, 3.A.) CIVIL APPLICATION NO. 447/05 OF 2019 CHRISTMAS ELIMIKIA SW AI........................... ................ 1st APPLICANT ABDULLAHI HAMISI LEM A.......................... ..................... 2nd APPLICANT ALLY ABDULLAHI LEM A.................................................... 3rd APPLICANT VERSUS TANZANIA ELECTRIC SUPPLY CO. LIMITED....................1st RESPONDENT THE TREASURY REGISTRAR, MINISTRY OF FINANCE TANZANIA GOVERNMENT .............. .............2nd RESPONDENT (Application for revision of the orders of the High Court of Tanzania, at Moshi) fSumari, 3.^ dated the 20th day of 3uly & 16th day of August, 2016 in Miscellaneous Civil Applications No. 40 and 40B of 2016 RULING OF THE COURT 27th March & 11th April, 2023 KWARIKO. 3.A.: This application for revision has been filed by a notice of motion in terms of section 4 (3) of the Appellate Jurisdiction Act [CAP 141 R.E. 2019] (the AJA) and rule 65 (1) (3) of the Tanzania Court of Appeal Rules, 2009. It is against the orders of the High Court of Tanzania at Moshi District Registry (the trial court) dated the 20th July, 2016 and 16th August, 2016 in Misc. Civil Applications No. 40 and 40B, respectively. The orders arose from original Civil Case No. 6 of 2002 (the suit). The notice of motion is i supported by an affidavit sworn by the first applicant, Christmas Elimikia Swai. The deponent narrated the background of the matter which led to this application as follows: Before the trial court, vide Civil Case No. 6 of 2002 the applicants sued the respondents seeking compensation as a result of the negligence of the first respondent and/or its servants which caused fire to their houses. That the suit suffered long delays due to change of judges until on 14thJune, 2016 when it was struck out for want of prosecution. Subsequently, the applicants filed Misc. Civil Application No. 40 seeking to set aside the order of the trial court but it was summarily rejected on 20th July, 2016 for the reason that the applicants ought to have preferred a fresh suit. It was deponed further that, the applicants were aggrieved by that order and thus proceeded to file an application for review vide Misc. Civil Application No. 40B of 2016. That application was summarily rejected for the same reasons which were given in the previous application. The deponent averred that the applicants' first application for revision before the Court was struck out for being incompetent but they applied and were granted an order for extension of time to do so on 2nd September, 2019, hence this application. Lastly, it was averred that, the suit and subsequent proceedings were tainted with serious irregularities as the applicants were condemned unheard. The application has been opposed by the respondents through an affidavit in reply sworn by one Steven Roman Urassa, Principal Officer of the first respondent. He averred that the applicants were supposed to file a fresh suit as observed by the trial court. Both parties filed respective written submissions in terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009. When the application was called on for hearing, the applicants were represented by Mr. Roman Lamwai, learned advocate while the respondents had the services of Mr. Stanley Kakolaki, learned State Attorney. Although in their affidavit in reply and the supporting written submissions, the respondents had opposed this application, during hearing, Mr. Kakolaki conceded to the application. He submitted that truly, the applicants were denied a right to be heard before the two applications were summarily rejected by the trial court which is contrary to Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977. He added that, the order of the trial court to require the applicants to file a 3 fresh suit was contrary to the dictates of Order IX rule 9 of the Civil Procedure Code [CAP 33 R.E. 2019] (the CPC). In response, Mr. Lamwai expressed his appreciation for the move taken by the learned State Attorney to concede to the application. He then went ahead to adopt the affidavit and the written submissions in support of the application and urged us to grant it. In his submission, Mr. Lamwai submitted that, the trial court contravened the provisions of Order IX rules 8 and 9 of the CPC when it struck out the suit for want of prosecution. He also stated that the trial court denied the applicants the right to be heard before it summarily rejected the application to set aside the order striking out the appeal and its subsequent application for review. Mr. Lamwai expounded that, if the trial court had found that the applicants had defaulted appearance on the date the suit was called on for hearing, it ought to have dismissed the suit as per the dictates of Order IX rule 8 and the remedy available to the applicants was to apply to set aside the dismissal order as provided under Order IX rule 9 cited above and that is what they did. He contended that; the trial court erred in law when it summarily rejected the application to set aside the order striking out the suit for the reason that the applicants should have filed a fresh suit. The learned counsel argued that there is no any provision in the CPC which provides that a remedy for a suit that has been struck out is to file a fresh suit. Reiterating his submission that the proceedings of the trial court and the orders derived therefrom were tainted with illegality, Mr. Lamwai urged us to revise them. We have considered the notice of motion, the affidavit and the submissions by the learned counsel for the parties. The issue which comes to the fore for our determination is whether the trial court acted within the law when it struck out the suit and summarily rejected the applications. We would first, like to examine the trial court's order dated 14th June, 2016 in relation to the suit. When the court found that the applicants have defaulted appearance, it struck out the suit for want of prosecution. As correctly argued by Mr. Lamwai, the order striking out the suit for non-appearance of the applicants was not backed up by the law. The relevant provision where the plaintiff defaults appearance when the suit is called on for hearing is Order IX rule 8 of the CPC which provides thus: Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the court shall make an order that the suit be dismissed unless the defendant admits the claim, or part thereof, in which case the court shall pass a decree against the defendant upon such admission and, where part only o f the claim has been admitted, shall dismiss 5 the suit so far as it relates to the remainder. [Emphasis supplied] According to this provision, when the suit is called on for hearing the defendant appears and the plaintiff defaults appearance, the court shall make an order dismissing the suit. Therefore, when the trial court struck out the suit for non-appearance of the applicants, it strayed into an error of law. Moving forward, again we have found that, the trial court committed two errors of law in respect of the application (Misc. Civil Application No. 40 of 2016) in which the applicants had applied to set aside the order striking out the suit. First, it did not afford the applicants the right to be heard before it summarily rejected their application. That was in violation of the principle of fair hearing which is envisaged under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977, as amended from time to time. This Article directs that, when rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to among others, a fair and full hearing. This principle has been underscored by the Court in a number of its decisions including Mbeya-Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R. 251. In this case, the Court held among other things thus: 6 "(i) The right of hearing is a fundamental constitutional right in Tanzania by virtue ofArticle 13 (6) (a) o f the Constitution; (ii) The judge's decision to revoke the rights o f M/s Kagera and the appellant, without giving them opportunity to be heard, was a violation o f the Rules o f natural justice, but also a contravention o f the Constitution, hence void and o f no effect." See also Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 133 of 2002; Dishon John Mtaita v. Director of Public Prosecutions, Criminal Appeal No. 132 of 2004; and Margwe Erro &Two Others v. Moshi Bahalulu, Civil Appeal No. I l l of 2014 (both unreported). On the strength of the cited authorities, it is clear that the trial court erred in denying the applicants the right to be heard before it rejected their application. Secondly, the trial court erred in law when it summarily rejected the said application for the reason that the remedy available to the applicants was to file a fresh suit. First of all, we have shown that the trial court ought to have dismissed the suit and not striking it out as it did. Now, the remedy available under the law for the suit which was dismissed for non- appearance of the plaintiff is to apply to set aside the dismissal order and not to bring a fresh suit in respect of the same cause of action. Order IX rule 9 of the CPC provides that: "Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for an order to set the dismissal aside andf if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit." [Emphasis added] Going through the cited provision of the law, it is clear that the trial court erred in law rejecting the applicants' application to set aside the suit which ought to have been dismissed under rule 8 of Order IX of the CPC. Now, invoking the Court's revisional powers under section 4 (3) of the AJA, we quash the order of the trial court striking out the suit and replace it with an order of dismissal of the suit. Likewise, we quash the order of the trial court summarily rejecting the application by the applicants to set aside the order which struck out the suit. For what we have decided herein, the complaint relating to summary rejection of the application for review (Misc. Civil Application No. 40B), dies naturally. 8 Consequently, we find that the application has merit and proceed to grant it. We therefore remit the case to the trial court for determination of the application for setting aside the dismissal order of the suit. In the circumstances of the case, we make no order as to costs. DATED at DAR ES SALAAM this 6th day of April, 2023. A. G. MWARIJA JUSTICE OF APPEAL M. A. KWARIKO JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL The Ruling delivered this 11th day of April, 2023 in the presence of Mr. Roman Selasini Lamwai, learned counsel for the Applicants and Mr. Stephen Noe Kimaro, learned State Attorney for the Respondents is hereby certified as a true copy of the original. 9