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IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: WAMBALI. 3.A.. KIHWELO, 3.A. And ISSA. J.A.^ CIVIL APPEAL NO. 541 OF 2020 DOMINIC ISHENGOMA.................................................................APPELLANT VERSUS MANAGING DIRECTOR, GEITA GOLD MINING LIMITED................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mwanza) (Sivani. 3.^ dated the 27th day of 3une 2019 in Misc. Civil Application No. 39 of 2019 JUDGMENT OF THE COURT 2nd & 12th July, 2024 KIHWELO, J.A.: In his quest for justice, the appellant had to tread a long and, perhaps also, a seemingly endless path which, quite unfortunately, turned out to be a tall order. The background to this appeal has a bit of protracted history, but in so far as they are relevant to the matter before us, they may be summarized briefly as follows. Following the unsuccessful attempt by the appellant before the Resident Magistrate's Court of Mwanza at Mwanza i in Civil Application No. 7 of 2017 (the RMs Court), the appellant, lodged Civil Appeal No. 65 of 2017 (the appeal) before the High Court of Tanzania at Mwanza (the High Court), seeking to challenge the said decision of the RMs Court. The respondent through the legal services of Mr. Silwani Galati Mwantembe, learned counsel of Galati Law Chambers Advocates, sturdily contested the appeal. Apart from opposing the appeal, the respondent raised a preliminary point of objection notice of which was lodged in the High Court on 4th April, 2018, to the effect that, the ruling and order appealed against, are not one of the appealable orders under section 74 and Order XL rule 1 of the Civil Procedure Code, Cap. 33 (the CPC). At the height of the determination of the preliminary objection, which was orally argued by the counsel for the respondent, but in the absence of the appellant, who did not appear despite being aware of the last order which by consent set the matter for hearing of the preliminary objection, the High Court (Siyani, J.) was satisfied that, the orders from execution proceedings are not appealable and therefore, the appeal was struck out with costs. Sequel to that, the appellant on 15th March, 2019, lodged before the High Court, Miscellaneous Civil Application No. 39 of 2019 (the 2 application) in terms of Order XXXIX rule 19 and section 95 of the CPC seeking the following orders: "1. The ex parte hearing and the resultant ruling o f the High Court (Hon. Siyani, J) dated 22nd February, 2019 in C ivil Appeal No. 65 o f 2017 striking out the appeal be set aside and the appeal be re-adm itted and proceed inter partes in accordance with the law, 2. Costs o f this application be costs in the cause". The application was premised on the ground that, the applicant was prevented by illness from appearing when the appeal was called on for hearing of the preliminary objection. The application was supported by the affidavit duly sworn by the appellant. Once again, the application was met with a preliminary objection which was raised by the respondent through Mr. Mwantembe to the effect that, the application was incompetent as the High Court was moved to set aside the order that struck out the appeal and restore it, while it was struck out on the basis that it was incompetent. On 27th June, 2019, the High Court (Siyani, J.) upon considering the rival submissions, was of the view that, Order XXXIX rule 19 of the CPC was inapplicable in the circumstances of the matter before him since 3 the appeal sought to be restored was struck out for incompetence and not dismissed for non-appearance under Order XXXIX rule 11 (2), 17 or 18 of the CPC. For that matter, the preliminary objection was sustained and the application was found to be devoid of merit for incompetence and therefore, it was struck out with costs. Feeling that justice was not rendered, and in further quest for justice, the appellant, seeks to impugn the verdict of the High Court (Siyani, J.), and on 10th November, 2020 he lodged the present appeal. Initially, the appeal was premised on eleven grounds. However, when it was placed before us for hearing, the appellant who appeared in person unrepresented elected to abandon the third, fourth, fifth, ninth, and tenth grounds which we shall not take the pain to reproduce them at this juncture, remaining with the first, second, sixth, seventh, eighth and eleventh grounds which may conveniently be crystalized hereunder. First, the High Court Judge erred for his failure to hold that the hearing ex parte of the preliminary objection was null and void, second, the High Court Judge erred for his failure to hold that the ruling on the preliminary objection that struck out Civil Appeal No. 65 of 2017 amounted to an order for dismissal, sixth, the High Court Judge erred for his failure to hold that, the ex parte hearing of the preliminary 4 objection was part and parcel of the hearing of the appeal, seventh, the High Court Judge erred to hold that Order XXXIX rule 19 of the CPC was inapplicable, eight, the High Court Judge erred to sustain the preliminary objection and strike out the appeal and, eleventh, the High Court Judge erred to award costs in labour related matters. The appellant chose to argue these grounds conjointly since they are closely intertwined, save for the eleventh ground which was argued separately and we shall treat it so. Essentially, when closely looked at, all the six grounds boil down to two main points of contention. One, the High Court Judge erred to hold that Order XXXIX rule 19 of the CPC is inapplicable in the circumstances of the impugned decision, and; two, the High Court Judge erred to order costs in labour related matters. Both the appellant who appeared before us, in person unrepresented, and Mr. Silwani Galati Mwantembe, learned counsel for the respondent, fully adopted their respective written submissions which were earlier on lodged in Court. The applicant, apart from abandoning the grounds of appeal as hinted before, prefaced his submission by giving a very detailed account of the background of the appeal. In his submission, the appellant argued 5 the first, second, sixth, seventh and eighth grounds of appeal conjointly and faulted the High Court Judge for holding that, Order XXXIX rule 19 of the CPC is inapplicable in the circumstances of the impugned decision. He took the view that, the hearing of the preliminary objection ex parte in the appeal was part and parcel of the hearing of the appeal, and that, in the absence of the appellant on that day, the High Court was duty bound to either dismiss the appeal for the appellant's default to appear or adjourn the hearing of the preliminary objection to some other date. For him, the order striking out the appeal on the basis of the preliminary objection was nothing, but it amounted to an order of dismissal of that appeal in default of the appellant's appearance. In further arguing the appeal, the appellant contended that, the ruling and the resultant order striking out the appeal is void of merit and illegal. For in his view, it was erroneous for the High Court Judge to hold that it would have been improper to dismiss the appeal instead of determining the preliminary point of objection. Reliance was placed in the case of Scolastica Benedict v. Martin Benedict [1993] T.L.R. 1 for the proposition that the doctrine of functus o fficio does not apply where the matter was heard and decided ex parte. The appellant also referred us to Mulla on the Code of Civil Procedure, 13th Edition, 6 Volume 2 as well as Sarka's The Law of Civil Procedure, 8th Edition, Volume 2 for the proposition that where an appeal is dismissed for non-appearance of the appellant or non-appearance of both parties, the remedy is restoration and not further appeal. Adverting on the eleventh ground of appeal, the appellant was very brief, he faulted the Judge of the High Court for awarding costs while striking out the appeal and the application knowingly that, the respondent did not pray for it, and in total disregard of the fact that, they being labour related matters, they did not attract award of costs. To support his proposition, he cited to us the case of Nkwabi Shing'oma Lume v. Secretary General, Chama cha Mapinduzi, (Civil Appeal No. 234 of 2017) [2020] TZCA 67 (25 March 2020: TanzLII). Speaking of the above cited case, it is, perhaps, pertinent to observe that, it is not relevant. Apart from stating that, since that matter was a labour dispute not attracting award of costs and that the Court, could not make any order for costs, there was neither discussion nor principle established in relation to award of costs in labour matters. The appellant thus, took the view that, the instant appeal has merit and therefore, it should be allowed. The order of the High Court 7 striking out the appeal be set aside and the appeal should proceed inter partes. Conversely, Mr. Mwantembe, having elected to adopt the written submissions in rebuttal to the appeal as hinted before, made some few clarifications. In his written submissions, the learned counsel argued that, the Judge of the High Court was right in refusing to restore an incompetent appeal which was struck out. In his view, the vexing issue before the Court like in the High Court is whether the High Court could re-admit an appeal which was struck out on account of being incompetent. The learned counsel contended further that, all the commentaries by Mulla and Sarkar quoted extensively by the appellant in respect of re­ admission of an appeal which was dismissed on the ground of default to appear or failure to deposit costs in terms of rules 11 (2), 17 and 18 of Order XXXIX of the CPC are inapplicable in the circumstances of the instant appeal before us. Elaborating, the learned counsel argued that, the appeal was not dismissed in the first place, but rather, it was struck out on account of being incompetent and, therefore, it was erroneous and wrong for the appellant to invite the High Court to re-admit an incompetent appeal. He took the view that, it was a misconception on 8 the part of the appellant that, the hearing of the preliminary objection was part and parcel of the hearing of the appeal. In that case, the learned counsel contended that, the cited authorities by the appellant are inapplicable in the circumstances of the instant appeal before us. He rounded off by submitting that, the High Court Judge was right to hold that the appeal was not amenable for re-admission. In response to the eleventh ground of appeal, the learned counsel argued that, it is not in every labour matter that parties are precluded from granting of costs. In his view, the position of the law is settled and clear, referring to rule 51 (2) of the Labour Court Rules, 2007, Government Notice No. 106 of 2007 (the Labour Court Rules), which empowers a High Court Judge to award costs in labour dispute against a party initiating proceedings as long as the proceedings are found to be frivolous and/or vexatious. He paid homage to the case of Edward Lenganasa v. The Trustees of Tanzania National Parks (TANAPA), (Civil Appeal No. 120 of 2008) [2011] TZCA 57 (18 February 2011: TanzLII) to demonstrate his proposition. In responding to the second limb of the complaint that costs were awarded by the High Court without there being a prayer by the respondent, the learned counsel submitted that, granting of costs is 9 discretional and he cited the case of Saidi Kibwana and Another v. Rose Jumbe [1993] T.L.R. 192 and Mohamed Iddi Mjasir v. Jayalaxmi Jayantilal Joshi [1993] T.L.R. 279 for the proposition that, costs ordinarily follow the event. All in all, he urged us to dismiss the instant appeal. At the outset, it is important to recapitulate that, upon striking out the appeal, the appellant lodged an application which was predicated on Order XXXIX rule 19 and section 95 of the CPC seeking to vacate the dismissal order and re-admit the appeal. The question which has exercised our mind quite considerably is whether, the appellant took the right approach in moving the court under the cited provisions of the law. In an attempt to answer that question, and for the sake of precision, we should first appreciate what the provisions of Order XXXIX rule 19 of the CPC provides: "19. Where an appeal is dism issed under sub-rule (2) o f rule 11 or rule 17 or rule 18, the appellant may apply to the Court for the re-adm ission o f the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or 10 from depositing the sum so required, the Court sh a ll re-adm it the appeal on such term s as costs o r otherw ise as it thinks fit . " It is also convenient at this stage to excerpt the provisions of Order XXXIX rules 11 (2), 17 and 18 which governs circumstances upon which an appeal may be dismissed and therefore qualify for restoration under Order XXXIX rule 19 which was relied upon by the appellant in seeking re-admission of the appeal. "11.- (2) I f on the day fixed o r any other day to which the hearing m ay be adjourned the appellant does not appear when the appeal is called on fo r hearing the Court m ay make an order that the appeal be dism issed. 17.-(1) Where on the day fixed o r any other day to which the hearing m ay be adjourned, the appellant does not appear when the appeal is called on fo r hearing, the Court m ay m ake an order that the appeal be dism issed. (2) Where the appellant appears and the respondent does not appear, the appeal sh a ll be heard ex parte. 18. Where on the day fixed, o r any other day to which the hearing m ay be adjourned, it is found that the notice to the respondent has not been li served in consequence o f the failure o f the appellant to deposit, within the period fixed, the sum required to defray the cost o f serving the notice , the Court m ay make an order that the appeal be dism issed". Quite clearly, the provisions above are conspicuously explicit to us, and leave no room for any ambiguity, in that, Order XXXIX rule 19 of the CPC applies where the appeal has been dismissed under the circumstances referred to in Order XXXIX rules 11(2), 17 and 18 of the CPC and not where the appeal has been struck out as is the case in the impugned decision. The appellant made such an enduring impression that, the hearing of the preliminary objection ex parte in the appeal was part and parcel of the hearing of the appeal and that, in the absence of the appellant on that day, the High Court was duty bound to either dismiss the appeal for the appellant's default to appear or adjourn the hearing of the preliminary objection to some other date. It is not insignificant to state that, the appellant's argument is decidedly thin. It bears reaffirming that, where a party has raised a point of preliminary objection, then, it is prudent to dispose that point of preliminary objection before moving further to determination of the matter, be it an application, suit or appeal hence hearing of a preliminary 12 objection is not part and parcel of the hearing of the appeal. We find considerable merit in the submission by the learned counsel for the respondent that, the High Court Judge was undeniably right to consider the preliminary objection first in order to determine the propriety of the appeal before him. We must confess to our being rather surprised by the appellant's argument and reliance on the commentary by Mulla and Sarkar while discussing the effect of dismissal of an appeal for non-appearance, which in our view, is not applicable, since the appeal sought to be restored was struck out for incompetence following a preliminary objection, and not dismissed for non-appearance under Order XXXIX rule 11 (2), 17 or 18 of the CPC as the appellant sought to convince us. We must at this stage express that, we are quite satisfied, like the High Court Judge, and we see no conclusion other than that, Order XXXIX rule 19 of the CPC is inapplicable in the circumstances of the impugned decision. In the circumstances, the first, second, sixth, seventh and eighth grounds of appeal stands dismissed. Our next attempt is deliberation of the complaint that the High Court Judge erred to award costs in utter disregard of the fact that, 13 labour related matters, do not attract costs and without there being any prayer from the respondent. It is, we think, apparent that, the argument that labour related matters, do not attract costs is to say the least, far-fetched and untenable. The counsel for the respondent is undeniably right in that, the position of the law is settled and clear, a High Court Judge has discretionary powers under rule 51 (2) of the Labour Court Rules, to award costs in labour dispute against a party initiating proceedings where such proceedings appears to be frivolous and/or vexatious. There is a considerable body of case law in this. For instance, in the case of Edward Lenganasa v. The Trustees of Tanzania National Parks (supra) and Stanbic Bank (T) Limited v. Iddi Halfani, (Civil Appeal No. 139 of 2021) [2023] TZCA 17496 (11 August 2023: TanzLII) we discussed this at considerable length and came to the conclusions that, it is not always that labour related matters do not attract costs. With respect, we think, there is some validity and substance to the submission by the learned counsel for the respondent in respect of this argument. The appellant has further argued that the High Court Judge awarded costs without there being a prayer from the respondent. We think, with respect, that this argument is barren of merit for the reasons 14 stated above in that although rule 51 (1) of the Labour Court Rules, prohibits any award of costs, however, that prohibition does not apply where in the opinion of the Judge the proceedings appears to be frivolous and/or vexatious. Now, the next question that follows from the above is, whether the proceedings in the appeal before us appears to be frivolous and/or vexatious to warrant any award of costs. We are settled in our minds without any shade of doubt that the proceedings both before the RMs Court where the appellant sought to challenge the execution proceedings, the appeal as well as the subsequent application were not frivolous and/or vexatious so to speak and the reason is not far-fetched. The appellant felt that justice was not rendered and in further quest for justice he lodged the application before the RMs Court upon being unsuccessful, the appellant kept seeking to pursue his legal rights. It is just very unfortunate that the appellant was unsuccessful, but his actions were not unjustifiable so as to be termed frivolous and/or vexatious. It is not hugely surprising to see that the appellant has come this far in quest for justice. With respect, we are unable to agree with the learned counsel for the respondent that the respondent was entitled to costs since in our considered view, the proceedings were not frivolous 15 and/or vexatious. We therefore, find merit in the eleventh ground. Hence, we set aside the order for costs in both the appeal and the impugned application of the High Court. In the circumstances, save for the eleventh ground which we have allowed, the appeal is accordingly dismissed. We make no order as to costs. DATED at MWANZA this 11th day of July, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 12th day of July, 2024 in the presence of the appellant in person and Mr. Silwani Galati Mwantembe, learned counsel for thergspondent; is hereby certified as a true copy of the original. \^V. Si! S jj D. R. LYIM LYIMO PUTY REGISTRAR ^COURT OF APPEAL 16