emmanuel kayanda vs felister nshatsi 2020 tzhc 239 27 february 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT KIGOMA CIVIL REVISON NO. 2/2019 (Arising from Kibondo District Court at Kibondo Civil Case No. 3 o f 2018 ) EMMANUEL KAYANDA...............................................APPLICANT VERSUS FELISTER NSHATSI........................................... RESPONDENT RULING Date: 27th February, 2020 Before: Hon. A.K. Matuma, J The applicant Emmanuel Kayanda sued the respondent Felister Nshatsi vide Civil Case No. 3/2018 in the District Court of Kibondo at Kibondo for two torts namely False imprisonment and Malicious prosecution. He claimed a total of Tshs 150,000,000/= being Tshs 70,000,000/= for each tort as general damages and Tshs 10,000,000/= as specific damages. The trial Court heard the case of both parties and set a judgment date. In the course of preparing his judgment the trial Magistrate noted some legal issues in which he thought affected the jurisdiction of the Court for the plaint was not properly drafted. According to him the plaint suffered defective verification clause, place of verification was not disclosed, the purported annexures in the plaint were not really attached but tendered during hearing without objection, and the pleaded specific damages was within the pecuniary jurisdiction of the Primary Court. With all these observed "anomalies" the trial Magistrate decided not to determine the matter on merit but resolve them in his judgment. He started to resolve the issues raised Suo Motto by regretting; "Should I say first; I regret for opening my eyes at this stage over the document purported to be termed as piaint. But as weii I regret, as to why the same the learned Counsel for defendant didn't rose preliminary objection on various defect on the plaint during preparation of written statement of defence". Having so regretted the trial Magistrate resolved the issues he has raised Suo Motto at the judgment writing stage as herein above stated and finally concluded that the suit was not properly before him. He did then struck out the plaint with costs; "For the above noted errors Suo Moto I feel impossible to act as a blind and proceed with merit on a suit founded on improper plaint. Actually no plaint. I therefore struck out the plaint for the defect above explained The applicant was aggrieved with the said decisions but could not appeal in time. He thus lodged an application before this Court for extension of time (Misc. Civil Application No. 6 of 2019). My learned brother I.C. Mugeta Judge, dismissed the application with costs for having been brought without sufficient cause. The applicant then preferred this application for Revision on the ground that there is an apparent errors on the face of record of the trial Court's judgment. At the hearing of this application, Mr. Hope Kawawa learnetfadvocate appeared for the applicant who was also present in person while the respondent was represented by advocate Eiluta Kivyiro. Mr. Hope Kawawa learned advocate argued the application on the ground that the applicant's right to be heard was breached by the trial Court when it decided to compose a judgment basing on the issues raised by itself Suo Moto and without according opportunity to the parties to address on the issues. He cited the case of Jamal Ahmad versus CRDB Bank Limited, Civil Appeal No. 52/2010 in which the Court of appeal allowed the appeal on a similar defect that the trial Court decided the matter on the issues not addressed to the parties nor the parties accorded opportunity to address them. He also cited the case of EX 8.8356 S/SGT Sylivester S. Nyanda versus Inspector General of Police No. 64/2014 on the same effect. On his party Mr. Eliuta Kivyiro learned advocate conceded that the trial Court's judgment was uncalled for, as it rested on issues strange to the parties. He called this Court to quash the judgment and direct the parties to be heard on the issues. It is not difficult to resolve this matter as it bears similar facts with what happened in the case of Ex-B. 8356 S/sgt Syliveter S. Nyanda supra which the applicant cited. I will thus resolve the instant matter in the manner the Court of Appeal resolved that of S/sgt Sylivester Nyanda supra. In the above Sylivester Nyanda's case, the High Court where the suit was filed framed issues and heard the evidence of both parties. At the judgment writing stage and after revisiting the evidence before it, the trial High Court abandoned the issues previously framed and raised a new one on which alone its decision rested. On appeal to the Court of appeal, the Court observed that the parties concentrated on the issues which were framed at the commencement of the trial in respect of which they endeavored to give evidence for or against the allegations in the pleadings which were filed. The court of appeal further observed that the parties were guided by pleadings before the court whose essence is to compel the parties to define accurately and precisely the issues upon which the case between them is to be fought to avoid the elements of surprise by either party. It also guides the parties to give evidence within the scope of the pleaded facts - See James Funke Gwagilwa v. Attorney General [2004] T.L.R.161. In the instant matter, the trial Magistrate did not decide the case on the issues which were framed, but his decision was anchored on some issues he framed suo mottu. It is an elementary and fundamental principle of determination of disputes between the parties that courts of law must limit themselves to the issues raised by the parties in the pleadings as to act otherwise might well result in denying any of the parties the right to fair hearing - See, among others, the case of Mire Artan Ismail & Another v. Sofia Njati, Civil Appeal No. 75 of 2008, CAT (unreported). However, I am aware that the trial court had power to amend, add or strike out issues under Order XIV Rule 5 of the CPC. But it has been part of our procedural law that where this is done, the parties are afforded opportunity to address the court on the issues so amended or added, intandam with the audia/terampartem principle of natural justice as has been insisted in a range of cases including that of Mbeya -Rukyya Autoparts and Transport Ltd v. Jestina GeorgeMwakyoma [2003] T.L.R.251 in which the English case of Ridge v. Baldwin[1964] AC 40 was considered, the Court emphasized that:- "In this country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13(6)(a) includes the right to be heard among the attributes of equality before the law, and declares in part: (a) Wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuziwa Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu . . ." I hasten to say that this was unfortunately not observed in the circumstances of the present case, for which I am constrained to find and hold that it amounted to a fundamental procedural error and occasioned a miscarriage of justice. What should I do in the circumstances? I will seek the guidance in the Court of appeal decision in the case of Peter Ng'homango v. The Attorney General, Civil Appeal No. 114 of 2011 in which the Court of Appeal reversed or nullified the decision of the trial court upon being satisfied that the issue of jurisdiction was unilaterally raised and decided without affording the parties an opportunity to address the same. To be particular, the Court stated that:- "In the result, we have no option but to declare the judgment of the High Court a nullity. The move by the High Court to base his (sic: its) decision on an unconsidered issue was a fundamental procedural error and occasioned a miscarriage of justice." 5 The Court quashed the judgment of the trial court and set aside the dismissal order. Since the situation in the present case is similar to what transpired in Peter Ng'homango v. The Attorney General, supra, I resort to the provisions of section 44(1) (b) of the Magistrates Courts Act Cap 11 of the Revised Edition, 2002 and XLIII rule 1 (b) of the Civil Procedure Code on the basis of which I quash the judgment of the trial Court and set aside the struck out order. As before me, I have not heard any complaint on the proceedings generally nor that the evidence on record was incorrectly recorded or that there was unwarranted rejection of some potential evidence, and by considering that both parties were fully heard only that they were waiting for the judgment on merit or otherwise on their respective evidences, I remit the record to the trial Court with a direction that the same Magistrate who tried the case should compose and deliver the judgment on merit not later than thirty days after the record has been placed before him. In the case he is not available and it is impossible to procure him, then the matter can be reassigned to another magistrate of competent jurisdiction and the rules and legal guidance for change of trial magistrates in Civil matters should fully be adhered. Whoever shall be aggrieved by the decision thereof shall be at liberty to take a legal cause in pursuing his or her right. In the event, this application has.igfifitand I allow i js to costs. A.K. Matuma Judge 27th February, 2020 6