CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA rCORAM: KEREFU, J.A.. FIKIRINI. 3.A. AND MASOUP. 3J U CIVIL APPEAL NO. 553 OF 2022 HUGHES AGRICULTURAL (T) LIMITED....................................... APPELLANT VERSUS SIMON GROUP LIMITED........................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam) (Maruma. 3.^ dated the 16th day of May, 2022 in Commercial Case No. 31 of 2021 JUDGMENT OF THE COURT 19th & 25th February, 2025 MASOUP, J.A.: In the High Court of Tanzania, Commercial Division, at Dar es Salaam, the respondent filed a suit against the appellant, alleging illegal repossession by the appellant of ten tractors and their ploughs that she had bought from her under a hire purchase agreement. The respondent claimed in her plaint that the illegal repossession occurred after she had paid 81% of the total purchase price under an agreed installment arrangement. In her plaint, the respondent sought from the trial court the following reliefs: A declaration that the appellant's act of repossessing the said tractors 1 was illegal; an order of the court that the said tractors should be returned to the plaintiff [the respondent] in the same condition as they were at the time of repossession; that, the appellant should pay the respondent a sum of money to the tune of TZS 21,101,974,475.00 as specific damage as loss of revenue; that, the appellant to pay the respondent general damages as the court may deem fit; cost of the suit to be borne by the appellant and any other remedies as the court may deem fit to grant. The appellant filed a written statement of defence opposing the suit and raised a counterclaim against the respondent. In the counterclaim, the appellant alleged that she had already sold the tractors and their ploughs, having repossessed them from the respondent, following respondent's default in the agreed instalments payment schedule. In the counterclaim, the appellant prayed for the following reliefs: A declaratory order that the respondent is in breach of contract; an order directing the respondent to pay the appellant outstanding of TZS 407,252,289.85 calculated as provided for in paragraphs 12, 13, and 14, of the counterclaim; an order directing the respondent to pay interest on the decretal sum at commercial rate of 23% per annum from the date it became due to the date of judgment; an order directing the respondent to pay 2 interest on the decretal sum at a rate of 7% from the date of judgment until payment in full. The record has it that the trial court framed three issues, namely, what were the terms of the contract amongst the parties; whether there was a breach of the terms of contract on the part of the respondent; whether the appellant has a right to repossess the tractors; and to what reliefs parties are entitled. Thereafter, the parties filed witness statements of their respective witnesses in lieu of examination in chief in accordance with the law. To be clear, whereas the respondent had only one witness, the appellant had a total of three witnesses. After the trial in which the witnesses were cross-examined and re­ examined based on the witnesses' statements filed in lieu of examination in chief and which trial commenced following framing of the above issues and filing of the witness statements, the trial court considered the evidence adduced in respect of the suit and the counterclaim. Essentially, the evidence for the respondent's case was from Robert Simon Kisena (PW1) whilst for the appellant's case the evidence was from Gustaph Ndumbaro(DWl), Ketta Sambo (DW2), and Stuart Leishman (DW3). Consequently, the trial court entered the impugned judgment in which it held that, there was breach of the contract entered between the parties on 3 account of the respondent's failure to settle the remaining balance of the total purchase price by August, 2017. The impugned judgement further held that, there was outstanding balance of purchase price to be paid by the respondent which it did not however ascertain from the evidence adduced by the appellant, and that, there was also right on the part of the appellant for repossession of the tractors from the respondent subject to fulfillment of conditions provided for under the Hire Purchase Act, Cap. 214 and which the appellant did not comply with. In the result, the trial court in its impugned judgment ordered thus: 1. The defendant illegally re-possessed the ten tractors and ploughs which had already been delivered to the plaintiff since 2016 contrary to the law... 2. The defendant to return the said tractors to the plaintiff in the condition that they were in by the time they were taken. 3. In relation to the counterclaim, the plaintiff is ordered to settle the outstanding amount o f the remaining principal sum and commercial interests' accruals up to the date o f the judgment. 4. The plaintiff is awarded general damages to the tune o f TZS 130,000,000.00. 5. The defendant to pay costs. 4 Aggrieved by the decision of the trial court, the appellant lodged the instant appeal raising a number of grounds which for reasons that will become obvious shortly, we need not reproduce them. On the other hand, the respondent likewise cross-appealed against the decision as she was dissatisfied by certain parts of the trial court's decision reflected in the grounds of cross-appeal raised and which can be paraphrased thus: First, as the tractors had been auctioned, it was wrong to order return of the same to the respondent on the same condition they were when repossessed; second, it was an error failing to order refund of purchase price paid by the respondent; third, it was an error for the trial judge not to order the appellant to pay the respondent specific damages; and four, it was an error to order the respondent to settle the outstanding amount of the remaining principal sum and commercial interest accrued. When the appeal was called on for hearing, Mr. Julius Karata and Mr. Gaspar Nyika, both learned advocates appeared for the appellant and respondent respectively. At the outset, Mr. Nyika informed the Court of the notice of preliminary objection lodged by the respondent to the effect that the appeal by the appellant was hopelessly time barred for being filed out of time provided for under rule 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules); and for failure to comply with the requirement provided 5 under rule 84 (1) of the Rules. The objection was straight away conceded to by Mr. Karata who however prayed to be spared costs on account of his instant concession. Following the concession, Mr. Nyika, asked the Court to consider revising the record of the trial court which is before the Court on account of a number of serious irregularities apparent of the record, particularly the trial court's judgment which have occasioned injustice to the respondent. He pointed out such irregularities as follows: One, whilst the trial court ordered the tractors and ploughs to be returned to the respondent as they were when repossessed, there is evidence of DW3 at page 140 of the record of appeal demonstrating that the tractors had all been sold as alleged in the counterclaim raised by the appellant against the respondent. Although it was pleaded to that effect and the evidence was on the record led in that regard, the trial court did not consider the issue and never determined it and make a finding, whilst it was crucial in the final and conclusive determination of the entire dispute before the court. Two, the trial court also ordered the respondent to settle the outstanding amount of the remaining principal sum and commercial interests' accrual up to the date of the judgment. However, the amount to be settled remains 6 unclear as it was never ascertained by the trial court. Consequently, it was unrealistic to make such an order given that the respondent's business had been interrupted following repossession of the tractors by the appellant and the fact that the parties cannot ascertain the amount having taken the dispute to the trial court for its decision, the learned counsel contended. In the end, Mr. Nyika roundly urged us to find that the impugned judgment did not exhaustively determine the controverse between the parties conclusively. In that respect, he maintained that; the trial court did not determine some matters that were raised by the parties for the trial court's determination which meant that the dispute was not conclusively resolved in its entirety. With the above conclusion, Mr. Nyika asked for leave of the Court to abandon the respondent's cross-appeal, and instead of striking out the appellant's appeal as a result of being incompetent on account of violating rules 84 (1) and 90 (1) of the Rules in order to remain seized with the trial court record, the Court should consider exercising its power of revision under section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) in order to correct the irregularities pointed out herein above. In so doing, the Court should in the end find it fit to, nullify, quash the judgment and set aside the decree of the trial court in Commercial Case No. 31 of 2021 delivered on 16th 7 May, 2022 and then, remit the record to the trial court for it to compose a fresh judgment in accordance with the law. On his part, Mr. Karata agreed entirely with the submission and prayers by his learned friend, adding that the impugned judgment left a lot to be desired in determining the dispute between them. That, it did not squarely address and resolve the dispute which was brought before it for determination. It was his opinion that because of the irregularities pointed out by Mr. Nyika, the decree of the trial court in the matter can hardly be enforced by either of the parties. As to costs, Mr. Karata, as was Mr. Nyika, was of the view that each party should bear own costs. Based on the foregoing and the concerns raised by the learned counsel for the parties, the issue is whether there is any matter that was raised by the parties in their pleadings and evidence which was not determined by the trial court although it was crucial in final determination of the dispute between them; and if the answer is in the affirmative whether the omission amounted to serious irregularity vitiating the impugned judgment and warranting granting of the prayers sought. To start with, we critically looked at the trial court's record to confirm whether or not the fact that the ten tractors had been sold or not was raised in the pleading and evidence was in that respect adduced. On the record, we took note of paragraph 24 of the counterclaim raised by the appellant at page 209 of the record of appeal in which the appellant was clear in her averment that the tractors had already been sold by auction at a total purchase price of TZS 248,730,410.00. We considered that averment in the light of the plaint by the respondent at page 195 through 198 of the record of appeal and paragraph 12 of the written statement of defence by the respondent to the counterclaim raised by the appellant at page 212 through 214 of the record of appeal whereby the respondent disputed the allegation and put the appellant to strict proof of the allegation. Furthermore, we perused the witness statements of both the appellant's and respondent's witnesses. In so doing, we found with ease that the evidence by DW2 testifying for the appellant was evident at pages 67, 68 and 140 that the said tractors having been valued at TZS 243,390,281.51 by TEMESA and sold at TZS 250 million. On the contrary, the respondent's witness (PW1) was silent as to the sale of the tractors, although in his examination in chief stated that if at all the tractors had already been sold by the appellant, the trial court should consider ordering the appellant to refund the respondent the purchase price paid which is to the tune of TZS 481,297,862.00. 9 We have also noted at page 70 of the record of appeal that, the trial court on 11th March, 2022 ordered the parties to file their closing submissions by 1st April, 2022. In compliance with that order, the appellant filed closing submission on 31st March, 2022. In the appellant's closing submission, the issue of repossession and the subsequent sale by a public auction of the tractors at a total purchase price of TZS 248,000.00 was raised and argued. In light of what we found in relation to the sale of the tractors, we examined the trial court's judgment at page 9 through 25 of the record. Unfortunately, we could not find anywhere in the said judgment that the learned trial judge appraised the relevant pleadings, evidence and made a specific determination and finding on the matter that could have informed his final decision one way or the other and thereby, resolving the entire controverse between the parties in its entirety. It means that the controversy between the parties was not conclusively resolved in accordance with Order XX, Rule 4 of the Civil Procedure Code, Cap. 33 which requires a judgment to contain a statement of the case, points for determination, the decision thereon and the reasons for such decision as we held in the case of Omary Abdallah Kilua v. Joseph Rashid Mtunguja (Civil Appeal No. 178 of 2019) [2020] TZCA 1791 (25 September 2020, TANZLII). The course taken by the trial judge was, therefore, contrary to the principle of determination of disputes between the parties that courts of law 10 must limit themselves to the issues raised by the parties to the pleadings as to act otherwise might well result in denying the parties right to fair hearing. See for instance, B 8356 S/Sgt Sylvester S. Nyanda v. Inspector General of Police and Another (Civil Appeal No. 64 of 2014) [2014] TZCA 215 (28 October 2014, TANZLII). There was, therefore, in our finding, an omission on the part of the learned trial judge to decide the issue which had been raised and addressed by the parties in their pleadings and evidence as we have already indicated herein above. The omission has the effect of vitiating the impugned decision because it left the issue raised and addressed by the parties and which had to be determined by the trial court for conclusive determination of the dispute undetermined. See for instance, Omary Abdallah Kilua (supra). We agree with the learned counsel for both sides that, the learned trial judge strayed into an error of failing to determine the dispute based on matters that were brought to her attention on the pleadings and the evidence. Thus, the only remedy available to us is to nullify and quash the judgment, set aside the decree and remit the case to the High Court for it to compose a fresh judgment in accordance with the law. In this regard, we think this is fit case for us to invoke section 4 (2) of the ADA. For the reasons stated above, we invoke section 4(2) of the AJA. Consequently, we nullify and quash the judgment and set aside the decree of li the trial court in Commercial Case No. 31 of 2021 delivered on 16th May, 2022. Accordingly, we order the case file to be remitted to the trial court for composing afresh a judgment in accordance with law. In view of the outcome we have reached, we need not to pronounce anything in relation to other prayers by Mr. Nyika which were not objected to by Mr. Karata. Given the circumstances of the appeal, we order that each party shall bear its own costs. It is so ordered. DATED at DODOMA this 25th day of February, 2025. R. J. KEREFU JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL B. S. MSOUD JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2025, in the presence of Mr. Julius Karata, learned counsel for the Appellants and Ms. Faiza Salah, learned counsel for the Respondent, linked via Video Conference from Dar es salaam is hereby certified as a true copy of the original.