20100212 TZCA Dar es Salaam

i, 1' I IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR i1 I { CORAM: RAMADHANI C.J., MSOFFE. J.A. And LUANDA, l.A.) - I I' CIVIL APPEAL NOJ 51 OF 2009 JAFFARI SANYA JUSSA ....................... ~t ... ... ... ... ...... ..... 1ST APPELLANT ISMAIL SANYA JUSSA .............. ~ ................................ 2ND APPELLANT \ I', 11 I' VERSUS SALEHE SADIQ OSMAN ...................... ~. ........................ RESPONDENT !1 ' {Appeal from the decision of the High Court of Zanzibar atVug~) ;, 'I {Dahoma~ J.) I' I st dated 1 day of October, 1997 • I In I Civil Application No. 61 of 1997 JUDGMENT OF THE COURT 11 th December, 2009 & 4th March, 2010 I LUANDA, J. A: , I I i i I 11 The above named appellants namely JAFARI SANYA JUSSA and , I, . , ISMAIL SANYA JUSSA (hereinafter referred to as the 1st and 2nd ' I , appellants respectively) are dissatisfied with the decision of the High I I, Court of Zanzibar sitting at Vuga. Tijey have preferred this appeal. A brief factual background to the matt~r will be helpful. ,, , I, I' :I ,I I I I [;1 r I 2 On 27/9/96 the appellants jointly and severally instituted a civil case in the above mentioned Court demanding a total sum of Tsh 100,000,000/= each claimed Tshs 50,000,000/= being damages for wrongful imprisonment and malicious prosecution, interest and costs. The respondent did not only deny the claim but also counter claimed and prayed the court to order each appellant to pay him Tsh 25,000,000/= as damages for trespass, interest and costs. In addition he prayed that the 1st appellant should also be ordered to pay him Tsh 21,635,500 being replacement costs for his demolished house. He also prayed for interest and costs for this item. The appellants denied the respondent's claim. On 27/5/1997 when all the pleadings were duly filed, in absence of their advocates, the parties to the suit consented to adjourn the matter and the court fixed the same to come for hearing on 11/08/1997 and 12/08/1997 consecutively. On 11/08/1997 when the case was called on for hearing both the appellant and their advocate did not turn up; the respondent and his counsel were present. As the appellants were aware of the hearing date and they • 3 : II ' did not appear, the court dismissed the main suit and immediately thereafter proceeded to hear the counter claim exparte. The· I . respondent alone gave evidence. Tj'. e court reserved its judgment . . I and promised to deliver it on a-future date on notice. I i Indeed, on 19/08/97 the ju~gment was delivered in the i st presence of the 1 appellant and the f1dvocate for the respondent but in the absence of the 2nd appellant. .I The court sustained the entire counter claim. The appellants made :an application to set aside that I' exparte judgment. They were unsutcessful. The trial court was of j . i' ' the firm view that there was no sufffient reason assigned for. failure to appear. Dissatisfied with the deciJion of the High Court, they have ' i preferred this appeal. 11 . I I I' ,I In this appeal and the court below, the appellants were ~ represented by Dr. Masumbuko Lamwai learned Counsel; whereas 1: Mr. Salim Mnkonje advocated for th~ respondent. 1 ' i I . I , I i I Dr. Lamwai raised eight grpunds in the memorandum of jl ,, appeal. However, he generally argu~d all the grounds. I. i1 ' 11 ! ; I i'r I 4 Basically Dr. Lamwai's main ground of complaint as regards to the dismissal of the appellants' case is that on the date when the case was called on for hearing, he was in Dodoma attending a Bunge Session. He argued with force that as that statement of fact was not countered in any way, the High Court ought to have found that his non appearance was prevented by sufficient reason. The High Court was wrong when it said there was no sufficient reason. As regards to the counter claim which was heard exparte, Dr. Lamwai submitted that the High Court was wrong to proceed with the hearing without framing issues. It is his contention that the omission is incurably defective. He referred us to Order XVI, Rule 1 (5) of the Civil Procedure Decree. In the course of arguing the appeal, Dr. Lamwai faulted the exparte proceeding of the High Court that the evidence upon which the decision is based is wanting. Elaborating, he said the respondent merely referred to a document annexed along with the plaint instead of tendering it as an exhibit. So, no evidence was adduced by the respondent to prove the amount, he claimed. I 5 I\ In order to prevent injustice, Dr. Lamwai prayed the court to - I i invoke its powers of revision and qua~p the proceedings. I Responding, Mr. Mnkonje said f the High -Court was right to f refuse to set aside the exparte judgm,ent as no sufficient reason was i I given .. He went on .to say th~t ii Dr. Lam~ai was in Dodoma attending Bunge session there 1s _'rflO explanation as to why the I j - appellants, who were present when i the date of hearing was fixed, failed to turn up. As regards to the question of laming I of issues, he submitted . I that there is no need of doing so. as issues are framed when both i' ' I pa.rties to the suit are present. As ;the appellants were not present i then there was no need of doing thaf- - i Reacting to the issue of :lack of evidence, Mr. Mnkonje j conceded and said if the same is expunged then there is no other ev1"d ence on recor . d t o prove '. damages. l In rejoinder-Dr. Lamwai reite~ated his position. We start with ;] dismissal. / 6 Under Order XI, Rule 9 (1) of the Civil Procedure Decree the High Court is empowered to dismiss the suit if the defendant appears and the plaintiff does not appear when the suit is called for hearing, unless the defendant admits the claim or part thereof and the remainder shall be dismissed. Ordinarily, such power of dismissal is exercisable where the court is satisfied that the plaintiff was aware of the date the suit is coming for hearing. In this case, as earlier observed, on 27/05/1997 the parties who appeared in person consented that the suit be adjourned and come for hearing on two consecutive days i.e. 11/08/1997 and 12/8/1997. On 11/08/1997 neither the appellants nor their advocate appeared. The respondent appeared through his advocate Mr. Mnkonje. As the appellants were aware of the hearing date and they did not turn up, the High Court invoked its powers as provided under 0. XI, Rule 9 (1) of the Civil Procedure Decree and dismissed their case. .I .1 7 I Under the above aforementiqned circumstances, we are i satisfied that the High Court properly exercised I' its powers to• dismiss I ' the suit. But a suit which has been dismiksed under the aforementioned . i 1: Rule may be restored upon the plaintiff satisfying the court that thereI, I . j are/is sufficient reason which pre~ented him from entering an ,,JI 1' appearance. This is provided underii O.XI, Rule 10 (1) of the Civil ]I . Procedure Decree. ·j I I: Indeed, Dr. Lamwai made an iapplication to that effect. The I· reason assigned by way of affidavit 0hich the High Court refused to I, i accept, was that Dr. Lamwai wa~ in Dodoma attending Bunge . . I l Session. The question is whether)! the High Court was wrong to refuse to set aside the dismissal ordJr. '1 .r ! . It is on record that the appell1nts who appeared in person on I. i 'I 27/5/1997 did not account for their hon appearance on the day when • I 11 •! the case came for hearing i.e. 11/~8/1997. Even if we accept that . I Dr. Lamwai was in Dodoma for Buqge ,, Session we think there was a need on the part of the appellants ~o give an explanat;on as to why .l 8 /i · they did not turn up on that day takjng into consideration the fact . i that they were present on the day~ when the suit was fixed for I hearing. There is nothing of that so~ in the record. In view of the I I. above explanation, we are unable to! fault the learned Judge as no 11 i :1 reason, leave alone a sufficient one, was given. We are of the firm .I . view that the refusal so set aside the dismissal order was correct. I I The complaint raised has no merits. 1! 11 We now move to consider whJther failure to frame issues in a . Ii suit (counter claim) which proceeded ,·exparte is fatal. i' i i Ii 1 Dr. Lamwai argued with force that failure to frame issues is I: fatal and the judgment which fo119ws therefrom is defective. He ·I referred us to Order XVI, Rule 1 (5) 9f the Civil Procedure Decree. . I ! I i' !I ;! Mr. Mnkonje on the other hand said there was no need to do so I'I ., as issues are framed when both pa1ies are present. He did not refer :: or cite any authority. .j i J. ,' ,' Order XVI, Rule 1 (5) of the Cjvil. Procedure Decree provides: ' j! ' J: I 9 , ,I 1 (5) At the first hearing of:,,, the suit the court I I' shall, after reading the plaint and the written statements, if any and after such I I examination of the parties as may appear necessary, ascertain upon what material proposition of fact or of Jlaw the parties are I at variance, and may thereupon proceed to i' ' 'i frame and record the i~sues on which the ,i I, right decision of the case appears to 1. depend. 11 We have carefully read the Rule and considered the rival arguments advanced by both learned Counsel. We are of the settled I , mind that th~ Rule is of a general application that once the pleadings are ready and before commencing ,hearing of the suit whether fnter I I ,. partes or exparte, it is the duty pf the High Court or any other I ' subordinate court where the .decree is applicable to frame issues. ,, I . . I However, we are not prepared to~ go along with Dr. Lamwai that ' failure to frame issues is always fatal and renders the decision arrived , I I at defective. We are of the settled mind that if it is shown that the parties addressed the court on the real issues in controversy and led 1, I evidence thereto without framing issues and the Court made a decision thereon then the non framing of issues is not fatal. We are fortified in this view by commentaries by Mulla - The Code of Civil Procedure lih Edition. At page 719, the Learned author observed, we reproduce:- "What is the consequence of an omission to frame an issue. of fact? The answer depends on the following considerations. If, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the court decides the point, as if there was an issue framed on it, the decision will not be set aside in appeal on the ground merely no issue was framed. The true scope of this rule is that evidence let in on issue on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they 11 had no opportunity of adducing evidence. I I But, that rule has no apRlication to a case where the parties go to a trial with knowledge that a particular question is in I issue, though not specific issue has been framed thereon and bdduce evidence relating thereto." In this case, the issues which came out clearly from the pleadings were unlawful entry int) the respondent's house and demolishing the same. As a result of the above, the respondent claimed damages and replacement costs. Indeed- it is no wonder the I . . I respondent gave evidence exparte to prove his case along those lines. In view of the foregoing, we are satisfied that the respondent I led evidence on the real issue in adntroversy and the court made a I I . decision thereon. Now so long as the case was disposed on merits, ,i the non-framing of issues is not fbtal. We find no merits on this ground either. 12 However, the evidence adduced lby the respondent was also a subject of attack by Dr. Lamwai that the respondent merely referred to an annexture instead of tendering the document itself when he was giving evidence. It is Dr. Lamwai's contention that that is not proper. He prayed we exercise our revisional powers and quash the exparte judgment as that will cause injustice. We have given a deep thought to the matter. It is on record that the trial learned judge relied on an annexture attached to the plaint as evidence to arrive at the decision in particular the amount awarded as damage and replacement costs. It is elementary that an annexture attached along with the plaint is not evidence. Probably it is worth mentioning at this juncture the purpose of annexing annextures to the plaint. The whole purpose of annexing document to the plaint is to enable the other party to the suit to know the case he is going to face. The idea is to do away with surprises. But annextures are not evidence. Evidence on the other hand has something to do with proving or disproving the fact in issue. The word "evidence" is defined by Black's Law Dictionary thus: I 13 ! !' I 11 Evidence - Something (in<lluding testimony, . i documents and tangible orjects) that tends to prove or disprove· the existence of an 11 , I alleged fact I The two therefore, are not syno1ymous. . :I I II Mr. Mnkonje conceded that much. Now once we expunge that 11 piece of evidence which was not tendered 'I at all, there is no any other : /' . I evidence to support the respondent's case. In the interests of j, I, justice, we are compelled to intervene and correct the anomaly. ,, Ii . ~ I Exercising our revisional poweri as they are provided for under Ir section 4 (2) of the Appellate Jurisdiction Act, (CAP. 141 RE 2002) we Ii · expunge that evidence which was improperly received and acted I I I upon. In fine, the appeal of the appellants is dismissed. And as the 1, :I ' ~ . judgment entered exparte cannot stand, we quash the. proceedings 11 and set aside th~ decree. We award no costs to either party. 14 Order accordingly. I i I DATED at DAR ES SALAAM this lih day of February, 2010. ' ,' ,I .1 ' 1, A.S.L. RAMADHANI CHIEF JUSTICE l I J.H. MSOFFE JUSTICE OF APPEAL 11 j I B.M. LUA~DA JUSTICE OF APPEAL :1' ', r, f i I certify that this is a true copy ~f the original. ~ ?t::v~----Mkwrzu DEPUTY REGISTRAR ;, I I ! II , I: