MARTHA CONRAD KOMBA vs SARAH MWAIKUSA

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DAR ES SALAAM PC CIVIL APPEAL NO. 000000421 OF 2026 MARTHA CONRAD KOMBA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS SARAH MWAIKUSA .............................. RESPONDENT / DEFENDANT JUDGMENT MKWIZU, J Before the Sinza Primary Court, the appellant instituted a civil suit against the respondent seeking payment of Tshs. 2,492,000, being contributions arising from an agreement under which group members were to contribute Tshs. 11,000 daily. The trial court entered judgment in favour of the appellant. Aggrieved, the respondent appealed to the first appellate court on five grounds, principally challenging the alleged admission of liability, failure to join necessary parties, the collective nature of the transaction, the trial court’s territorial jurisdiction, and the appellant's locus standi to sue individually on behalf of the group. Page. 1 On the issue of jurisdiction, the respondent argued that the cause of action arose at Kinyerezi, Ilala District, where the Appellant resided and where the alleged breach occurred. The Appellant maintained that the agreement was made by telephone while she was at Shekilango, Ubungo District, thereby giving the Sinza Primary Court territorial jurisdiction. The first appellate court allowed the appeal, finding merit in the ground challenging territorial jurisdiction. It therefore quashed the proceedings and judgment of Sinza Primary Court and set aside the consequential orders, with costs. The appellant, who was then the respondent, is aggrieved by the dismissal order. He has approached this court with an appeal on the following grounds; 1. That the Honourable Magistrate erred in law and fact in deciding that the cause of Action arose in Kinyerezi while the agreement was done through a WhatsApp group and the money was sent from Shekilango, where the Appellant is living. 2. That the Honourable Magistrate erred in law and fact in deciding on issues of jurisdiction on the place of suing, which was not raised in the trial court. 3. That the Honourable Magistrate erred in law for reaching its decision without considering all grounds of Appeal Page. 2 4. That the Honourable Magistrate erred in law and fact for giving a decision based on extraneous matter The appeal was disposed of through written submissions. Mr Joseph Mbonimpa, advocate, represented the appellant in this court, while Essau Ndege, learned advocate, represented the respondent. In support of the appeal, Mr Mbonimpa, advocate, submitted that the first appellate court erred in law and fact by basing its decision on extraneous matters. He relied on Charles Martin Mwakatika v. Danford Athuman Mwatika and Another, Civil Appeal No. 476 of 2021 (unreported), and argued that the issue of the Respondent’s residence at Kinyerezi and the alleged place where the cause of action arose was neither raised nor determined before the Sinza Primary Court. Relying on Nurdian Mussa Wailu v. Republic , Criminal Appeal No. 164 of 2004 (unreported), he submitted that an appellate court should generally confine itself to matters raised and determined by the lower courts. Mr Mbonimpa further submitted that the first appellate court erred by determining territorial jurisdiction although the objection had not been raised at the earliest opportunity before the trial court. He relied on section 22 of the Civil Procedure Code, Cap. 33 [R.E. 2023], which requires an objection to the place of suing to be raised in the court of first instance at the earliest opportunity and, where issues are settled, at or before settlement, subject to Page. 3 consequent failure of justice. On the third ground, Counsel submitted that the first appellate court committed a fatal irregularity by failing to determine all the grounds of appeal. He relied on GA Insurance Tanzania Limited v. Commissioner General, Tanzania Revenue Authority, Civil Appeal No. 40 of 2024 (Unreported). He prayed that this Court quash and set aside the judgment and proceedings of the District Court of Ubungo and uphold the decision of the Sinza Primary Court. The Appellant's counsel submitted that the first appellate court erred in law and fact by determining the issue of territorial jurisdiction on matters that were neither raised nor determined by the trial court. Relying on Charles Martin Mwakatika v. Danford Athuman Mwatika and Another, Civil Appeal No. 476 of 2021 (unreported), the Appellant argued that reliance on extraneous matters constitutes a fatal irregularity. It was further contended that, under section 22 of the Civil Procedure Code, Cap. 33 [R.E. 2023], an objection concerning the place of suing could not be raised for the first time on appeal unless it had first been raised before the trial court and had occasioned a failure of justice. It was therefore argued that the first appellate court improperly entertained the issue of jurisdiction. On the failure to determine all grounds of appeal, the Appellant's counsel relied on GA Insurance Tanzania Limited v. Commissioner General, Tanzania Revenue Authority, Civil Appeal No. 40 of 2024, submitting that an appellate Page. 4 court is required to consider and determine the grounds of appeal raised before it. The Appellant accordingly prayed that the judgment and proceedings of the District Court be quashed and that the decision of Sinza Primary Court be upheld. The respondents strongly opposed the appeal. Mr Essau Ndege, advocate, submitted that the first appellate court correctly determined the issue of territorial jurisdiction on the basis of the evidence contained in the trial court record, particularly the pleadings showing that the Respondent resided at Kinyerezi and that the breach occurred there.he cited section 3(1) and (2) of the Magistrates’ Courts Act, Cap. 11 [R.E. 2023] and paragraph 1(b) of the Fourth Schedule to contend that civil proceedings should be instituted where the cause of action arose or where the defendant ordinarily resided. He maintained that both connecting factors pointed to Kinyerezi, Ilala District, and therefore Sinza Primary Court lacked territorial jurisdiction. Again citing Yohana Balole v. Anna Benjamin Malongo, Civil Appeal No. 18 of 2020 (CAT) and M/S Tanzania-China Friendship Textile Co. Limited v. Our Lady of the Usambara Sisters, [2006] TLR 70, the Respondent’s counsel submitted that jurisdiction is a creature of statute and may be raised at any stage of the proceedings. He added that the first appellate court did not rely on extraneous matters, but merely considered facts appearing on the trial court record. It was also Page. 5 submitted that, once the appellate court found that the trial court lacked jurisdiction, that finding was sufficient to dispose of the appeal, and there was no necessity to determine the remaining grounds. He distinguished GA Insurance Tanzania Limited v. Commissioner General, Tanzania Revenue Authority, ( supra) on that basis. In rejoinder, the Appellant's counsel reiterated that the Respondent had introduced new facts on appeal concerning residence and the place where the cause of action arose. He maintained that the agreement and transactions were conducted through WhatsApp while the Respondent was at Shekilango, and therefore Sinza Primary Court had territorial jurisdiction under paragraph 1(b) of the Fourth Schedule to the Magistrates’ Courts Act. He further maintained that the issue of jurisdiction had not been raised before the trial court and that the first appellate court therefore erred in determining it on appeal. The Appellant also reiterated that failure to determine all grounds of appeal constituted a fatal irregularity Having considered the record and the submissions, I find the issue is whether the appeal has merit. The first issue challenged the 1 appellate court's st findings on the trial court's jurisdiction without evidence. There is no dispute that jurisdiction is fundamental and may, in appropriate circumstances, be raised at any stage. However, a jurisdictional determination must rest on facts established by the record. Page. 6 As stated by the 1 appellate court, under section 3(1) of the Magistrates’ st Courts Act, Cap. 11 [R.E. 2023], read together with paragraph 1(b) of the Fourth Schedule, territorial jurisdiction depends, inter alia, on the place where the cause of action arose or the defendant ordinarily resides. In the present case, the first appellate court concluded that the Appellant resided at Kinyerezi and that the breach occurred there. However, a perusal of the trial record reveals no evidence establishing either the parties’ respective places of residence or that the cause of action arose at Kinyerezi. Indeed, territorial jurisdiction was never raised, pleaded, or canvassed before the trial court. The Respondent, then the defendant, expressly admitted the claim by stating “Ni kweli”, signed the admission, and, even after the Appellant's evidence, offered no contest to the claim. Had the issue been real, the Respondent would have raised it right away. The first appellate court therefore made a factual finding on matters that were neither pleaded nor proved before the trial court. This is a serious error. An appellate court cannot substitute evidence with assumption or introduce facts absent from the record. The fact that jurisdiction is essential does not authorise a court to determine it on conjecture. If the first appellate court considered the existing record insufficient to resolve the jurisdictional question, it ought to have invoked the provisions of section 21 of the MCA Cap 11 R E 2023 to obtain or direct the taking of additional evidence, rather than making findings Page. 7 unsupported by the record. The trial court's findings that Sinza Primary Court lacked territorial jurisdiction were therefore unsustainable. This ground of appeal succeeds. The above conclusion also disposed of the 1st and 4th grounds of appeal in favour of the appellant. In the present case, the first appellate court did not merely identify the Appellant's address through the facts brought to it through written submissions; it used that fact to make a substantive finding that the cause of action itself arose at Kinyerezi. In The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman, Bunju Village Government & 11 Others, Civil Appeal No. 147 of 2006 (unreported), the Court of Appeal held that submissions are merely elaborations or explanations of evidence already tendered and cannot substitute evidence. Since no proper evidence was brought to court to substantiate that fact, the findings by the 1st appellate court were unsupported. In the third ground, the trial court is faulted for not determining all grounds of appeal. I find this ground lacking in merit. I agree with the respondents' counsel that once the first appellate court concluded that the Sinza Primary Court had no territorial jurisdiction, no valid judgment remained on which the other complaints concerning admission, joinder, and the nature of the transaction could usefully operate. Determining those grounds would have been largely academic. Although GA Insurance Tanzania Limited v. Commissioner Page. 8 General, Tanzania Revenue Authority, ( supra) emphasises the duty of an appellate court to consider the grounds of appeal, that principle cannot sensibly require a court to determine grounds which have become unnecessary after finding that the proceedings under challenge were instituted before a court lacking jurisdiction. I therefore find, in the circumstances at which the appeal was terminated, that the failure to determine the remaining grounds did not, in the circumstances, constitute a fatal irregularity. Consequently, the appeal succeeds to the extent stated above, and the judgment of the first appellate court is hereby set aside, and the decision of the trial court is hereby upheld with costs. Dated at DAR ES SALAAM this 4th of September 2026 . E. Y MKWIZU JUDGE OF THE HIGH COURT Page. 9