CONSOLATED CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA SUB-REGISTRY] AT ARUSHA CONSOLIDATED CIVIL APPEAL NO. 6116 AND 6401 OF 2024 (Arising from Civil Case No. 10 of 2017 in the District Court of Karatu at Karatu) BETWEEN MARTHA HILONGA...........................................................................APPELLANT VERSUS THE REGISTERED TRUSTEES CATHOLIC ARCHDIOCESE OF ARUSHA......................................................... RESPONDENT JUDGMENT 17/12/2024 & 21/2/2025 MWENDA, J.: This matter originates from the District Court of Karatu at Karatu ("the trial court")'s Civil Case No. 10 of 2017 duly filed by the respondent, one THE REGISTERED TRUSTEES OF CATHOLIC ARCH DIOCESE OF ARUSHA. The respondent herein (the then plaintiff) claimed for; payment of general damages, release of both motor vehicle, costs of the suit and any other or further reliefs as the Honorable trial Court should deem just. The brief material background and essential facts of the matter as derived from the trial court's records giving rise to the present appeal reveal that, on 1 | P a ge 25th day of November, 2016, the Karatu District Court issued an order for attachment against the respondent herein above, of the motor vehicles with registration No. T. 479 ADC make Toyota Land cruiser and a lorry make Scania with Registration Number T.803 CQH in order to satisfy the decree issued against the so called "The Registered Board of Trustees of catholic Archdiocese of Arusha". That was in the case registered to as Civil Case No. 2 of 2014 in which the respondent herein above alleged, she was not made party to it as her registered names are "The registered Trustees Catholic Archdiocese of Arusha" and not "The Registered Board of Trustees of catholic Archdiocese of Arusha". According to her, any attachment to her motor vehicles would amounts to trespass to the said properties, no wonder she claimed for general damages against the appellant herein above. On her side, the appellant hereinabove believed the attachment of the properties in Civil Case No. 2 of 2016 was proper on the ground that the word "Board" appearing on the respondent's name created no confusion. On top of that she also filed a counter claim against the respondent herein claiming TZS 74, 324,000/= (Seventy-Four Million three hundred Twenty- 2 | Page Four thousand) as being the decretal amount awarded onto her on the 25th of April 2015 in Civil Case No. 2 of 2014 against the respondent herein. Having heard the evidence of the witnesses for both sides, the trial court was of the view that the appellant herein (the then defendant) sued the wrong party in Civil Case No. 2 of 2014 thereby wrongly attaching her motor properties/vehicles. Having observed as such, the trial Magistrate ordered for the immediate release of the said motor vehicles. On the other hand, he ordered the respondent herein (the then plaintiff) to pay the appellant herein (then defendant) TZS 20,000,000/= (Twenty Million Only) as a comfort, the amount which was ordered to be paid within six months from the date of the judgment. The said trial court's decision delivered on the 27th day of October 2023 seemingly aggrieved both parties. Therefore, the appellant herein is challenging the same with the following grounds of appeal. 1. That, the Honourable District Court Magistrate grossly erred in law and in fact by his failure to hear and determining the Appellant's counter claim. 3 | Page 2. That, the Honourable District Court Magistrate grossly erred in law and fact by his failure to hold that the additional of the world "Board" to the respondent's name did not cause any confusion as regards the identity of the Respondent and thus, did not occasion any injustice to any party. 3. That, the Honourable District Magistrate grossly erred in law and in fact by holding that the Respondent discharged burden ofproof according to the required standard. 4. That, the Honourable District Court Magistrate grossly erred in ia and fact by failure to consider defence evidence in determining the dispute between Appellant and respondent. 5. That, Honorable District magistrate grossly erred in law and in fact for improper analysis of evidence and thus, arriving into erroneous and unfair decision. 6. That, the Honourable District Court Magistrate grossly erred in law and in fact by basing his decision on matters not pleaded by the parties and thus, arrived at a wrong and unfair decision. 4 | Page On her side, the respondent herein also filed the following grounds: - 1. That, the trial Magistrate erred in law and in fact by failing to consider the plaintiff's reliefs sought. 2. That, the trial Magistrate erred in law and fact by awarding the respondent to the tune of Tanzania Shillings Twenty Million (Tshs. 20,000,000/=) only without a proof of it and any justification. 3. That, the trial Magistrate erred in law and in fact by reaching a judgment without properly weighing and evaluating the evidence from both parties. 4. That, the trial Magistrate erred in law and fact by failing to adhere to the requirements of writing a properjudgment. With consensus, on 5th day of November 2024 appeals No. 6401 and 6116 were consolidated. As such, for ease of reference, the court decided, in this consolidated appeal to refer the appellant in Civil Appeal No.6116 of 2024 one MARTHA HILONGA as the "Appellant" and that in Civil appeal No. 6401 Of 2024 one THE REGISTERED TRUTSEES CATHOLIC ARCH DIOCESE OF ARUSHA as the "Respondent". 5 | Page The said appeals were argued by way of written submissions. The appellant herein was represented by Mr. JEOFFREY ALEX MOLLEL, learned counsel whilst the respondent/appellant enjoyed the legal services from Ms. SARA J. LAWENA, Learned Counsel. The scheduling order was then fixed and, both sides complied accordingly. Submitting in support of her Civil Appeal No. 6116 of 2024, the appellant herein complained over the trial court's failure to consider her counter claim and further that, the word "Board" in the respondent's name did not create any confusion over the respondent's/appellant names. The appellant's learned counsel went further to submitting that the appellant's counter claim was never considered since there is no issue which was drawn in that regard. According to him, that anomaly made the trial court's decision incomplete and incurably defective. In support to this he cited STANBIC BANK TANZANIA LTD VS TRUST ENGINEERING WORK LTD (Civil Appeal No. 374 of 2019) [2022] TZCA 110 (11 March 2022) (Tanzlii) where the court insisted on the urge to determine counter claims separately as independent suits. 6 | Page Regarding the word "Board" in the respondent's names, Mr. MOLELL had it that the trial court's reasoning that the appellant herein sued a non-existing person who is a board of trustees was unfounded as the court ought to have focused on substantive rights of the parties and not on technicalities. According to him, the word "Board" to the respondent's name did not cause any injustice as it does not affect her capacity. To cement his argument on the urge for courts to focus on substantive justice and not on technicalities, he cited the case of ALLIANCE LIFE ASSURANCE LIMITED VS ELIHURUMA NGOWI (Civil Appeal No. 487 of 2021) [2024] TZCA 257 (9 April 2024) (Tanzlii). In his further submission, the learned counsel for the appellant believed the trial court's conclusion that the attached property belongs to the respondent herein was erroneous for want of any proof. He stressed that her defence was never considered by the court. For those reasons he prayed the appellant's Civil Appeal No. 6116 to be allowed, and the decision of the trial court be quashed and set aside. On the other hand, Ms. LAWENA responded to the above submission in that the complaint regarding failure by the trial court to draw issues in respect of the counter claim is baseless as the said issues ought to be filed before the 7 | Page court by the advocates including the appellant's learned counsel whom, for reasons best known to her, did not do so. He then distinguished the cited case of STAN BIC BANK TANZANIA LIMITED (supra) in that in the present case, the counter claim was awkwardly petitioned. Responding to the argument that the word "Board" added on the respondent's names had no effect over the respondent's capacity, the learned counsel for the respondent had it that in any circumstance, errors in naming the plaintiff would have caused great disturbance in executing the decree and taking up claims against the insurance companies. She said, as per exhibit Pl, the respondent's names are "REGISTERED TRUSTEES CATHOLIC ARCHDIOCESE OF ARUSHA" and not "THE REGISTERED BOARD OF TRUSTEES OF CATHOLIC ARCHDIOCESE OF ARUSHA". According to her, the respondent herein substantiated her claim that she was not the one impleaded in Civil Case No. 2 of 2014. Lastly, she submitted that the evidence by both parties was partly considered by the trial court as it granted reliefs which were not sought by the parties. In brief rejoinder, the learned counsel for the appellant herein reiterated on what was submitted in the submission in chief. 8 | Page Having gone through the submission of the parties and the records of the trial court, I will now determine the merit of this appeal starting with the first complaint on the appellants complaint alleging failure by the trial court to determine her counter claim. Before delving on the merits of this ground, it is apposite to point that I am mindful of the principle regarding the status of a counter claim. Principally, a counter claim is a cross suit filed by the defendant in his answer to the plaintiff's claim. Being a cross suit, a counter claim must be decided upon conclusively, through a process in which a properly drafted issues are drawn. The drawn-up issues are intended to uncover the points in controversy between the parties, guide the parties on how to go about in adducing evidence and enable the court to know what questions it must decide in a particular claim. The back up to this principal is covered in several decisions of the Court. In the case of OSWALD GWELINO MLIPUKA VS ERNEY CASTORY NDANGA (Civil Appeal No 316 of 2021) [2023] TZHC 23702 (17 November 2023) (Tanzlii) the court held that: - "It should be restated here that a counter claim is in law on an equal footing with the main claim by the plaintiff in the suit 9 | Page where both counter claim and the plaintiff's suit are determined jointly. By definition, a counterclaim is defined as a claim for relief filed against an opposing party after the original claim is filed. Most commonly, a claim by the defendant against the plaintiff. In our jurisdiction, a counter claim is a cross suit which is to be treated, for all purposes as an independent action similar to the claim by the plaintiff except that it is filed by the defendant in his answer to the plaintiffs claim. Courts in such a situation are obliged to pronounce a final judgment in the same suit, both on the original suit and on the counter- claim. Each one must be decided upon conclusively. And to arrive into those decisions, each of the claim must have a properly drafted issues to uncover the points in controversy between the parties, guide the parties on how to go about in adducing evidence and enable the court to know what questions it has to decide in a particular claim." Regarding the appellant's complaint, I wish to also point out that regardless of the above decision, each case must be decided on its 10 | P a ge own peculiar circumstances. In this matter, although there was no clear drawn up issues on the appellant's counter claim, the prevailing circumstances shows such failure did not occasion any injustice since the appellant and her team of advocates failed to play their role of substantiating their claim properly. I have observed from the record that although it is shown the only drawn up issues before the trial court were in respect of the then plaintiff's (now the respondent's) claims, still at a later stage, the trial court became aware of that omission, (to draw the then defendant's (now the appellant's) issues). Since at that discovery occurred a point where the then defendant (now appellant) had already closed her defense without providing evidence to support her counter claim, her learned advocate prayed to recall the then defendant under section 147(4) of the CPC. After a long dialogue and arguments, the court afforded the defendant's side opportunity to recall the then defendant to substantiate her counter claim but that was not complied with despite the matter being set for last adjournment. On that circumstance, I believe, had the appellant (the then defendant) used that opportunity to substantiate her counter claim, the trial court would not have failed to consider it even 11 | P a ge if no specific issues were drawn in that regard. Had she played her role of providing evidence in support of her counter claim, which would automatically have allowed the then plaintiff to respond, the trial court would have, while writing a judgement, had justification of drawing new issues for determination of the said counter claim. That is an acceptable practice. This however was not possible as the appellant (the then defendant) decided to sleep over her own rights. As hinted above, the records are clear that the appellant (the then defendant) was given a chance to defend her counter claim. At page 34 of the trial court's proceedings, the record reads as follows: - "Defense hearing on 20/09/2023 for last adjournment" Despite such order, when the matter was called on for hearing at the later stage, the appellant (the then defendant) was not ready to proceed for various reasons. It seems this trend did not please the trial court which decided to dismiss the counter claim for want of prosecution. In so doing the trial court used the following words, and I quote: "This is the second time the defendant is given last adjournment to defend her case without success. The 12 | P a g e defendant prayer is in logical and the same hereby dismissed for want of prosecution and the case is closed (sic). "(Emphasis is mine). From the above observation, this court is of the view that the argument raised by the appellant herein (the then defendant before the trial court) that she was denied the right to defend her counter claim is misconceived as it goes against the records in question. It is trite principle that the law favors those who do not sleep on their rights thus, the appellant (the then defendant before the trial court) cannot be favored as she decided to sleep on her rights for the reasons best known to herself. As she slept on her right, the trial court was justified to dismiss her counter claim. That said therefore, this ground fails for want of merits. As for the appellant's second ground of complaint, faulting the trial court's findings regarding the respondent's names and argument that the word "Board" in the title of the pleadings of civil case No. 2 of 2014 did not do away the fact that the respondent's (the then plaintiff's before the trial court) driver hit her with a motor vehicle the court has scrutinized it only to find it unmerited is without substance. 13 | P a ge This is because, the respondent (the then plaintiff before the trial court), being the legal entity, ought to be impleaded by her own registered names as appearing in the certificate of incorporation. Doing so would smoothen the whole legal process including the execution of decree. Anything to the contrary would make the execution of decree impossible since the properties subject to attachment would automatically be registered by the party's registered names. While emphasizing the urge to sue the legal entities through their registered names, the Court of Appeal in CHRISTINA MRIMI VS COCACOLA KWANZA BOTTLERS LTD (Civil Appeal 112 of 2008) [2009] TZCA 33 (19 February 2009) (Tanzlii) had this to adjudicate, that: - "It is our considered opinion that in the instant appeal, the REGISTERED NAME is fundamental to the whole case. There could be either different companies or simply a confusion the use and application of the correct name of a company which bottles "Sprite" soft drink. Given that interchangeable use of those names, we are of the view that the Appellant has the obligation to identity the correct name of the manufacturer of sprite 14 | P a g e and only then take the necessary legal steps, if need be, through legal aid." Guided by the cited authority, this court agrees with the trial Magistrate that the respondent's (the then plaintiff before the trial court) properties were wrongly attached as the true owner of the said attached properties who is "THE REGISTERED TRUSTEES CATHOLIC ARCHDIOCESE OF ARUSHA" was not impleaded as a party to Civil Case No. 2 of 2014. Since the said decree emanates from Civil Case No. 2 of 2014 to which the current respondent was not a party, its execution would be impossible unless the appellant miraculously traced some properties registered in the name of THE REGISTERED BOARD OF TRUSTEES OF CATHOLIC ARCHDIOCESE OF ARUSHA. On the appellant's (the then defendant before the trial court) complaint that the trial court failed to evaluate the evidence tendered, this court is of the firm view that, save for general damages which will be discussed later this ground shouldn't detain me much. This is because the evidence submitted at the trial court were properly evaluated by the trial court thereby reaching to a fair and just decision thus, at this juncture, I find no need to re-evaluate the whole evidence as suggested. 15 | P a g e On the foregoing observations regarding the appellant's appeal, this court is of the view that the appellant's same is without merits and it is hereby dismissed. Regarding on the cross appeal, i.e. Appeal No. 6401 of 2024, the respondent faulted the trial court's findings on two angles, one is on what she referred to as failure to be awarded general damages and two, an award of TZS 20,000,000/= to the appellant (the then defendant before the trial court) as a comfort without justification or evidence. Regarding general damages, the respondent (the then plaintiff before the trial court) through her learned counsel submitted that after the trial court had found the properties were wrongly attached, it ought to have exercised its discretion judiciously while considering the evidence tendered before it and then award her (respondent) general damages as prayed. Responding to this argument, the learned counsel for the appellant (the then defendant before the trial court), believed there was no evidence of any ongoing project or business license, plus the value of the project involved. In addition, he stressed that there is no proof that the attachment was 16 | P a ge carried over by the appellant. It was his view that the award of damages was properly refused. To deliberate on this issue regarding general damages, this court is aware that granting or refusing it is the upon the discretion of the court. This discretion is however deemed to be exercised reasonably, judiciously and on sound legal principles. See TANZANIA-CHINA FRIENDSHIP TEXTILE CO LTD VS OUR LADY OF USAMBARA SISTERS, Civil Appeal No. 84/2002 (CAT- Unreported) that: - ".... since general damages are awarded at the discretion of the court, it is the court which decides which amount to award. In that respect normal claims of general damages are not quantified. But where they are so erroneously quantified, we think; this does not affect the pecuniary jurisdiction of me court. In our view, it is the substantive claim and not the general damages- which determines the pecuniary jurisdiction of the court" Also see FELICIAN MUHANDIKI V. THE MANAGING DIRECTOR, BARCLAYS BANK TANZANIA LTD, CIVIL APPEAL NO. 82 OF 2016 (Unreported) 17 | P a ge In the instant matter/ case, while determining relief which the parties were entitled to, the learned trial magistrate did not consider general damages despite being prayed by the respondent (the then plaintiff) in his plaint. That was not proper. Since the trial court skipped to determine the prayer for general damages, this court being the 1st appellate court has the duty to step on the shoes of the trial court to re-evaluate the evidence and see if the respondent (the plaintiff) deserves to be awarded some. To do so, this court went through the proceedings of the trial court and noted that the respondent's (the then plaintiff's) witnesses did not tender any evidence to support her claim. This is because there is no evidence that the appellant (the then defendant) had successfully attached the then, plaintiff's properties. From the record, it is evident that after being aware of the attachment order, the respondent herein locked her properties in the diocese. In other words, the respondent's properties never changed hands from the owner to the present appellant, thus any claim of general damages for non-use of the said properties by the respondent is unfounded. At page 17, second paragraph of the trial court' typed proceedings PW1 is quoted to say the following that: 18 | P a g e "The cars which were to be attached was Scania T 803 CQH, and Toyota land Cruiser Pick up which is T 479 ADC. Both valued at 150,000,000/= millions, now those cars are at the diocese still." [Emphasis is mine]. Again, regarding the respondent's (the then plaintiff's) claim that general damages was claimed as the lorry was to be used for construction of church project which had already started, this court finds, as it was rightly submitted by the learned counsel for the appellant (the then defendant), it not supported by evidence. For the foregoing reasons, this court is of the view that the respondent (the then plaintiff) failed to prove general damages, thus this ground fails. Regarding the respondent's second point of complaint faulting the trial court for awarding the appellant (the then defendant) TZS 20,000,000 as a comfort, hers was that the courts are courts of justice which are led by evidence and reasons and not sympathy. According to her, the said award was unjustifiable and ought to be reversed. On his part, Mr. Mollel did not delve on this area. He rather conceded in that trial magistrate did not evaluate the evidence properly and opined that since, 19 | P a ge according to him, the trial courts records are incomplete for failure to frame issues, receive claim and determine a counter claim, then a proper remedy is to re-hear the case and afford both parties opportunity of being heard. That being the submissions regarding the award of TZS 20,000,000/= to the appellant (the then defendant), it is pertinent to point out that in deciding cases, courts are enjoined to reach their findings based on the law and evidence submitted before it and not otherwise. In the present matter, despite its findings that the respondent (the then plaintiff before the trial court) was not party to Civil Case No. 2 of 2014, the trial magistrate wrongly awarded the said amount to the present appellant (the then defendant) on what seem to be a sympathy. This is drawn from the words used by the trial magistrate while awarding the said amount of TZS 20,000,000/= to the appellant herein by using the following words: - "Finally a church is an institution which help/support people spiritually and physically, the fact that the disability of the respondent was caused by a careless driver who is employed by the church to drive the said motor vehicle his respondent to an extent of leaving her with no leg it really touches my soul that it is a sin to 20 | P a g e leave her in that state of great pain and permanent disability with empty hands." From the above extract, one may conclude that since in the said judgment the trial court found that the respondent's (the then plaintiff's) properties were wrongly attached as she was not a party to civil case no.2 of 2014, then an award of TZS 20,000,000/ was nothing but out of sympathy. Principally the law forbids sympathy to be applied while deciding cases of civil nature. In the case of BARTAZAR MARK ASSEY VS LAZARO ZABLON (Civil Application No. 4 of 2015) [2018] TZCA 550 (11 July 2018) (Tanzlii) the court held that: - "Much as we sympathize with the applicant, but this Court being a court of law and not one of sympathy, will follow the letter of the law to strike it out the instant application." [Emphasis is mine]. The take from above authority is that the law should be applied even though it seems to be harsh in a particular situation for consistence and fair treatment of the parties. 21 | P a g e In the upshot, Land Appeal No. 6116 is hereby dismissed for being unmerited. Land Appeal No. 6401 is partly allowed to the extent explained herein above, in that TZS 20,000,000/= awarded to the appellant [the then defendant before the trial court] is hereby quashed and set aside. Taking the nature of the matter, I make no order as to costs. Ordered accordingly. DATED at ARUSHA this 21st day of February 2025 JUDGE 22 | P a g e