mathew nkindwa vs managing director business times ltd others 2015 tzhc 2136 9 november 2015

IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT PAR ES SALAAM CIVIL APPEAL NO. 27 OF 2015 (C/F the Resident Magistrates' Court of Dar es Salaam at Kisutu in Civil Case No. 228 of 2005) MATHEW NKINDWA................................................ APPELLANT VERSUS 1. THE MANAGING DIRECTOR, BUSINESS TIMES LTD............................... 1st RESPONDENT 2. THE CHIEF EDITOR, MAJIRA NEWSPAPER..............................2nd RESPONDENT 3. BEATRICE MOSES, MAJIRA NEWSPAPER..............................3rd RESPONDENT (From the Resident Magistrates' Court of Dar es Salaam at Kisutu) (E.F. Mchauru, SRM) Date of Last Order: 30th September, 2015 Date of Judgment: 9th November, 2015 JUDGMENT FELESHI. J. In the Resident Magistrates' Court of Dar es Salaam at Kisutu, the appellant sued the respondents for payment of Tshs. 29,000,000/= as general damages for defamatory statements published by the respondents. He also prayed for interest and costs of the suit. In composing Judgment of the Court, the trial Court suo mottu raised an issue of cause o f action without according parties opportunity to be heard, hence, struck out the suit. Aggrieved, the appellant has appealed on four (4) grounds namely:- Page 1 of 5 1. That, the trial Magistrate erred both in law and in fact by raising suo mottu a Preliminary Objection regarding the name of the plaintiff and proceed to determine it without giving chance to the parties to address him in respect of the said issue, as such, the appellant was condemned unheard. 2. That, the trial Magistrate erred both in law and in fact by not determining the case on merit and relying too much on matters of technicalities by deciding extraneous matters which were not before the Court. 3. That, the trial Magistrate erred both in law and in fact in holding that the appellant herein had no cause o f action against the respondents without evaluating the evidence on record before the Court. 4. That, the trial Court erred both in law and in fact in holding that the appellant was not the one who testified in Court as PW l on 18th October, 2011. The appeal was heard by way of written submissions whereas the appellant engaged the services of Brotherhood Attorneys while the respondents were represented by Marando, Mnyele & Co. Advocates. Notably, it is only the appellant who complied with the Court schedule for what the respondents' counsel stated in their letter dated 12/08/2015 that, they were not served with copy of the appellant's submission. Considering that the respondents have not made a formal application either express or oral for extension of time, then, this Court considers the respondents to have condoned their right to be heard and thus, this Court will proceed to compose Judgment as scheduled. Addressing the 1st ground of appeal, the appellant's counsel submitted that, the trial Court breached a principle of natural justice for not according parties to the suit opportunity to address it on cause o f action which was raised by the trial Court suo mottu. Regarding the 2nd ground of Page 2 of 5 appeal, the appellant's counsel argued, the trial Court did not adjudicate the framed issues on merit, rather, resorted into extraneous technical points of law. In respect of the 3rd ground of appeal, the appellant's counsel submitted that, the pleadings manifestly disclosed cause o f action against the respondents contrary to the finding of the trial Court. Regarding the 4th ground of appeal, it was the submission by the appellant's counsel that, the pronounced names of the appellant were MATHEW KIRIGHO KINDWA but it appears that, the Court recorded the names of MATHEW KILIGO. As correctly submitted by the appellant's counsel, the trial Court raised a Point of Law going into the roots of the matter without according parties opportunity to address it on that point. Out rightly, that is a misconception in law. That position of law is shared in the case of IBRAHIM OMARY (EX.D. 2323 IBRAHIM) vs. THE INSPECTOR GENERAL OF POLICE, THE PERMANENT SECRETARY, MINISTRY OF HOME AFFAIRS & THE HON. t h e ATTORNEY g e n e r a l , Civil Appeal No. 20 of 2009, (Arusha Registry) (Unreported) where the Court of Appeal of Tanzania categorically reiterated that:- "In this sense, although it is a bit unusual and unfortunate that the issue was raised at a rather late stage of the case, strictly speaking, the judge did not err in raising it at the end of the judgment. However, as far as this case is concerned, since the point appears to have come up as an afterthought we think that prudence and the interests of justice demanded that the appellant and the respondents be called upon to address the court on the issue before making a finding on it. If the judge had done so he would have had the benefit, advantage and opportunity of hearing the parties7 views, or rather getting their inputs on the point, before making a definitive and Page 3 of 5 balanced finding on the said point. Indeed, we wish to go further and say that if he had done so justice would have been seen more to have been done". Besides, cementing on the need to avail parties opportunity to be heard whenever a point of law is raised, the Court of Appeal of Tanzania in the case of margwe e r r o & 2 o t h e r s v s . m oshi b a h a lu lu , Civil Appeal No. I l l of 2014, (Unreported), (Arusha Registry) underscored that:- " ..... As indicated earlier, the learned judge in the present appeal, in the course of composing her judgment posed a question suo motu on whether the exclusion of period of obtaining the Decree can be dealt in the appeal (sic!). She did not invite the parties fas she ought to have done), to address her on this question which in the light of things she found to have been necessary in the determination of the appeal before h er........ From the above analysis, the 1st ground of appeal is meritorious in law and is allowed. Consequently, the file is remitted back to the Resident Magistrates' Court of Kisutu to be placed before another Magistrate with competent Jurisdiction for the purposes of finally determining the issue of cause o f action raised after according parties to the suit opportunity to be heard and finally dispose the case according to the law. Considering the circumstances of the case, I make no order as to costs. It is so ordered. DATED at Dar es Salaam this 9th November, 2015 Page 4 of 5 Judgment delivered this 9th day of November, 2015 in presence of and in presence of the Appellant in person and in the absence of the Respondents. i- JUDGE 09/11/2015 Page 5 of 5