PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM PC. CIVIL APPEAL NO. 17981 OF 2024 (Arising from the Ruling of the District Court of Kinyerezi (Hon. Abasi, RM) in Misc. Civil Application No. 74 of 2021 dated 29th July 2021: Original Civil Case No. 164 of 2020 in the Primary Court of Kariakoo (Hon. Kobo, PCM) dated 1st February 2020 ________________________ MATTI ABDUL RUSHEKE ……………….....................………..APPELLANT VERSUS SHABIRI NOORHUSSEIN JARIWALLA………………….1ST RESPONDENT CRUISER MOTORS (T) LTD…….………..………........…2ND RESPONDENT JUDGEMENT Date of last order: 17th October 2024 Date of Judgement: 12th November 2024 MTEMBWA, J.: This appeal stems from Civil Case No. 164 of 2020 (herein “the trial Court”) in the Primary Court of Kariakoo, where the Appellant herein commenced proceedings against Cruiser Motors Tanzania LTD (Shabiri Noorhussein Jarwala) claiming the sum of Tanzanian Shillings 4,450,000/= being the equivalent sum she used to buy a three- wheel motorcycle commonly known as “Bajaji”. Having gathered the evidence during hearing, the matter was decided in favor of the 1 Appellant. The trial Court further awarded a total sum of Tanzanian shillings 12,070,000/= and the costs of the suit. The Respondents were dissatisfied. However, it appears they could not file an appeal on time. As a result, Miscellaneous Civil Application No. 164 of 2020 was filed in the District Court of Kinyerezi, seeking an order of extension of time to file an appeal out of time. In the same application, the Respondent also applied for an order of stay execution. Having determined the Application, the Appellate Court allowed the Respondents to file the appeal out of time and proceeded further to stay the execution of the decision of the trial Court. The Appellant was dissatisfied and as a result, she has fronted the following grounds of Appeal and a quote in verbatim; 1. That the learned Resident Magistrate of the District Court erred in law by holding that the application was properly before the court and that the two prayers for stay of execution and the second for extension of time to appeal can be determined together by first dealing with the application for extension of time whereas the two are not related and are based on different facts and law. 2. That the learned Resident Magistrate erred in law and on evidence by holding that the Primary Court judgment was supplied to the respondents on 15th March 2021 whereas there was no documentary evidence to confirm that respondents ever applied for the judgment and that the 2 same was indeed delivered to them on the alleged date whereas they became aware of the judgment of the Primary Court on 4th February 2021 and they were aware of the date of judgment and their absence on the date of delivery of judgment was without reasonable cause. 3. That the learned Resident Magistrate erred in law and on evidence by holding that the respondents, then applicants had managed to account for all days of the delay and that a period of 29 days to obtain and consult the lawyer was not inordinate whereas there was no evidence to confirm that they had actually spent those days to consult a lawyer and respondents failed to account for the days of delay and there was no confirmation by the alleged consulted lawyer. 4. That the learned Resident Magistrate erred in law and on facts by holding that the essential ingredients of granting stay of execution have been fulfilled by the applicants, now respondents basing on mere assertions without looking at the available facts. When the matter came up for orders on 27th August 2024, the Appellant was represented by Mr. Joseph Rutabingwa, the learned counsel, while Mr. Said Nassoro, the learned counsel, represented the Respondents. By consent, the parties agreed to argue this Appeal through the written submissions. Having reviewed the records, I am satisfied that the parties adhered to the agreed schedule. When preparing this Judgement, I noted that the Appellant, at the trial Court, commenced proceedings against Cruiser Motors Tanzania 3 LTD (Shabiri Noorhussein Jarwala). Having evaluated the evidence presented during hearing, the trial Court had this to say; Mdai ameiomba Mahakama imuamuuru mdaiwa kumrejeshea pesa zake za manunuzi shilingi 4, 450,000, lakini pia ameomba riba ya asilimia 20 ya pesa hiyo kwa kuwa alitoa pesa kwa ajili ya kufanya biashara ya bajaj lakini bajaji ilikuwa mbovu na haikuweza kutimiza malengo yake sawa na shilingi 7,120,000 kwa miaka nane pamoja na gharama za kuendesha shauri hili shilingi 15,000,000. Washauri walitoa maoni yao juu ya madai yao kuwa yamethibitika, nami naungana na maoni.yao kwa kuamua yafuatayo; Kuhusu pesa ya manunuzi haina ubishi hivyo dai limethibitika kwa mujibu wa kanuni ya 6 ya kanuni za ushahid kwa mahakama za mwanzo ikisomwa pamoja na fungu la 53 la CPPC. pia hakuna ubishi juu ya swala la bajaji kununuliwa kwa lengo la biashara hivyo ni Dhahiri mdai ameingia hasara anayopaswa kulipwa na mdaiwa, mahakama inamuamuru mdaiwa kulipa shilingi 7,120,000/= ambayo ni asilimia 20 ya pesa ya manunuzi kwa kuzidisha kwa miaka nane ambayo bajaji haijafanya kazi. The trial Court further issued the following orders; 1. Dai la shilingi 4,450,000/= limethibitika, mdaiwa amlipe mdai pesa hizo. 2. Fidia ya hasara aliyopata kwa bajaji kutokufanya kazi shilingi 7,120,000/= 3. Gharama za uendeshaji wa shauri shilingi 500,000/=. 4 From the quoted paragraphs of the impugned Judgement of the trial Court, it is clear that the claimant was the Appellant herein while the Respondent was Cruiser Motors Tanzania LTD (Shabiri Noorhussein Jarwala). Surprisingly, when Miscellaneous Civil Application No. 164 of 2020 was filed in the District Court of Kinyerezi, the names of the parties were altered. The two applicants, Shabiri Noorhussein Jariwalla (the first Applicant) and Cruiser Motor (T) LTD (the second Applicant) emerged. According to the records, each affirmed an affidavit attached to the Chamber Summons. The Appellate Court determined the Application brought by two Applicants (now the Respondents herein). In the end, the Application was granted as sought. Dissatisfied, the Appellant filed this Appeal challenging the decision of the Appellate Court (the District Court of Kinyerezi). In such a state of confusion, I called the parties to address me. In particular, I wanted them to address whether it was correct legally to alter or introduce new parties when filing Miscellaneous Civil Application No. 164 of 2020 in the District Court of Kinyerezi. Addressing the issue, Mr. Joseph Lutabimgwa and Mr. Said Nassoro, respectively, both the learned counsels for the Appellant and Respondents, conceded to the very fact that it was wrong to alter the 5 parties at the time of filing Miscellaneous Civil Application No. 164 of 2020 in the District Court of Kinyerezi. Both agreed that, in such a situation, the District Court of Kinyerezi was wrong to determine the Application that was brought by the parties not recognized by the pleadings filed in the Primary Court of Kariakoo, specifically, Shabiri Noorhussein Jariwalla (as the first Applicant) and Cruiser Motor (T) LTD (as the second Applicant). However, both counsels were not ready to propose a proper recourse to be taken by this Court in the circumstances. I wish to state at the outset that court records are considered authentic and should not be easily altered as parties would want to. I expected to see the names of the parties appearing the same way in the Primary Court of Kariakoo. As said before, the name of the Respondent was Cruiser Motors Tanzania LTD (Shabiri Noorhussein, Jarwala), and the trial Court issued orders against him. Whether he was improperly sued should not detain us at this stage, but the name needed to appear the same way it appeared in the trial Court. In that respect, the Respondents herein were introduced illegally when filing Miscellaneous Civil Application No. 164 of 2020 in the District Court of Kinyerezi. The District Court wrongly proceeded to allow the Application as if the 6 names of the Respondents herein appeared the same way they appeared at the trial Court. Faced with the akin situation, the Court of Appeal of Tanzania in Salim Amour Diwani vs. the Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023) has this to say; I wish to state at the outset that, court records are considered authentic and should not be easily altered as parties would wish to. It bears reaffirming that, parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that and only with the leave of the court. There is, in this regard, a considerable body of case law, See, for instance Hellena Adam Elisha® Hellen Silas Masui v. Yahaya Shabani & Another, Civil Application No. 118/01/2019 (unreported) in which the issue was that the names which were appearing in the notice of appeal were different from those appearing in the application to strike out the notice of appeal. We underscored the significance of the authenticity and accuracy of court records which in our considered opinion includes a citation of parties' names as they appear in the proceedings. Similarly, the Court of Appeal of Tanzania in Isaack Wilfred Kassanga vs. Standard Chartered Bank Tanzania Limited (Civil 7 Application No. 453 of 2019) [2022] TZCA 222 (22 April 2022) observed that; …court records are considered authentic and should not be easily questioned. We are of the stance that this should always be the position, that parties in the proceedings should at any given time appear as they did in the previous proceedings unless there is a reason for not observing that. We are in that respect, guided by our decision in Hellena Adam Elisha @ Hellen Silas Masui v. Yahaya Shabani & Another, Civil Application No. 118/01 of 2019 (unreported), in which the case of Halfani Sudi v. Abieza Chichili [1998] T.L.R. 527, was cited. (emphasis supplied) From what I have observed, this appeal is desirous of properly citing the parties' names as they appeared in the primary Court of Kariakoo. The names appearing on the impugned Ruling of the District Court of Kinyerezi are not the same as the Respondent’s names in the Primary Court of Kariakoo (the trial Court). In such a situation, this Appeal stems from the Ruling improperly instigated by the parties (Respondents). Since it is improperly before this Court, unless it is for academic purposes, I see no reason to discuss the grounds of Appeal raised by the Appellant. In the premises, I proceed to strike them out. To that end, the Proceedings, Ruling and Drawn Order of the District Court of Kinyerezi in Miscellaneous Civil Application No. 164 8 of 2020 are hereby quashed and set aside. The aggrieved party, if any, may properly initiate the appeal proceedings against the decision of the Primary Court of Kariakoo in Civil Case No. 164 of 2020. Considering the circumsaccate, there will be no order as to costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 12th November 2024. H.S. MTEMBWA JUDGE 9