FINAL ruling NMB VS MAULIDI IBRAHIM SWAI Tanzlii

IN THE HIGH COURT OF THE UITED REPUBLIC OF TANZANIA THE SUB REGISRTY OF MOSHI AT MOSHI CIVIL APPEAL NO 8393 OF 2024 (Arising from the decision of Resident Magistrates Court of Moshi at Moshi dated 19th February, 2024 in Civil Case No. 02 of 2023) NATIONAL MICROFINANCE BANK PLC…………………….APPELLANT Versus MAULID IBRAHIM SWAI……………………………..…….RESPONDENT RULING 30th Sept. & 26th Nov. 2024 A.P.KILIMI, J.: The appellant in the Resident Magistrate Court of Moshi at Moshi in above mentioned case, was decreed to pay the respondent Tshs. 4,800,000/= as litigation costs, Tshs. 80,000,000/- as general damages, interest of 7% per annum at the court rate of decretal amount from the date of judgment to the date of satisfaction of decree and costs of the case . Being aggrieved by the decision and orders thereto, he sought an appeal in this court impelled by three grounds of appeal which he believes will salvage her from above orders. Before the commencement of this expected appeal, the respondent through the service of Mr. Thomas Emanuel Kitundu learned advocate filed 1 a notice of preliminary objection on point of law to the effect that this appeal is incompetent and unmaintainable for non-joinder of a necessary party. When this matter was placed before me for hearing, Mr. Kitundu proceeded to appear for respondent whereas the appellant enjoyed the service of Mr. Godfrey M. Saro, learned advocate. Arguing in support of objection, Mr. Kitundu submitted that the appeal is incompetent for failure to join the necessary party who was the 2nd defendant in the main case at the trial Court. He proceeded that it is the requirement of the law that parties in appeal must be the same as those who were at the lower court and since the judgment and proceeding of the trial court shows Nutmeg Auctioneers & Property Manages Co Ltd as the second defendant therefore it is wrong not including her as a party in this appeal. He further urged that the intention of joining necessary parties is to afford them an opportunity to be heard, thus he said, if this case will proceed without the same, it will be violation of this right. Concerning the previous record, Mr. Kitundu insisted that the court records are taken to be authentic and parties are not allowed to dismantle 2 them. He then commented that what the appellant did by leaving out the second defendant is to destroy or dismantle the lower court records. It was his view that in order to avoid multiplicity of cases, parties should remain as they were appearing at the lower court records and their names should be reflected to be the same once the case proceeded at the higher stage. To bolster his argument, he referred cases of National Bank of Commerce Limited vs Ballast Construction Company Limited Civil Application no. 445/01 of 2022 and another case of Daudi Mongi vs Angelina Saniwa and Another Land appeal No. 156 of 2019. In light of the above submissions Mr. Kitundu prayed this court to struck out the appeal with cost. Responding to the attacks above, Mr. Saro persistently argued that this appeal is competent and maintainable in this court. He acknowledged that it is true that Nutmeg was the second defendant at Moshi Resident Magistrate Court and that it is also true in this appeal he was not joined. He argued however that at the trial court, the original case which is Civil case No.2 of 2023 proceeded ex-parte against the second defendant Nutmeg and this was the reason why she thought it was not proper to include him in the present appeal because he was not heard at the main 3 case. Furthermore, he said in the main case at the trial court, prayers sought and the award issued, did not affect Nutmeg directly. Thus, he argued that to bring him at this stage of appeal while prayers sought, decision, award and a decree issued did not affect him would not be correct. To support his assertion the counsel relied on the case of Juliana Francis Mkwabi vs Lawrent Chimwaga Civil Appeal no. 531 of 2020 which cited the decision of Abdullatif Mohamed Hamis vs Mehboob Yusuf Osman and Another Civil Revision No. 6 of 2017. Regarding the issue of right to be heard, it was Mr. Saro’s submission that at this stage of appeal the court does not hear or receive new evidence therefore; he submitted that if Nutmeg did not have the said right to be heard at the trial court, then he doesn’t think he has that right to be heard in this court except if it could have been an application to set aside an ex-parte judgment. He further distinguished the case of Daudi Mongi (supra) because the same involved a wrong party (stranger) while in this case is not dealing with the wrong party. Lastly in his conclusion Mr. Saro although he previously said that the appeal was proper, he agreed with the authority cited by Mr. Kitundu in the 4 case of National Bank of Commerce Limited vs Ballast Construction Company Limited (supra) and prayed to be allowed to amend the memorandum of appeal in order to join the necessary party without costs. In his brief rejoinder Mr. Kitundu submitted that the issue that the case proceeded ex-parte at the trial court and that it should as well proceed ex-parte in the present appeal is a serious misdirection. He further contended that Nutmeg was given right to be heard but waved his right himself as he failed to appear, but in the present case Nutmeg was neither joined nor summoned, hence he insisted that the appellant ought to have joined and summoned him and that if he failed or refuse to appear then this court would have proceeded ex-parte as the trial court did. He then candidly elucidated that at the trial court the reliefs and prayers sought in the plaint were directed to both defendants and the decree also affected both defendants, thus he resisted the argument by the learned counsel that the same did not affect Nutmeg is not true. Regarding the prayer by Mr. Saro to be allowed to amend the memorandum of appeal relying on oxygen principle, it was Mr. Kitundu’s submission that it is not proper to use oxygen principle at this stage since 5 the aim of oxygen principle should not be used to circumvent the mandatory provision of the law. Also, the learned counsel added that appellant could have saved this court’s time by conceding the appeal to be struck out earlier instead of submitting that the application was competent while it was not. Having heard the rival submissions from both sides, the main issue for determination is whether the preliminary objection raised has merit. In determining the merit of this objection, two limbs appear convenient to me, first whether the omitted party by appellant was a necessary party and second what is the effect on non-joinder of him. The concept of necessary party as per the Civil Procedure Code Cap 33. R.E. 2019 “CPC” refers to an individual or entity whose presence is essential for the court to effectively and conclusively adjudicate upon a matter. These are under Order I Rule 10(2) of the CPC which provides; “The court may, at any stage of the proceedings, either upon or without the application of either party and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck 6 out, and that the name of any person w ho ought to have been joined, w hether as plaintiff or defendant, or w hose presence before the court m ay be necessary in order to enable the court effectually and com pletely to adjudicate upon and settle all the questions involved in the suit, be added.” [Emphasis supplied] Now, in ascertaining whether a party is a necessary party or not in the context of the above cited provision of the law, the idea is to examine a person whose presence before the court is necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit. The fundamental consideration here is the existence of a right of relief sought in relation to the party and the opinion of the court shall also be based upon the role of the party in question in the dispute at hand. In Abdullatif Mohamed Hamis vs Mehboob Yusuf Osman and Another, (supra), the court stated that: - " The determination as to who is a necessary party to a suit would vary from a case to case depending upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the 7 particulars of the non-joined party, the nature of relief claim ed as w ell as w hether or not, in the absence of the party, an executable decree m ay be passed." [ Emphasis is mine] In the present matter in order to ascertain above questions I find apposite to look into the background of the matter giving rise to the present appeal. At the trial court the Respondent herein sued the appellant as the 1st defendant and another person who is not party to the present appeal. The other party who was jointly sued by the respondent as the 2nd defendant was a limited company knows as Nutmeg Auctioneers & Property Managers Co Ltd. At the trial court the respondent herein, who was the plaintiff claimed from the respondents specific and general damages also interests and costs following loss of money used by him in purchasing a mortgaged house which was sold by auction by the 1st defendant through the 2nd defendant company. The record reveals further that the respondent did participate in the auction and emerged a winner hence paid a total sum of Tshs. 50,000.000/= and was given a certificate of sale by auction. After he 8 bought the house, he was sued together with the 1st and 2nd defendants therein at the District Land and Housing Tribunal where they won, but later on appeal the said sale by auction was nullified by this court vide Thomas Musiba Manda vs Nmb Bank Plc and Three Others (Land Appeal 1 of 2022) [2022] TZHC 13976 ( TANZLII). Following the nullification of the sale the respondent filed a suit against the 1st and 2nd defendants claiming damages for the loss he incurred. The 2nd defendant did not enter appearance hence the case proceeded ex-parte against him. In addition, at the trial court, the issues agreed by all parties which implicate also the 2nd defendant were as follows; First, whether the defendant instructed the 2nd defendant to conduct an auction of the mortgaged house at Tarakea, Rombo, Kilimanjaro. Second, whether the defendants owe a duty of care to the plaintiff to conduct lawful public auction to enable the plaintiff to acquire good title free from any encumbrances, and Third, whether the defendants breached that duty and exposed the plaintiff to suffer loss, unnecessarily disturbance, cost and endless litigation. 9 According to the trial court judgment all above issues were answered in affirmative. Thereafter the trial court decided the dispute in favour of the plaintiff and ordered all defendants to pay plaintiff as depicted above. Aggrieved by the decision, the 1st defendant who is now the appellant preferred the present appeal before this court but when instituting the appeal he did not include Nutmeg who was the 2nd defendant in the main suit. Noting the absence of the 2nd defendant on appeal the learned counsel for the respondent raised a preliminary objection as alluded above. Having considered the above facts, issues and the decree of the trial court, despite the facts that the case proceeded in the absence of the said second defendant, I am settled he was affected by issues raised and the decision which ordered to be inclusive on to pay as per decree stated above. In the circumstance I am of the view that proceeding with this appeal without joining him is not tenable because he shares the issues and decree awarded. In the circumstance, I am in all fours with Mr. Kitundu when he disputed Mr. Saro’s argument that because the dispute was heard ex-parte against the 2nd defendant then his presence was not necessary on appeal. 10 As alluded above through the facts, since this an appeal against a judgment and decree which was entered against two defendants jointly, it means even the decision on appeal will also impact on the rights of the 2nd defendant in the dispute. I think he should not be denied right of audience because he was not present at earlier case, thus since this right is very fundamental to him in this appeal, he will decide if he should exercise it or not. Therefore, based on the above, I am of considered view that the said party not joined is necessary party to enable this court to effectively adjudicate the matter. Now, having dealt with the first limb in affirmative, in the second limb I am called to address what is the effect of non-joinder of the party in question. At this point, I think this limb partly has already been answered in the course of determining the first one as to whether the party left out was a necessary party. The general rule is that non-joinder of party is not a bar to proceeding as provided for under Order 1 Rule 9 of the CPC which states as follows; “ a suit shall not be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in 11 controversy so far as regards the right and interests of the parties actually before it”. However, I have considered the mitigation by Mr. Saro when he invited me to be allowed to amend the memorandum of appeal in order to join the necessary party and referred the case of National Bank of Commerce Limited vs Ballast Construction Company Limited (supra), but also, I have considered the averment of Mr. Kitundu that the counsel for appellant ought to have conceded earlier. As pointed out earlier when the non-joinder involves a necessary party like in the present matter it affects the proceeding as to cause injustice to the party left out. Therefore, to avoid miscarriage of justice this appeal deserves to be struck out, but I think the appellant should not be punished for his delay to concede. In the premises, I have considered the duty of this court under the overriding objective principle, the law requires the court to give effect to the overriding objective principle by facilitating just, expeditious, proportionate and affordable resolution of civil disputes. Thus, after a thorough consideration of all the above stated facts, in order to enable 12 timely disposal of the proceedings instead of striking out the appeal I hereby invoke powers conferred on me under section 3A and 3B of the Civil Procedure Code, Cap 33 R.E. 2019 and order the appellant to amend the memorandum of appeal to include the party left out. The same should be filed within 14 days from this day of ruling. Costs should be in the cause. It is so ordered. DATED at MOSHI this 26th day of November, 2024. X JUDGE Signed by: A. P. KILIMI Court: Ruling delivered today on 26th day of October, 2024 in the presence of Mr. Leonard Mashabara learned advocate holding brief Advocate Raulencio Philimoni for the respondent. Appellant absent. 13 Sgd; A. P. KILIMI JUDGE 26/11/2024 14