oswald gwelino mlipuka vs erney castory ndanga 2023 tzhc 23702 17 november 2023

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL N0. 316 OF 2021 (Arising from the judgment of the District Court of Kinondoni at Kinondoni in Civil Case No. 89 of 2019 delivered on 06th May ,2021 by Hon. E.A MWAKALINGA -SRM) OSWARD GWELINO MPILUKA…………………………… APPELLANT VERSUS ERNEY CASTORY NDANGA ………………………….... RESPONDENT JUDGMENT MKWIZU J: The parties in this case are business rivals, dealing with supply and sale of Timber in Dar es salaam city. Though each had his separate business, they sometimes shared their business plans and visions for a couple of years to 2019 when the appellant resorted to a legal actions against the respondent praying inter alia for 83,732,500/= being the amount paid for the supply of Timber and general damages. The defendant did not only deny the plaintiffs claim, he in his written statement of defence raised a counter claim against the defendant to a total sum of 56,000,000/= being the amount of money for the supplied timber to the plaintiff but which was not paid for and loan advanced to him. 1 The trial court on 6.05.2021 entered a judgment in favour of the respondent in the sum of Tsh 28,000,000/= specific damages and general damages to the tune of 15,000,000/=. The appellant fills that the trial court was in error. He has filed a memorandum of appeal with five grounds of appeal to wit: 1. That the Hon. Magistrate grossly erred in determining in favour of the defendant without considering the fact that plaintiff did deposit Tshs 87,732,500/= to the Defendant bank account for timber and no delivery was made. 2. That the Hon Magistrate erred in law and fact by entering judgment in favour of the Defendant without considering the strong evidence adduced by the plaintiff on absence of proof of delivery made from the Defendant. 3. That the Hon magistrate erred in law and fact by entering judgment in favour of the Defendant without considering strong evidence adduced by the plaintiff to the effect that no any agreement was signed by the plaintiff and Defendant that was off setting the debt of Tshs 59,450,000/= 4. That the Hon magistrate erred in law and fact by entering judgment in favour of the Defendant without considering the fact that PW2 and PW3 (plaintiff witness) did establish the transaction made to the defendant and bank pay in slips with money transfer forms were admitted in court as exhibits. 5. The trial magistrate grossly erred in law in producing and submitting on issue which was not framed. 2 In this appeal, the appellant is represented by Mr. Samwel Shedrack Advocate learned Counsel. Respondent could not be traced even after a substituted service hence this ex-parte hearing conducted through written submissions. Mr. Samwel Shedrack choose to argue 1st and 2nd grounds of appeal jointly. He said, the fact that the Appellant deposited Tshs. 83,732,500/= into the Respondent’s account was not disputed by the respondent during trial. The bank slips exhibiting the said payments were tendered in court but the Trial Magistrate turned a blind eye on them, instead he dealt with the counter claims only leaving the plaintiff’s case unresolved.The same issue was submitted on the 3rd and 4th grounds of appeal as well faulting the trial court for not considering the plaintiffs evidence. On the last ground , the trial court was challenged for raising a new issue on counter claim without according parties a chance to address the court on it contrary to a well-established principle principle of the law that bars such a procedure. The appellant counsel was of the view that the omission rendered the entire judgment and the decree of the trial court defective. I have thoughtfully considered the grounds of appeal and the appellants submissions. A crucial question is whether the plaintiff’s case was determined or not. Upon close scrutiny of the pleadings, trial courts proceedings and the impugned decisions, I would agree with the appellant’s counsel that the plaintiff’s case was left unresolved. As the records would show, in this suit, both parties had brought before the trial court two separate claims. The plaintiffs claim and a counter claim brought along with the WSD pursuant to order VIII Rule 8 and 9 of the 3 CPC. In this case, both the main suit and the counter claim were determined together. And four issues were framed before the commencement of the trial to wit: 1. Whether there was an oral contract between the parties. 2. If yes, whether parties adhered to the contract. 3. Whether there was a breach of contract by the defendant 4. What reliefs are parties entitled to. Two ailments are apparent from the records. One, going by the pleadings and the trial courts judgment, the above issues did not cover the counter claim. They were directed to answer to the main suit by the plaintiff, now appellant. This is because, by its nature, the counter claim introduced a settlement agreement in relation to the same transaction. There was nothing framed by the court suggesting understanding of the counter claim. This findings is supported by the trial court’s decision on which having detected this oddity at page 3 of its decision, an issue in respect of the counter claim was raised ie, “whether this counter claim has merit”. Two, though it is on the records that both parties were availed chance to lead evidence in support on their claims and against each other, only evidence by the defendant now respondent was exhaustively evaluated and decided upon leaving the plaintiff’s case undetermined. At page 3 of its decision, the trial magistrate had proposed to begin with the new issue framed during the composition of the judgement on whether the counter claim had merit. It remained on that issue to the end of its judgment. The analysis of the plaintiff’s case only appears on the last paragraph of page 3 of the impugned decision where the trial magistrate said: 4 “On the other hand, the plaintiff denied the claim of the defendant advancing before this court that he instead is intitled to sum of Tsh 83,732,500/= as against the defendant. Although there were testimonies of PW2 and PW3 establishing the transaction made to the defendant, still two witnesses failed to inform this court on the agreement that subsisted between the two parties”. The rest of the examination of evidence and the entire decision by the trial court was based on the defendant (respondent) evidence and counter claim. 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 where both counter claim and the plaintiffs 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 that 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. 5 The critical question is what is the consequences of all these? In Kanyinda Abdallah Mnuta V Obocha Credit {T) LTD, DC Civil Appeal No 05 of 2022,( Unreported) the trial Magistrate did not consider the counter claim filed by the Appellant. Considering the consequences of such an omission, my Brother Mlyambina J, had this to say at page 14 of the typed judgement: “A trial of a suit with a cross suit without framing issues covering both original suit and a cross suit is fatal in law. Equally, a common judgement of a suit and cross suit without articulating orders addressing both original suit and cross suit is not a judgement at all, and the same applies to its decree. In the case at hand, the trial Magistrate did not consider the counter claim filed by the Appellant when the issues were framed. As a result, even the parties when adducing their evidence did not address on the counter claim. That makes the counter claim to remain unsettled.” (emphasis supplied) And in Stanbic Bank Tanzania Ltd V Trust Engineering Work Ltd, Civil Appeal No. 374 OF 2019(Unreported), the Court of Appeal was confronted with a situation where both the counterclaim was heard together with the suit but at the end , the trial court left the issues in relation to the counter claim undecided. Clarifying on the point the Court of Appeal held: “On the effect of the trial court's omission, we agree with the appellant's counsel, first, that since the counterclaim is an 6 independent suit, failure to determine it renders the judgment incomplete and therefore defective.” Though the two decisions were dealing with undetermined counter claim, I find the principle equally applicable in the circumstances of this case as well. The failure by the trial magistrate to frame issues in relation to the counter claim before the commencement of the trial and failure to make a findings on the plaintiff’s case as required by the law is as stated fatal rendering the entire trial court’s proceedings a nullity. As a result, the trial court’s proceedings, judgment, and the resultant decree are nullified. The record is remitted to the trial court for re trial before another magistrate of a competent jurisdiction. Since the error was occasioned by the court, I make no order as to costs. DATED at DAR ES SALAAM this 17th day of November 2023. E. Y Mkwizu Judge 17/11/2023 COURT: Right of appeal explained E. Y Mkwizu Judge 7 8