PRAYMUSHI VS MAHMOUD ALLY ASHUR OTHERS CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM. CIVIL APPEAL NO. 25488 OF 2023 (Appeal from the Proceedings, Judgment, and Decree of the Resident Magistrate's Court of Dar es Salaam, at Kisutu (Hon. Mrio PRM), delivered on 04th July 2023 in Civil Case No. 98 of 2019) PRAY MUSHI T/A PAMU TRANSPORT COMPANY.......................APPELLANT VERSUS MAHMOUD ALLY ASHUR....................................................1ST RESPONDENT AL HUSHOOM INVESTMENT LIMITED...............................2ND RESPONDENT DALBIT PETROLEUM (T) LIMITED.....................................3RD RESPONDENT JUDGMENT Date of last order: 20/08/2024 Date of judgment: 03/12/2024 A.A. MBAGWA, J. This is an appeal against the judgment and decree of the Court of the Resident Magistrate of Dar es Salaam (Hon. Mrio, PRM) delivered on 4th July 2023. The material facts of the case, as per the record of appeal, may be recounted as follows; 1 The appellant, Pray Mushi t/a PAMU Transport Company instituted a suit against the defendants claiming the following reliefs; i. For payment of USD 45,408.79 being total outstanding transport charges which fell due for payment from the years 2015 and 2016 but remained unpaid to date along with interest on the outstanding amount at the rate of 25% per month computed from the dates the payment became due to the date of filing of the suit; ii. For the payment of interest at commercial rate prevailing at the date of judgment or at such rate as the Honourable Court may deem fit and just accruing and computed from the date of filing of the suit to the date of judgment on the amount stated in paragraph (1) above; iii. For payment of USD 40,000.00 as specific damages arising from loss of profits during the period when the Plaintiff's vehicles were wrongfully detained by the 1st defendant; iv. For payment of general damages to the tune of USD 50,000.00 plus costs and expenses including legal fees and expenses incurred by the plaintiff as a result of the defendant’s breach and other resultant costs and expenditure incurred by the plaintiff, the facts and 2 particulars of which are given hereunder; and v. For compensation of any cost, loss, or liability incurred by the plaintiff due to the defendant’s actions; vi. For the costs of this suit; and vii. Any other relief (s) as the honourable court may deem fit and just to grant. The appellant contended that he deals with the transportation business and he owns two trucks and trailers named T. 142 AQB with its trailer T. 468 CBB and T. 390 AMC with its trailer T 987 ABW respectively. In the course of business, the appellant, who introduced himself as a broker, successfully approached the 1st respondent for transportation works and they eventually entered into an oral contract for transporting fuel consignment from Dar es Salaam to Ndola/Lusaka Zambia. It was agreed that the plaintiff would be paid after delivering the consignment to the destination and upon presentation of delivery notes. The duo further agreed that the appellant would be paid after delivering ten trips. It was the agreement term that the 1st respondent would deduct the costs of fuel and drivers’ allowances from the payment due to the appellant. The appellant contends that he performed his part by delivering ten trips of 3 fuel to the agreed destination and issued invoices to the 2nd respondent via the 1st respondent for payment of USD 37,000. However, the 1st and 2nd respondents claimed that the last two trips were not delivered to the destination hence withheld the appellant’s two trucks, their respective registration cards, and two documents on purchase of two plots of land. Moreso, following the respondents’ allegations of non-delivery of two trips, there was instituted Criminal Case No. 125 of 2016 at Temeke District Court against the appellant’s drivers but the accused were found not guilty of the offence of stealing goods in transit. Consequently, they were acquitted and the appellant recovered his trucks from Kilwa Road Police Station. The appellant remarked that, however, the 1st and 2nd respondents are still holding his motor vehicle registration cards as well as documents of purchasing plots, an act which caused the appellant to suffer loss as he lost a contract of transporting fuel-worthy TZS 426,240,1000/=. Nevertheless, the respondents neglected or failed to pay the money as agreed hence the suit. Conversely, the respondents filed their respective written statements of defence disputing the appellant's allegations. In addition, the 1st respondent filed a counterclaim against the appellant. The 1st respondent 4 stated that the appellant transported fuel (seven trips) and he paid him for two trips only. The 2nd respondent further contended that the appellant successfully delivered consignment to Ndola Zambia (seven trips) as the remaining two trips never reached the destination. He claimed that the appellant was paid through the 1st respondent for four trips whilst the payment for the rest of the trips was used to compensate the 3rd respondent for the loss of 76,000 litres of fuel that was not delivered by the appellant’s drivers. Besides, the 1st respondent stated that the appellant breached the contract and as a result, he suffered a loss of TZS. 282,730,295.20 which the 2nd respondent is claiming from him after the 2nd respondent paid the said amount to the 3rd respondent as compensation for the undelivered fuel. The 1st and 2nd respondents averred that after the appellant defaulted on delivering two trips of fuel, they took possession of the appellant’s two trucks together with the registration cards and documents on the purchase of plots. The said properties stood as a bond pending the appellant’s payment of the loss. The respondents therefore disputed the appellant's claims on the ground that they had no leg on which to stand. As stated above, the 1st 5 respondent filed a counterclaim against the appellant praying for the following reliefs; a) The plaintiff’s (appellant’s) suit be dismissed with costs together with interest thereon for such period and at such rate as the court may determine. b) Judgment be entered in favour of the 1st defendant (1st respondent) against the plaintiff (appellant) for: - i. Payment of the sum of TZS. 282,730,295.20 as of 18th February 2016 together with interest accruing thereon at the prevailing commercial rates from 19th February 2016 until payment in full; ii. Costs of this suit and the counterclaim together with interest thereon for such period and at such rate as this honourable court may deem appropriate; c) Any other reliefs that the trial court would deem fit to grant. In a bid to prove the claims in the plaint, the appellant stood as the sole witness and tendered thirteen (13) documentary exhibits namely; copies of movement sheet (exhibit P1 collectively), 10 copies of delivery notes and Invoices (exhibit P2 collectively), two documents titled 6 ‘Debit Note’ (exhibit P3 collectively), document titled ‘Truck Soundings Report at Loadport and Disport (exhibit P4 collectively), copies of documents written Tanzania Revenue Authority (exhibit P5 collectively), copies of documents ‘Petroleum Product Inspection Report’ (exhibit P6 collectively), 12 copies of documents written Dalbit fuelling regional growth profoma invoice (exhibit P7 collectively), documents written road consignment note dated 16/10/2015 (exhibit P8 collectively), judgment of Criminal Case No. 125 of 2016 Temeke District Court (exhibit P10 collectively), documents titled ‘Detailed Declaration- Registered -S.A.D (exhibit P11 collectively), letter dated 21/04/2016 with heading “Yah: Ombi la kurejeshewa Magari’’ ( exhibit P12) and document titled ‘Product Receipt Note’ (exhibit P13 collectively). In brief, the appellant recapitulated the averments in the plaint. It was the appellant/plaintiff's evidence that he claims USD 37,000 as payment for transporting fuel to Ndola Zambia and contracts of purchasing plots and truck registration cards which are withheld by 1st and 2nd respondents. PW1 tendered delivery notes and invoices with a total value of seven trips and the same were admitted as exhibit P2 collectively. PW1 admitted that 7 he transported fuel for all the agreed trips but he did not submit invoices for two trips. In defence, the respondents/ defendants paraded four (4) witnesses namely; Mahmoud Ally (DW1), Mahmoud Musa Athman (DW2), Bennet Charles Malekea (DW3), and Minju Kamuyu (DW4). They also tendered four (4) documentary exhibits namely, a paper written ‘’Hati ya Makabidhiano’’ (exhibit D1), a loss report dated 20/6/2023 with ref. No. DAR/MSI/RB/210003/2023 (exhibit D2), loss report dated 20/6/2023 with ref. No. DAR/MSI/RB/210002/2023 (exhibit D3), and 21/6/2023 and Debit Note dated 18/2/2023 (exhibit D3 collectively) a copy of Transport Agreement dated 14/11/2015 (exhibit D4). DW1 admitted to having entered into an oral contract with the appellant for the transportation of fuel consignment belonging to the 3rd respondent. DW1 and DW3 admitted that the appellant successfully transported seven trips to Ndola/Lusaka Zambia. DW1 alleged that the appellant was paid for two trips only while on the other hand DW3 stressed that the appellant was paid for four trips through DW1. DW1 and DW3 conceded that there is no proof that they paid the appellant any of the agreed amount. Nevertheless, DW1 and DW3 alleged that the 8 appellant failed to deliver to the destination two trips carrying 36,536 litres and 36,560 litres of fuel respectively valued at TZS 282,000,000/=. Thus, they did not pay the appellant for the 5th, 6th, and 7th trips as the money was used to compensate the 3rd respondent. DW3 conceded that he has no proof of the payment made to the 3rd respondent with respect to the lost fuel consignment. Since the loss was more worth than the payments for two trips, the 1st respondent by way of counterclaim claimed the appellant to pay the difference, that is, TZS 242,290,601.24/=. Finally, the respondents prayed the court to dismiss the appellant’/plaintiff's case and instead grant the reliefs in the counterclaim. Upon evaluation of the evidence for both sides, the trial Principal Resident Magistrate dismissed the appellant's claims in the plaint and entered judgment and decree in the counterclaim in favour of the 1st respondent. The trial Principal Resident Magistrate awarded the 1st respondent TZS 242,290,601.24. Dissatisfied with the findings and orders of the trial court, the appellant appealed to this Court armed with 10 grounds of appeal as follows; 1. The trial magistrate erred in law and in fact by failing to determine and dispose of the preliminary objection raised by the Appellant 9 before continuing with the hearing of the suit. 2. The trial magistrate erred in law and fact by making an assumption that the Appellant was paid without considering any evidence on record in accordance with the terms and conditions of the contract between the Appellant and the Respondents while at the same time acknowledging that there were delays in making payment by the Respondent. 3. The trial magistrate erred in law and in fact by failing to properly evaluate the evidence submitted by the Appellant. 4. The trial magistrate erred in law and in fact by his failure to take into consideration the documentary evidence tendered by the Appellant, and admitted into evidence by the Court, which justifies specific damages that were occasioned by Respondent which were superficial on the face of records. 5. The trial magistrate erred in law and in fact for failure to take into account the admissions made by the Respondents. 6. The trial magistrate erred in law and in fact for failure to take into account the Appellant’s claims, costs, losses and damages and all accrued interests as stated in the plaint, and occasioned by the 10 Respondents. 7. The trial magistrate erred in law and in fact for failing to take into account the evidence which proves specific damages to the Appellant. 8. The trial magistrate erred in law and in fact for considering the counterclaim which was not proved by the second Respondent. 9. The trial magistrate erred in law and in fact for considering the counterclaim which was the subject matter of the undetermined preliminary objection raised by the Appellant. 10. The court in reaching its decision, grossly erred in law and fact by relying on respondent’s testimonies without due regard that the same were controverted during cross-examination. When the matter was called on for hearing, the appellant was represented by Mr. Gilbert Masaga, learned advocate, on the one hand, whereas Mr. Daniel Shao, Ms. Gladys Tesha, and Mr. Jackton Koyugi assisted by Mr. Nsajigwa Bukuku, learned advocates represented the 1st, 2nd and 3rd respondents respectively, on the other hand. The appeal was argued viva voce. I appreciate counsel of both sides for their insightful submissions for and against the appeal. I will, however, not be able to reproduce their 11 submissions verbatim to avoid making this judgment tedious. Suffice it to say, I have thoroughly read and considered them in my decision. Mr. Masaga strongly argued in support of the appeal whereas Mr. Shao, Ms. Gladys, and Mr. Koyugi respectively resisted the appeal saying that the trial magistrate rightly entered judgment and decree in favour of the respondents. Having canvassed the grounds of appeal and upon appraisal of the lower court record, it is apposite to start with the 1st, 8th, and 9th grounds of appeal. In these grounds, the appellant's counsel strongly faulted the trial magistrate for entering judgment and decree based on the counterclaim which was contested by way of preliminary objection but the objection was never determined by the trial magistrate contrary to the requirement of the law. He complained that the preliminary objection on the competency of the counterclaim was raised and argued for and against by the parties but the trial magistrate never delivered a ruling prior to the determination of the suit. The learned counsel expounded that the preliminary objection challenged the counterclaim but the court granted the prayers in the counterclaim without determining the preliminary. He therefore implored this court to quash the proceedings and judgment and 12 consequently order a retrial to cure the said errors. On this, the appellant's counsel relied on the position taken by the Court of Appeal in the case of Deonesia Onesmo Muyoga and 4 Others vs Emmanuel Jumanne Luhaluha, Civil Appeal No. 219 of 2020, CAT at Tabora on page 8. Conversely, the respondents’ counsel opposed the grounds saying that the preliminary objection was determined before the determination of the suit, however, they readily conceded that the trial proceedings are silent on the ruling which determined the preliminary objection thus it is not clear whether the preliminary objection was delivered. I have accorded earnest consideration to the rival arguments. I also painstakingly scanned the trial court proceedings, the impugned judgment, and the decree. It is on record that the hearing of the preliminary objection took place on 29/5/2023 before the parties paraded their witnesses. The learned trial Magistrate reserved the ruling for 27/6/2023. However, the trial court record is silent on whether the same was delivered nor could this Court locate the copy of the said ruling in the court file. It is a trite law that whenever there is a preliminary objection, the Court is bound to dispose of it first before delving into the merits of the matter. 13 The authorities on this are without a number including Tanzania Revenue Authority vs Tango Transport Company Limited, Civil Appeal No. 48 of 2009, CAT at Arusha, Thabit Ramadhan Maziku, and another vs Amina Khamis Tyela and another, Civil Appeal No. 98 of 2021, and Bank of Tanzania Ltd V. Devran P. Valambia, Civil Application No. 15 of 2002 (unreported). In the case of Deonesia Onesmo Muyoga and 4 Others vs Emmanuel Jumanne Luhaluha (supra), the Court of Appeal had this to say on page 8: ‘It is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and determined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save time of the court and the parties by not going into the merits of the case because there is a point of law that would dispose of the matter summarily’ From the above position of law, it is conspicuous that the failure by the learned trial Magistrate to deliver the ruling on the preliminary objection which was scheduled on 27/6/2023, and thereafter proceed to hear the 14 merits of the case constituted a fatal procedural flaw that went to the root of the trial. The trial court was duty-bound to dispose of the objection before dealing with the merits of the suit. The ailment rendered all the subsequent proceedings in respect of the counterclaim a nullity. It is common cause that a counterclaim is, in law, considered a separate suit that can stand on its own. Thus, ordinarily, the identified anomaly would have affected only the counterclaim. However, looking at the issues framed by the trial Court, it goes without saying that they intended to resolve the controversies both in the main suit and counterclaim. In that regard, it would be inappropriate and indeed tricky to proceed with the determination of the appeal on only issues relating to the main suit. The best and viable solution is to determine first the competence of the counterclaim and thereafter proceed to determine the issues accordingly. That all said, I allow the appeal and quash the proceedings subsequent to the submissions in respect of the preliminary objection. Consequently, I set aside the resultant judgment and decree. I order that the case file be remitted to the trial Court for a retrial. The Court should first determine the preliminary objection and thereafter proceed to hear the case on merits. Each party should bear its own costs. 15 It is so ordered. The right of appeal is fully explained. A.A. Mbagwa JUDGE 03/12/2024 Court: The judgment has been delivered in the presence of Mr. Gilbert Masaga, learned counsel for the appellant, Ms. Glads Tesha holding brief of Mr. Daniel Shao, learned counsel for the 1st respondent, Ms. Glads Tesha, learned counsel for the 2nd respondent, and Mr. Nsajigwa Bukuku, learned counsel for the 3rd respondent on this 3rd day of December 2024. A.A. Mbagwa JUDGE 03/12/2024 16