Projestus Rutinwa Bendabenda v Julius Byarwango

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT BUKOBA PC CIVIL APPEAL NO. 000021963 OF 2025 PROJESTUS RUTINWA BENDABENDA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS JULIUS BYARWANGO .............................. RESPONDENT / DEFENDANT JUDGMENT KIWONDE, J The appellant, Projestus Rutinwa Bendabenda, being aggrieved by the decision of the first appellate court (L. G. Mwambeleko, PRM), has preferred the present appeal to this court armed with four (4) grounds of appeal as follows: 1) That the first appellate court erred in law and fact by declaring that the contract was time barred while not, the matter was still in time due to the last agreement the parties entered. 2) That the first appellate court erred in law and fact without considering that the primary court is not the court of technicalities and improper admission of documents is not the fault of the appellant as the documents tendered were genuine for the appellant to prove his allegation. 3) That the first appellate court erred in law and fact without considering that the respondent was a guarantor to the contract has a duty to pay. 4) That the first appellate court erred in law and fact without considering the evidence in the trial court that the appellant proved the case to the required standard as far as civil case is concerned. The appellant, therefore, urged this court to allow the appeal with cost, quash the decision of the first appellate court, declare that the suit was Page. 1 not time-barred and uphold the trial court’s decision and give any other and further order it deems just to grant. The respondent, resisted the appeal and so, the matter became ripe for hearing. During hearing of the appeal, the appellant was represented by Mr. Derick Zephurine, learned counsel, while, the respondent enjoyed the legal service of Mr. Pereusi Mutasingwa, advocate. The counsel for the appellant argued all four grounds of appeal together. Basically, he faulted the first appellate court for holding that the matter or suit before the trial court was time barred. He argued that the records of the primary court indicate that the last contract was of 15th October, 2018, as the parties used to change or alter their contracts or agreement on how to pay the money but the trial court based on the contract of 2014. Also, the learned counsel cited the decision in the case of SCCI (T) Ltd versus Gulam Mohamedar Punjan and another (Commercial Case No. 130 of 2020) [2022] TZHC Com. Div. 401 (20/10/2022) in which it referred to section 62 of the Law of Contract Act, that where there is an alteration of a contract, the original one is replaced, so, the parties to the agreement are bound by the last contract. Besides that, the counsel argued that the first appellate court expunged the exhibits on reason that the contents were not read out while it was not the fault of the appellant. But the Evidence Act does not apply in primary courts, he was of the view that the right of the parties was deprived of. He prayed this court to hold that there was irregularity in tendering exhibits, then the proceedings be nullified and the matter be ordered to start afresh for the interest of justice. However, he waived the issue of cost. In response, the counsel for the respondent at first opposed the appeal on the first ground of appeal concerning a contract that the last one was of 2018 on reason that the claims based on the contract of 2014 which were time barred. But later on, the counsel for the respondent supported the appeal on reason that at the trial court there were three defendants sued for the debt of TZS 20, 000, 000/= but the summonses were served by a militia man and he said one refused service but the other was not known of his whereabouts. As a result, only Julius Byarwango, the respondent was heard and shouldered with the burden to pay the debt. The counsel argued that other defendants were denied the Page. 2 right to be heard. He asked for retrial order for the interest of justice. The counsel for the appellant had no rejoinder submissions but he joined hands with the counsel for the respondent that since there are apparent illegalities, they cannot be left to stand. From the lower courts’ records, petition of appeal and the considered oral submissions by the counsels for the parties, the main issue here is whether this appeal has been merited or not. It is clear that the first appellate court determined the appeal on the strength of time limitation that the suit before the trial court was time-barred and illegal admission of the documentary evidence. However, in the present appeal, though it is not among the grounds of appeal, there has been raised a point of law that at the trial court, some parties to the suit were deprived of their right to be heard. It is imperative to determine this point of law because even the issue of limitation period available for lodging the claims or suit before the trial and first appellate court could not be decided without hearing the parties. As rightly argued by the counsel for the respondent, the records show that before the trial primary court, there were three (3) defendants jointly sued for the said debt of TZS 20, 000, 000/=, namely, Apolinary N. Rwakailima, Julius Byarwango and Amosi Anastazius. But only the second defendant, the present respondent was heard. The primary court records show that the first defendant Apolinary N. Rwakailima was not found, so, he was not adequately served with the court summons. While, the third defendant, Amosi Anastazius was said to have refused service. The court relied on the information supplied to it by the militiaman. It is from this fact the trial court magistrate heard the case ex-parte. The end result was to condemn the defendants to pay the debt. I quote part of the judgment: “Baada ya mdai kufungua shauri hili, Mahakama hii iliwataka wadaawa wahudhurie mahakamani kujibu dai dhidi yao kutokana na kuitwa shaurini za tarehe 18/03/2024 na 21/03/2024 ila mdaawa Na. 01 Apolinary Ndibalema Rwakailima hakupatikana wala hajulikani mahala alipo kwa mujibu wa taarifa ya mpeleka kuitwa shaurini mwanamgambo MG 446655 Theophil Mulongo ya tarehe 22/03/2024 lakini pia mdaawa Na.03 Amosi Anastazius naye alikataa kusaini kuitwa shaurini….Hivyo basi, wadaiwa wote watatu wamlipe mdai (SM1) jumla ya Shs. 27. 900, Page. 3 000/= (shilingi milioni ishirini na saba na laki tisa” It is therefore crystal clear that the first defendant was condemned unheard on reason that he was not found or not known of his whereabouts. In law, a party to the suit must be adequately served for him to take necessary steps to defend the case lodged against him. Apart from that, it was said that the third defendant refused service, but there was no affidavit of service to that effect. Therefore, the trial court unjustifiably denied the parties their right to be heard. In Martha John Nchangwa Versus Willybroad Mwenyunge Revelian @ Mutole and another (Civil Application No. 916/17 of 2023) [2025] TZCA 1008 (25th September, 2025) TanzLII, it was held inter alia that the right to be heard is fundamental; any decision or order that affects a party is issued without affording the party the right to be heard is rendered a nullity. For that matter, the whole proceedings of the primary court and the resultant decisions and orders were a nullity. In law, no appeal can lie against the nullity. This entails that even the first appellate court had no appeal competent before it to determine. As a result, the appeal is allowed though in a different reason. The proceedings of the lower courts are nullified, decisions thereto are quashed and all subsequent orders are set aside. The matter is ordered to be retried before a different and competent magistrate. Given the circumstance of the appeal and the counsel for the appellant waived the issue of cost, each party to bear own cost. Dated at BUKOBA this 28th of August 2026 . F. H KIWONDE JUDGE OF THE HIGH COURT Page. 4