Rubya Judgment Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY AT GEITA CIVIL APPEAL No. 30279 OF 2024 (Arising from Misc. Civil Application No. 617758 of 2024 originating from Civil Case No. 28047 of 2024 in the District Court of Chato at Chato) RUBYA W. PAULO……………………………………………..……………APPELLANT VERSUS CHARLES SALUMU….……………………………………………………RESPONDENT JUDGMENT Date of last Order: 29/01/2025 Date of Judgment: 07/02/2025 MWAKAPEJE, J.: This is an appeal in which the appellant was dissatisfied with the decision rendered by the District Court of Chato in Misc. Application No. 17758 of 2024, wherein his application for a restoration order of Civil Case No. 28047 of 2024 was rejected and dismissed forthwith. A brief background of the appeal is as follows: the respondent was convicted in Criminal Case No. 123/2020 for stealing the Appellant's property. Subsequently, the Appellant filed Civil Case No. 28047/2024 before the same court, claiming damages. On 08/07/2024, the trial Court, under Order XVIII Rule 2(1) of the Civil Procedure Code Cap 33 R.E. 2019, directed that the parties present their evidence through witness Page 1 of 13 statements. As the plaintiff, the appellant was required to file the witness statements by 15/07/2024. However, he failed to meet the deadline, resulting in the dismissal of the suit. Following the dismissal, the appellant sought restoration under Order IX Rule 6 and Section 95 of the Civil Procedure Code in Misc. Application No. 17758 of 2024, citing technical challenges in obtaining a control number for electronically filing the statements. After evaluating the submissions, the trial Court found no merit in the application and dismissed it. Aggrieved by this decision, the appellant has filed this appeal in this Court and advanced five grounds of appeal for consideration as follows: 1. That the order and the decision were tainted with illegalities. 2. That the Trial Magistrate acted biasedly. 3. That the Trial Court erred both in law and in fact by mentioning a person who was not basically a party to the case. 4. That the trial Court erred in law and in fact by deciding that the Appellant did not comply with the Court Order. 5. That the trial Court erred in law and in fact by deciding that the Appellant did not provide for sufficient cause. The appeal was argued by written submissions. The appellant was represented by Ms Zena Hassan, a learned advocate, and the respondent was represented by Mr Ally Zaid, a learned advocate. Both parties Page 2 of 13 complied with the scheduling order and filed their submission within the prescribed time. In her submission, Ms Hassan abandoned the third ground of appeal, leaving four grounds for consideration. On the first ground, she argued that the trial Court's order and decision were tainted with illegalities. She pointed out that the trial magistrate had incorrectly claimed to have ordered the filing of witness statements within seven days before the hearing, which contradicted the actual order requiring submission by 15/07/2024. The hearing was scheduled for the same day. Ms Hassan stated that this schedule violated Order XVIII Rule 3(1) of the Civil Procedure Code (Amendment of the First Schedule) Rules, 2021, which mandates a minimum of seven days between filing witness statements and the hearing date. According to her, such an illegality had compromised the entire proceedings. On the second ground, the Appellant claimed that the trial magistrate demonstrated bias in handling the case. She alleged that the magistrate frequently adjourned the case without valid reasons, often accepting the Respondent's claims of illness or lack of legal representation without evidence. Additionally, Ms Hassan stated that the magistrate denied the Appellant's request for an ex-parte hearing. She also noted Page 3 of 13 that the restoration application filed on 24/07/2024 faced unnecessary delays due to repeated adjournments, which the Appellant argued reflected bias and unfairness. Addressing the fourth ground, Ms Hassan contended that the witness statements were filed on 12/07/2024, as evidenced by annexed CMS records. It was asserted that the Court's decision to dismiss the restoration application despite timely compliance was unjust. The Appellant cited Rule 21 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, which treats documents filed electronically by midnight as being timely filed. She further emphasised that the delay in processing the control number for admission of the documents was not their fault. To support her argument, she referred to the case of Indo- African Estate Ltd v. District Commissioner for Lindi District & Others (Civil Application No. 12/07 of 2022), which held that a party should not be penalised for Court errors. On the fifth ground of appeal, Ms Hassan argued that the trial Court erroneously found no good cause for restoration. She stated that the Appellant had presented hard copies of the witness statements on the hearing day, proving compliance with the filing requirements. The Appellant asserted that the Court had a duty to confirm these facts but Page 4 of 13 failed to do so. Furthermore, she noted that the Respondent and their advocate were absent on the hearing date, making the award of costs improper. Citing Clamian Salashy Kitesho v. John Van Der Moosdijk & Another (Consolidated Civil Appeal Nos. 41 and 42 of 2021), Ms Hassan argued that costs should not have been awarded in such circumstances. She, therefore, prayed for the appeal to be allowed, the decision in Miscellaneous Civil Application No.17758 of 2024 to be quashed and set aside, and a restoration of Civil Case No. 28047 of 2024 for it to be heard on its merits. On the other hand, Mr Zaid opposed the appeal and argued that it was unmaintainable. On the first ground, he submitted that the Appellant had failed to demonstrate any illegality in the trial Court's decision. He stated that on 08/07/2024, the Court had ordered the Appellant to file witness statements within seven days, by 14/07/2024, with the hearing set for 15/07/2024. However, the Appellant had filed the statements late, on 15/07/2024 at 6:15 P.M., and subsequent dates, contrary to the Court's order. He emphasised the importance of respecting Court orders. He referred to the case of Concern for Development & Another v. Ambero Consulting Gesellschaft mbH & Another (Civil Application No. 18/01 of 2021) in support. Page 5 of 13 On the second ground, Mr Zaid denied allegations of bias by the trial magistrate, asserting that the magistrate had acted impartially in accordance with Article 107A (2) and 107B of the Constitution of the United Republic of Tanzania, 1977, and the Judicial Code of Conduct, 2020. The Respondent argued that adjournments were granted based on valid reasons, such as the need to secure legal representation, which aligned with the principles of a fair hearing. He cited the case of Joseph Shirima & Another v. Filbertha Kayombo (Civil Appeal No. 76 of 2022) [2023] TZCA 17933 (12 December 2023) to argue that no reasonable person would perceive bias in the magistrate's conduct. Regarding the fourth ground, Mr Zaid maintained that the Appellant failed to comply with the court order, which justified dismissal. Referring to the case of Fair Deal Auto Pvt Ltd v. City Boys Electronics Co. Ltd (Civil Case No. 187 of 2019), Mr Zaid argued that timely compliance with Court orders was crucial. He also challenged the Appellant's reliance on Rule 21 of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, stating that filing fees must be paid promptly, as affirmed in Matoto Matoto v. Makuru Irega (Misc. Land Appeal No. 8 of 2021). Finally, Mr Zaid argued that the Appellant failed to demonstrate sufficient cause for restoration and contended that the responsibility to Page 6 of 13 follow up on electronically filed documents lay with the party or their advocate. He further submitted that under Order IX Rule 2 of the Civil Procedure Code, a case may be dismissed for the nonappearance of both parties. Therefore, the trial Court's decision was justified, and he prayed for the appeal to be dismissed with costs. In her rejoinder, Ms Hassan argued that the Respondent's claim of no illegality is flawed because the Trial Magistrate did not adhere to Order XVIII Rule 3, which requires witness statements to be filed at least seven days before the hearing. Instead, the magistrate ordered statements to be filed and the hearing to be held on the same date, constituting an illegality. The Appellant filed the statements on 12 July 2024, within the stipulated time, but the Court unjustly dismissed the case. She emphasised that the ruling was tainted with illegalities, as the Trial Magistrate falsely claimed to have provided the required seven days. She cited Rule 21(1) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, which deems a document filed if submitted before midnight on the due date. Ms Hassan refuted the Respondent's claim of introducing new evidence in the appeal and addressed the issue of adjournments due to unproven sickness. Page 7 of 13 In conclusion, Ms Hassan reiterated compliance with the Court's order and consistent attendance. She submitted that the appeal should be allowed with costs and that Civil Case No. 28047/2024 be restored and heard on its merits. Having considered the grounds of appeal and submissions by the parties, the central issue before this Court pertains to the merit of the appeal. In this regard, I shall commence by addressing the first ground of appeal, which asserts that the ruling of the trial magistrate was marred by irregularities. As per the trial court’s records in Civil Case No. 28047 of 2024, during the final pre-trial settlement and scheduling conference on 08/07/2024, the trial magistrate directed that witness testimonies be presented in written statements. The plaintiff (appellant) was instructed to submit the statement by 15/07/2024, with the hearing slated for the same date. However, upon the hearing on 15/07/2024, it transpired that the appellant had failed to adhere to the stipulated timeline for filing the statement, leading to the dismissal of the case under Order IX Rule 5 of the Civil Procedure Code, Cap 33 R.E 2022. At this juncture, and before I delve into discussing other grounds, should the need arise, it is imperative to pause and contemplate the Page 8 of 13 nature of the directive for witness evidence to be furnished via written statements. The procedural framework governing this process is delineated in the Civil Procedure Code (Amendment of the First Schedule) Rules, 2021, G.N No.761 of 2021. Specifically, Order XVIII Rule 3, which I shall now reproduce, stipulates the following: "3. -(1) After completion of mediation the plaintiff shall, in not less than seven days before the time fixed by court for hearing, file a statement by each witness whom he intends to call at the trial, setting out the substance of his evidence. (2) The respondent shall, within fourteen days of the closure of the plaintiff's case file a statement by each witness he intends to call in defence. (3) Copies of the witness statements shall be served on the other party not later than five days after being filed. (4) Each witness statement shall be filed together with sufficient certified two copies for each magistrate or judge where there are more than one trial judge or magistrate, and all other plaintiffs in the same case and the defendant.’’ [Emphasis supplied] This provision aims to enhance procedural fairness, efficiency, and predictability in trial proceedings by establishing clear timelines for filing and serving witness statements. This ensures both parties have an equal opportunity to prepare their cases, aligning with the principle of natural justice and the right to a fair trial under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. In the case of Ausdrill Tanzania Ltd versus Mussa Joseph Kumili and Another, Civil Page 9 of 13 Appeal No. 78 of 2014, Court of Appeal of Tanzania at Mwanza (Unreported), it was stated that: "Right to be heard (audi alteram partem) is a fundamental principle which the courts of law jealously guard against. In this country, natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13(6)(a)" [Emphasis supplied] Sub-rule (1) of Rule 3 requires the plaintiff to file witness statements at least seven days before the hearing, allowing sufficient time for review. Sub-rule (3) mandates service of these statements on the defendant within five days of filing to ensure they are not caught by surprise and can prepare for cross-examination. In this case, the trial magistrate initially directed compliance with sub-rule (1) but ordered the hearing to proceed within seven days, ignoring sub-rule (3). This deprived the defendant of adequate time to review the witness statements and prepare for cross-examination, undermining their right to challenge the evidence. On 15/07/2024, the magistrate dismissed the case without addressing the defendant's lack of preparation, constituting an apparent procedural irregularity and prejudicing the defendant's right to a fair hearing. Page 10 of 13 The right to be heard, a fundamental principle of natural justice, includes having adequate notice and an opportunity to present a defence. This is firmly established in case law, such as Mbeya-Rukwa Auto Parts and Transport Ltd vs Jestina George Mwakyoma [2003] TLR 251, where the Court of Appeal emphasised that denial of this right results into a miscarriage of justice. In Abbas Sherally and Another vs Abdul Fazalboy, Civil Application No. 33 of 2002, Court of Appeal of Tanzania at Dar Es Salaam (unreported), it was explicitly stated that: "The right of a party to be heard before adverse action or decision is taken against such party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard because the violation is considered to be a breach of natural justice." Also, the Court of Appeal in the case of Highland Estate Ltd. vs Kampuni ya Uchukuzi Dodoma Ltd & Another, Civil Application No. 183 of 2004 (unreported), cemented that: "a decision which is arrived at in violation of the basic right to a fair hearing is a nullity even if the same decision would have been reached had the party been heard fairly" [Emphasis supplied] Page 11 of 13 In this instance, the magistrate's failure to adhere to the mandatory provisions of Order VIII Rule 3, as amended by the Civil Procedure Code (Amendment of the First Schedule) Rules, 2021, directly undermined the defendant's ability to prepare an adequate defence. This constituted a material error, rendering the dismissal order of the plaintiff's case ultra vires and violating the defendant's right to be heard. It is well established that violations of procedural fairness are not mere technicalities but fundamental errors that compromise the integrity of the entire process. Consequently, the failure to comply with the procedure vitiates the proceedings. Therefore, I concur with Ms Hassan's view that the decision was flawed due to non-compliance with mandatory procedural requirements, which I hereby set aside. Given that this ground alone is sufficient to dispose of the appeal, I find it unnecessary to address the remaining grounds, as they all stem from the same procedural irregularities. Consequently, I find merit in this appeal and allow it. Having set aside the dismissal order, I restore Civil Case No. 28047 of 2024. Moreover, the case is remitted to the District Court for determination by another magistrate on its merits, commencing from the stage it had Page 12 of 13 reached before dismissal. In these circumstances, I make no order as to costs. It is so ordered. DATED at GEITA this 07th day of February 2025. G.V. MWAKAPEJE JUDGE Page 13 of 13