PC CIVIL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM PC. CIVIL APPEAL NO. 16743 OF 2024 (Arising from the decision of the District Court of Kinondoni (Hon. V.M. Kaseko, SRM) in Civil Appeal No. 76 of 2023 dated 14th June 2024: Originating from the decision of the Primary Court of Kawe (W.P. Hon. Kairanya, RM) in Civil Case No. 390 of 2022 dated 15th September 2023) __________________ SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE(MKURUGENZI)…………….……..……………………APPELLANT VERSUS HAMIS KESSY RAJABU……………………………….…………RESPONDENT JUDGEMENT Date of last order: 6th November 2024 Date of Judgement: 10th December 2024 MTEMBWA, J.: In the Primary Court of Kawe, the Respondent commenced proceedings against the Appellant, claiming for payment of Tanzanian Shillings 12,600,000/= for the breach of the contract between the two. Briefly, on 2nd June 2022, parties entered into a transportation contract in which the Respondent agreed to transport the Appellant’s students daily to and from the school. According to Exhibit P1, the Respondent agreed to receive the sum of Tanzanian Shillings 70,000/= per day. In case of dissatisfaction with the service rendered, the Appellant was supposed to notify the Respondent in writing within seven (7) days. 1 The records further reveal that the Appellant appeared twice before the trial Court, one of which was on 17th January 2023. She was represented by her Human Resource officer, Ms. Paulet James. From then on, the Appellant never appeared in Court. As a result, the matter was heard exparte against her on 22nd August 2023. Having gathered the evidence adduced during hearing, the matter was decided in favor of the Respondent. Dissatisfied, the Appellant appealed unsuccessfully to the District Court of Kinondoni, hence this Appeal. Before this Court, the Appellant fronted the following grounds of appeal, which I quote in verbatim; 1. The Appellate Magistrate erred in law and fact for failing to properly interpret and apply the provisions of section 18 (a) iii and 40 (3) of the Magistrates Court Act, Cap. 11 and erroneously reached a finding that the trial Court had a jurisdiction to entertain suit of commercial nature. 2. The Trial Magistrate erred in law and fact for failing to properly address the ground that the trial court entertained the suit against a none existing entity with no locus to be sued which challenges the capacity of parties to a suit and its competency, and consequently erroneously arrived into the findings that the introduction of Maarifa Education Fund is an afterthought. 3. The Appellate Magistrate erred in law and fact for erroneously arriving into the finding that the Respondent's name "Mwalimu Julius Kambarage Nverere School (Mkurugenzi) appearing in the Judgment of Trial Court 2 resulted from the mistake of the court officials and consequently wrongly rectified it without affording the Appellant with a right to be heard. 4. The Appellate Magistrate erred in law and fact for erroneously rectifying the Respondent's name "Mwalimu Julius Kambarage Nyerere School (Mkurugenzi) without reflecting on the correction of the name on its Judgment. When the matter came up for orders on 22nd August 2024, the Appellant was represented by Mr. Mashaka Ngole, the learned counsel, while the Respondent appeared in person. By consent, the parties agreed to argue this appeal through written submissions. Having reviewed the records, I am satisfied that the parties adhered to the agreed schedule, which I intensely recommend. Having passed through the grounds of appeal, I feel instructed to launch on the third and fourth grounds of appeal to establish whether this appeal is appropriate before the Court, which Mr. Ngole argued altogether. Arguing on the third and fourth grounds of appeal, Mr. Ngole referred this Court to page 6 of the Judgment of the Appellate Court, where it was observed that the word “Mkurugenzi” appearing in the decree was added by mistake of the Court officials. The learned counsel contended that the Appellate Magistrate erred in law and fact for erroneously arriving at the finding that the Appellant’s name, "Mwalimu 3 Julius Kambarage Nyerere School (Mkurugenzi)” appearing in the Judgment of the trial Court was as a result of the mistake by the Court officials. He condemned the trial Court for rectifying the name without affording the Appellant the right to be heard. Stretching further, Mr. Ngole observed that even the Appellate Court fell into the same error by having the name said to have been rectified by the trial Court. In response, the Respondent observed that the complaint was filed before the trial Court against “Mwalimu Julius Kambarage Nyerere School” and not “Mwalimu Julius Kambarage Nyerere School (Mkurugenzi)” as alleged by the Appellant. He referred this Court to the complaint form (Fomu Madai-1). He added that the additional word “Mkurugenzi” was just a slip of the computer keyboard, and thus, the Respondent should not be penalized for the mistakes committed by the Court officials. He cited the case of Jewele & Antiques (I) LTD vs. National Shipping Agencies Co. Ltd (1994) TLR 107, where it was observed that litigants should not suffer through mistakes of court officials associated with the imprecise record of the proceeding in the administration of justice. He further cited article 107A (1) of the Constitution of the United Republic of Tanzania, 1977, as amended and section 37 (2) of the Magistrates’ Court Act, Cap 11 RE 2019. 4 In rejoinder, Mr. Ngole had nothing substantial to add. He implored this Court to consider the grounds raised in the Memorandum of Appeal and submissions in support thereof and allow the appeal with Costs. Having dispassionately considered the rival arguments by the parties, the question is whether the third and fourth grounds of appeal are worth considering. Indeed, according to rule 5 (1) of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, GN No. 119 of 1983 , the proceedings in the Primary Court are commenced by filing an application orally or in written form signed by the Applicant. Rule 15 (1) (a) – (d) thereof, provides for the particulars or contents of the application. It provides that; A proceeding shall be instituted by an application specifying; (a) the name of the court in which the proceeding is brought; (b) the name, occupation and place of residence or place of business of the claimant; (c) the name, occupation and place of residence or place of business of the defendant, so far as they can be ascertained; (d) the facts on wh.ch the claim is based and when and where it arose; (Emphasis mine) 5 According to the Complaint Form (Fomu Madai – 2), on 28th October 2022, the Respondent commenced proceedings against MWALIMU JULIUS KAMBARAGE NYERERE SCHOOL in the Primary Court of Kawe claiming for Tanzanian Shillings 12,600,000/= for breach of the transportation contract. Having gathered the evidence as aforesaid, the trial Court prepared a Judgement in favour of the Respondent against SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE (MKURUGENZI). When the issue was tabled for consideration before the Appellate Court, the learned Appellate Magistrate considered the alteration as a trivial error or a mistake caused by Court officials that can be rectified at any stage of the proceedings. The Appellate Court then proceeded to prepare a judgment on appeal by referring the Appellant as SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE (MKURUGENZI). According to Mr. Ngole, the learned Appellate Magistrate erred in law and fact for erroneously arriving at the finding that the Appellant’s name, "Mwalimu Julius Kambarage Nyerere School (Mkurugenzi)” appearing in the Judgment of the trial Court was as a result of the mistake by the Court officials that can be rectified at any stage of the proceedings. He faulted the 6 Appellate Court’s stance of rectifying the party's name without affording them the right to be heard. On his part, the Respondent observed that the complaint was filed before the trial Court against MWALIMU JULIUS KAMBARAGE NYERERE SCHOOL and not SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE (MKURUGENZI) as alleged by the Appellant. He considered the additional word “Mkurugenzi” to be a slip of the computer keyboard; thus, he should not be penalized for the mistakes committed by the Court officials. From what I have gathered hereinabove, parties concurrently agree to each other that, according to the Complaint Form filed in the trial Court, the Respondent’s name was MWALIMU JULIUS KAMBARAGE NYERERE SCHOOL. The name SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE (MKURUGENZI) was introduced by the trial Court at the time of writing the Judgement. It was not easily established whether the two names refer to one entity, although they sound different. The party that could have claimed to be known by those names is the one who denounces one of them. I have asked myself to whose interest Mr. Ngole is safeguarding? Is it MWALIMU JULIUS KAMBARAGE NYERERE SCHOOL or SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE (MKURUGENZI). It was not open 7 as to who, among the two, instructed the learned counsel. When I was about to resolve that issue, I imagined what would happen during execution. I need not to overemphasize here that MWALIMU JULIUS KAMBARAGE NYERERE SCHOOL and SHULE YA MWALIMU JULIUS KAMBARAGE NYERERE (MKURUGENZI) are different names, both semantically and structurally. While the former name refers to the Defendant in view of the Complaint Form (Fomu Madai – 2) filed in the trial Court, the latter name was innovated by the trial Court at the time of writing the judgment. Without reasons on records, the trial Court introduced and/or innovated another name as the defendant when writing the judgment without engaging the parties. The records are silent on whether parties amended their pleadings to reflect the named Defendant at any point in time. It has been held times without numbers that Court records are considered authentic and should not be easily altered as parties would want to. The Court is also not excused from adhering to what is revealed by the pleading unless such departure is in the interest of justice, mostly when moved by the parties. Whether she was improperly sued or not should not detain us at this stage, but the judgment must reflect the names of the parties as revealed by the records. The Appellate Court 8 wrongly proceeded to prepare the Judgement in the name that cannot be traced from the records. in Salim Amour Diwani vs. the Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33 (21 February 2023) has this to say; ………..the issue was that the names which were appearing in the notice of appeal were different from those appearing in the application to strike out the notice of appeal. We underscored the significance of the authenticity and accuracy of court records which in our considered opinion includes a citation of parties' names as they appear in the proceedings. In the case of Road Force Limited vs. Muhammad Adam Khatri (Civil Appeal No. 183 of 2024) [2024] TZHC 1187 (28 March 2024), this Court faced a similar situation. It could appear that the Primary Court of Temeke issued a Judgment in favor of the party who never commenced proceeding by filing a complaint form at the trial Court. Considering the circumstances, this Court observed; It was therefore a glaring error on the part of the trial Court to proceed determining the matter exparte and resolving in favour of the person who never commenced proceedings before it as revealed by the pleadings, in this case, the Application. It is safe, considering the circumstances to hold that, the appellant never served the summons to the Respondent because she never commenced any civil proceedings against the Respondent at the trial Court so to say. 9 (emphasis mine) Given that the judgment details the rights and liabilities of the parties, it cannot be safely concluded that this appeal stems from the court's legal decision, from which a party can appeal. It is a nullity. Since the error happened when writing the judgment, I see no controversy regarding the proceedings. However, the Judgements of the trial Court and the Appellate Court cannot be left unattended. Since the third and fourth grounds of appeal suffice to dispose of this Appeal, I see no reason to discuss other grounds of appeal because they are premised on an illegal Judgment. That said, I allow the third and fourth grounds of appeal. To that end, the appeal is allowed to the extent explained above. The Judgement and Decree of the District Court of Kinondoni in Civil Appeal No. 76 of 2023 and the Primary Court of Kawe in Civil Case No. 390 of 2022 are hereby quashed and set aside. The records be remitted to the Primary Court of Kawe for the composition of the Judgement by another Magistrate of the competent jurisdiction. Each party is to bear its costs. I order accordingly. Right of appeal explained. 10 DATED at DAR ES SALAAM this 10th December 2024. H.S. MTEMBWA JUDGE 11