final judgment STEPHANO CLAUD SILAYO tanzlii

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF MOSHI

AT MOSHI PC CIVIL APPEAL NO. 2309 OF 2024 (Appeal from the decision of District Court of Rombo at Mkuu dated 22nd December 2023 in Civil Appeal No. 10/2023 originated from decision of Tarakea Primary Court in Civil Case no. 05 of 2023) STEPHANO CLAUD SILAYO……………………………..…………………..APPELLANT

VERSUS LIVING INYASI TARIMO……………………………….…………………RESPONDENT

JUDGMENT 11th Sept. & 3rd Oct.

2024. A.P. KILIMI, J.: Pursuant to the Written Laws (Miscellaneous Amendments) (No.

3) Act, 2021 which was gazetted 11th October, 2021. This law was very crucial to the practicing advocates since it extended their jurisdiction to appear and represent litigants at the Primary Courts. However, the said law yielded them into new arena of practicing which require expedited trial with less technicalities. Section 54 of this law amended section 33 of the Magistrate’s Court Act Cap. 11 R.E. 2019 and stated as follows; “54. The principal Act is amended in section 33 by adding immediately after subsection (3), the following: (4) Notwithstanding the provisions of this 1 section, an advocate or public prosecutor may appear or act for any party in a primary court presided over by a resident magistrate. (5) Subject to subsection (4), procedures applied in the proceedings in a prim ary court shall apply in cases w here an advocate or public prosecutor appears or acts for any party in a prim ary court.” [ Emphasis added] In this matter, the appellant herein sued the respondent at Tarakea Primary Court within Rombo District ‘the trial Court’ claiming for payments of Tshs. 15,000,000/=which was from maize business transactions with the respondent. The respondent denied the claims. On 27/03/2023 the date the trial court scheduled for framing issues of the case. Mr. Japhet Shangali learned advocate appeared representing the respondent mentioned above. He then lodged an oral

counterclaim to the effect that the respondent also is claiming the amount of Tshs. 20,995,516/= arising from the same business transaction of maize. Thereafter the trial court started with the hearing of the respondent counterclaim to the conclusion. 2 In proving his counterclaim, the respondent testified that, on 12/11/2022 through an NMB agent, he deposited a total amount of Tshs. 35,710,000/= to the appellant bank account for the maize business transactions. As per their oral agreement, the amount was to be used in buying two cargos of maize motor vehicles and covering the road expenses. It was further testimony of the respondent that, he was expecting to receive two tons of motor vehicles containing maize instead he only received one cargo which costs Tshs 14,714,484/=. Upon receiving the said cargo, he also paid transportation expenses amounting to Tshs. 3,500,000/=. He said what he was counter claiming from the appellant was Tshs 20,995,519/= an amount calculated after removing the incurred costs of Tshs 3,500,000/=, one cargo containing maize Tshs 14,714,484/= and costs incurred for legal services Tshs. 2,000,000/=. Arguing against the counterclaim, the appellant herein at the trial court denied the claims and stated that he was not denying that he was in business relations with the respondent as he was taking maize from Tunduma and send them to Tarakea where the

respondent would receive and store it in a warehouse and sell it later. He argued that their disputes started around October when he returned from Tunduma with three car 3 cargos containing maize. He replied further that he handled those cargos to the respondent where each car cargo was carrying 172 sacks of maize, thus in total he handed over 516 sacks of maize to the plaintiff/respondent. He further added that each sack was priced at Tshs. 86,500/=. Thus, after calculating all expenses incurred, the appellant was to deposit Tshs. 50,710,000/= to his account instead he deposited by instalment a lesser amount. He replied that at first, the plaintiff deposited Tsh 20,000,000/= and Tshs 15,710,000/= making a total amount deposited to be Tsh 35,710,000/=. He stated that such amount was lesser than what was to be deposited which is Tsh 50,710,000/= Thus, he filed a claim against him at the trial court claiming payment of the remaining amount of Tsh. 15,000,000/=. After hearing both parties on a counter claim, the trial court dismissed the counter claim with costs by reasoning that it was not proved beyond reasonable doubts. Unsatisfied with the dismissal orders of his counter claim, the respondent herein appealed to the District Court of Rombo in Civil Appeal No. 10 of 2023 with four grounds of appeal. First; that the trial Magistrate erred in law and fact as she misdirected

herself by declaring that the 4 amount stated in counter claim was not proved on balance of probability, second; that the trial magistrate erred in law and fact for not giving weight the strong evidence including exhibits which was given at the trial court hence erroneous decision, third; that the trial magistrate erred in law and fact for failure to scrutinize and evaluate evidence given at the trial by the appellant hence a decision which was unjustifiable and fourth; that the trial magistrate erred in law and facts for according weight evidence of the respondent which was not strong and undermining that of the appellant. After hearing both parties on above grounds, the District Court allowed the appeal and quashed the trial court decision on the counter claim by reasoning that it erred in relying with the principle of proving civil cases beyond reasonable doubts. The appellate court proceeded to found that the counter claim was proved by the respondent herein and ordered the appellant to pay the amount claimed by the respondent in the counter claim with costs. Undeterred by the said decision, the appellant is in this court praying for the decision of the District Court in Civil appeal No. 10/2023 be quashed and set aside with the following grounds of appeal. 5 1. That, appellate Court erred in law and facts for failure to re-analyse and re- evaluate evidence and exhibit tendered at the trial Court which led to miscarriage of justice.

2. That the appellate court erred in law and fact by failure re-evaluate on standard of proof of the claims on reason that neither delivered note, warehouse receipts nor invoice was tendered to the effect of number of vehicles of maize supplied, the claims cannot be said to have been proved to the balance of probabilities.

3. That the appellate Court erred in law and to grant the counter claim basing on respondent’s testimony and disregard appellant’s testimony without proof of exhibit proving the value of each vehicle of maize supplied, hence erroneous decision. This appeal was agreed by the parties to be disposed by way of written submissions. The appellant was represented by Mr. Emmanuel Karia whereas the respondent enjoyed the service of Mr. Julius Fokas both learned advocates. I applaud both parties on timely filing their submissions and for convenient of this matter I will refer to them in due course when the need arises. I have considered the rival submissions by the parties and the record of the trial court, while drafting this judgment, I saw it useful for the parties ’s counsel to address me on two issues concerning the procedures on how ‘counter claim’ was handled by the trial court. First; whether the 6 counterclaim lodged at the trial court followed the legal procedures practiced at the primary court and second; whether it was proper for the trial court to hear and decide on counterclaim lodged separately from the main suit. Arguing for the respondent, Mr Julius Fokasi learned advocate replied that according to the rules used in primary Courts, the counter claim was to be in a written form in which such rules were not abided to at the trial Court. In respect to the second issue the

counsel submitted that the counter claim ought to be decided with the whole case and thus the decision of the counter claim affects also the main suit as they all relates to the same cause of action and matter in dispute. Then the counsel concluded that, since the trial was yet to finalize the main dispute it was not proper for the trial court to decide only in counter claim leaving the main suit. Representing the appellant, Ms. Mwanaidi Idrisa learned counsel holding brief for Mr. Emmanuel Karia with instruction to proceed submitted that since counter claim was a pleading like a normal pleading, it had to follow rules of pleadings. She said that the claim was presented orally but did not state the reliefs claimed. She argued that the procedures in 7 replying to counter claim were not followed at the trial court. In respect to the second issue, she submitted that since the counterclaim were a result of the main suit, then it was not proper for the trial court to hear and determine the counterclaim first rather the main suit was to be ascertained first and then the counterclaim. In essence she submitted that the main suit and counterclaim ought to have been consolidated together and determined together. Having gone through the grounds of appeal filed and the rival submissions of the parties, the only question for consideration is whether the appeal before me has merit. Before

embarking on the grounds of appeal filed, I wish to start with the issue raised suomotu by this court on how the trial court determined the counter claim. I’m aware that the Primary courts procedures are simple and direct, thus are not bound with hard rules and procedures. The law governing civil procedure at the primary court is the Magistrates' Courts (Civil Procedure in Primary Courts) Rules “the Civil rules” made under Government Notice no. 119 of 1983. Rule two which is interpretation rule define "pleadings" to mean a written statement of claim, a written statement of defence, a reply or any other document filed in the 8 court by a party to a proceeding and purporting to set out the facts or the law upon which such party relies in support of his claim or defence as the case may be. The rules above do not provide directly in respect to the counterclaim, but in my interpretation of the definition of the pleading above, counterclaim is included, and in above law in my view it can be inferred from the wording of the following words available in above definition; “a written statement of defence, a reply or any other document filed in the court by a party to a proceeding and purporting to set out the facts or the law upon which such party relies in support of his claim or defence as the case m ay be.” [ Emphasis added] In respect to how the cases or applications are instituted

at the primary court, rule 5 of the Civil rules provides as follows; 5. Applications may be written or oral (1) Applications to primary courts may be made in writing, signed by the applicant, or orally. 9 (2) Where an application is made orally the substance of it shall be recorded by the magistrate or court clerk and the application as so recorded shall be signed by the magistrate or court clerk as the case may be, and by the applicant. To enhance the above provision, filing of cases before the primary court, rule 4 of the Civil rules above and section 71(1) and (2)(b) of The Magistrate court act Cap. 11 gives the Chief Justice authority to regulate the procedure in the circumstances of the primary court; thus under section 71(2)(b) the Chief Justice made approved forms to be used in the primary courts vide The Magistrates Court (Approved Forms For The Primary Court) Rules, Government Notice No. 943 Published On 6/11/2020. Wherein rule 2 provides that the Forms prescribed in the Schedule shall be used in connection with proceedings before the primary court under the Magistrates’ Court Act. In view of the above mandatory direction, in instituting any claim or civil application forms to be used is Civil Form no. 1 (FOMU YA MADAI-1) made under rule 5(1) of Civil rules in Primary courts and Civil Form no.2 (FOMU YA MADAI-2) made under Rule 15(1)(2) of the Civil rules above. 10 The

requirements of the second form above as stated in Rule 15(1)(2) of the Civil rules, provides “15. Institution of proceedings (1) 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 which the claim is based and when and where it arose; (e) the relief claimed; and (f) where property is claimed, the value of the property. (2) The court fees payable on the application shall be assessed by an officer of the court and as soon as they have been paid by the claimant (or have been remitted by the court), a case file shall be opened and the proceeding shall be numbered and registered in accordance with rule 8. 11 The above being the law, now back to what transpired at the trial court, as alluded above, Mr. Japhet Shangali learned counsel on 27/03/2023 appeared at the trial court representing the defendant therein one Living Inyasi Tarimo and prayed to lodge the counterclaim. Despite the fact that the record does not show that whether he was granted leave or not, the record shows that he continued narrating his claim orally and further the trial court asked the plaintiff who denied, consequently

the court ordered for hearing. The record further reveals that the trial court only heard the said counterclaim and concluded the case which was subjected to appeal at the District Court, and thereafter to this appeal. According to the law above, I think the procedure was not complied with. I am aware where there is a procedural irregularity or an omission to observe a particular procedure in seeking to determine substantive rights of parties the crucial question to ask before impeaching or nullifying the impugned decision, is whether the irregularity or lapse occasioned a failure of justice on the part of the party complaining of the omission. If the omission occasioned no injustice, the Court would gloss over the omission and treat it as inconsequential. (See Stanley Murithi Mwaura 12 vs Republic (Criminal Appeal No. 144 of 2019) [2021] TZCA 688 (TANZLII). In this matter, I have read the claim statement of the learned counsel for the defendant therein it did not comprise all the requirement as envisaged in Rule 15(1)(2) of the The Magistrates’ Court’s ( Civil Procedure in Primary Courts) and also the Approved Forms for Primary Court) Rules as per “FOMU YA MADA -2” above which its rationale is to inform the opponent necessary information in order to prepare his defence. For instance, the said oral counter claim submitted did not state the full facts on which the claim is

based, where it arose and the relief claimed. In my view that is why the rules above is coaching the same to be in writings, even if it is requested should put into writings as the law provides above. Therefore, since the important requirement as alluded above was not stated to make the opponent party proper defence. I am of the considered view the procedure did not enable the fair trial, thus, the plaintiff one Stephano Claud Slayo was prejudiced by the said procedure. Be that as it may, as per rule 15(2) of Civil rules quoted above, the said application by way of counter claim was not paid court fees as the 13 requirement of lodging any civil claim in any courts of law. It was merely stated and the trial court continued with hearing if it. According to the Court fees rules GN. No. 247 of 2018 made under The Judicature and Application of Laws Act Cap 358, it provides under rule 5 (2) as follows; “5 (2) The fees prescribed in the Second Schedule to these Rules shall be paid to the primary court in respect of all proceedings and matters other than those for which specific fees are prescribed by rules made under any other written law.” In view of the above and taking regard counter claim is the cross suit, failure to pay court fees in that esteem amounted to the said counterclaim to be incompetent before the trial court as per the law above. In upshot, it is definite that the

above omission was fatal since it caused unfair trial and further it vitiated the proceedings of the trial and the first appellate courts. Thus, having considered that this the above are fatal irregularity suffice to dispose this appeal, I see no need to consider the grounds of appeal stated above. Consequently, in exercise of my powers under S. 29(a) and (b) of the Magistrates' Court Act, [Cap. 11 R.E 2019], I declare the trial court's 14 proceedings and the judgment that resulted therefrom a nullity, the same goes also to the proceedings and judgment of the District Court, since it was based on a nullity. I thus quash them all, and I order an expedited retrial before another Magistrate. It is so ordered. DATED at MOSHI this 3rd day of October, 2024.

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JUDGE Signed by: A. P. KILIMI Court: Judgment delivered today on 3rd day of October, 2024 in the presence of Mr. Emmanuel Karia for the Appellant and Mr. Julius Fokasi for the respondent. Sgd; A. P. KILIMI

JUDGE 3/10/2024 Court: Right of Appeal explained. Sgd; A. P. KILIMI

JUDGE 3/10/2024 15