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. 45508 OF 2024 (Arising from the decision of the Resident Magistrate’s Court of Dar es Salaam at Kisutu (Hon. U.S. Swalo, PRM) in Commercial Case No. 320 of 2022 dated 25th April 2024) __________________ TATA AFRICA HOLDINGS (T) LIMITED…..……………………APPELLANT VERSUS HUSSEIN ABDALLAH MNJOKAVA……………………..…1ST RESPONDENT ALLIANCE FINANCE CORPORATION LIMITED………2ND RESPONDENT JUDGEMENT Date of last order: 10th December 2024 Date of Judgement: 16th December 2024 MTEMBWA, J.: The Appellant is dissatisfied with the decision of the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Commercial Case No. 320 of 2022, which was issued in favor of the 1st Respondent herein. Briefly, the 1st Respondent had been in a business relationship with the Appellant, who, over the years, bought up to ten vehicles on cash and credit advanced by the 2nd Respondent. In 2016, the two entered into a contractual agreement where the Appellant had to supply two vehicles to the 1st Respondent, make TATA ULTRA BUSES, each valued at Tanzanian Shillings 120,000,000/=. It could appear that the 1st 1 Respondent managed to pay Tanzanian Shillings 120,000,000/= for one vehicle only. The fact reveals further that, while waiting to be supplied with another vehicle, the 1st Respondent deposited money into the Appellant’s Bank account by cheque and cash, thereby depositing a total sum of Tanzanian Shillings 87,000,000/=. In 2018, the Appellant delivered to the 1st Respondent a motor vehicle that was not fitted with windows and boots. As a result, the 1st Respondent refused to accept it. However, he was offered another vehicle that could fit with his business. The offer was accepted accordingly, and another contract was entered into. He was later supplied with a vehicle Model LP 909 TATA Bus registered as T406 DNJ, valued at Tanzanian Shillings 98,720,000/=, and Model LP 407 TATA Bus registered as T835 DPP, valued at Tanzanian Shillings 78,000,000/=. As per the facts, the parties agreed to deduct the sum of Tanzanian Shillings 50,000,000/= from the amount deposited earlier into the Appellant’s Bank Account as part-payment for the Vehicle registered as T406 DNJ and Tanzanian Shillings 23,400,000/= as an advance payment for the vehicle registered as T835 DPP. As such, a total sum of Tanzanian Shillings/= 13,600,000/= remained in the Appellant’s Bank Account as a balance. The 1st Respondent was then advised to take a 2 loan from the 2nd Respondent. Following the advice, he took a total sum of Tanzanian Shillings 103,320,000/= from the 2nd Respondent, where Tanzanian Shillings 48,720,000= for a vehicle registered as T406 DNJ and Tanzanian Shillings 54,600,000 for a vehicle registered as T835 DPP. The vehicles were handed over to the 1st Respondent while the 2nd Respondent retained the original registration cards. In August 2020, the 1st Respondent repaid the loan entirely and was served with a letter of satisfaction of the loan. The letter also revealed that the 1st Respondent paid in excess the sum of Tanzania Shillings 2,227,612, which was transferred to the 1st Respondent’s Bank Account. After that, the 1st Respondent’s efforts to be furnished with the original cards by the 2nd Respondent could not materialize as he was told that the same were taken by the Appellant. He contacted the Appellant’s officials only to be informed that the original cards were withheld due to outstanding payment for the vehicle registered as T170 DLQ, which he had never possessed. That is when the misunderstanding between the parties arose, leading to this battle. According to the Plaint, the 1st Respondent claimed against the Appellant for payment of Tanzanian Shillings 15,827,612/= being the outstanding amount; payment of Tanzanian Shillings 1,000,000/= being costs for preparing a demand notice; an order of handing over the 3 original registration cards for the motor vehicles registered as T406 DJN and T835 DPP; an order of payment of Tanzanian Shillings 300,000,000/= being compensation for the breach of contract; interest on the decretal amount at the court rate from the date of judgment to the date of full payment. The Appellant and the 2nd Respondent Defendants resisted the claim. In addition, the Appellant filed a counterclaim, which the 1st Respondent also resisted. Having gathered the evidence adduced, the trial Court resolved in favor of the 1st Respondent. Dissatisfied, the Appellant fronted the following grounds of appeal, which I quote in verbatim; 1. The Honourable Principal Resident Magistrate erred in law and fact by granting reliefs that were never pleaded not sought by the first Respondent. 2. The Honourable Principal Resident Magistrate erred in law by failing to determine the counterclaim preferred by the Appellant. 3. The Honorable Principal Resident Magistrate erred in law and fact by holding that the first Respondent had paid the purchase price for a motor vehicle with registration number T 719 DJE in the absence of evidence in the record to prove such fact. 4. The Honourable Principal Resident Magistrate erred in law and fact by holding that the Appellant did retain the hold/withhold registration cards of the first respondent. 5. The Honourable Principal Resident magistrate failed to exercise discretion proper as per the law and fact by condemning the 4 Appellant to pay general damages of Tanzania shillings 20,000,000/=. 6. That the Honorable Principal Resident Magistrate erred in law and fact by deciding on matters that were not framed as issues not did parties invited to address them. 7. That the Honourable Principal resident Magistrate erred in law by condemning the Appellant only to pay for the cost of the case without assigning reasons. 8. The Honourable Principal Resident Magistrate erred in law by failing to evaluate the evidence in record thus arriving at wrong findings. 9. The Honourable Principal Resident magistrate erred in law by holding that the first respondent has proved his claim against the Appellant. When the matter came up for orders on 12th September 2024, the Appellant was represented by Mr. Antipasi Lakam, the learned counsel, who also had the briefs of Ms. Ruqaiya Alharthy for the 2nd Respondent, while the 1st Respondent was symbolized by the presence of Mr. Chale Juma, the learned counsel. 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. 5 Having reviewed the grounds of appeal and considering the circumstances, I think it is appropriate that I examine the second ground of appeal first. Arguing on the second ground of appeal, Mr. Antipas Lakam asserted that it is a well-established legal principle that a Court must determine a counterclaim if a party in the suit duly prefers it. Once raised, a counterclaim becomes an independent suit that requires full adjudication, just as a main case does. He contended that in the present case, reading through the entire judgment of the trial Court, there is no indication that the court addressed or determined the counterclaim filed by the Appellant, despite it being set out in the written statement of defense filed on 11th January 2023 and resisted by the 1st Respondent in his defense filed on 21st February 2023. Arguing further, the learned counsel referred this Court to the Decree of the trial Court, which indicates nothing about the counterclaim. He considered the trial Court to have failed significantly in adjudicating all matters raised before it. He fortified his arguments by citing the case of Stanbic Bank Tanzania Ltd vs. Trust Engineering Work Ltd (Civil Appeal No. 374 of 2019) [2022] TZCA 110 (11 March 2022). In response, Mr. Victor Kikwasi was on duty. He vigorously resisted the arguments and referred this Court to page 10 of the typed 6 Judgment, where the trial Court ruled in favor of the 1st Respondent regarding the Vehicles registered as T 406 DNJ and T 835 DPP. He contended further that the midpoint of the counterclaim was that the Appellant owes the 1st Respondent the sum of Tanzanian Shillings 10,000,000/=, being the outstanding balance of the purchasing price of the vehicles. He further referred this Court to pages 8, 9, and 10 of the typed script of the judgment and asserted that the trial Court addressed the counterclaim accordingly. In his final note, Mr. Kikwasi implored this Court to find out that the trial Court determined the Counterclaim and ultimately disallowed it. While distinguishing the cited case of Stanbic Bank Tanzania Ltd, he considered Mr. Lakam's arguments misconceived. The 2nd Respondent opted not to address on the second ground of appeal. Indeed, there is no dispute that the Appellant preferred a counterclaim in her written statement of defense that the 1st Respondent vigorously resisted. According to the records, on 2nd June 2023, with the aid of the parties, the following issues were framed: whether there was a car sale and loan agreement between the plaintiff and the defendants; what were the terms and conditions of the sell of the car and loan agreements; whether there was a breach of terms and conditions of the sell and loan agreements; whether the defendants had 7 the right to hold the original cards of the two motor vehicle; and to what reliefs are the parties entitled to. Looking at the framed issues, the trial Court did not intend to determine the counterclaim preferred by the Appellant. This is because no issue was framed to reflect the prayers in her counterclaim. It was thus difficult to decide on the counterclaim based on the established and everlasting principle of law that cases must be decided by reflecting on the framed issues. As a matter of law, the trial Court's judgment and decree could not have reflected on the counterclaim because no specific issues were purposely framed to dispose of it. According to Order VIII Rule 9(2) of the Civil Procedure Code, Cap 33, RE 2019, where a counterclaim is set up in a written statement of defense, the counterclaim shall be treated as a cross-suit, and the written statement shall have the same effect as a Plaint in a cross suit. It follows, therefore, that once the counterclaim is raised, the Court should consider it as a separate claim independent of the original one. The party who raised it must adduce evidence, and ultimately, the Court must consider it in the final Judgment. I reviewed the impugned Judgment and noted that the trial Court did not consider the appellant's Counterclaim. Of course, the reason is obvious in the circumstances of this case because there was no issue 8 purposely framed to reflect the counterclaim. Similarly, the Decree of the trial Court fell short of the reliefs regarding the counterclaim. The question would be whether the anomaly is curable and, if not, to what extent an irregularity is incurable. That will be the next episode. It has been held times without numbers that where the Defendant prefers a counterclaim in his or her written statement of defense, the evidence must be laid to prove it, and the Court should consider it in its Judgment. Since it is regarded as a separate suit, it will remain on records and be determined accordingly even if the original suit is dismissed or struck out at the preliminary stage. The determination of the counterclaim should not be drawn from an inference as Mr. Kikwasi tries to put it, but it should explicitly and in lucid terms seem to have been allowed or dismissed to allow a party to have the right to appeal or revision if dissatisfied. When the Judgment is silent on whether the reliefs under counterclaims have been dismissed or allowed, the same is said to have not been considered. As said before, the trial Court did not frame issues on the counterclaim, so it was not determined in the final judgment. In my conviction, failure to consider the counterclaim is a fatal irregularity that an order of this Court cannot easily cure. It is a serious misdirection on the part of the trial Court, thereby curtailing the right to be heard of the 9 party preferring it. In Runyway T. Ltd vs. Wia Co.Ltd & Another (Civil Appeal No. 59 of 2015) [2019] TZCA 13 (1 January 2019) , the Court observed at page 6 of the Judgment; Since, there was a counter claim with its reliefs sought, they ought to have been decided and their outcome reflected in the decree as required under rule 6(1) of Order XX of the CPC. In the absence of the citation of the reliefs sought in the counter claim for which no order of the court was made in terms of Order VIII rule 12, we think it contravened the provisions of Order XX rule 6(1) of CPC with the effect of rendering the decree invalid. We find that this was a fatal irregularity. Recently, this Court faced an akin situation in which the learned Chairman of the tribunal failed to consider the counterclaim in Zaina Mkombe vs. Fatuma Ally Mkombe, Land Appeal No. 18 of 2022, High Court (land Division) at Dar es Salaam. While condemning such a stance, this Court had this to say; In view of the above situation, I quash the judgment and set aside the decree and orders of the Tribunal. I direct the learned Chairman to craft and compose a fresh judgment and decide on the counter claim raised. The decree should also reflect the reliefs sought in the counter claim and outcome of a counter claim. The fresh judgment to be delivered within 60 days counting from the date of dispatch of this judgment and records of the Tribunal. Since there is evidence regarding the counterclaim, I see no reason to fault the proceedings. From what I have endeavored hereinabove, the second ground of appeal suffices to dispose of this 10 appeal. Since it is not an academic thesis, I see no reason to examine the remaining grounds of appeal. That said and done, the appeal is allowed to that extent. The Judgment and Decree of the trial Court are hereby quashed and set aside. The records be remitted to the trial Court for the composition of the fresh Judgment by another Magistrate of competent jurisdiction. The newly assigned Magistrate will have to call the parties to amend the issues to reflect the counterclaim in terms of Order XIV Rule 5 (1) of the Civil Procedure Code (supra). Considering the circumstances, there will be no order regarding costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 16th December 2024. H.S. MTEMBWA JUDGE 11