PC 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. 18190 OF 2024 (Arising from the decision of the Resident Magistrate’s Court of Dar es Salaam at Kisutu (Hon. W.E. Lema, PRM) in Civil Case No. 48 of 2014 dated 23rd November 2016) __________________ THE EDITOR JAMHURI NEWSPAPER……….….……1ST APPELLANT JAMHURI MEDIA LIMITED……………….………...…2ND APPELLANT VERSUS LAKE OIL LIMITED……..…………………………….1ST RESPONDENT ALLY EDHA AWADHI…………………………………2ND RESPONDENT JUDGEMENT Date of last order: 19th November 2024 Date of Judgement: 2nd December 2024 MTEMBWA, J.: This Appeal stems from the decision of the Resident Magistrate’s Court of Dar es Salaam at Kisutu in Civil Case No. 48 of 2014. Briefly, the Respondents commenced the proceedings claiming that the Appellants jointly and severally, falsely and maliciously, without adequate inquiry, honest belief and any lawful cause or justification, and with intent to defame, wrote, printed, published and or caused to be written, printed published and disseminated scandalous, defamatory and contemptuous allegations against them in the lead article featuring on 1 the front and second page of Jamhuri newspaper issue No. 123 of February 11-17, 2014. The facts reveal further that the authorization of the circulation of the fabricated information was done maliciously without any lawful cause or justification and has exposed the Respondents to hatred, contempt, and ridicule from clients and potential clients, friends, relatives, and the general public and whoever comes across the Newspapers and damaged their reputation concerning their offices, profession, career, calling, trade and or business, therefore, subjecting them to mental anguish, public odium, contempt, social embarrassment, loss of business and were greatly annoyed in view of the apprehensions and the consequences of the putrid falsehoods and unjustified libel perpetrated against them. As a result, the Respondents implored the trial Court to issue the following orders to wit unconditional apology and retraction of the false and malicious publication complained of on the front page of Jamuhuri newspaper and in similar or bigger fonts immediately after the Judgement; the permanent injunction to restrain the Appellants and each of them, by themselves or their servants or agents or otherwise howsoever, from the publication of news articles or words complained of or any similar articles or words to the like effect concerning the 2 Respondents; general damages for libel; aggravated/punitive damages for libel; Costs of the suit; and interest at Court’s rate of 12% per annum from the date of Judgement to the date of full and final payment. Having considered the evidence adduced during hearing, the trial Court entered the Judgement in favor of the Respondents. In addition, the trial Court ordered the Appellant to pay to the Respondents the sum of Tanzanian Shillings 300,000,000/= being general damages for injuries suffered and Tanzanian Shillings 100,000,000/= being punitive damage and costs of the suit. Dissatisfied, the Appellants have fronted the following grounds of appeal, and I quote in verbatim; 1. That the trial court erred in law by adjudicating the case and making orders for damages without being clothed with jurisdiction. 2. That the trial Court erred in law and in fact by making a Judgement in favour of the Plaintiffs regarding the tort of defamation without regard to the evidence of truth and justification as raised by appellants through the watertight evidence of DW 1 and DW 2 before the trial court. 3. That the trial court erred in law and in fact by making contradictory findings that the impugned publication contained truth and it is defamatory against Respondents at the same time. 4. That the trial Court erred in law by making a finding that the 3 publication was done with malice without the same being properly pleaded and in absence of any proof of malice whatsoever. 5. That the trial court erred in law by making a biased Judgement and decree in favor of Respondents and in total disregard of the pleadings and facts proved by evidence. 6. That the trial court erred in law by awarding exorbitant damages, both general and punitive, without assigning good cause. 7. That the Judgement and decree of the trial court is a nullity for being incurably defective as it was delivered by a Magistrate who had already vacated the office thus a stranger to the case and who was not assigned the court file for re-trial and the same was delivered without proper notice to the parties. 8. That the trial court erred in law by inserting handwritten alterations to the typed Judgement contrary to Order XX Rule 3 of the Civil Procedure Code, Cap. 33, R.E. 2019. 9. That the trial Court erred in both law and fact by failure to conduct a proper analysis of evidence given by the appellants during the trial. When the matter came for orders on 26th August 2024, Mr. Sabasi Shayo, the learned counsel, had the briefs for Mr. Mohamed Tibanyendera, the learned counsel for the Appellants. Mr. Shayo also represented the Respondents. Having consulted him, this Court ordered the Appeal to be argued through written submissions. Having reviewed 4 the records, I am satisfied that the parties adhered to the agreed schedule, which I recommend. When I was preparing this Judgement, I noted that, before the trial Court, the matter was presided over by Hon. Lema, PRM, until 24th May 2016, when it was adjourned to proceed with the defense hearing on 23rd June 2016. The records reveal further that, following her transfer to another duty station on 5 July 2016, the case file was re-assigned to Hon. Mashauri, PRM. The record is silent on what followed after the re- assignment. On 29th August 2016, the matter came for hearing before Hon. Mashauri, PRM. The Defendant’s counsel (by then) informed the Court of the Defendant’s intention not to add more witnesses. The Court then observed as follows; Since the whole case has been heard by another magistrate to its final stage, Judgement is to be composed by the said Magistrate. The records are silent on what transpired thereafter. On 31st March 2017, the Judgement was delivered by Hon. Mwambapa, RM, in the absence of both parties. The Judgement was composed by Hon. Lema, PRM, and it was signed and dated 23rd November 2016. Hon. Mwambapa, RM, composed and signed the Decree as a successor Magistrate. The question would be whether a Judgement delivered in 5 the absence of the parties is valid when a notice to appear has not been issued. In such a state of confusion, I called the parties to address me on the issue. When prompted, Mr. Tibanyendera submitted that, as the records reveal, there was no notice of the date of Judgement. As such, the same was derived in the absence of both parties, the consequence of which the impugned Judgement and Decree were invalid in terms of Order XX rules 1 and 3 of the Civil Procedure Code. As to the consequences of failure to notify the parties, the learned counsel left it to the exclusive monopoly of this Court. To fortify, he cited the case of Omary Shabani Nyambu vs. Dodoma Urban Water Supply & Sewerage Authority (DUWASA), Civil Appeal No.303 of 2020. On his part, Mr. Shayo was not far from conceding to the very fact that the trial Court strayed for failing to issue a notice to the parties on the date of Judgement. He contended that, given the circumstances, the Judgement and Decree cannot be left unattended. He implored this Court not to nullify the whole proceedings of the trial Court because the anomaly is only pegged on the failure to notify the parties on the date of Judgement. He cited the cases of Octavian Barnabas Komba vs. Absa Bank Tanzania Limited and Another, Consolidated Appeals 6 No. 71 and 91 of 2023 and Gaita Gold Mining Limited vs. Sweetbert Hurbert, Civil Appeal No. 269 of 2019, Court of Appeal of Tanzania at Mwanza. Having dispassionately considered the submissions by the parties, the issue for consideration is whether there was a valid Judgement in view of the fact that it was delivered in the absence of the parties, who were not notified of the date of its delivery. Order XX rule 1 of the Civil Procedure Code provides: The Court, after the case has been heard, shall pronounce Judgement in open court, either at once or on some future day, of which due notice shall be given to the parties or their advocates Expounding further on what the rule above entails, Mulla, in his celebrated Book titled “The Code of Civil Procedure”, 17th edition, observes as follows at page 861; The court, after the case has been heard, shall pronounce Judgement in open Court, either at once, or as soon thereafter as may practicable and when the Judgement is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders. The above-quoted provisions of the law need no interpolations of any kind. It simply means that after the case has been finalized, the 7 Court shall pronounce the Judgement at once or adjourn it to some future day, in which case parties or their advocates, if any, shall be accordingly notified. According to the records, the matter was adjourned to 27th September 2016 for mention. It was not established when the same was set for Judgement. However, the same was pronounced on 31st March 2017 in the absence of both parties. The records are silent on whether parties were notified. With respect, that was a bad idea. A Judgement delivered in the absence of the parties or without notice to appear is no Judgement at all capable of being appealed from. When the circumstances are clear, the same is inoperative and invalid. Mulla (supra) at page 865 reinforces as follows; A Judgement delivered without notice to parties is not a Judgement pronounced within the meaning of this rule. When a party to whom notice had been given of the date on which judgement would be delivered is not present, he is not entitled to fresh notice of the further date or dates to which the delivery might be adjourned. (emphasis mine) In Omary Shabani Nyambu vs. Dodoma Urban Water Supply & Sewerage Authority (DUWASA) (Civil Appeal No.303 of 2020) [2023] TZCA 17460 (28 July 2023), the Court, similarly, observed as follows; 8 According to the above excerpt, it is crystal clear that the so- called Judgement was pronounced in the absence of the parties. There is nothing to show that the notice for the Judgement was issued to the parties as it was ordered earlier on. In the case of Awadhi Iddi Kajass v. Mayfair Investment Limited, Civil Application No. 281/17 of 2017 (unreported), while discussing the competence of the Judgement that was delivered in the absence of parties who had no notice of the date of its delivery, like in the case at hand, the Court held that there was no operative, valid and effective Judgement delivered in the absence of the parties who had no notice of the date of its delivery. As to the effect, the Court continued to note that; As regards the effect of a Judgement not delivered in accordance with the law, the Court, in the same case of Awadhi Idd Kajass (supra), relied on the case of Gilian's Modern Bakary v. F. J. Kuntner (1954) 21 EACA 123 and held that the Judgement which is not delivered in accordance with the law, could not be taken to have come into existence as to be capable of being appealed against. Applying the principle in the above cited authority, we agree with both learned counsel that the purported Judgement delivered in the absence of the parties was not an effective, operative or a valid Judgement which could have been appealed against. It was a nullity. (Emphasis mine) Similarly, since there is no proper and operative Judgement, it cannot be safely concluded that this appeal stems from a valid decision. 9 It is a nullity from which no competent appeal can stem therefrom. That said, I see no reason to discuss the grounds of appeal. To that end, the Judgement and decree of the trial Court are hereby quashed and set aside. The records are to be remitted to the trial Court before another Magistrate of competent jurisdiction to compose a fresh Judgement and Decree in accordance with the law. Advisably, parties should be legally notified of the date of Judgement. Considering the circumstances, there will be no order as to costs. I order accordingly. Right of appeal explained. DATED at DAR ES SALAAM this 2nd December 2024. H.S. MTEMBWA JUDGE 10