REGISTERED TRUSTEES OF ELCT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) ALARUSHA CIVIL CASE NO. 5 OF 2023 THE REGISTERED TRUSTEES OF THE ELCT NORTH CENTRAL DIOCESES........................................................... PLAINTIFF Versus AFRICAN HEALTHCARE NETWORK TANZANIA LIMITED................................ DEFENDANT RULING 26th November 2024 and 16th January, 2025 MWASEBA, J, The plaintiff has preferred this suit against the defendant seeking an order setting aside the consent decree of this Court in Civil Case No. 31 of 2022 (Gwae, J.), dated 28/10/2022. The grounds upon which the suit is premised are fraud and misrepresentation as particularised under paragraphs 14 of the plaint. In essence, the plaintiff prays for the following reliefs: a) That, the consent decree in Civil Case No. 31 of 2022 dated 28/10/2022 be declared to have been fraudulently procured; b) That, the decree in Civil Case No. 31 of 2022 be set aside; c) Payment of general and punitive damages; d) Payment of costs for this suit; and 1 I Page e) Any other relief(s) as the Honourable Court may deem just and fit to grant. On 23/05/2023, the defendant filed written statement of defence disputing the claims by the plaintiff, putting her to strict proof. The written statement of defence was coupled with a preliminary point of objection couched in the following words: That this court has no jurisdiction to determine the suit as it is preferred for being bad in law. As it has been the court's practice, once faced with preliminary objection, it stops everything paving way for the preliminary objection to be determined first. On that account, it was resolved that the preliminary objection be argued through filing of written submissions. At the hearing of the preliminary objection, the plaintiff was represented by Mr. Philip P. Mushi, learned advocate while the defendant was ably represented by Mr. Gerald Nangi, learned advocate. Submitting on the substance of the preliminary objection, Mr. Nangi started by defining what is jurisdiction relying on the Halsbury's Laws of England, 4th Edition, Reissue Vol. 10, Para 314. He submitted that the laws mandatorily bar the courts from entertaining any suits in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same 2 | Pa g e parties under who they or any of them litigated under the same title in a court competent to try such subsequent suit and the issue has been determined to finality. Reinforcing his contention, Mr. Nangi referred the following reported decisions: George Shambwe v. Tanzania Italian Petroliam Co. Ltd [1995] TLR 20 and Peniel Lotta v. Gabriel Tanaki and Others [2003] TLR 312. Giving further elaboration, counsel for the defendant accounted that the plaintiff seeks this court to set aside consent decree recorded by this court (Gwae, J.) in Civil Case No. 31 of 2022 on 28/10/2022, but the plaintiff has not said what should be done after the decree has been set aside, leaving the matter hanging. He insisted that since the consent decree serves as the final order of the court binding upon the parties, the matter cannot be re-opened by another Judge of the same court. To bolster his argument, the learned counsel referred the Court of Appeal decision in Arusha Planters and Traders Ltd and 2 Others v. Euroafrican Bank (T) Ltd, Civil Appeal No. 78 of 2001 (unreported), where it was underscored that consent or compromise decree cannot be challenged by instituting separate suit, rather the avenue available to challenge it is either review or appeal to a higher court. On that account, counsel for the defendant was insistent that this court is not clothed with jurisdiction to set aside the consent decree of this court. He 3 | Pa ge referred the following decisions of this court, which had followed similar stance: Joseph Geofrey Jimbika v. Elizabeth James Mchai, Civil Revision No. 14 of 2020 and Benedicto Rweikiza Ijumba v. Alex Msama Mwita and 2 Others, Misc. Land Case Application No. 658 of 2021. On that basis, Mr. Nangi urged the court to sustain the preliminary objection and dismiss the suit. On his part, Mr. Mushi opposed the preliminary objection submitting that the course taken by the plaintiff by instituting fresh suit to challenge the consent decree which he believed was procured with fraud and misrepresentation is the appropriate one. He maintained that the case of Arusha Planters (supra) referred by counsel for the defendant had similar observation, only that counsel for the defendant picked one paragraph without scrutinizing the entire judgment. He further referred the Court of Appeal decision in Mohamed Enterprises (T) Limited v. Masoud Mohamed Nasser, Civil Application No. 33 of 2012 (unreported) at pages 15, 16 and 17. Mr. Mushi was emphatic that consent decree which has been procured by fraud or misrepresentation can be challenged by separate suit, referring paragraphs 14 and 15 of the plaint, wherein the plaintiff pleaded that the consent decree subject to be challenged was tainted with fraud and misrepresentation. Divulging the fraud and 4IPaEe misrepresentation, the learned counsel for the plaintiff accounted that the plaintiff was never served hence was condemned unheard. Further, the alleged consent decree was signed by unauthorised persons who had no mandate to sign on behalf of the plaintiff. In response to what should be next after the decree has been set aside, Mr. Mushi readily submitted that if the court will find that the decree was fraudulently procured, the same will be expunged from court record and parties will proceed from where the matter had ended prior to filing of the consent decree. On the account of the cases of Joseph Geofrey Jimbika (supra) and Alex Msama Mwita (supra), Mr. Mushi submitted that facts in those cases are distinguishable from those in this case because there was no fraud or misrepresentation involved in the consented decrees. Counsel for the plaintiff prayed that the preliminary objection be overruled for being devoid of merits. In rejoinder submission, Mr. Nangi insisted that counsel for the plaintiff misapprehended the ratio decidendi in the authorities he cited. He stoutly submitted that the test to be deployed in this case is subjective and not general one, insisting that facts in this suit are in parimateria with those in Arusha Planters (supra). Mr. Nangi referring to the principle that parties are bond by their pleadings, submitted that from the plaintiff's pleadings, the reliefs craved clearly negate this court 5 | Page jurisdiction to entertain the matter. In other words, the court is functus officio as nothing is stated after setting aside the consent decree. It was counsel's account that the alleged misrepresentation and fraud were committed by the plaintiff's lawyer and officials, who were not made party to this suit. He maintained that institution of separate suit does not auger well with administration of justice as it perpetrates setting aside the decision of a judge by another judge of the same court. Counsel for the defendant referred the cited case of Mohamed Enterprise (T) Ltd (supra) to further reinforce his contention. He insisted that the viable remedy for an aggrieved party is to file review or revision. Furtherance of his submission, Mr. Nangi reiterated that circumstances obtaining in this matter do not warrant filing of a fresh suit. He reiterated the prayers that the preliminary objection be sustained and the suit be dismissed with costs. I have considered the preliminary objection raised and the submissions by both counsel for the parties. The main issue for determination at this juncture is whether the court is vested with jurisdiction to entertain the suit. In the first place, I entirely agree with both counsel for the parties on the exhaustive meaning of jurisdiction and the authorities .referred 6 | Page Admittedly, there is litany of Court of Appeal decisions on the meaning of jurisdiction and the need of a court to assure itself whether it is vested with jurisdiction to entertain a suit at the earliest stage. For example, in Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda and 2 Others [1995] TLR 155 at page 159, the Court of Appeal observed: "77/e question ofjurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature. In our considered view, the question ofjurisdiction is so fundamental that the courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial. This should be done from the pleadings. The reason for this is that it is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. For the court to proceed to try a case on the basis of assuming jurisdiction has the obvious disadvantage that the trial may well end up in futility as null and void on grounds of lack ofjurisdiction when it is proved later as matter of evidence that the court was not properly vested with jurisdiction." Similar position has been maintained in the case of Ramadhan Omary Mtiula v. Republic, Criminal Appeal No. 62 of 2019 (unreported), where it was held inter alia that: 7 I Page ' ams « 3 M not .tar e « «« « « « to„ „ are creatures o, states „„ M conferred upon them by stetute." Having revisited the significance of jurisdiction of the court in any suit, I now proceed to determine the issue before me. Undoubtedly, this case seeks to set aside the consent decree of this court in Civil Case No. 31 of 2022, dated 28/10/2022. The decree was executed by parties herein marking settlement of that case. The decree was adopted as decree of this court and according to the pleadings, it was at the execution stage. The plaintiff's argument is that the consent decree subject of challenge in this suit was fraudulently procured and it was tainted with misrepresentation. Particulars of the fraud and misrepresentation are unveiled under paragraph 14 of the plaint. The question is whether a consent decree allegedly procured by fraud and misrepresentation can be assailed by instituting a separate suit in the same court. Both counsels admit that institution of a fresh suit in the same court is among the remedies to a party aggrieved by consent decree. Mr. Nangi, was however hesitant that given the nature of the reliefs sought in this suit, a fresh suit is unmaintainable, the appropriate remedy is either revision or review. 8 | Pa ge I must admit that there is no specific provision in the Civil procedure Code on this very aspect. However, case laws as among the sources of law, can take precedence. Mr. Nangi urged the court to rely on the authority in Arusha Planters and Traders Ltd (supra) to overrule the preliminary objection. I must be keen that I have read the decision. Correctly as submitted by Mr. Mushi, the Court of Appeal did not restrict that the remedies available to an aggrieved party in a consent decree to review and appeal only. The court admitted that instituting a separate suit is also viable remedy. The Court at page 14 of the decision held: "Drawing inspiration from these authorities, we are of the view that in a proper case, a consent judgment can be challenged by instituting a separate suit. "(Emphasis added) The appeal was dismissed not on the account that a separate suit was filed but mainly on the relief (c) which had the effect of a Judge of the High Court Main Registry ordering a judge from the Commercial Division of the High Court to proceed with the matter where it had ended before filing of the settlement deed after the same was set aside. There is no similar prayer in this matter. That quite apart, the decision in Arusha Planters (supra) was followed by the cited decision in 9 | Page Mohamed Enterprises (T) Ltd (supra). In that case, the Court of Appeal at page 18 observed: ly option open to the respondent herein was to file a fresh oit appropriate to that particular remedy. He did not do so. Instead, he came before Twaib, J. by way of an application. That was not proper." At page 19 the Court further commented: "We agree with Dr. Lamwai that matters of fraud, coercion or misrepresentation do vitiate a consent decree. It is imperative therefore that the evidence be adduced in support of such factual claims. Proof by affidavit is not sufficient." (Emphasis added) In the above case, the respondent in the Court of Appeal who was the applicant in the High Court, filed an application seeking to set aside the consent decree of the same Court. The High Court found merits in the application and consequently set aside the consent judgment. On Revision Application, the Court of Appeal set aside the orders of the High Court restoring the consent judgment. The basis of the Court of Appeal as I have quoted above is that an application was not the appropriate recourse. The remedy was for the respondent to file a fresh suit where evidence could be adduced. LO | P a g e tter, the plaintiff has Instituted a fresh suit seeking to challenge the consent decree In Civil Case No. 31 of 2022. Mr. Mushi accounted that the basis of the suit is that the consent decree was procured by fraud and misrepresentation. He insisted that the plaintiff filed this suit in order to parade evidence to prove the allegations of fraud and misrepresentation in the consent decree. I go along with his submission that filing a fresh suit was the appropriate remedy. In my considered view and owing to the authoritative decisions of the Court of Appeal referred by both counsel for the parties, this court is clothed with jurisdiction to entertain the matter. The invitation by Mr. Nangi to follow the decision in Arusha Planters (supra) is declined for obvious reasons: First, there is no similar relief in this case as the one found in that case whereby the court was moved to order that Civil Case No. 279 of 1998 to proceed from the stage it had reached before the order of settlement was recorded. Second, that case was succinct clear that filing of a fresh suit is among the remedies for a party aggrieved with consent decree. Third, the decision in Mohamed Enterprises (T) Ltd (supra) is the current one, and facts in this case apply mutatis mutandis to the principle in that case as there were allegations of fraud and misrepresentation in the consent decree. Peculiarity in the latter decision is allegation^of fraud, misrepresentation or coercion, which are pleaded In the plaintiff's plaint in this case. to what will be the way forward in the event the consent decree will be set aside, that will be subject to the court's directives. At these preliminary stages of the case, it is my profound finding that this court has jurisdiction to entertain the suit. Whether the evidence will reveal existence of either fraud or misrepresentation, that is the domain of the court after hearing the evidence. In the meantime, I am constrained to find and hold that the court has jurisdiction to entertain the suit. The preliminary objection is wanting in merits. It is hereby overruled. Costs to be in the cause. DATED at ARUSHA this 16th day of January, 2024. N. R. MWASEBA A • < JUDGE 12 | P a g e