Themistocles Theonest Rwota and Salvanus Salvatory Muganga vs Erick Elieza

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT SHINYANGA CIVIL APPEAL NO. 000017383 OF 2026 THEMISTOCLES THEONEST RWOTA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF SALVANUS SALVATORY MUGANGA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS ERICK ELIEZA .............................. RESPONDENT / DEFENDANT JUDGMENT MASSAM, J The appellants successfully prosecuted Civil Case No. 6 of 2026 against the respondent before the Kahama Primary Court. Upon determination of the case, the trial court ordered the respondent to pay the appellants TZS 25,140,000/= as specific damages and TZS 6,000,000/= as general damages. Thereafter, the appellants commenced execution proceedings by way of attachment of the respondent’s house situated at Mhongolo Ward, Mbulu. The application was granted, and the said house was ordered to be attached in execution of the decree. Page. 1 Aggrieved by that decision, the respondent appealed to the District Court. Upon hearing the appeal, the District Court remitted the matter to the trial court for rehearing de novo, commencing from the proceedings dated on 3.3.2026. The District Court further directed that fresh service of the application be issued and that the application be determined inter partes in accordance with the law and expeditiously. Dissatisfied with the decision of the District Court, the appellants have appealed to this court on the following grounds:- 1. That, the First Appellate Court erred in law by entertaining and determining the appeal without jurisdiction, contrary to Rule 85 of the Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, G.N. No. 310 of 1964. 2. That, the First Appellate Court erred in law and fact by delivering judgment in the absence of the parties, who had not been notified of the date fixed for its delivery contrary to O. XX, Rule 1 of the Civil Procedure Code, [Cap. 33 R.E. 2023]. During the hearing of the appeal, the appellants were represented by Mr. Gervas Geneya, learned Advocate, while the respondent was represented by Mr. Augustino Ijan, learned Advocate. The appeal was heard orally. Before hearing the appeal, the Court noted two discrepancies in the proceedings of the District Court. First, the judgment and decree did not correspond as required by law. Second, there was a discrepancy in the description of the parties, as the parties before the Primary Court and this Page. 2 Court were properly reflected, whereas those appearing before the District Court were different. The Court therefore invited the parties to address it on these discrepancies. In his submission Mr. Gervas Geneya, stated that, according to various judicial decisions, a discrepancy in the description of parties renders the proceedings a nullity. He argued that, in the present case, since the discrepancy occurred in the proceedings before the District Court, this Court should nullify the defective proceedings, including the judgment and decree of the District Court. However, he urged the Court to leave intact the proceedings and judgment of the Primary Court. Again, Mr. Geneya submitted that any party dissatisfied with the decision of the Primary Court would be at liberty to institute an appeal afresh before the District Court, subject to the provisions of the law relating to limitation. With regard to the second issue, concerning the inconsistency between the judgment and the decree, Mr. Geneya argued that the issue was consequential to the first one, since both discrepancies arose from the same proceedings. Finaly, Mr. Geneya prayed that, as the errors were occasioned by the Court, each party should bear its own costs. On the other hand, Mr. Ijan, associated himself with the submissions made by Mr. Geneya. He prayed to this court to follow the law by nullifying and setting aside the proceedings before the District Court. Apparently, Mr. Ijan argued that any party dissatisfied with the decision of the Primary Court should pursue an appeal against that decision in accordance Page. 3 with the law and in regard the issue of costs he supported that each party should bear its own costs. This court has carefully considered the submissions made by the learned Advocates and going through records. The issue for determination at this stage is whether the irregularities identified in the proceedings before the District Court are of such a nature as to vitiate those proceedings. Starting with the issue concerning the variance between the judgment and the decree. It is trite law that a decree must conform and agree with the judgement from which it is drawn. See the case Uniafrico Limited &Two Others vs Exim Bank (T) Limited, Civil Appeal No. 30 of 2006 and Nassoro Abubakar Khamis & Another vs Wakf and Trust Commission Zanzibar& Others, Civil Appeal No. 245 of 2020. In the present case, the judgment of the District Court contains an order remitting the matter to the trial court for a rehearing de novo, commencing from the proceedings conducted on 3 March 2026. The District Court further rd directed that fresh service of the application be effected and that the application be determined inter partes in accordance with the law and expeditiously. It also ordered that each party bear its own costs. However, the decree does not reflect those orders. Instead, it merely states that the appeal was allowed without costs. I am equally satisfied that the inconsistency between the judgment and decree constitutes a further defect, that inconsistency reinforces the conclusion Page. 4 that the proceedings before the District Court are defective. On the second issue, concerning the discrepancy in the description of the parties. The law is very clear that an appeal must be between the same parties /litigants who were parties in the proceedings before the lower court, and that introducing different parties without proper substitution or leave renders the proceedings incompetent. See the case of CRDB Bank PLC vs George Mathew Kilindu, Civil Appeal No.110 of 2017 and Tanzania Saruji Company vs African Marble Company, Civil Application No 67 of 1996. In the present case, the record reveals a discrepancy in the description of the parties at the different stages of the proceedings. At the trial court, the plaintiffs were described as Themistocles Theonest and Salvanus Salvatory Muganga, while Erick Elieza was named as the defendant. However, before the District Court, Erick Elieza was described as the appellant, while Themistocles Theonest Rwota was described as the respondent. Likewise, before this court, Themistocles Theonest Rwota is described as the first appellant, Salvanus Salvatory Muganga as the second appellant, and Erick Elieza as the respondent. The identity of the parties is not a mere technicality; it goes to the very foundation of judicial proceedings. A court is required to determine a dispute between the parties properly brought before it, and its judgment and decree must correspond with the parties who participated in the proceedings. Where Page. 5 the description of the parties is materially inconsistent such that the identity of the parties before the court becomes uncertain or the proceedings are conducted in respect of persons different from those properly before the court, such an irregularity may render the proceedings a nullity. In a similar case, the record demonstrates that the parties before the Primary Court and those before this Court are differently described from the parties reflected in the proceedings before the District Court. More importantly, the defect occurred at the appellate stage before the District Court. Consequently, the proceedings, judgment and decree of that court cannot safely stand where the parties reflected therein do not correspond with the parties who were properly before the trial court. In the result, the appeal is allowed to the extent stated herein. The proceedings and judgment of the District Court are hereby nullified and set aside. The proceedings, judgment, and decision of the Primary Court are hereby left undisturbed. Any party aggrieved by the decision of the Primary Court is at liberty to pursue an appropriate appeal in accordance with the law, subject to the applicable provisions governing limitation. Each party shall bear its own costs. It is so ordered. Dated at SHINYANGA this 4th of September 2026 . Page. 6 R. B MASSAM JUDGE OF THE HIGH COURT Page. 7