yassin mohamedi abdalah vs saidi mohamedi nangumbi 2008 tzhc 40 13 may 2008

IN THE HIGH COURT OF TANZANIA

AT MTWARA CIVIL APPEAL NO. 7 OF 2007

LINDI DISTRICT COURT EMPLOYMENT CAUSE NO. 1 OF 2.006 YASSIN MOHAMEDI ABD ALAH ................ A PP ELLANT

VERSUS SAIDI MOHAMEDI NANGUMB! ............ RESPONDENT Date o f last o rd e r - 13/3/2008 Date o f J u d g m e n t - 13/5/2008

JUDGMENT MJEMMAS, J. The appellant - Yassin Moharnedi Abdallah was sued by the respondent - Saidi Moharnedi Nangumbi before Lindi District Court in Em ploym ent C ause No.1 of 2006 for recovery of T S hs.2,800,000/= being the value of a shop or salaries, over tim e and leave for a period of five years in which the respondent worked for him (appellant) The district court entered judgm ent in favour of the respondent. The appellant was aggrieved by that judgm ent hence the present appeal At the hearing of this appeal both parties were unrepresented and they appeared in person. Upon perusal of the docum ents filed by the parties I realized that they were not properly titled so i gave them leave to am end the docum ents to read “ M em orandum of A ppeal1 and "Reply to M em orandum of A ppeal” respectively. As stated earlier, the parties were not represented by advocates so they could not address som e serious irregularities which I found in the proceedings and judgm ent of the district court. I will therefore proceed to deal with those irregularities because in my humble opinion they are fatal and may result into annulm ent of the proceedings. The record of the proceedings shows the following: Date: 19/6/2006 Coram: C.P. Semwija, RM Parties: All present CC: J. Nahumba, R.A Plaintiff: I have no more to add to my written statem ent. Plaintiff: [should read Defendant] I have nothing

to add out of my written statem ent of defence C ourt: Judgm ent on 4/7/2006. Sgd: C.P. Semwija, RM 19/6/2006 Date: 4/7/2007 Coram: C.P. Semwija,, RM CC: J. Nahumba, R.A Order: The fees have not been paid. First the fees should be paid and the judgm ent will be delivered. M ention on 18/7/2006. Sgd: RM Date: 18/7/2006 Coram: C.P. Semwija, RM Parties: Plaintiff - Present Defendant - Present D efendant: I was paying the plaintiff T S h.30;000/= each month. Plaintiff: I have said in my written statement. He have not paid me Court: Fees have been paid. Sgd: C.P. Semwija, RM The trial M agistrate proceeded to write his judgm ent which reads in part, I quote:

JUD G EM EN T In this case one Saidi Mohamed Nangumbi claim s from the defendant Tsh.2,800,000/= as salaries from the defendant, salaries from 4/8/2001 to 14/1/2006, and the respondent denied the liability. Issues agreed by both parties are: 1. W hether the plaintiff had been an em ployee of the defendant.

2. W hether the plaintiff had been duly term inated by the defendant.

3. W hether the plaintiff is entitled to paym ent of the claim ed sum?

4. W hether any other relief may be granted by the court. The trial m agistrate went on to analyse the issues above using statem ents and docum ents referred to in the pleadings i.e plaint and written statem ent of defence. He finally gave judgm ent in favour of the plaintiff. From what I have shown above it is clear that the issues were not drafted and m ade clear to the parties before writing of the judgm ent. It is also clear that the parties did not adduce any evidence to prove or disprove the claim s/issues in dispute. O .XIV rule 1 (5) of the Civil Procedure Code, provides: “At the first hearing of the suit the court shall, after reading the plaint and the written statem ents, if any, and after such exam ination of the parties as may appear necessary, ascertain upon what m aterial proposition of fact or of law the parties are at variance, and shall thereupon proceed to fram e and record the issues on which the right decision of the case appears to depend. Under this order XIV rule 1(5) it is the duty of the court to frame issues and in the present m atter I take it that the court did frame the issues though they are only reflected in the judgm ent. The issue which arises is, where did the trial m agistrate get the evidence to resolve the issues as he did? O rder XV rule 3 provides that: O XVr.3(1) "W here the parties are at issue on som e question of law or fact, and

issues have been fram ed by the court as hereinbefore provided, if the court is satisfied that no further argum ent or evidence than the parties at once adduce is required upon such issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the court may proceed to determ ine such issues and, if the finding thereon is sufficient for the decision, may pronounce judgm ent accordingly. O.XV r.3(2) “W here the finding is not sufficient for the decision, the court shall postpone the further hearing of the suit and shall fix a day for the production of such further evidence or for such further argum ent as the case requires." From the record of the proceedings of the case, and as it has been shown hereinbefore, neither the plaintiff nor the defendant adduced any evidence which could have assisted the trial m agistrate to determ ine the issues he had framed. He cannot, therefore, be said to have acted under OXV r.3(1) when he delivered the judgm ent on this matter. I therefore find that the irregularity which was com m itted by the trial m agistrate is fatal and it has caused m iscarriage of justice. The proceedings and decision of the trial court are thereafter quashed. It is ordered that this case be tried afresh by a different Magistrate. Each party to bear its own costs. j ijj' , O rdered accordingly.