IN
THE COURT OF APPEAL OF TANZANIA
AT
TANGA
(CORAM: MSOFFE, J.A., KILEO, J.A. And KALEGEYA,
J.A.)
CIVIL APPEAL NO. 49 OF 2005
ABASI
SALIM KICHENJE …………………………….. APPELLANT
VERSUS
1.
SHEHE MOHAMED ZAYUMBA ]
2.
ABDI SALIM KICHENJE ] …….…. RESPONDENTS
(Appeal from the Decision of the High Court
of Tanzania
(Longway, J.)
dated the 10th day of June, 2004
in
Civil
Case No. 10 of 2001
-------------
JUDGMENT OF THE COURT
2 & 10 July 2007
MSOFFE, J.A.:
It is
common ground that the appellant and the second respondent are brothers. Their father, Salim Kichenje, died intestate. Following his death, the appellant was
appointed administrator of his estate.
It is apparent from the record before the High Court that the estate,
the subject of the case, is a 35 acre farm.
The estate has orange trees planted on it.
In the High
Court the appellant sued the respondents in a claim of (i) shs. 3,160,000/=
being value of oranges harvested without his authority between the years 1995,
1996 and 1997, (ii) shs. 4,200,000/= being loss of business for the entire
period he had come from Mwanza and stayed in Tanga to follow up the matter, and
(iii) shs. 500,000/= being general damages.
After hearing the parties the High Court decreed sums of shs. 463,335/=,
shs. 1,050,000/=, and shs. 250,000/= for items (i), (ii) and (iii) above; and
interest of 2½% charged on the decretal amount from the date of judgment to the
date of full payment. Dissatisfied, the
appellant has preferred this appeal which is, essentially, an appeal against
the above quantum. The appellant’s view
is that the decreed sums are on the low side.
As happened
in the High Court, the parties appeared before us in person(s). We heard them quite extensively on the merits
or otherwise of the appeal. However, in
the end, for reasons which will emerge hereunder, we regret that we have
decided to take the rather unusual step of not determining the appeal on merit.
We start
with the proceedings of 8/5/2002
and 17/7/2002
which read as follows:-
8.5.2002
Coram -
M.H.C.S. Longway, J.
Plaintiff - present in person
Defendants - 2 present in
person
c.c. Salimu H.K.
Plaintiff:- My witnesses
could not be available today due to various reasons. One had to be at work and another attending a
sick child. I am ready to give my
evidence.
Defendants:- We have no objection for the hearing to
start.
Court:- Considering
that the parties are not legally aversed, I have discussed the matter before
the court by way of tying to guage issues of the case and I record the
following:
1.
That
there is a farm which the plaintiff and 2nd defendant own with other
members of the family, which farm had various items of produce haversted
annually.
2.
That
the harvesting had to be done with knowledge and consent of the plaintiff.
3.
That
the 1st defendant denies making any harvest in the farm.
4.
That
the 2nd defendant admits having harvested from the farm some produce
with the knowledge and consent of some members of the family in absence of the
plaintiff, and that he did so for three years.
5.
That
the plaintiff is suing in his capacity as Administrator of Estate of his late
father, who died in 1992.
6.
That
the 1st defendant was on the 4.6.97 found in the farm with 2nd
defendant and other hands in the process of harvesting oranges.
7.
That
the plaintiff generally lives in Mwanza where he works for gain and comes to
attend to the farm harvest every June, sell and report to the family, of 12
persons.
8.
That
the farm has 35 Acres and has a title presently held by the bank, which is saved
Tshs. 800,000/= as of 1994.
9.
That
in view of the fact that the plaintiff and 2nd defendant are
related, the issue was discussed at family level but failed to reach any
settlement.
(M.H.C.S.
Longway)
JUDGE
ORDER:
Having consulted with the parties it is ordered that the
matter adjourn to facilitate a family meeting by the 28/6/2002 . Hearing 17/7/2002 .
(M.H.C.S.
Longway)
JUDGE
17.7.2002
Coram -
M.H.C.S. Longway, J.
Plaintiff -
present person
Defendant - present in
person
c.c. Mr. Salimu H.K.
Plaintiff:- The meeting of the family failed to take off. I have come with my witness as advised.
Court:- Issues shall
be framed at a later stage as the parties are laymen.
It occurs to us that the above record of
proceedings was irregular in three main aspects. One,
we do not think it was necessary for the judge to “gauge issues of the
case”. What the judge did here was a
procedure unknown to the Civil Procedure Code, 1966 (Cap 33 R.E. 2002). Two,
the assertion by the judge that issues were to be drawn at a later stage
because the parties were laymen was unfortunate. It is nowhere provided in the law that where
parties are laymen issues can be framed at a later stage. Three,
and this was a very serious anomaly, the issues were not framed at the first hearing
in clear violation of the provisions of Order XIV Rule 1 (5) of the Civil Procedure Code, 1966 (Cap 33 R.E.
2002) requiring that issues be framed at the first hearing. Sub-rule (5) reads:-
(5) At the first
hearing of the suit the court shall,
after reading the plaint and the written statements of defence, if any, and
after such examination of the parties as may appear necessary, ascertain upon
what material proposition of fact or of law the parties are at variance, and shall thereupon proceed to frame and
record the issues on which the right decision of the case appears to
depend. (Our emphasis)
Needless to say, sub-rule (5) is couched in mandatory
terms. And in terms of section 53 (2) of the Interpretation of Laws Act (Cap 1 R.E.
2002) in a written law where the word “shall” is used in conferring a function,
the word shall be interpreted to mean that the function so conferred must be performed. In this case it was, therefore, mandatory for
the judge to ensure that the issues were framed at the first hearing of the
suit.
In
saying so we are, no doubt, aware that under the provisions of sub-rule 1 of
Rule 5 of Order XIV the court may at any time before passing a decree amend the
issues or frame additional issues on such terms as it may deem fit. However, the sub-rule is at the discretion of
the court depending, of course, on the nature of the evidence before it. In the instant case, it was not a question of
amending the issues or framing additional issues. Issues were simply not framed at all at the
first hearing!
This brings us to another shortcoming in
the matter. In the written statement of
defence filed by the respondents on 22/8/2001 , under sub-paragraphs (a), (b), (c) and (d) of
paragraph 1 thereof, they canvassed a number of preliminary objections
basically touching pertinent issues of the jurisdiction of the court. In her judgment, the judge stated as follows
in respect of the preliminary objections:-
“The
defendants filed a joint written statement of defence which was preambled by
four preliminary objections averring time bar, lack of cause of action, lack of
court jurisdiction and locus. These were later withdrawn after holding
consultations with the court”.
With
respect, the above passage invites the following comments. First, the record is silent as to when
the consultations, if any, were held. Second, the record is also silent on
the nature and form of the consultations.
We wonder whether the consultations, if held, were necessary in the
justice of the matter. The court was
faced with a matter before it, it had to deal with it head on, guided by the
law, instead of holding the so called consultations. Fourth,
closely related to the second point, is the fact that the matters raised were
ones of jurisdiction, as stated above.
The judge was duty bound to resolve whether or not she had the requisite
jurisdiction before proceeding with the suit.
There is yet a final point. In her judgment, the judge said in part as
follows:-
“At the start of the trial on 8/5/2002 I had intensive consultations with
the parties considering that they were not legally aversed. As well as facilitating a drawing of issues, the idea was also to attempt some mediation
……….…”
(Our
emphasis).
In
our respectful opinion, what we discern from the above passage is that the
judge attempted, albeit unsuccessfully, to mediate the parties in the
matter. We are aware that in our civil
justice system mediation is a remedy available to litigants and it is mandatory
in a case of this nature. It is an
alternative procedure directed by the court for resolving the matters in
dispute between the parties. Indeed,
Orders VIIIA, VIIIB and VIIIC of the Civil Procedure Code, 1966 (Cap 33 R.E.
2002) were specifically introduced for purposes of this alternative procedure
for settling disputes. However, we are
of the view that mediation has to be conducted within the confines of the law
available on the procedure in question.
In this case, the mediation mentioned by the judge ought to have
complied with the procedures obtaining under Orders VIIIA, VIIIB, and VIIIC
above. For example, it is not the
practice for a mediator judge to sit in judgment over the trial of a case in
which he/she mediated unsuccessfully. It
is no wonder, therefore, that under Rule 3 (1) of Order VIIIB where after full
compliance with the directions made under sub-rule (2) of rule 3 of Order VIIIA
the case remains unresolved, or “unmediated” so to speak, a final pre-trial
settlement and scheduling conference is held and “presided over by the judge or
magistrate assigned to try the case”.
The judge or magistrate assigned to try the case cannot, in our view, be
the mediator judge or magistrate. So, it
was wrong in this case for the judge to assume the role of a mediator judge and
a trial judge in the same case.
In conclusion, we are of the considered
view that the cumulative effect of the above shortcomings is that the parties
were not given a fair hearing.
Accordingly, in exercise of our revisional powers under Section 4 (2) of
the Appellate Jurisdiction Act, 1979 as amended by Section 2 of the Appellate
Jurisdiction (Amendment) Act No. 17 of 1993, we hereby declare a nullity and
set aside the proceedings before Longway, J.
There will be a trial de novo
before a different judge without payment of fees. We make no order as to costs.
DATED at TANGA this 4th day
of July, 2007.
J. H.
MSOFFE
JUSTICE OF APPEAL
E. A.
KILEO
JUSTICE OF APPEAL
L. B.
KALEGEYA
JUSTICE OF APPEAL
I certify that this is a true copy of
the original.
(I. P.
KITUSI)
DEPUTY REGISTRAR
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