IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM SUB DISTRICT REGISTRY)

AT DAR ES SALAAM

CIVIL APPEAL NO. 96 OF 2021

(Originating from the Judgment and Decree of Kinondoni District Court in Civil Case No
128 of 2020 dated on 26th January, 2021 before Hon. D.D. Mlashani, RM)
VICTOR MUTASI…………………………….………………………………… APPELLANT
VERSUS

CRDB BANK PLC….…………..………….………..……………………...…RESPONDENT

JUDGMENT

Date of last order: 21/07/2022

Date of Judgment: 26/08/2022

E.E. KAKOLAKI J.
Before the District Court of Kinondoni at Kinondoni in Civil Case No. 128 0f

2020, the appellant herein instituted a suit against the above named

respondent, on tort of negligence claiming for the following orders; one,

payment of Tsh. 1,500,000 being costs for extra charges incurred in making

travel arrangements due to delay caused by the respondent’s negligence to

perform her duties, general damages to the tune of Tsh. 50,000,000/-, costs

of the suit and any other reliefs.

The appellant’s claims as garnered from the pleadings are to the effect that,

he is the respondent’s customer and has been banking with her for a long
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time since 2009. He was issued with Tembocard Master Card in which in

March, 2013 successfully applied for online transaction services and the first

online transaction made on 08/03/2013. It appears in 2017 the appellant

was invited to United Kingdom House of Parliament to attend a Westminster

Seminar Youth Program, from 14th -16th November 2017 which was to take

place at the House of Parliament Westminster-London. In the course of

preparations for attendant, the appellant had to pay for accommodation

reservation in UK, process UK visa and arrange for flight, thus made online

payment using his CRDB MasterCard. Unfortunately, the transaction was

unsuccessful despite several attempts and of late, he had to use other ways

of payments which caused delay of his departure while seeking for premium

Visa services so as to speed up the process something which suffered him

unnecessary expenses. Believing that respondent was negligent for failure

to perform his duties accordingly, causing him unnecessary expenses,

wastage of time, missing part of high-profile workshop that led to loss of

economic opportunity and network, loss of knowledge, frustration and

mental torture, and upon resistance of the respondent to remedy his

grievances through compensation, the appellant filed Civil Case No. 128 of

2020 against the respondent claiming the reliefs as alluded to above.

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Appellant’s case was made of one witness (PW1) who was the appellant

himself and relied on seven (7) exhibits while the defence case based on a

single witness (DW1) who tendered one exhibit only. At the end of the trial,

the court was convinced that, appellant had failed to prove his case thus

dismissed it for want of merits. The appellant is aggrieved with such decision

and has demonstrated his grievances through three (3) grounds of appeal

going thus:

1. That the learned trial Magistrate erred in law and fact by denying the

appellant the right to be heard

2. That the learned trial magistrate erred in law and facts by restraining

the appellant from tendering a document during trial without any

justifiable reasons.

3. That the learned trial magistrate erred in law and fact by allowing the

respondent to adduce evidence on new issues that did not form part

of the pleadings.

On the basis of the above grounds, he prayed this Court to allow the appeal,

quashed and set aside the judgment and decree of the District Court of

Kinondoni with costs and any other reliefs as this Court may deem just and

fit to grant.

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In the course of hearing of the appeal parties were heard viva voce, as the

appellant appeared in person while respondent represented by Mr. Matia

Samwel, learned advocate. In this judgment I am intending to address all

grounds of appeal if need be. Submitting on the first ground of appeal, in

which appellant faults the trial court for denying him right to be heard, he

lamented that, during the trial he was denied his right to re -examination

even after demanding the same. He referred the Court to page 20 of the

typed proceedings exhibiting his complaint. He complained further that, the

worst part is that, to a large part the trial court’s decision was founded on

cross examination part of evidence in which he was denied a right to re-

examine. In further view of the appellant, what the court did was in

contravention of section 147 (3) of the Evidence Act, [Cap 6 R.E 2019].

Reacting on the first ground of appeal Mr. Matia submitted that, the appellant

was not denied of his right to be heard as he was given an opportunity to

re-examine the witness but failed to raise any concern instead he closed his

case as can rightly be seen at page 21 of the proceedings. Thus, the first

ground is incompetent and has to fail the learned counsel stressed.

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In his short rejoinder appellant while insisting the Court to be guided with

the trial court record when investigating his complaint, he reiterated his

submission in chief and maintain his prayers before the court.

I have keenly considered the submission of both parties in light of the

available records. Notably right to be heard audi alteram partem is a principle

of natural justice under common law which has become a fundamental

constitution right requiring every litigant to be heard before a decision is

made. This right is also enshrined in Article 13(6)(a) of our Constitution of

the United Republic of Tanzania, 1977 as amended from time to time. The

same right has been overemphasized by the Court of law in our country in a

number of cases. For instance, the cases of Abbas Sheally and Another

Vs. Abdul Fazalboy, Civil Application No 33 of 2002, Mbeya-Rukwa Auto

Parts and Transport Vs. Jestina Mwakyoma [2003] TLR 251 and M/S

Flycather Safaris Limited Vs. Hon. Minister for Land and Human

Settlement Development and AG, Civil Appeal No. 142 of 2017 (CAT-

unreported). In Mbeya-Rukwa Auto Parts and Transport (supra) the

Court of Appeal had this to say:

’’In this country, natural justice is not merely a principle of

common law, it has become a fundamental constitutional right.

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 Article 13(6)(a) includes the right to be heard among the
attributes of equality before the law and declares in part:
(a) Wakati haki na wajibu wa mtu yeyote vinahitaji
kufanyiwa uamuzi na Mahakama au chombo kinginecho
kinachohusika, basi mtu hyuo atakuwa na haki ya
kupewa fulsa ya kusikilizwa kwa ukamilifu…’’
In light of the above decision it is a principle of law now that, before any

decision is entered against the party to any proceedings before the court or

tribunal or authority mandated with duty of determination of his right or fate,

such party must be heard first. This principle was emphasized by the Court

of Appeal in the case of Abbas Sherally and Another (supra) where

Mroso, JA (as he then was) had this to say:

’’The right of a party to be heard before adverse action or

decision is taken against such a party has been stated and
emphasized by the courts in numerous decisions. That right is
so basic that a decision which is arrived at in violation of it will
be nullified even if the same would have been reached had the
party been heard, because the violation is considered to be a
breach of the principles of natural justice. For example, in the
case of General Medical Council Vs. Spackman, [1943]
A.C 627, Lord Wright said:

’’If principles of natural justice are violated in respect of

any decision, it is indeed immaterial whether the same
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 decision would have been arrived at in the absence of the
departure from the essential principles of justice. The
decision must be declared to be no decision.’’

The above principle of law in General Medical Council (supra) as cited in

Abbas Sherally and Another (supra) was also followed with approval by

the Court of Appeal of Eastern Africa in the case of Hypolito Cassiano De

Souza Vs. Chairman and Members of the Tanga Town Council [1961]

E.A 377 and the Court of Appeal in the case of DPP Vs. I. Tesha and

Another [1993] TLR 237.

In the present appeal, appellant asserts that, the trial court denied him the

right to be heard as during the trial, he was denied of his right to re -

examination. Examination of the witness as provided under section

147(1),(2) and(3) of the Evidence Act, [Cap. 06 R.E 2022] entails three

processes. One, examination in-chief where the witness is examined by the

party who called him, second, cross-examination where the witness is

examined by the adverse party and re-examination. Re-examination is

defined under section 146(3) to mean the process of examination of a

witness, subsequent to the cross examination, by the party who

called him. The right to re- examination is provided under section 147(3)

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of the Evidence Act. For appreciation of the appellant’s compliant, I find it

imperative to cite the provisions section 147(1)-(3) of the said Act which

reads:

147.-(1) Witnesses shall be first examined-in-chief, then (if the

adverse party so desires) cross-examined, then (if the party
calling them so desires) re-examined.

(2) The examination-in-chief must relate to relevant facts, but

the cross-examination need not be confined to the facts to
which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of
matters referred to in cross-examination; and if new matter is,
by permission of the court, introduced in re-examination, the
adverse party may further cross-examine upon that matter.

What is gathered from subsection (1) of the above cited provision is that,

when the witness called by the party is examined in chief, has to be

subjected to cross examination by the adverse party before he is re-

examined, if the party called him so wishes. The law provides further under

subsection (2) that, the said cross-examination need not be confined to the

facts to which the witness testified on during his examination-in-chief rather

can extend to any other facts/matters seeking to injure or shake the case of

the party called him or witness’s credibility. The only remedy to such party

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who called that witness is for him to re-examine his witness so that he can

make good the left unclarified, contradictory or uncertain facts by the

witness during cross examination stage, the right which the appellant

laments to have been denied during the trial of his case.

It is however learnt from the trial court’s typed proceedings that, the

appellant was self-representing throughout the trial while the respondent

enjoyed services of Mr. Charles Lauwo, learned advocate. As alluded to

above, the appellant in proving his case called one witness only, who was

himself as PW1, who testified in chief before he was subjected to cross

examination by Mr. Charles Lauwo, learned advocate. It is common

knowledge that, during cross examination any question can be put to the

witness outside the evidence adduced in Court during his examination in-

chief so as to injure or shake the case of the party calling him or witness’s

credibility. The interesting question that comes in my mind however, is

whether the appellant who was unrepresented party, was entitled to re-

examination when testified in Court in support of his case. The answer to

this legal quagmire in my firm opinion is yes. I so view as to my

understanding as of right and duty to prove his cases in terms of sections

110 and 112 of Evidence Act, the appellant called himself as a witness before

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he testified in chief and later on cross examined. So as a party who called

himself as a witness was entitled to the right to re-examination as defined

under section 146(3) of evidence Act, as such right is accorded to the party

who called the witness.

Having settled that position on the appellant’s right to re-examination the

next question for consideration is whether he was denied such right as

asserted. Mr. Matia submitted that, appellant was accorded with that right

but failed to exercise it as a result closed his case. My scrutiny of the trial

court typed and hand written proceedings which as per the principle of

sanctity of record is presumed to be accurate, the same has unearthed and

confirmed the appellant’s complaint, that he was indeed denied of his right

to re-examination contrary to what is submitted by Mr. Matia. For clarity, this

is what transpired in court on 14/01/2021 when appellant (PW1) testified,

and after been cross examined by the defendant counsel, the excerpt which

I quite from pages 20-21 of the typed proceedings:

’’XXd by advocate for the defendant:

….I registered first with the first card, when I changed the card
I did not registered against exhibits P6 has expired and its PIN
has expired.
That is all
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 Xd by Court: Nil
Sgd: Mlashani- RM
14/01/2021
Plaintiff: I pray to close my plaintiff case
Court: Plaintiff hearing is marked as disclosed.
Sgd: Mlashani- RM
14/01/2021
What is deciphered from the above excerpt is that, the appellant was not

accorded of his right to re-examine the witness he had called though himself.

That is so as the record exhibits that, soon after cross examination of the

appellant, the trial court had no question of clarification to put to the witness.

In that regard the appellant was denied of his right to fair trial which is

constituted under the right to be heard.

Now the last question to be asked is what is the effect for such denial of the

right to re-examination to the appellant? I think this question need not keep

this Court busy unnecessarily as it has already been established that, denial

of such right is tantamount to denial of the right to be fair trial constituted

under the right to be heard. It is trite law that, denial of the right to be heard

vitiates the proceedings even in a situation where the same decision would

have been arrived at by the court, had the party been heard on merits for

the only one reason that, his natural right to be heard has been negated

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before his rights are taken away. This settled legal stance was adumbrated

by the Court of Appeal in the case of M/S Flycather Safaris Limited Vs.

Hon. Minister for Land and Human Settlement Development and

AG, Civil Appeal No. 142 of 2017 (CAT-unreported) where the court after

being satisfied the decision was arrived at without according the parties with

the right to be heard on the issue at contest, before nullifying the

proceedings had this to say:

’’Failure to accord the parties the right to be heard on

the propriety of the power of attorney in question denied the
parties the right to be heard on the issue and we are
satisfied this anomaly is fatal and vitiated the
proceedings and Ruling. See, Dishon John Mtaita Vs.
DPP, Criminal Appeal No. 132 of 2004 and Scan Tan Tours
Ltd Vs. The Registered Trustees of the Catholic Diocese
of Mbulu, Civil Appeal No. 78 of 2012 (all CAT-unreported)’’
(Emphasis added)
In this case since it is already established the appellant’s right to be heard

was violated, its effect is to render the whole proceedings before the District

Court of Kinondoni in Civil Case No. 128 of 2020, a nullity regardless of

whether the same results would have been reached by the trial court had

such right to re-examine been accorded to the appellant. This ground

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suffices to dissolve this appeal, thus I see no need of venturing into

determination of rest of the grounds as that will only serve academic

purpose.

Consequently, this appeal is allowed. The trial court’s proceedings in Civil

Case No. 128 of 2020 before the District Court of Kinondoni are hereby

quashed and its judgment set aside. This has the effect of ordering retrial of

the case before another competent magistrate.

No order as to costs.

It is so ordered.

DATED at DAR ES SALAAM this 26th August, 2022.

E. E. KAKOLAKI
JUDGE
26/08/2022.
The Judgment has been delivered at Dar es Salaam today 26th day of
August, 2022 in the presence of the appellant in person, Mr. …………..
Respondent’s principal officer and Ms. Asha Livanga, Court clerk.
Right of Appeal explained.

E. E. KAKOLAKI
JUDGE

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26/08/2022.

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