M/S I & M Bank (T) Limited vs Royal Procurement Company Limited & Others (Civil Appeal No. 219 of 2024) [2026] TZCA 634 (5 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWARIJA. J.A.. KENTE, 3.A. And MGONYA, J.A.) CIVIL APPEAL NO. 219 OF 2024 M/S I & M BANK (T) LIMITED APPELLANT VERSUS ROYAL PROCUREMENT COMPANY LIMITED TAHER HAKIMUDDIN JIVAJEE................ . UMMEHANI TAHER JIVAJEE....................... ..^RESPONDENT ,2 nd RESPONDENT 3 rd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania MGONYA. J.A.: This is an appeal from the judgment of the High Court of Tanzania (Commercial Division) at Dar es Salaam, delivered on 27th July 2020 by Hon. B. K. Phillip, J., in Commercial Case No. 79 of 2019, whereby the appellant's suit against the respondents for recovery of an outstanding overdraft facility in the principal sum of TZS 576,700,692.00 together with interest, was dismissed with costs. (Commercial Division), at Dar es Salaam) (Philip, J J dated the 27th day of July, 2020 in Commercial Case No. 79 of 2019 JUDGMENT OF THE COURT 1 st December, 2025 & 5thJune, 2026 1

The facts of this case albeit in brief are thus; by an agreement executed on 17th January, 2014, the appellant advanced an overdraft facility of TZS 250,000,000.00 to the 1s t respondent which facility was secured, inter alia, by general debenture charge over all fixed and floating assets of the 1s t defendant with specific charge to the existing vehicles thereof, legal mortgage over apartment No. 7A on Plot No. 11 Block 47 Somali Street, Kariakoo, Dar es Salaam in the name of Taher Jivajee, demand promissory note and personal guarantee and indemnity by the 2n d and 3r d respondents. The appellant contended that the 1s t respondent defaulted in repayment, necessitating the realization of the securities, yet a substantial balance remained outstanding despite several demands. The respondents, in their joint written statement of defence, claimed that the entire debt, together with interest, had been fully settled. After the respondents failed to file their witness statements within the prescribed time, the trial court, on 17thJune 2020, ordered the suit to proceed ex parte against the respondents. Having heard the appellant's evidence, the learned trial Judge held that the appellant had failed to prove the existence of any outstanding balance and proceeded to dismiss the suit. Being dissatisfied with both the judgment and decree of the trial court, the appellant now appeals to this Honourable Court. The

memorandum of appeal comprises seven (7) grounds of complaint, namely;

1. That the learned trial Judge erred in law and fact by dealing with matters that were notin issuef which are (a) There was no issue regarding the service o f the demand notice to the 2n d and J d defendants; (b) There was no issue regarding the value o f the property sold.

2. In the alternative to ground 1(a) and (b), it was not mandatory to serve the 2n d and J d defendants with demand notice;

3. (a) Even if it was mandatory, there was no evidence that they were prejudiced by failure to serve them with demand notice. (b) Even if the notice was mandatory, the 1st defendant could not be affected

4. The learned trial Judge erred in law and fact by holding that the certificate o f sale o f the mortgaged property was mandatory to prove the amount obtained in selling the mortgaged property;

5. The learned trial Judge erred in law and fact by holding that once a debt is written off, the bank cannot continue charging interest on the amount which has been written o ff as a bad debt;

6. The learned trial Judge erred in law and fact by raising the issue o f the authenticity o f the document tendered in evidence when she was composing the judgment. The issue, if any, was supposed to be raised when the document was being tendered; and 3

7. The judgment as delivered by the court on 27th July, 2020, is a nullity as the defendants were not served with a summons to appear forjudgment Premising on the above grounds of appeal, the appellant prayed this Court to allow the appeal. At the hearing of this appeal, the appellant and the respondents were represented by Dr, Onesmo Kyauke and Mr, Paul Elias, learned counsel, respectively. When invited to amplify the grounds of appeal, Dr. Kyauke adopted the written submissions he filed earlier on and proceeded to highlight the submissions. He opted to highlight on the 1s t to 4th grounds of appeal conjointly, while the submissions on remaining grounds were amplified separately, Dr. Kyauke commenced his argument by reminding us of a well- known principle of the law that the Court should deal with matters in dispute only. He went on to argue that in this appeal, the learned trial Judge dealt with matters that were not in issue. Expounding on that, he stated, when composing the judgment, the trial Judge raised minor issues regarding the service of the demand notice to the 2n d and 3r d defendants (Guarantors) and the issue on the value of the sold property. According to Dr. Kyauke, parties had no dispute in regard to those issues as the

same were neither issues for determination nor pleaded by the parties. By referring us to the respondent's written statement of defence, specifically paragraph 7, he contended that there is no specific denial that the demand notice was served. According to Dr. Kyauke, by raising those minor issues and answering them in favour of the respondents, the learned trial Judge denied the appellant the right to be heard, as the appellant was supposed to be allowed to address the court on those issues. Arguing further, the learned counsel averred that the minor issues raised by the trial Judge had nothing to do with the main issue. In his view, the service of a demand notice has nothing to do with evidence to repay, and the guarantors were not prejudiced in either way, as being Directors of the 1s t respondent, they were aware of the debt. He stressed that it was not mandatory to serve them, and if it was mandatory, still the principal debtor would have been liable. Equally, Dr. Kyauke argued that there was no dispute on the sale price. Hence, the fact that it was mandatory to produce the Certificate of Sale was not an issue. By referring us to page 79 of the record of appeal, in a written statement of defence, the appellant's counsel contended that the respondents denied the debt and stated that they had already paid 5

without showing any evidence. He emphasized that failure to allow the appellant to address the court on those issues is a procedural irregularity and it is fatal as it occasioned a miscarriage of justice and affected the merits of the judgment. Further to that, Dr. Kyauke strongly emphasized that the appellant put the matter on the balance of probabilities, in his view, the trial Judge erred by holding that the case was not proved. Premising on his argument, the learned counsel urged us to allow the 1s t to 4th grounds of appeal. In reply to the learned counsel's submissions, having adopted the written submissions in reply, Mr. Elias responded to the 1s t to 3r d grounds of appeal conjointly, where he argued that the trial court appropriately considered all the evidence presented by the appellant before arriving at its decision. He contended that the appellant should have noted that, for any claim to be valid against the respondents, they were required to serve the demand notice, and the appellants' witnesses were supposed to present the evidence of the written demand notice served on the 2n d and 3r d respondents in compliance with the legal requirements. In his view, the demand notice was crucial to demonstrate that the respondents had either refused or neglected to fulfil their obligations. 6

By referring us to page 71, paragraph 11 of the record of appeal, Mr. Elias argued that, it is clear from the record that the demand notice under that Guarantee should be in writing and signed by an authorized officer of the bank. Hence, it was his stance that the trial Judge properly considered the undisputed facts and the terms of the Guarantee and Indemnity agreement signed by the appellant, the 2n d and 3r d respondents, specifically clauses 2.1, 2.3, 11.1. and 11.2 of the agreement, which requires the appellant to issue a demand notice in case of default The learned counsel went further to state that there is no doubt that the appellant contravened the terms by failing to inform both respondents of the outstanding amount, if any. To fortify his stance, Mr. Elias took us to section 125 of the Land Act, which provides for remedies of a lender upon default. Finally/ he implored us to dismiss the 1s t to 3r d grounds of appeal for being devoid of merit. Regarding the fourth ground of appeal, Mr. Elias submitted that a certificate of sale was mandatory to prove the sale price. In his view, the appellant's failure to provide a certificate of sale or to testify about the auction procedure before the trial court is fatal. By referring us to our previous decision in Joseph Kahungwa v. Agricultural Inputs Trust Fund & 2 Others, Civil Appeal No. 373 of 2019[2021] TZCA 325, where

the Court insisted on the cardinal principle of the law that he who alleges must prove, Mr. Elias argued that the appellant failed to prove his case. Having heard the rival submissions made by the counsel for the parties, it is clear in our view that the appellant's complaint in the above grounds of appeal centers on the point that the judgment was founded on extraneous matters allegedly founded on non-issues. According to the appellant, the Judgment was founded on the issues of service of demand notice to the 2n d and 3r d respondents and evidence of proof of sale, matters which were not pleaded by the parties. Essentially, as rightly argued by the appellant's counsel, it is an elementary and fundamental principle of the determination of disputes that courts of law must limit themselves to the issues raised by the parties in the pleadings, as to act otherwise might result in denying the parties the right to a fair hearing. See, for instance, EX-B8356 S/SGT Sylvester S. Nyanda v. The Inspector General of Police and the Attorney General, Civil appeal No. 64 of 2014, (unreported), Shule ya Sekondari Mwilamvya v. Kaemba Katumbu (Civil Appeal No. 323 of 2021) [2023] TZCA 17316, and Charles Christopher Humphrey Kombe t/a Kombe Building Materials v. Kinondoni Municipal Council (Civil Appeal No. 19 of 2017) [2022] TZCA 205. 8

In the instant appeal, it is on record of this appeal specifically at page 175 that there were two issues for determination by the trial court, to wit: one, whether the defendants have already discharged their obligations arising from the loan agreement between the plaintiff and the 1s t defendant dated 17/1/2014; and two, to what reliefs are the parties entitled to. In regard to the first issue, when analyzing the testimony tendered by PW1, the High Court Judge was of the view that, the appellant's case was based on the allegations that the 1s t defendant failed to clear the outstanding amount as agreed; and that the mortgaged property which was offered as security for the overdraft facility was sold but the proceeds obtained from the sale which was TZS 84,730,000/= was insufficient to clear the outstanding amount which was TZS 661,430,692.39; and lastly, that the appellant's efforts through oral and written demands for payment of outstanding loan proved futile. Premising on the legal position stated under section 110 of the Evidence Act, Cap. 6 R.E 2019 now section 117 R.E. 2023, that the appellant had a duty to prove his allegations, it was the High Court Judge's finding that for the above allegations to be proved the appellant was supposed to tender in evidence of the written demands notice served to the 2n d and 3r d respondents to prove that they have refused or neglected

to discharge their obligations arising from the loan agreement. Likewise, in her findings, the High Court Judge held that the appellant failed to bring any tangible evidence, specifically the certificate of sale of the mortgaged property, to prove that the proceeds of sale were TZS 84,730,000.00 only, hence, not enough to clear the outstanding amount. Having keenly scrutinized the impugned judgment in line with the record of this appeal, it is our firm view that, in his findings the trial Judge did not raise any new issue as alleged by the appellant, rather she gave effect to what they agreed and pleaded in their pleadings. The issues on proof of sale by certificate of sale and service of demand notice came in when the trial Judge was assessing whether the appellant managed to prove his allegations that the respondents refused to fulfil their contractual obligation and whether the alleged securities did not suffice to clear the outstanding amount as pleaded by the appellant in the plaint. Henceforth, we find no merit on the above grounds of appeal, and we dismiss them. On the fifth ground that the trial judge erred by holding that once a debt is written off, the bank cannot continue charging interest on the amount which has been written off as a bad debt, Dr. Kyauke argued that there was confusion by the trial Judge. He submitted that; a written-off 10

debt is an internal procedure of a bank. That does not mean that the interest is waived, rather the bank is only remitting it from its accounts. Mr. Kyauke further argued that, as per the Bank of Tanzania (the BoT) Regulations, it was wrong for the trial Judge at page 188 of the record of appeal, to hold that the bank was not supposed to charge interest and penalties since the charging of it is contractual. Hence, the bank was still in a position to charge the account. In his written submissions, the learned counsel argued that, once a debt is written off, the bank's system ceases to generate accounts automatically, and therefore the bank should use a manual system to calculate interest. According to Dr. Kyauke, the learned trial Judge erred in his finding that when a debt is written off, the bank cannot continue to charge interest as there is no any contractual term or principle of law that provides that the bank would not charge interest once a debt is written off. Premising on what he submitted, the learned counsel urged us to find the ground has merit and allow it. In reply to the fifth ground Mr. Elias contended that as the appellant failed to prove the outstanding amount, there is equally no proof of the debt which has been written off as bad debt. The appellant failed to bring the supporting documents to prove the case on the balance of probability. In his view, the trial Judge was correct in her findings that, the appellant 11

could not continue to charge interest after the bank's decision to write off a debt. Based on his submission, the respondents' counsel urged us to dismiss this ground of appeal for being unmerited. We have anxiously gone through the record of appeal and considered the rival submissions by the learned counsel for the parties, the applicable law, and banking practice relating to non-performing assets and written-off debts. Indeed, as rightly argued by the appellant's counsel, in his judgment, specifically at page 188 of the record of appeal, the trial Judge held that; "In my considered view, once the debt is written off, the bank cannot continue charging interest on the amount which has been written o ff as a bad debt" At the outset, it is necessary to restate the basis upon which the learned trial Judge made the impugned finding. The learned Judge observed that the appellant as a bank had closed the borrower's account and written off the debt from its books of accounts. Thereafter, the appellant allegedly prepared manual interest calculations outside the electronic banking system to continue charging interest on the debt. The learned Judge found such practice untenable and held that once the debt had been written off as bad debt, the bank could not continue charging 12

interest thereon. With respect, we are unable to agree with the proposition of law advanced by the learned trial Judge. It is a settled banking practice that the writing off of a debt is essentially an accounting and regulatory procedure undertaken by a financial institution to comply with prudential requirements governing non-performing assets. Under our laws, writing off is also called charging off a debt. Writing off a bad debt in the lender's books is not at the option of a given bank or financial institution; it is a regulatory requirement of the financial sector regulator, as provided under Regulation 9 of the Banking and Financial Institutions (Management of Risk Assets) Regulations, 2014 GN. No 287 of 2014 and elaborated at length by the Court in the cases of National Bank of Commerce Limited v. Stephen Kyando t/a Asky Intertrade (Civil Appeal 162 of 2019) [2022] TZCA 244, and National Bank of Commerce v. Commissioner General, Tanzania Revenue Authority (Civil Appeal No. 52 of 2018) [2018] TZCA 83 (9 July 2018). Such a write-off does not, by itself, extinguish the borrower's contractual liability unless there is evidence of waiver, discharge, novation, accord and satisfaction, or any other legally recognized mode of extinguishing obligations under the law of contract. The Court in National Bank of Commerce Limited v. Stephen Kyando t/a Asky Intertrade (supra) observed that: IB

"The act o f the appellant writing o ff the respondents debt did not relieve or discharge the respondent from the obligation o f liquidating his debt, and the appellant retained a legal right to enforce recovery o f the written-off debt from the defaulting respondent Holding otherwise, which we cannot do, would be tantamount to condoning financial indiscipline by unscrupulous and dishonest borrowers who could deliberately default in settlement o f their financial liabilities with their lenders waiting for their debts to be classified into categories qualifying for writing them off, so that they can go scot-free without repaying the borrowed monies* Moreso, the law under section 37 of the Law of Contract Act, Cap. 345 R.E. 2019, provides that agreements lawfully entered into by parties are binding upon them unless discharged in accordance with the law. In the instant appeal, the facility agreement, promissory note, and guarantee documents expressly provided for the charging of contractual interest upon default. Nothing in the record demonstrates that the appellant waived its contractual entitlement to such interest merely because the debt had been classified or written off for accounting purposes. Indeed, prudential guidelines specifically under regulations 8,9 and 11 of the Regulations regarding management of non-performing assets 14

require banks to make provisions and, where necessary, write off bad debts from their books. However, such regulatory treatment does not amount to forgiveness of debt or abandonment of the bank's right of recovery. A write-off only removes the asset from the bank's accounting records for prudential and reporting purposes. The underlying contractual obligation remains recoverable unless legally discharged. We find the submission of Dr. Kyauke persuasive that, after a debt is written off, automatic generation of statements through the banking system may cease, thereby necessitating manual computation for purposes of recovery. There is nothing inherently unlawful in manual computation of interest, provided the computation is supported by proper evidence, accords with the contractual terms agreed by the parties, and is capable of verification by the court. In our considered view, the learned trial Judge conflated the accounting treatment of a written-off debt with the extinguishment of contractual obligations. The two concepts are distinct. A debt written off in the books of account does not cease to exist in law. Consequently, interest contractually accruing on the outstanding amount does not automatically stop merely because the bank has written off the debt as non-performing.

That said, we hasten to add that although the bank retained the right to continue charging contractual interest, the burden still rested upon it, pursuant to sections 110 and 112 (now sections 117 and 119, respectively) of the Evidence Act, to prove with credible and cogent evidence the exact outstanding amount and the manner in which the interest was computed. The learned trial Judge was therefore perfectly entitled to scrutinize the authenticity, reliability, and evidential value of the manually prepared statement tendered by PW1. We agree with the respondents' submission to the extent that the appellant was under a legal duty to prove the outstanding indebtedness through proper documentary evidence. However, failure to sufficiently prove the amount due is a different matter from holding, as a principle of law, that no interest can accrue after a debt has been written off. The former concerns sufficiency of evidence; the latter concerns the legal effect of a write-off. Accordingly, we find merit in the fifth ground of appeal to the extent that the learned trial Judge erred in law in holding that once a debt is written off, the bank cannot continue charging interest thereon. The correct legal position is that a written-off debt, being merely an accounting and prudential measure, does not extinguish the borrower's contractual liability nor the bank's right to recover contractual interest, unless there 16

exists evidence showing waiver or discharge of the debt. Nevertheless, the bank must still strictly prove the outstanding amount claimed and the basis of interest computation which the appellant failed to do in this matter. Therefore, this ground is partly allowed to the extent explained above. Regarding the sixth ground that the trial Judge erred when raising the issue of the authenticity of the document tendered in evidence when she was composing the judgment, Dr. Kyauke submitted that matters relating to the authenticity of documents should be addressed during the admission of documents so that parties can be afforded the right to be heard. In his view, it was wrong for the trial Judge to raise the issue of the authenticity of the document when composing a judgment. He argued that, if the admission of a document was not challenged, a trial Judge cannot raise matters of authenticity during the composition of the judgment. Responding to this ground, Mr. Elias argued that the authenticity of documents is a critical issue in proceedings. He submitted that in this appeal, the trial was conducted ex parte, with only the appellant's evidence and submission being heard in the absence of the respondents. Due to the non-involvement of the respondents in the proceedings, the trial Judge had the responsibility to ensure that any evidence presented 17

was scrutinized to maintain the integrity of the Judicial process. According to Mr. Elias, the trial judge's decision to address the issue of the authenticity of the document in her judgment was a prudent measure to uphold the fairness and integrity of the proceedings. We have carefully considered the submissions advanced by the learned counsel for both parties, the record of appeal, and the applicable law. Basically, the complaint by the appellant is premised on the contention that once documentary evidence has been admitted without objection, the trial court becomes functus officio regarding its admissibility and cannot subsequently question its authenticity while composing judgment. Dr. Kyauke argued that any challenge relating to authenticity ought to have been raised during tendering of the document so as to accord the parties an opportunity to address the issue. With respect, we find the argument only partially correct. There is a clear distinction in law between the admissibility of a document and the evidential weight to be attached to it after admission. The fact that a document has been admitted in evidence does not automatically render it authentic, credible or conclusive proof of the facts stated therein. Admission merely permits the document to form part of the evidentiary record. The court still retains the duty, at the stage of 18

evaluation of evidence, to examine its probative value, reliability and authenticity in light of the entire evidence on record. It is a settled principle that admissibility of evidence is one thing and the weight to be attached to such evidence is another thing. The Court had numerous reiterated this position in its decisions, including in Abinur Mohamed v. Primitiva Patrick Kamugisha (Civil Appeal No. 131 of 2022) [2025] TZCA 577 and Steven s/o Jason and Two Others v. Republic, Criminal Appeal No. 79 of 1999, which was referred to in Asia Rashid Mohamed v. Mgeni Seif (Civil Appeal 128 of 2011) [2012] TZCA 142. In the former case, it was stated. "We wish to stress, in passing, that in any judicial proceedings, the admissibility o f a document and the weight to be attached to it are two distinct aspects in the law o f evidence ." It is equally settled that in civil proceedings, and more particularly in ex parte proceedings, the trial court bears a heightened duty to scrutinize the evidence placed before it before entering judgment. Therefore, although the law under Order IX of the Civil Procedure Code, Cap. 33 (the CPC), permits ex parte hearing where a defendant fails to appear, that order does not relieve the plaintiff of the burden of strictly

proving its claim. Hence, the court must still satisfy itself that the claim has been established on a balance of probabilities. In the instant appeal, the proceedings before the High Court were conducted ex parte. The respondents neither testified nor challenged the appellants documents through cross-examination. In such circumstances, the learned trial Judge was perfectly entitled, indeed duty-bound, to critically evaluate the authenticity and reliability of the documentary evidence tendered by the appellant before acting upon it. We are therefore unable to agree with the appellants proposition that once a document is admitted without objection, the trial court is precluded from examining its authenticity in the judgment. Such a position would improperly reduce the judicial function to a mechanical exercise and undermine the court's obligation to evaluate evidence before reaching conclusions. From the impugned judgment, it is evident that the learned trial Judge did not formally expunge the documents from the record nor declare them inadmissible. Rather, she questioned their authenticity and reliability in the context of assessing whether the appellant had proved its claim to the required standard. In our view, that exercise fell squarely within the province of judicial evaluation of evidence. 20

We are therefore satisfied that the learned trial Judge committed no error in law by scrutinizing the authenticity and probative value of the appellant's documentary evidence at the stage of writing the judgment. The court was entitled to undertake such evaluation, notwithstanding that the documents had earlier been admitted without objection. Accordingly, the sixth ground of appeal is devoid of merit and is hereby dismissed. On the last ground of appeal, that judgment delivered by the court on 27th July, 2020, is a nullity as the respondents were not served with summons to appear, the learned counsel argued that it is trite law that before an ex parte judgment is delivered, the defendant(s) must be summoned. He further added that in case no summons was served to the defendant, the irregularity is fatal. By referring us to pages 180-181 of the record of this appeal, the learned counsel submitted that the record reveals that the respondents were never summoned before the judgment was delivered. Hence, in his view, the proceedings are rendered a nullity. Premising on what he submitted, the learned counsel implored us to allow the appeal. Responding to the that ground of appeal, Mr. Elias argued that the appellant cannot benefit from his own mistakes of failing to remind the court to issue the summons. He further submitted that, since the respondents were aware of the said suit which proceeded ex parte , after 21

the respondents had failed to file witness statements, then there was no irregularity conducted by the trial judge. It was the respondents' counsel firm view that the rationale behind the issuance of a summons is where the respondent does not have any information about the case, which is not the situation in this matter. Based on what he submitted, the respondents' counsel urged us to dismiss the appellant's appeal with costs. We have carefully examined the record of appeal, the rival submissions by the learned counsel for the parties and the applicable laws. In determining this ground, it is important to distinguish between service of summons instituting a suit and notice relating to subsequent proceedings. Under Order V Rule 1 of the CPC, service of summons to enter appearance is a mandatory requirement intended to notify a defendant of the institution of proceedings against him. Failure to affect such service goes to the root of jurisdiction and renders ensuing proceedings a nullity. See- Mount Meru Flowers Tanzania Ltd v. Box Board Tanzania Ltd (Civil Appeal No. 260 of 2018) [2021] TZCA 6. However, once a defendant has been duly served with a summons to enter appearance and has entered appearance or otherwise becomes aware of the proceedings, subsequent procedural omissions do not automatically render the proceedings a nullity unless prejudice occasioned 22

thereby is demonstrated. The record before us clearly shows that the respondents were duly served with summons to enter appearance and were aware of the suit. They entered appearance through advocates and participated in the proceedings before the matter eventually proceeded ex parte following their failure to comply with procedural requirements concerning filing of witness statements and attendance at trial. Therefore, this is not a case of total absence of notice of the proceedings. The complaint raised by the appellant specifically concerns failure to issue or serve summons to appear at the delivery of judgment. We have carefully perused pages 180-181 of the record of appeal as referred to by the learned counsel. It is true that the record does not disclose issuance of a formal summons or notice inviting the respondents to appear on the date fixed for delivery of judgment. The question is whether such omission rendered the judgment a nullity. In our considered view, the answer must be in the negative. Order XX Rule 1 of the CPC requires the court, after conclusion of hearing, either to pronounce judgment immediately or on a future date of which due notice shall be given to the parties or their advocates. The purpose of such notice is to inform parties of the date fixed for delivery of judgment. Failure to notify a party may amount to a procedural irregularity, but it does not invariably nullify the judgment unless substantial injustice is 23

shown to have resulted. The Court of Appeal in Yakobo Magoiga Gichere v. Penina Yusuph (Civil Appeal No. 55 of 2017) [2018] TZCA 222 reiterated that not every procedural irregularity vitiates proceedings; the court must consider whether the irregularity occasioned failure of justice or prejudice to the affected party. In the present matter, the respondents have not demonstrated what prejudice they suffered as a result of the absence of notice of the delivery of judgment. We are also unable to accept the appellant's contention that the absence of a summons to appear for judgment deprived the court's jurisdiction. Jurisdiction had already been properly invoked through the institution of the suit and service of summons to enter appearance upon the respondents. The omission complained of was therefore procedural rather than jurisdictional. Furthermore, the appellant, being the plaintiff who prosecuted the suit ex parte, cannot approbate and reprobate by seeking to invalidate proceedings conducted at his own instance on account of a procedural omission which did not occasion miscarriage of justice. Accordingly, we find that although the record does not disclose service of notice of the date fixed for delivery of judgment upon the respondents, such omission constituted a curable procedural irregularity which did not render the proceedings or judgment a nullity. No prejudice or failure of justice has 24

been demonstrated. That said, we find no merit in the last ground of appeal. Premising on the analysis above, we find no merit in this appeal, and we accordingly dismiss it in its entirety with costs. DATED at DODOMA this 3r d day of June, 2026. A. G. MWARIJA JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL Judgment delivered this 5th day of June, 2026 in the presence of Mr. Onesmo Kyauke, learned counsel for the Appellant and Ms. Fatuma Ally, learned counsel for the Respondents via teleconferencencing and Mr. Shafii Kassim, Court Clerk present in Court; is hereby certified as a true copy of the original. 25