Bazil Daud Mayunga vs Montessori Training Centre (Civil Appeal No. 290 of 2025) [2026] TZCA 574 (14 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWANPAMBO. J.A.. KENTE, J.A. And MGONYA, J.A.: CIVIL APPEAL NO. 290 OF 2025 BAZIL DAUD MAYUNGA ............................................................ APPELLANT VERSUS MONTESSORI TRAINING CENTRE......................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fMatuma, J.) dated the 6th day of May, 2024 In Labour Revision No. 2266 of 2023 JUDGMENT OF THE COURT 7th & H th Mav, 2026 MGONYA, J.A.: The genesis of this appeal lies in a labour dispute initiaily determined by the Commission for Mediation and Arbitration (the CMA) at Mwanza. The appellant, a teacher by profession, moved the High Court via an application for revision, seeking to revise the CMA's findings regarding the interpretation of his employment contract. However, the High Court did not determine the merits of that application. Instead, it met an abrupt end when the learned High Court Judge dismissed it for want of prosecution. Aggrieved, the appellant has approached this Court by way of appeal. The background leading to this appeal goes as follows: On 7th May, 2025, when an application for revision filed by the appellant was ready for hearing, the court initially heard the parties on a preliminary objection, which was finally overruled. Having disposed of the preliminary objection, it directed the parties to proceed with the hearing of the application. At this juncture, the appellant made a prayer requesting to wait for a forensic examination of Exhibits D l, D4, Cl, and D2, alleging a discrepancy in dates and sequence. He maintained that he could not proceed until this examination was conducted. The respondent's counsel was not adamant, perhaps upon simply reflecting the appellant's own impasse, opined that if the appellant could not proceed, the court should set another dat for hearing upon the appellant informing them when such examination shall be ready. The learned Judge, however, took a sterner view. He observed that the pleadings contained no allegations of fraud or prayers for forensic examination. Characterizing the appellant's stance as a deliberate refusal to proceed, the Judge dismissed the application for want of prosecution. This decision displeased the appellant, who filed an appeal to this Court. The memorandum of appea! contains three grounds of appeal which can be summarized as follows: 1. That the Judge erred in holding that there were no fraud allegations or prayers for forensic examination; 2. That the Judge erred in concluding that the appellant had lost interest in the case; and 3. That there was a discrepancy in the dates o f the proceedings and the judgment, where the judgment indicates it was on 6th May, 2024 while the proceedings were on 7 h May 2024. At the hearing of this appeal, the appellant appeared in person, unrepresented, while Ms. Rose Edward Ndege, learned counsel, appeared for the respondent. When invited to amplify the grounds of appeal, the appellant prayed that the Court considers the written submission in support of the appeal, which was filed earlier. Essentially, in the written submission, the appeilant's central argument is anchored on the sanctity of the court record. He contends that the record does not explicitly show any refusal to prosecute, but rather a request for s procedural step he deemed necessary. To bolster his argument, he cited the case of Alex Ndendya v. The Republic (Criminal Appeal No. 207 of 2018) [2020] TZCA 202, for the proposition that the court record is the only accurate representation of what transpired. The respondent, on the other hand, defends the High Court's decision. The learned counsel argued that, parties are bound by their pleadings. To fortify her stance, she referred us to the case of Maria Amandus Kavishe v. Norah Waziri Mzeru & Another (Civil Appeal No.365 of 2019) [2023] TZCA 31 and Hood Transport Company Limited v. East African Development Bank (Civil Appeal No. 262 of 2019) TZCA 383. She further contended that, since forensic examination was never pleaded, the Judge was right to reject the new issue and dismiss the matter when the appellant refused to move forward on the existing pleadings. Regarding the date discrepancy, the respondent argued that the difference was a mere human error. We have dispassionately reviewed the record of the appeal and the rival submissions. The core issue for determination before us is whether the learned Judge was justified in dismissing the application allegedly for want of prosecution under the circumstances. Generally, as provided under Order IX of the Civil Procedure Code, Cap. 33, dismissal of a suit or application for want of prosecution is primarily invoked where neither party appears when the suit is called ori for hearing. In our considered view, an order of dismissal for want of prosecution is a draconian measure. It is a door slammed shut on a litigant's face, usually reserved for instances of contumelious disregard of court orders or prolonged, inexcusable inertia. In the appeal at hand, the appellant was present in court. He was engaging with the court. While his request for forensic examination might have been procedurally misplaced, given that it was not contained in his chamber summons or affidavit, it was nonetheless an attempt to participate in the proceedings, albeit through a flawed lens. The record indicates that after the preliminary objections were overruled, the court expected an immediate transition to the merits. When the appellant raised the issue of forensic examination, the learned Judge interpreted this as a refusal to proceed. With due respect, we find the Judge's conclusion that the appellant lost interest in prosecuting his case, is not supported by the record. Seeking a forensic examination, however belatedly, is a sign of interest in the outcome, not a lack thereof. By dismissing the application instantly, the learned Judge bypassed the merits of the revision without a clear, unequivocal statement from the appellant that he was abandoning his application. The learned Judge hastened in dismissing the application, hence depriving the appellant of his fundamental right to be heard on the merits of his revision. See, for instance, the case of Registered Trustees of Bakwata v. The Registered Trustees of Dodoma General Muslim Association (Civil Appeal No. 239 of 2020) [2023] TZCA 1801, where the Court observed that: "The right to be heard is a fundamental principle o f naturaljustice. The principle which is enshrined in the Constitution o f the United Republic o f Tanzania o f1977should be observed by all courts in the administration o f justice. Denial o f the right to be heard vitiates the entire proceedings." See also Abbas Sheraiiy and Another v. Abdul S. K. M. Fazalboy, Civil Application No. 33 of 2002 (unreported). We thus find that the High Court erred in law and fact by concluding that the appellant had no intention of prosecuting his case. Based on the analysis above, we respond negatively to the issue raised above. As regards the third ground on the discrepancy in the dates, since we have decided the first and second grounds which suffice to dispose of this appeal, we need not dwell on this ground primarily because we think it was, as submitted by Ms. Ndege, a mere slip of a pen with no prejudice to any of the parties. Consequently, we find the appeal has merit, and we accordingly allow it. The order of the High Court dismissing Revision No. 2266 of 2023 is hereby set aside. We order that the record be remitted to the High Court for hearing of the application on merits by another Judge. Given the circumstances of this case, we make no order as to costs. DATED at MWANZA 13th day of May, 2026. Judgment delivered virtually this 14th day of May, 2026 in the presence of the appellant in person, unrepresented, Ms. Rose Edward Ndege, learned counsel for the respondent and Mr. John Banene, Court Clerk; is hereby certified as a true copy of the original. L. S. MWANDAMBO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L E. MGONYA JUSTICE OF APPEAL