Hamisi Maganga vs Emmanuel Joasi Gwisembeza t/a Kitema Oil Investment (Civil Appeal No. 16 of 2024) [2026] TZCA 443 (28 April 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUD. 3.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 16 OF 2024 HAMISI MAGANGA ................................................................ APPELLANT VERSUS EMMANUEL JOASI GWISEMBEZA t/a KITEMA OIL INVESTMENT............................................ RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Kigoma) (Maqoiqa, 3.) dated the 14th day of July, 2023 in Civil Case No. 03 of 2022 JUDGMENT OF THE COURT 20th & 28th April, 2026 MASOUD. 3.A.: The appellant, Hamisi Maganga, was successfully sued by the respondent, Emmanuel Joasi Gwisembeza t/a Kitema Oil Investment, in the High Court of Tanzania at Kigoma for breach of a two year contract, exhibit P7. The appellant, allegedly, entered into the contract with the respondent on 29th October, 2020 for supplying fuel to the respondent on credit. In respect of that contract, the appellant, among other things, maintained in his pleaded defence that he entered into that contract i with Emmanuel Joasi Gwisembeza t/a Kitema Filling Station and not the respondent. There was, notably, no reply to the appellant's written statement of defence on record relating to such line of defence or at all. The allegation by the respondent which was, as pointed out above, disputed by the appellant but found by the trial court to have been proved on balance of probability was that, the appellant breached the contract, exhibit P7 having unilaterally stopped supplying fuel to the respondent from 2n d February, 2021. At the heart of the trial court's reasoning, it is evident that its decision rests solely on the alleged contract, exhibit P7 and matters associated with it which emerged from the testimonies of the witnesses on record. As a result of the impugned decision, the High Court awarded general damages to the respondent to the tune of TZS 50,000,000/-. Besides the general damages, it also ordered the return of collateral securities to the respondent, namely, registration cards for Scania Motor vehicle with registration No. T 426 DPB chasis No. XLER6X20005100971 along with its trailer, and the respondent's filling station known as Kitema Filing Station situated on Plot No. 27, Block 'A', Bweru, Nguruka, Uvinza District, Kigoma region. 2 Being dissatisfied by the trial court's decision, the appellant lodged this appeal on six grounds. The substance of those grounds essentially sought to challenge the trial court's findings regarding breach of the contract, the award of general damages, and the return of collateral securities. We, however, need not reproduce the grounds as, in the course of hearing of the appeal before us, where the appellant was represented by Mr. Willbard Rutaremwa Kilenzi and Mr. Sadiki Aliki, and the respondent by Mr. Mwamgiga, Jassey Samuel, all learned advocates, an issue arose as to whether the trial court in its decision left a contested material issue of fact regarding parties to the contract, exhibit P7 unresolved. The issue concerns whether the respondent, as was the appellant, was a party to the contract, exhibit P7 which is at the heart of the respondent's suit against the appellant. In relation to that issue, we drew the learned counsel's attention in the course of the hearing to; page 222 of the record of appeal where the contract, exhibit P7 bearing the names of the parties to it as one "Emmanuel Joasi Gwisembeza t/a Kitema Filling Station" and one "Hamisi Maganga" is found; page 108 of the said record where the counsel for the appellant extensively cross-examined PW2 on that issue 3 to the effect that " Emmanuel Joasi Gwisembeza t/a Kitema Filling Station" and " Emmanuel Joasi Gwisembeza t/a Kitema OHInvestment" the respondent herein, are two different parties; pages 11, 12, and 55 of the same record bearing the pleadings relating to the issue at stake; and the impugned judgment of the trial court at pages 287 to 327 of the record. In so far as the appellant was concerned, Mr. Kilenzi and Mr. Aliki were of the submission that, not only was the issue founded on the pleadings if the Court goes by the plaint and the written statement of defence at pages 11 to 14 and pages 55 to 58 of the record of appeal, but also it was raised at the trial in the course of cross-examining PW2, Emmanuel Joas Gwisembeza at page 108 of the same record. Mr. Kilenzi had it that, it is unfortunate that the issue was never decided by the trial court although it was material to the case. As to the way forward in the event the Court finds merits on the issue, Mr. Kilenzi invited us to invoke our revisional power, nullify the relevant proceedings, quash the judgment and set aside the decree of the trial court in Civil Case No. 03 of 2022. Having done so, we should, Mr. Kilenzi submitted, proceed to remit the case file to the trial court for 4 it to compose afresh a judgment that will decide the issue at stake, among other issues, in accordance with law. For his part, Mr. Mwamgiga was of a different stance, arguing that it was not disputed that the respondent was a party to the contract, exhibit P7. When probed further by the Court, the learned counsel argued that the difference was a result of a clerical error by the advocate who drafted the contract. He contended that the error resulted in the advocate writting "Emmanuel Joasi Gwisembeza t/a Kitema Filling Station" as a party to the contract instead of " Emmanuel Joasi Gwisembeza t/a Kitema Oil Investment." Nonetheless, the learned counsel agreed that his argument about the clerical error was not supported by the record. Be that as it may, Mr. Mwamginga maintained that the anomaly if at all is of no avail in view of the respondent's audit report, exhibit P8 which, according to him, evidenced that the respondent was trading as Kitema Oil Investment. When Mr. Mwamginga was further invited to address us on whether the issue was decided by the trial court, Mr. Mwamgiga was quick to submit that the issue was not left unresolved as argued by Mr. Kilenzi. In that respect, he was of the view that, the issue was very well 5 dealt with and resolved by the trial court at page 319 of the record of appeal where it found that the contract was not disputed by the parties. We have revisited the record of appeal before us in light of the rival submissions by the learned counsel for both parties. We are mindful of the pleading by the respondent in which the respondent, namely, "Emmanuel Joasi Gwisembeza t/a Kitema Oil Investment" sued the appellant relying heavily on the contract, exhibit P7 whose parties were "Emmanuel Joasi Gwisembeza t/a Kitema Filling Statiori' on one hand, and the appellant, one " Hamisi Maganga", on the other. It follows that, the issue which had to be resolved by the trial court is whether the respondent sued the appellant as the same party who entered into the alleged contract with the appellant and whether that issue was reflected in the pleadings and at the hearing and was accordingly decided by the trial court. Having examined the pleadings, we noted that the appellant at paragraphs 3 and 4 of his written statement of defence disputed the respondent's averments regarding the contract and the allegation that he entered into that contract with the appellant. The defence pleaded by the appellant as afore said highlighted that the appellant entered the contract with "Emmanuel Joasi Gwisembeza t/a Kitema Filling Station" 6 as per exhibit P7 and not "Emmanuel Joasi Gwisembeza t/a Kitema Oil InvestmentJ' who purportedly sued the appellant on that contract. With such a defence, it is, in our view, not surprising that the appellant's counsel at the trial cross-examined PW2-" Emmanuel Joasi Gwisembezaf' on the issue that, the appellant did not enter into the contract at issue with " Emmanuel Joasi Gwisembeza t/a Kitema Oil Investment' , but with "Emmanuel Joasi Gwisembeza t/a Kitema Filling Station" and that the duo was not one and the same party. Clearly, when the appellant's counsel cross-examined PW2 on the issue at page 108, the following is what the witness stated: "According to exhibit P7, the contract, it was stated that I trade as Gwisembeza Kitema Filing Station. There is no place written that I was trading as Kitema OH Investment I have filed this case showing that I trade as Kitema Oil Investment. The two are different names." In view of the foregoing, we paid close attention to the impugned judgment. We could not, however, find anywhere in the judgment that the trial court resolved the issue in light of the pleadings and what transpired at the trial. As a matter of principle that was wrong, for the issue was left for the trial court to decide. Indeed, if a court of law decides to accept or reject a contested material issue, it must demonstrate that it has considered the same and it must set out reasons for rejecting or accepting it. In the case at hand, it is clear that the trial court left unresolved the contested material issue of fact which was pleaded by the appellant as a defence and used in cross-examining PW2. See for instance, the cases of Stanslaus Rugaba Kasusura and the Attorney General v. Phares Kabuye [1982] TLR 338; and Tanzania Breweries Ltd v. Anthony Nyingi [2015] TZCA 580. It is a well settled principle of law found in Order XX, rule 4 of the Civil Procedure Code, Cap. 33 that a Judge is duty bound to decide on each and every issue before him one way or the other and failure to do so might not only result in denying the appellant the right to fair hearing but also constitutes a serious breach that vitiates the impugned decision as stated in the cases of Alnoor Shariff Jamal v. Bahadur Ebrahim Shamji, Civil Appeal No. 25 of 2006 (unreported); National Insurance Corporation and Another v. Sekulu Construction Company [1986] T.L.R. 157; Kukal Properties Development Ltd v. Maloo and Others [1990-1994] E.A. 281; and B 8356 S/Sgt Sylvester S. Nyanda v. Inspector General of Police and Another [2014] TZCA 215. The principle was also applied in the case of 8 Mohamed Masoud Abdallah and Others v. Tanzania Road Haulage (1980) Ltd [2021] TZCA 3538. We are thus in agreement with Mr. Kilenzi that the trial court slipped into an error by not deciding the issue along with the others in its judgment. The failure to do so as a result renders the impugned judgment defective. We are fortified that since the issue was and is yet to be decided upon by the trial court, this Court cannot step into the shoes of the lower court and assume that duty. See Mantrac Tanzania Limited v. Joaquim Bonaventure [2020] TZCA 356; Truck Freight (T) Ltd v. CRDB Ltd [2008] TZCA 88; and Celestine Maagi v. Tanzania Eiimu Supplies (TES) and Another [2014] TZCA 2338. In the latter case, the Court stated: "The power o f the Court on matters arising from the lower courts are only exercisable in two ways. First, by way o f appeal. And second, by way o f revision. This is provided under S. 4(1) - (3) o f the Act. And ordinarily, the Court would exercise its appellate and revisional powers only after the lower courts have handled down their decisions ." [Emphasis added] Likewise, in Truck Freight (T) Ltd (supra), we emphasised and stated: 'We ask: I f the lower court did not resolve the controversy between the parties, rightly or wrongly\ what can an appellate court do? We cannot step into its shoes." As submitted by Mr. Kilenzi, we think the only remedy available is to invoke our revisional power to nullify and quash the judgment, set aside the decree thereof and remit the case file to the trial court for it to compose afresh a judgment in accordance with the law. For the reasons stated above, we accordingly invoke revisional powers of the Court under section 6 (2) of the Appellate Jurisdiction Act Cap. 141, to revise, nullify, and quash the impugned judgment in Civil Case No. 03 of 2022 delivered on 14th July, 2023, and set aside the decree thereof. Having quashed the High Court's decision from which the appeal arose, the instant appeal lacks legs on which to stand and in consequence we strike it out. Henceforth, we order the case file to be remitted to the trial court for it to compose afresh a judgment in 10 accordance with law. In the circumstances, we make no order as to costs. DATED at TABORA this 27th day of April, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 28thday of April, 2026 in the presence of Mr. Wilbard Kilenzi, learned counsel for the Appellant, Mr. Mwamgiga, Jassey Samuel, learned counsel for the Respondent by virtual Court, and Mr. Magesa Mgeta, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL li