Parashant Motibhai Patel & Another vs Azania Bank Limited & Another (Civil Appeal No. 206 of 2024) [2025] TZCA 1264 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM ( CORAM: MWANPAMBO. 3.A.. MDEMU. 3.A. And M6EYEKWA 3.A . ) CIVIL APPEAL NO. 206 OF 2024 PARASHANT MOTIBHAI PATEL 1 st APPELLANT DARSHANA PRASHANT PATEL 2 nd APPELLANT VERSUS AZANIA BANK LIMITED 1 st RESPONDENT MARK AUCTIONEERS & COURT BROKERS COMPANY LIMITED 2 nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam) (Nanqela, J.) dated the 5th day of April, 2023 8th & 12th December, 2025 MWANPAMBO. J.A.: The appellants were aggrieved by the decision of the High Court (Commercial Division) at Dar es Salaam in Commercial Case No. 37 of 2020 dismissing that suit for want of proof. They subsequently instituted this appeal in their quest to overturn it and in consequence obtain judgment in their favour for the reliefs sought in the plaint. in Commercial Case No. 37 of 2020 JUDGMENT OF THE COURT 1 Before the High Court, the appellants instituted a suit against the respondents jointly and severally claiming for an assortment of reliefs. Material to the disposal of this appeal are reliefs contained in paragraphs 3.3, 3.4 and 3.6 in which the appellants claimed respectively, an order that the defendants illegally, unlawfully and without any colour of right auctioned appellants' property on plot Nos. 107 and 108 situate at Kipawa Industrial Area, Dar es Salaam City; (" the suit property" ); an order for nullification of the sale and transfer of the suit property and for permanent injunction against all defendants restraining them from transferring the suit property to a third party and; an order for payment of special, punitive and general damages and for payment of costs. Whereas the first appellant defended the suit by filing a written statement of defence and resisting it during the trial, the second respondent did not do so resulting in ex parte hearing against her. All the same, at the end of the trial, the High Court found the appellants' case unproven on the required standard and it dismissed it with costs. The appeal is upon eight grounds of appeal supported by written submissions through the services of M/s. FK Law Chambers Advocates. The first respondent who was served with the notice of appeal as well as the record of appeal resists the appeal through her written submissions in reply. 2 On the date the appeal was called on for hearing, the appellants were represented by Messrs Deusdedith Mayomba Duncan and Emmanuel Daniel Saghan, learned advocates whereas Mr. Daimu Halfani, Mrs. Endaeli Mziray and Mr. Mbagati Nyaligo, all learned advocates teamed up to represent the first respondent. Incidentally, the second respondent who was shown to have been served with notice of hearing, defaulted appearance. Before hearing could commence in earnest, the Court invited the learned counsel to address it on two issues which it considered to have a bearing of the appeal. The first involved failure to serve the second respondent with copies of the notice of appeal and a letter to the Registrar applying for copies of judgment, decree and proceedings for appeal purposes and consequences thereof in pursuance of the provisions of rules 84 (1) and 90 (3) of the Tanzania Court of Appeal Rules, 2009 ("the Rules") respectively. The second aspect touched on the validity of the witness statements filed on behalf of the appellants in the light of the provisions of rule 48 (1) (a) of the High Court (Commercial Division) Procedure Rules, G.N. No. 250 of 2012 ("the Commercial Court Rules"). Addressing the Court, Mr. Duncan conceded non-service of the notice on the second respondent who took no part in the proceedings in the High Court signifying lack of interest in the appeal. Otherwise, counsel was 3 quick to seek leave to dispense with service on the second respondent predicating his prayer on rule 84 (1) of the Rules. Weighing in, Mr. Saghan invited the Court to invoke rule 4 (1) of the Rules and depart from the requirement to serve the 2n d respondent, considering absence of prejudice from failure to serve her. Counsel was insistent that hearing should proceed despite the failure to serve the absent 2n d respondent with a copy of the notice of appeal. Regarding service of a copy of a letter to the Registrar for copies of proceedings, judgment and decree in pursuance of rule 90 (1) and (3) of the Rules, Mr. Duncan simply stated from the bar that the letter was served on the 2n d respondent. Other than that statement, he had no proof of service. For his part, Mr. Halfani was emphatic that, failure to serve a copy of notice of appeal on the 2n d respondent constituted failure to take essential steps in the appeal rendering it incompetent. He had similar argument with regard to non-compliance with rule 90 (3) of the Rules and argued that the appeal is time barred by reason of such non-compliance and invited the Court to strike it out. In rebuttal, Mr. Duncan reiterated that, serving the 2n d respondent who took no part in the trial court was an exercise in futility because the 4 case against her proceeded ex parte. He urged the Court to proceed with hearing of the appeal on merit. Our starting point in the determination of the 1st issue will be rule 84 (1) of the Rules which stipulates as follows: "84. -(1) An intended appellant shall, before, or w ithin fourteen days after lodging a notice o f appeal, serve copies o f it on a ll persons who seem to him to be d irectly affected by the appeal; but the Court may, on an ex parte application, d irect that service need not be affected on any person who took no p a rt in the proceedings in the High Court.” That rule has been a subject of the Court's numerous decisions. Directly relevant to this appeal is Bakari Ali Msenga v. Hadija Rashidi & Another [2022] TZCA 237. Like here, the issue involved failure to serve the 2n d respondent in that appeal. The appellant's argument in that case was that serving the 2n d respondent was in the appellant's discretion depending on whether such party was directly affected by the appeal. The Court rejected that argument relying on its previous decision in Khantibhai M. Patel v. Dahyabhai F. Mistry [2003] T.L.R. 437 interpreting rule 77 (1) of the revoked Court of Appeal Rules, 1979 the equivalent of rule 84 (1) of the Rules. It stated: "Where a person is shown to be d irectly affected by an appeal, there is no discretion but to serve that person 5 with the notice o f appeal and where, as is in th is case, that person took no p art in the proceedings in the High Court, it is the Court o f Appeal, rather than the appellant, which is vested with pow er to d irect that service need not be affected on that person; Rule 77(1) does not constitute the appellant to be a judge in h is own cause." Based on the above decision, the Court stressed that compliance with rule 84 (1) of the Rules is not optional and this explains the requirement to make an ex parte application to the Court for dispensing with service on the 2n d respondent. The position in the instant appeal is no better. Neither did the appellants serve the 2n d respondent nor did they make an application under rule 84 (1) of the Rules to dispense with service on her. Indeed, it is glaring from the notice of appeal at page 2142 of the record of appeal that the appellants never intended to serve a copy thereof on the 2n d respondent but the 1st respondent only. In other words, the appellants had made their decision not to serve the 2n d respondent allegedly because she took no part in the proceedings before the High Court notwithstanding the provisions of rule 84 (1) of the Rules. With respect, since the appellants did not make any application for dispensing with the notice of appeal on the 2n d respondent at the earliest, Mr. Duncan's oral application before us cannot be entertained and we reject it primarily because doing so would be to circumvent the non- 6 compliance with the mandatory requirement under rule 84 (1) of the Rules. At any rate, even if that application was properly made before us, we are unable to agree with Mr. Duncan in his assertion that the 2n d respondent is such a person who is not directly affected by the outcome of the appeal. That argument fails on its face on the basis of the appellant's own pleadings. It is pertinent that, in Bakari Ali Msenga the Court considered a similar argument and rejected it being satisfied that the 2n d respondent in that appeal was such a person who was directly affected by the outcome of the appeal from a decision of the trial court in a suit against the defendants sued severally for double allocation of a plot of land. The position in the instant appeal is that the appellants sued the respondents jointly and severally for unlawful auctioning and transfer of the suit property to a third party, amongst other orders. Similarly, the respondents sought nullification of the sale; payment of punitive, special and general damages and costs. There can be no doubt that, once the appeal succeeds, one of the orders to be made against the respondents will be to condemn them for unlawful auctioning of the suit property conducted by the 2n d respondent. Similarly, the respondents are likely to be adjudged for payment of damages and costs. In our view, Mr. Duncan's argument that 7 the 2n d respondent is not likely to be affected by the outcome of the appeal is, with respect, misplaced and we reject it. In the upshot, we agree with Mr. Halfani that, failure to serve the 2n d respondent with a copy of a notice of appeal was a fatal irregularity amounting to failure to take essential steps in the appeal rendering it incompetent. As to Mr. Saghan's argument to resort to rule 4 (1) of the Rules, we are afraid that the invitation is, but misplaced. We say so for obvious reasons; the Court cannot depart from the rules to accommodate non-compliance with a mandatory requirement to serve a copy of a notice of appeal on a party who, notwithstanding his non-participation in the High Court, is likely to be affected by the appeal. Failure to serve him in the appeal apart from being cited as 2n d respondent and proceeding with hearing in his absence is tantamount to denying him with a fundamental right to be heard which cannot be condoned by the Court. As we said in Mondorosi Village Council & Others v. Tanzania Breweries Limited & Others [2018] TZCA 303 the overriding objective which Mr Saghhan asked us to apply cannot be invoked to defeat the mandatory requirement of the Rules. Consequently, we hold that failure to serve a copy of the notice of appeal on the 2n d respondent rendered the appeal incompetent with the attendant consequences. Since this issue is sufficient to dispose of the 8 appeal, a discussion on the remaining issues alluded to earlier on will serve no useful purpose. The above said, having held that the appeal is incompetent, we hereby strike it out. As the issue was raised by the Court suo motu, we make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 11th day of December, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 12th day of December, 2025 in the presence of Mr. Gilbert Masaga, learned counsel for the appellants, Ms. Upendo Mmbaga, learned counsel for the 1st respondent, Mr. Julias Kilimba, Court Clerk and in the absence of the 2n d respondent; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 9