Sahara Media Group Limited vs Mkombozi Commercial Bank PLC (Civil Appeal No. 749 of 2024) [2025] TZCA 1259 (12 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: KEREFU, J.A.. KHAMIS, J.A. And NANGELA. J.A.^ CIVIL APPEAL NO. 749 OF 2024 SAHARA MEDIA GROUP LIMITED...............................................APPELLANT VERSUS MKOMBOZI COMMERCIAL BANK P L C ....... .......................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division, at Dares Salaam) f Mbagwa. J.) dated the 15th day of December, 2023 in Commercial Case No. 78 of 2022 JUDGMENT OF THE COURT 04th & 12th December, 2025. KEREFU. J.A.: This appeal arises from the judgment and decree of the High Court of Tanzania, Commercial Division, at Dar es Salaam dated 15th December, 2023 in Commercial Case No. 78 of 2022. In that case, Mkombozi Commercial Bank PLC, the respondent herein, sued Sahara Media Group Limited, the appellant, praying for the following reliefs; (i) payment of USD 870,095.96 equivalent to TZS 1,962,066,389.96 being commercial loans granted to the appellant's employees whose repayment was guaranteed to be remitted by the appellant; (ii) interest for the decretal amount at the rate of 20% per annum from the date of the judgment to the date of full payment; (iii) payment of general damages; and (iv) costs of the suit. The brief material facts of the suit leading to this appeal as could be discerned from the record of appeal are not that complex. It all started in 2015, when the appellant approached the respondent to secure loans for its employees. After a fruitful discussion, the parties entered into a loan agreement whereby the respondent agreed to extend loans to 405 appellant's employees. Subsequently, the appellant, through its chief accountant, availed particulars of its employees in respect of their full names and remunerations and undertook to be remitting, to the respondent, loan repayment instalments from the said employees' salaries on a monthly basis. However, in the due course, the appellant defaulted to remit the same as per the agreement. Upon a reminder, the appellant, via its letter dated 16th November, 2016, acknowledged the instalments due for July, August, September and October 2016 and, promised to cure the said anomaly. Thus, based on the said appellant's undertaking, the respondent continued to issue loan facilities to the appellant's employees with expectations that the appellant would fulfill its obligation. In addition, and vide its letter dated 23r d November, 2016 addressed to the respondent, the appellant, again, undertook to remit the salary deductions in respect of all 405 employees to the respondent by the end of November 2016. Nonetheless, the appellant's pledge was not fulfilled. As a result, on 4th January, 2017, the respondent issued a demand notice to the appellant for payment of the said outstanding sum. Having received the demand notice, the appellant sought for an amicable means to settle the debt. Subsequently, on 24th May, 2017, the parties signed a Memorandum of Understanding (MOU) where it was agreed to convert the employees' salaried loans into a commercial loan payable within 36 months from the date of execution of the facility letters. However, and as the debt remained unpaid, on 28th December, 2017, the respondent and the appellant executed the Agreement for Acknowledgement and Undertaking to Pay the Outstanding Debt (the Agreement), whereby the appellant, acknowledged the debt to the tune of USD 870,095.96 equivalent to TZS 1,962,066,389.96 and undertook to repay the same on or before 28th February, 2018. It was the respondent contention that, despite all the efforts, the appellant had failed, refused and or neglected to pay the said outstanding loan amount. Hence, the respondent decided to institute the suit as indicated above. Upon service, the respondent's claims were vehemently countered by the appellant through a written statement of defence. The appellant contended that, the said loan agreement was made between the respondent and its employees and thus, she was not a party. That, she was not responsible for the loan repayment as she only stood as a mere guarantor and not otherwise. The appellant stated further that, her responsibility ended immediately upon termination of employment by the said employees. That, she diligently discharged her duties towards the said loan agreement by remitting all the deductions to the respondent from its employees' salaries until termination of their employments. Besides, the appellant denied and disowned the MOU together with the Agreement. It was the appellant's contention that, the said MOU and the Agreement were not sanctioned by the respondent's Board as there was no Board resolution to allow the respondent to take that move. As such, the appellant prayed for the respondent's suit to be dismissed with costs as there were no valid claims whatsoever against her. From the parties' pleadings, the learned trial Judge, during the Final Pre-Trial Conference (the Final PTC), on 23rd May, 2023, framed the following issues which were agreed upon by the parties: 1. Whether the appellant legally and validly entered into agreement dated 29h April\ 2017 with the respondent to convert salaried loans into commercial loan; 2. Whether the appellant was indebted to the respondent at the sum o f USD 870,095.96 equivalent to TZS 1,962,066,389.96 as o f 2&h February, 2018; and 3. What reliefs are the parties are entitled. It is also on record that, again, on 28th June, 2023, after the closure of the plaintiff's case, the learned trial Judge, upon consent by the parties, amended the first issue to read: ' Whether the appellant legally and validly entered into agreement dated 2ffh December, 2017 with the respondent to convert salaried loans into commercial loan'and thereafter, proceeded to receive the defense evidence, without according an opportunity to the plaintiff's witness to adduce evidence on the new amended issue. Finally, and having analyzed the evidence on record, the learned trial Judge decided the suit in favour of the respondent and ordered the appellant to pay to the respondent: (i) USD 870,095.96 equivalent to TZS 1,962,066,389.96; (ii) Interest o f 20% o f the decretal sum from the date o f instituting the suit to the date o f judgment; (Hi) Interest at the court's rate o f 7% from the date o f judgment until full satisfaction o f the decree. The decision of the High Court prompted the appellant to lodge the current appeal to express her dissatisfaction. In the memorandum of 5 appeal, the appellant has preferred six grounds of complaint. However, for reasons which will be apparent shortly, we do not deem it appropriate, for the purpose of this judgment, to reproduce them herein. On 4th December, 2025 when the appeal, initially, came before us for hearing, the appellant and the respondent were represented by Mr. Boniphace Sariro and Mr. Zuriel Kazungu, both learned advocates, respectively. On that date, we heard the learned counsel for the parties on the grounds of appeal, adjourned the matter and reserved our judgment. However, upon further perusal of the record of appeal, we noted the need to recall the learned counsel for the parties to address us on the propriety or otherwise of the trial court's proceedings and specifically, on the procedure adopted by the learned trial Judge of amending the framed issues at the time when the plaintiff's case had already been closed. Therefore, on 11th December, 2025, when the appeal was, again, called on for hearing, the same learned counsel for the parties entered appearance and, we outrightly invited them to address us on that issue. In his submission, Mr. Sariro faulted the procedure adopted by the learned trial Judge of amending the framed issues after the plaintiff's case had been closed. He added that, after amending the said issue, the 6 respondent's witness was not recalled to adduce evidence on that new issue. It was his argument that, the said omission is fatal, as it had contravened the mandatory provisions of Order VI rule 17 and Order VIII rule 23 of the Civil Procedure Code, Cap. 33 of the Revised Laws (the CPC). Mr. Sariro also added that, the said omission had as well contravened the principles of natural justice, on the right to be heard, hence occasioned a miscarriage of justice to the parties. On that basis, Mr. Sariro implored us to invoke revisional powers bestowed on the Court under section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA) to nullify the entire proceedings of the trial Court, quash the judgment and set aside the subsequent orders. On the way forward, he urged us to remit the case file to the High Court for the suit to be heard afresh. In his response, although, Mr. Kazungu conceded that the framed issue was amended after the plaintiff had already dosed its case, he however, disputed the argument advanced by his learned friend by arguing that, the learned trial Judge was justified to do so, as the said issue was amended upon consent by the parties. According to him, since both parties consented to the said move, there was no any miscarriage of justice. He also challenged his learned friend for relying on Order VI rule 17 and Order VIII rule 23 of the CPC, as he argued that the said provisions are on the amendment of pleadings and has nothing to do with framing and or amendment of issues. Upon being probed as to whether the compliance of a mandatory provision of the law can be compromised by wishes and or consent by the parties, Mr. Kazungu, insisted that, since both parties consented to the amendment of the said issue, there is nothing to fault the learned trial Judge. However, and upon further reflection, he argued that, if the Court will find that the omission is fatal, may be pleased to invoke the principle of overriding objective and proceed to determine the appeal on its merit. In a brief rejoinder, Mr. Sariro reiterated his earlier submission and based on the procedural irregularities in the trial court's proceedings, he insisted for the suit to be heard denovo. From the above submissions by the learned counsel for the parties, the main issue for our consideration is on whether it was proper for the learned trial Judge to amend the framed issues after the plaintiff had already closed its case. We are aware that, framing and or amendment of issues for determination of a suit between the parties is regulated by Order XIV 8 rules (1), (2) and (3) of the CPC. Then, rule (5) of the same Order gives powers to the trial Court to amend and or strike out a framed issue. It is therefore important to emphasize that, basically, cases must be decided on the issues or grounds on record and if it is desired by the court to raise other new issues, or amend the framed issues either founded on the pleadings or arising from the evidence adduced by witnesses or arguments during the hearing of the appeal, those new issues should be placed on record and parties must be given an opportunity to be heard by the court. This Court has always emphasized that the right to be heard is a fundamental principle of natural justice that should be observed by all courts in the administration of justice. Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 provides that: - "When the rights and duties o f any person are being determined by the court or any other agency, that person shaii be entitied to a fair hearing and to the right o f appeal or other legai remedy against the decision o f the court or o f the other agency concerned." Therefore, a denial of the right to be heard in any proceedings would vitiate the entire proceedings. In the case of Abbas Sherally & 9 Another v. Abdul S. H. M. Faza I boy, Civil Application No. 33 of 2002 (unreported), the Court observed that: " The right o f a party to be heard before adverse action is taken against such party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it wili be nullified, even if the same decision wouid have been reached had the party been heard, because the vioiation is considered to be a breach ofnaturaijustice. "[Emphasis added]. See also the cases of Mbeya - Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.L.R 251 and Deo Shirima & Others v. Scandinavian Express Service Ltd (2009) 1 EA 127. In the instant appeal, it is evident, at page 199 of the record of appeal that, during the Final PTC, on 18th April, 2023, the learned trial Judge, upon consultation with the parties framed three issues. Based on the said framed issues, parties submitted their witnesses' statements. It is also evident, at page 206 of the same record that, after the closure of the plaintiff's case, the learned trial Judge, upon consent by the parties, amended the framed issues and without, inviting PW1 to testify on the new framed issue, he proceeded to receive the evidence from the 10 defense side and based on the evidence on record, delivered its judgment on 15th December, 2023 as indicated above. Therefore, the respondent was not accorded the right to be heard and address the court on the new amended issue. Thus, the learned trial Judge arrived at its finding in contravention of the principle of natural justice on the right to be heard. It is therefore our settled view that, such omission, as correctly submitted by Mr. Sariro, amounted to a fundamental procedural error which occasioned a miscarriage of justice to the parties. We are mindful that, in his submission, Mr. Kazungu submitted that, the learned trial Judge was justified to amend the said issue, as he did so, upon consent by the parties. With respect, we are unable to agree with Mr, Kazungu on this point, as we find his submission to be misconceived. We wish to emphasize that, the question of compliance with a certain provision of the law is basic and cannot be compromised by the wishes of the parties. The noble duty of the court to ensure compliance with the law, cannot be precluded only because, parties to the case have consented and or have not raised an objection. Therefore, at any rate, the omission to comply with the mandatory statutory requirement cannot be remedied by the failure of the appellant to object and or consent by the parties, as suggested by Mr. Kazungu. It was 11 therefore incumbent for the learned trial Judge to ensure that the law is complied with to the latter before acting on the new amended and or framed issue. We find solace, on this stance, in our previous decision in Magige Marwa Mwita & 2 Others v. Republic, Criminal Appeal No. 621 of 2021 [2024] TZCA 994, where we emphasized that .parties to a case may not conspire against the law.' We are increasingly of the view that the said omission cannot be cured by the principle of overriding objective as suggested by Mr. Kazungu. This Court on several occasions had categorically stated that the overriding objective principle cannot be applied blindly against the mandatory provisions of the procedural law which goes to the very foundation of the case. See for instance, our previous decisions in Njake Enterprises Limited v. Blue Rock Limited & Another, Civil Appeal No. 69 of 2017 [2018] TZCA 304 and Mondorosi Village Council and 2 Others v. Tanzania Breweries Limited & 4 Others, Civil Appeal No. 66 of 2017 [2018] TZCA 303. Consistent with the settled law, the resultant effect is that, the finding of the learned trial Judge cannot be allowed to stand. It was a nullity. In the circumstances, we grant prayers made by Mr. Sariro. That being the position, we hereby invoke the revisional powers bestowed on the Court under section 6 (2) of the AJA and nullify the 12 entire proceedings of the trial court, quash and set aside the judgment and the decree of the trial court dated 15th December, 2023 in Commercial Case No. 78 of 2022 together with the subsequent orders thereto. Consequently, we remit the case file to the High Court to re-hear the case afresh before another Judge. Considering the circumstances of this appeal, we order each party to bear its own costs. DATED at DODOMA this 12th day of December, 2025. Judgment delivered this 12th day of December, 2025 via Virtual Court in the presence of Mr. Zuriel Kazungu, learned counsel for the Respondent also holding brief for Mr. Boniphace Sariro, learned counsel for the Appellant and Musa Amry, Court Clerk is hereby certified as a t r u e CO r " / r '^ n r i n in a l R. J. KEREFU JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL