Kamala Rwiza Stephano vs Tanzania Women's Bank PLC (Civil Appeal No. 155 of 2024) [2025] TZCA 1255 (11 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANPAMBO. J.A., MDEMll. J.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 155 OF 2024 KAMALA RWIZA STEPHANO......................................................APPELLANT VERSUS TANZANIA WOMEN'S BANK PLC ............................................. RESPONPENT (Appeal from the decision of the High Court of Tanzania at the Pistrict Registry at Par es Salaam) (Porno, 3 .) dated the 28thday of July, 2023 in Misc. Civil Application No. 109 of 2023 RULING OF THE COURT 2n d 8111th December, 2025 MGEYEKWA. J.A. This appeal stems from the ruling of the High Court of Tanzania, Dar es Salaam Registry at Dar es Salaam in Misc. Civil Application No. 109 of 2023 dated 28th July, 2023. The application was instituted by Kamala Rwiza Stephano, the appellant. For a proper appreciation of the background giving rise to this appeal, it is necessary, albeit briefly, to recount the material sequence of events. At some point in 2017, the respondent instituted Civil Case No. 196 of 2017 before the Resident Magistrate's Court of Dar es Salaam at Kisutu. In the plaint, the respondent averred that, in 2011 the appellant applied for, and was advanced, a loan facility in the sum of TZS 19,000,000.00. It was the respondent's contention that the appellant undertook to liquidate the facility together with interest, within twenty-four months in equal monthly instalments. It was alleged that the parties had agreed on interest at the rate of 13% per annum and a penal interest at the rate of 3% per annum in the event of default upon expiry of the loan tenure. The respondent further pleaded that the appellant serviced the loan only up to February 2012, after which he defaulted, leaving an outstanding balance of TZS 27,282,821.20, which continued to attract interest. Accordingly, the respondent sought, inter alia, a declaration that the appellant was in breach of the loan agreement; payment of TZS 27,282,821.20 being the outstanding amount; commercial interest at the rate of 18% and penal interest at the rate of 3% on the said sum; interest on the decretal amount at court rate from the date of judgment to full satisfaction; general damages; costs; and such other relief as the court might deem just. 2 Upon being served with the plaint, the appellant lodged a written statement of defence disputing the respondent's claims in their entirety. The appellant contended, inter alia, that the respondent had never raised any complaint or issued any notice to him regarding the existence of the alleged outstanding balance. On that footing, he maintained that the respondent had no cause of action against him. Upon evaluating the evidence adduced by both parties, the learned Resident Magistrate found for the respondent and ordered the appellant to settle the outstanding loan balance. The trial court held that, the appellant had breached the agreement by failing to pay the sum of TZS 27,282,821.20 and was accordingly liable to pay interest at the rate of 18%, being the applicable commercial rate as at the date of the institution of the suit. The court, however, concluded that the respondent had not shown the extent to which he had been affected by the breach so as to justify an award of general damages. In the result, the suit was partly allowed, with each party directed to bear its own costs. Dissatisfied, the appellant lodged Civil Appeal No. 207 of 2020 before the High Court. However, when the appeal was called for hearing on 1s t March, 2023, neither the appellant nor his counsel entered 3 appearance. In consequence, the learned Judge dismissed the appeal for want of prosecution. The appellant thereafter moved the High Court, by way of Misc. Civil Application No. 109 of 2023, to set aside the dismissal order. That application was, however, dismissed upon the learned Judge's finding that no sufficient cause had been established. Undaunted, the appellant has lodged the present appeal, advancing three grounds which, as will shortly be demonstrated, provide no material assistance in the determination of the appeal. At the hearing, the appellant enjoyed the representation of Mr. Eric Kanga, learned advocate, whereas the respondent was represented by Mr. Godwin Nyaisa, also learned counsel. Before we could proceed with hearing, Mr. Nyaisa rose to inform the Court that the Tanzania Women's Bank (the TWB) the entity named as respondent in the record had merged with Tanzania Postal Bank PLC (TPB) following approval by the Bank of Tanzania on 3rd August 2018 thereby transferring all its assets and liabilities to the TPB. He was candid that, at the trial court the matter proceeded with a wrong party, instead of one TPB who was the proper party to the suit. For that reason he prayed for leave to amend the notice of appeal and other relevant documents to substitute the name of the respondent. Upon being prompted by the Court as to whether such an amendment would suffice given that TWB had ceased to exist as early as 3rd August, 2018 thereby rendering the proceedings in both lower courts to have been conducted against a non-existent party. Mr. Nyaisa candidly conceded that, the proposed amendment would not cure the defect. He added that, in the absence of any order by the trial court effecting a change of name, the citation of the respondent's name in the judgment, decree, notice of appeal and other related documents constituted a defect which renderes the appeal incompetent. In his view, the omission vitiated the proceedings of both the trial court and the High Court. He accordingly urged the Court to quash the proceedings and the resultant orders of both courts, with no order as to costs. Mr. Kanga, for his part, readily conceded the glaring anomaly that renders the appeal before us incurably defective, the trial court having proceeded against a party that, in law, did not exist. Having considered the submissions of both learned counsel and examined the record of appeal in conjunction with the public notice issued 5 on 4thAugust 2018, it is not disputed that TWB was merged with TPB on 3r dAugust 2018, the merged entity now operating as Tanzania Commercial Bank. The plaint which commenced the proceedings shows that the suit was instituted in 2017 between Kamala Rwiza Stephano as plaintiff and TWB as defendant which was proper. However, while the matter was still pending before the trial court, as alluded to above, TWB was merged with TPB. Notwithstanding that development, the trial court proceeded to hear the matter and ultimately issued judgment against an entity which, by that date, had ceased to exist in law. The proceedings therefore continued against a non-existent party. The same defect recurred before the High Court where the appellant lodged an appeal against TWB, a non-existent entity and the High Court regrettably issued orders against that non existent respondent. In our view, TPB ought to have taken appropriate legal steps to be joined in the suit as from 3rd August, 2018. Its failure to do so rendered the trial court proceedings conducted thereafter a nullity. Consequently, the proceedings before the High Court, together with the resulting judgment and orders, are equally vitiated. In the circumstances, in the exercise of the courts revisional power vested in it under section 6 (2) of the Appellate Jurisdiction Act, we nullify the proceedings of the trial court and the High Court and set aside the judgments and all consequential orders. We make no order as to costs. Any interested party shall be at liberty to pursue the matter in accordance with the law. Order accordingly. DATED at DAR ES SALAAM this 10th day of December, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Ruling delivered this 11th day of December, 2025 in the presence of Mr. Paschal Kamala, learned counsel for the Appellant also holding brief for Philip Irungu, learned advocate for the Respondent and Stella Mlaponi, Court Clerk; is hereby certified as true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 7