Diamond Trust Bank (T) Ltd vs Independent Power Tanzania Limited & Another (Civil Appeal No. 94 of 2024) [2025] TZCA 1176 (11 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: NDIKA, J.A.. FIKIRINI. J.A. And MGEYEKWA. J.A.^ CIVIL APPEAL NO. 94 OF 2024 DIAMOND TRUST BANK (T) L T D ............................................... APPELLANT VERSUS INDEPENDENT POWER TANZANIA LIMITED ..................... 1 st RESPONDENT HARBINDER SINGH SE TH I ............................................. 2N DRESPONDENT (Appeal from the Ruling and Drawn Order of the High Court of Tanzania, Dar es Salaam District Registry at Dar es Salaam) (Bweqoge, 3.) dated the 5th day of May, 2024 in Misc. Civil Application No. 419 of 2023 JUDGMENT OF THE COURT 7st& 11th November, 2025 MGEYEKWA, J.A.: This appeal arises from the ruling of the High Court of Tanzania, Main Registry at Dar es Salaam, in Miscellaneous Civil Application No. 419 of 2023, which was lodged by Independent Power Tanzania Limited and Harbinder Singh Seth, the first and second respondents respectively, on 5th December, 2023. The said application, which sought a review of the High Court's order dated 6th June, 2023, was allowed, hence prompting this appeal by Diamond Trust Bank (T) Limited (the appellant). For a better appreciation of the sequence of events culminating in this appeal, we consider it apt to recount, albeit briefly that, the respondents had instituted Civil Case No. 19 of 2023 against the appellant, alleging breach of the banker-customer relationship occasioned by the unlawful withdrawal of TZS 13,000,000.00 from the first respondent's bank account maintained with the appellant. The suit, however, was met with resistance from the appellant, who raised two points of preliminary objection contending that: one, the suit was incompetent for want of a company resolution, hence the first respondent's claims against the appellant were fatally defective; and two, the second respondent lacked locus standi to institute the suit against the appellant. As the court's practice dictates, the High Court had to first address the preliminary objection before examining the substantive merits of the matter. Before hearing of the objections, the respondents conceded to their validity and prayed to withdraw the suit. The appellant's counsel did not oppose the prayer for withdrawal but pressed for costs. Consequently, the trial court upheld the preliminary objection and marked the suit withdrawn, awarding half the costs to the appellant. Following the said order and after receiving it, the respondents realized that their hands were tied from filing a fresh suit because the proper course of action ought to be to striking out the suit instead of withdrawing it. Thus, they desired to file an application for review of the High Court's order. Since the time was not on their side, the respondents successfully lodged an application for extension of time to file an application for review. Subsequently, on 9th August, 2023, the respondents filed a memorandum of review in the High Court, seeking a review of the order dated 6thJune, 2023. They contended that there was an error apparent on the face of the record, as the trial court had erroneously entered an order for withdrawal of the suit instead of striking it out. The appellant opposed the application, claiming that it was the respondents who prayed to withdraw the suit, and therefore the ruling could not constitute an error apparent on the face of the record within the contemplation of Order XLII Rule 1 (b) of the Civil Procedure Code, Cap. 33 (the CPC). After hearing both parties, the learned Judge of the High Court found merit in the respondents' application and accordingly allowed the review, thereby rectifying the earlier order of withdrawal and substituting it with an order striking out Civil Case No. 19 of 2023. Undaunted, the appellant has now preferred the present appeal to this Court. In the memorandum of appeal lodged on 21st February, 2024, the appellant advanced four grounds of appeal as follows: 1. The learned trial Judge erred in law and in fact in determining an application for review under Order XLII Rule (1) (b) and Rule 3 o f the Civil Procedure Code, while the said error does not fall within the purview o f Order XLII Rule (1) (b) and Rule 3 o f the Civil Procedure Code to qualify for review. 2. The learned trial Judge erred in law and fact when it failed to determine whether the error on the record complained against is an error contemplated under Order XLII rule (1) (b) o f the Civil Procedure Code. 3. The learned trial Judge erred in law and fact in holding that it had erroneously entered an order o f withdrawal of Civil Case No. 19 of 2023 in its order dated 6th June, 2023, without any material from the record guiding it to that conclusion. 4. The learned trial Judge erred in law and fact when he considered off-record material to arrive at the conclusion that the order dated 6th June, 2023, in Civil Case No. 19 o f2023 erroneously inserted the word withdrawal instead o f striking out. At the hearing of the appeal, the appellant was represented by Mr. Godwin Nyaisa, learned counsel whereas the respondent appeared through Ms. Dora Mallaba, learned counsel. The appellant's written submissions filed on 22n d April, 2024 were duly countered by the respondent's written submissions in reply filed on 22n d May, 2024, both of which were adopted at the hearing. It is noteworthy that on 27th October, 2025, the respondent lodged a notice of preliminary objection, 4 but following a brief dialogue with the Court, the same was withdrawn and the appeal proceeded on its merits. Submitting in support of the first ground of appeal, Mr. Nyaisa contended that the High Court erroneously entertained a review application under Order XLII Rule 1 (b) and Rule 3 of the CPC. He submitted that the alleged error was not apparent on the face of the record but rather required a long-drawn process of reasoning, thus falling outside the scope of review. To support his argument, he relied on East African Development Bank v. Blueline Enterprises Tanzania Limited, Civil Application No. 47 of 2010 [2011] TZCA 507 (TanzLII), the Court cited the case of Chandrakant Joshubhai Patel v. Republic [2004] T. L. R 218. He further referred us to the case of Kitinda Kimaro v. Anthony Ngoo & Another, Civil Application No 79 of 2015 [2018] TZCA 567 (TanzLII) and submitted that it is a principle of law that for review to succeed, the error or mistake in the impugned decision must not be detectable by the process of reasoning, and should not be a ground of appeal or mere erroneous decision. Mr. Nyaisa argued that the order of the trial court dated 6th June, 2023 in Civil Case No. 19 of 2023 did not contain any mistake or error apparent on the face of the record so as to fall within the ambit of Order XLII Rule 1 (b) and Rule 3 of the CPC and to qualify for review. He further argued that the respondents had not prayed for striking out of their suit before the High Court but they had expressly sought its withdrawal, which the court accordingly granted. In his view, there was no legal basis for review, as the High Court had merely issued an order consistent with the relief sought by the respondents. In respect of the second ground, the learned counsel for the appellant argued that the alleged error in the order of the trial court dated 6th June, 2023 was neither clerical nor self-evident, and thus could not be discerned by a mere perusal of the record, save through a process of reasoning. To buttress his submission, he cited the cases of Omary Mussa @ Seleman @ Akiwsha & Another v. Republic, Consolidated Criminal Application No. 117, 118 and 119 of 2018 (unreported) and Expedito Ngakongwa and Another v. Crys Oil Company Limited, Labour Review Application No. 01 of 2019 (unreported). He further faulted the trial judge for failure to determine the issue related to the error complained of, hence leaving the issue unsolved. To support his submission, he cited the case of Alisum Properties Limited v. Salum Selenda Msangi, Civil Appeal 39 of 2018 [2022] TZCA 389 (TanzLII). Arguing grounds three and four conjointly, Mr. Nyaisa submitted that in Civil Case No. 19 of 2023, the respondents' learned counsel, upon being confronted with the preliminary objection raised by the appellant, conceded to its merit and consequently prayed to withdraw the suit The learned counsel for the appellant further submitted that the trial court, having been moved by the respondents' counsel's concession that the suit was incompetent for want of a board resolution, rightly proceeded to grant the prayer for withdrawal of the suit. However, he argued, it was astonishing that the learned Judge, upon entertaining the subsequent application for review, substituted the order of withdrawal with one striking out the suit, notwithstanding that there was no material on record to support a finding that the respondents had prayed for such relief. He maintained that the record clearly reflected a voluntary prayer for withdrawal, and therefore, the High Court's reasoning that the order was mistakenly entered was misconceived and unsupported by the record. In conclusion, Mr. Nyaisa urged the Court to allow the appeal. In response to the first and second grounds of appeal, Ms. Mallaba supported the decision of the High Court, contending that the learned Judge properly exercised his review jurisdiction under Order XLII Rule 1 (b) of the CPC. She clarified that the original order allowing withdrawal of the suit was made in manifest error, as the suit was already met with a preliminary objection challenging its competence. Citing Masudi Said Selemani v. Republic, Criminal Application No. 92 of 2019 [2020] TZCA 18 (TanzLII) and Lakhamshi Brothers Ltd v. R. Raja & Sons [1966] E. A 313, she argued that, where a preliminary objection raises a jurisdictional issue or points to a fundamental defect, the proper course is to strike out the suit, not permit withdrawal. To do otherwise, she argued, would be tantamount to preempting the objection, contrary to established principles. The learned counsel further contended that the error was patent on the face of the record, as the trial court had misconstrued the effect of the concession to the preliminary objection. The learned counsel for the respondents argued the third and fourth grounds conjointly. She contended that, in its impugned order, the trial court made it clear and was satisfied upon examination of the record that the learned counsel for the respondents had intended to regularize the record and subsequently refile a fresh suit. In that regard, she argued that the trial court rightly found it necessary to substitute the order of withdrawal of the suit with an order striking it out. She emphasized that the erroneous order of withdrawal occasioned a miscarriage of justice by closing the door to the respondent to refile its suit. The learned counsel for the respondent cited the case of East African Development Bank v. Blueline Enterprises Tanzania Limited, (supra), underscoring that the purpose of review is to correct a manifest error that results in injustice if left unrectified. In conclusion, Ms. Maballa beckoned upon the Court to dismiss the appeal with costs. Having carefully heard the parties, examined the entire record of appeal, and duly considered the rival submissions, we think it is appropriate to determine all the grounds of appeal conjointly, as they are closely interrelated. From the outset, we find the arguments advanced by Ms. Mallaba, more persuasive and consonant with the settled law. To begin with, we entirely agree with Ms. Mallaba that the High Court correctly assumed jurisdiction for review under Order XLII Rule 1 (b) of the CPC. The record is explicit that, at the time the respondent prayed to address the points of preliminary objection, the suit stood challenged as incompetent. It is well settled that once a preliminary objection touching on the competence or maintainability of a suit is raised, the proper recourse is to strike out the suit, not permit its withdrawal. This position is supported by our previous authorities, including, Ghati Methusela v. Matiko w/o Marwa Mariba, Civil Application No. 6 of 2006 (unreported) the Court held that: "It is now established iaw that an incompetent proceedingbe it an appeal\ application, etc is incapable o f adjournment, for the Court cannot adjourn or allow to withdraw what is incompetent before it..." The same principle was echoed in David Matiku v. Republic, Criminal Application No. 19 of 2013 [2017] TZCA 402. We are therefore satisfied that the error complained of was neither a matter of legal interpretation nor one requiring elaborate reasoning. It was a manifest procedural error, self-evident from the record, as the trial court's initial order of withdrawal stood in direct conflict with the procedural posture of the case. Such an error is precisely the kind contemplated under Order XLII Rule 1 (b) of the CPC. Moreover, with due respect to the learned counsel for the appellant, we are unable to accede to his contention that the record does not reflect a prayer by the respondents1learned counsel for the suit to be struck out. Although the record of proceedings in Civil Case No. 19 of 2023 indicates that the respondents prayed to withdraw the suit, the record speaks for itself. It is manifest that, at the material time, the appellant had raised a preliminary objection challenging the competence of the respondents' suit for want of a board resolution. In such circumstances, and as correctly submitted by Ms. Mallaba, once a preliminary objection impugning the competence or maintainability of a suit has been raised, the proper legal course is for the court to strike out the suit rather than to permit its withdrawal, for to allow withdrawal in the face of a jurisdictional objection would offend settled procedural principles and undermine the integrity of the judicial process. We therefore find no merit in the learned counsel for the appellant's assertion that the respondents' prayer for withdrawal could not be substituted with an order striking out the suit. In law, a prayer for withdrawal cannot override the procedural consequence flowing from a properly raised preliminary objection. The learned Judge of the High Court was thus justified in holding that the earlier order allowing withdrawal was erroneously entered and contrary to settled judicial practice. We are equally persuaded by Ms. Mallaba submission that the erroneous order of withdrawal had the effect of foreclosing the respondents' substantive right of action, and it is to forestall such injustice that the law vests in the court the discretionary power of review to correct an error apparent on the face of the record which, if left unrectified, would perpetuate injustice by precluding the respondents from refiling a fresh suit. In this regard, we find the authorities of Kitinda Kimaro v. Anthony Ngoo & Another (supra), Omary Mussa @ Seleman (supra) and Expedito Ngakongwa and another v. Crys Oil Company Limited (supra), cited by Mr. Nyaisa, to be distinguishable. In those cases, the alleged mistakes were not apparent on the face of the record but rather required a process of reasoning to uncover. By contrast, in the present matter, the error was manifest and self-evident, thereby properly attracting the invocation of the High Court's review jurisdiction. Accordingly, and for the reasons stated, we hold that all grounds of appeal are devoid of merit. In the final analysis, we are satisfied that the appellant has failed to demonstrate any error warranting the intervention of this Court. The appeal is therefore dismissed in its entirety with costs. It is so ordered. DATED at ARUSHA this 10th day of November, 2025. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL Judgment delivered this 11th day of November, 2025 via vitual Court in the presence of Mr. Denis Mworia, learned counsel for the Appellant, Ms. Dora Mallaba, learned Counsel for the Respondent and Fahmi Karemwa, Court Clerk is hereby certified as a true copy of the original.