Okoamuda Ltd (as an agent of BABATI TOWN COUNCIL) vs Bonite Bottlers Ltd (Civil Appeal No. 20646 of 2025) [2025] TZHC 8857 (19 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI CIVIL APPEAL NO. 20646 OF 2025 (Arising from Miscellaneous Civil Application No. 12463 of 2025 in the District Court of Babati) OKOAMUDA LTD (as an agent of BABATI TOWN COUNCIL) ………………………………….….…………. APPELLANT VERSUS BONITE BOTTLERS LTD ………………………………… . ….…………. RESPONDENT JUDGMENT 22 nd October & 1 9 th December, 2025 MWIHAMBI, J. The parties to this case have been in and out of the courts since 2016 which makes the narration of the background facts a necessity before diving into the determination of this appeal. In 2016, Okoamuda Ltd as an agent of Babati Town Council instituted a summary suit, Civil Case No. 8 of 2016 before the District Court of Babati

2 against Bonite Bottlers Ltd claiming against her , among others, the payment of billboard fees to the sum of TZS 73,860,430/= plus interest accrued therein arising from unpaid billboard advertisement erected by them on Babati Town Council for the financial year 2015/2016. After the summons were issued to Bonite Bottlers Ltd, she failed to file application for leave to appear and defend the suit. The Court then entered judgment in favour of Okoamuda Ltd, ordered and decreed that:

1. Payment of principal sum of Tshs. 73,860,430/= arising from unpaid bill board advertisement fees.
2. Interest on the decretal sum at the court’s rate at 10 % per annum from 04/01/2016 to the date of filing this suit.
3. Interest on the decretal sum at the rate of 10% per annum from the date of judgment to the date of payment in full.
4. Costs of the suit. Aggrieved by the said judgment, Bonite Bottlers Ltd appealed to the High Court. Upon full hearing, the High Court (Dr. Opiyo, J.) in the judgment delivered on 5/5/2017 held that the appeal was prematurely filed because Bonite Bottlers Ltd was not heard before the District Court . Instead Bonite Bottlers Ltd was required to file an application to set aside the exparte judgment before the court of the first instance.

3 Bonite Bottlers Ltd being dissatisfied with the decision of the High Court on appealed, appealed to the Court of Appeal in Civil Appeal No. 520 of 2020 . Okoamuda Ltd raised an objection that the appeal was filed out of time and Bonite Bottlers Ltd conceded. The Court of Appeal struct out the appeal for being filed out of time and this order was delivered on 16 th day of February 2024. On 23 rd September 2024, Bonite Bottlers Ltd appeared again before Babati District and this time, with an application (Miscellaneous Civil Application No. 23678 of 2024) seeking for an extension of time to file an application to set aside exparte judgment dated 1 st day of September 2016 in Civil Case No. 8 of 2016 which was granted. Thereafter, on 3 rd January 2025, Bonite Bottlers Ltd filed an application (Miscellaneous Civil Application No. 178 of 2025) seeking for the order of the court to set aside exparte judgment in Civil Case No. 8 of 2016 and fix a day to proceed with the case interparties. With the consent of the parties, the appeal was argued by way of written submissions. However, it seems like Okoamuda Ltd filed her reply submissions out of the scheduled time. The magistrate in his ruling stated:

4 “By their consent, they do agree to make written submissions. The court did make an order for them to do it. The applicants’ advocate did file their written submission in time. The same was served to respondents’ advocate but they did fail to comply with t he court order. On 25th day of April, 2025, the advocates from both sides did appear in this court. The respondents’ advocate make an oral application to this court, pray for an order to extend the time for making their reply and rejoinder respectively. Th e reasons were that there was bad communication for them to file and serve the same to opposite side in time. This honourable court did put into consideration that there was no any objection made by applicants’ advocate for such failure. Such prayer was gr anted by this court. The time to file their reply to the written submission was extended as prayed and the same was ordered to be filled on or before 30th day of April 2025. Then, rejoinder to be filled on or before 5th day of May, 2025 and ruling to be on 09th day of May, 2025. The records of this case file show that the reply by respondents’ advocate was filled in this court on 2nd day of May, 2025, both of its soft and hard copies. The court fees were paid vide receipt number 915122328306862 of Friday 2n d day of May, 2025. The applicant’s advocate was served with a copy and he did make their rejoinder. He raises an attention to this court that such reply was filled out of time. The record of the case file is very clear on this point. The hard copy and suc h printed receipt show that the same was present and filled in on 02nd day of May, 2025. It was stamped by our court clerck on the same day, the the control number was issued.

5 I do agree with the applicant’s written submission at his rejoinder that the respondents’ reply was filled two days later contrary to the court order …” He went further to hold that: “The applicants’ advocate did pray to this court not to consider such written submission which filled out of time. Having carefully going to the records of this case, I find out there this document was signed by the respondent advocate on 29th day of April , 2025. There are no any reasons as why does it not filled online as it is required by our law. It gives me impression that the respondent was not serious of what they were doing. It is for these reasons I hold and rule out that the objection by the applic ants’ advocate is therefore sustained. If that will be the case, it remained as if there is nothing filled by respondent in this application. ” Regarding that decision, Okoamuda Ltd filed another application (Miscellaneous Civil Application No. 12463 of 2025) before Babati District Court seeking the court to set aside the above extracted ruling which was delivered on 9 th May , 2025. The court refused to set aside the ruling and stated that there was never issued an ex p arte ruling instead Okoamuda Ltd failed to prosecute its case by failing to lodge its reply to the written submissions on time hence, dismissed the application with costs. Being aggrieved by the said decision, the appellant, Okoamuda Ltd is before this Court for an appeal. The appeal has been filed on two grounds

6 and the major complaint of the appellant is that he was not afforded the right to respond to the objection that was raised by the respondent in its rejoinder submissions and the Resident Magistrate determined it ex parte. When this appeal was scheduled for hearing, the learned advocates Mr. Mashaka Ngole and Mr. Gwakisa Sambo appeared for the appellant and the respondent respectively. They agreed to dispose the appeal by way of written submissions and they both have compli ed with the scheduled order. I have gone through the submissions of the parties and the records of Babati District Court in Misc. Civil Application No. 12463 of 2025 and Misc. Civil Application No. 178 of 2025 and two issues are certain; one , whether the respondent raised an objection regarding the appellant’s reply submission, in its rejoinder and two , whether the appellant IE OKOA MUDA was afforded the right to be heard on that objection. On the rejoinder submissions filed on 05/05/2025 , on the first paragraph, the respondent stated that: “Before going to nity gritty of the rejoinder submission, we pray to state here that the reply submissions filed by the respondent counsel was filed out of the prescribed time by the court. It is contrary to the Court Order. We pray this court

7 struck it out of court records and this court not to consider it in determining the application before you.” Regarding the quoted part of the rejoinder submission, this Court is of the firm view that the same is an objection which demanded the response of the appellant. I join hands with Mr. Sambo on the fact that failure to file written submissions amounts to failure to prosecute one’s case. I am also aware that every case is to be determined according to its own circumstances. Now, what the respondent raised was an objection, was the appellant given an opportunity to respond to it? At this juncture, I will revisit the above cited ruling which the appellant is contending against. The Resident Magistrate stated in verbatim that: “… Having carefully going to the records of this case, I find out there this document was signed by the respondent advocate on 29th day of April, 2025. There are no any reasons as why does it not filled online as it is required by our law. It gives me impress ion that the respondent was not serious of what they were doing …” It is apparent on record that the Resident Magistrate ruled on the objection raised by the respondent without the response of the appellant. He observed a document which was signed on 29 th April 2025 and was not

8 filed online but he still did not see it fit to call the appellant to address him on the same. A right to be heard is a principle of natural justice whose contravention nullifies the whole proceedings. Having said that, I allow the appeal. The ruling of the District Court of Babati in Miscellaneous Civil Application No. 178 of 2025 is hereby set aside and further order that the appellant should be given the right to be heard . According to the circumstances of the case, I make no order as to costs. DATED at BABATI this 19 th day of December, 2025. N. J. MWIHAMBI JUDGE Right of appeal explained to the parties. COURT: Judgment delivered today in presence of Mr. Gwakisa Sambo, Advocate for the respondent and Mr. Yusuph, representative of the appellant. B/C: Ms. Anna Mathayo (RMA) is present.

9 N. J. MWIHAMBI JUDGE