Kibigo General Supplies vs Bevance Investment Company Limited (Civil Appeal No. 25476 of 2024) [2025] TZHC 8469 (18 December 2025)

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB - REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO. 25476 OF 2024 (Arising from Civil Appeal No. 148 of 2023, in the Resident Magistrate’s court of Dar es Salaam at Kisutu) KIBIGO GENERAL SUPPLIES ................................ .................... APPELLANT VERSUS BEVANCE INVESTMENT COMPANY LIMITED .................... RESPONDENT JUDGMENT Date of last Order : 16 - 9 - 2025 Date of Judgment : 18 - 12 - 2025 B.K.PHILLIP , J Aggrieved by the ex - parte judgment delivered by the Resident Magistrate’s Court of Dar es Salaam, at Kisutu ( henceforth “ Kisutu RM’s Court”), the appellant herein lodged this appeal on the grounds reproduced verbatim hereunder ; i) That the trial Court erred in Law and fact by determining a suit to which it had no jurisdiction. ii) That the trial court erred in Law and fact by failure t o analyses the evidence tendered , failure to give reason for decision and failure to

2 evaluate the tendered (sic) prior coming to final determination of the suit which lead (sic) to arrive (sic) on unjust judgment. iii) That the trial court erred in law and fact by determining the suit in favour of the respondent without considering that the respondent's duty under section 110(1) and (2) of the Evidence Act Cap 6 R : E 2019 was not discharged by the respondent. iv) That the trial court erred in law and fact by granting the general damages of Tsh s. 50 million without any justification for the court's consideration v) That the trial court erred in law and fact by delivering the ex parte judgment without notifying the app ellant to appear on the date of judgment , without any legal justification. The learned advocate Alex Enock appeared for the appellant, whereas the learned advocate Hussein Juma appeared for the respondents. The appeal has been disposed of through written s ubmissions. Before embarking on the analysis of the submissions made by the learned advocate, it is prudent to have a brief background of this appeal. It is on record that the appellant herein was the defendant in the case instituted by the respondent against her at Kisutu RM’s Court. Before the trial Court , the respondent had sued the appellant for breach of the agreement for the sale of a motor vehicle, in which the respondent bought fr om the appellant a motor vehicle with registration no. T781 DTK, Make Fuso, for Tshs . 58,000,000/=. The respondent paid the full agreed purchase price. The motor vehicle was handed over to her. However, while the motor vehicle was in her possession , the police confiscated it and took it to Gogoni Police Station due to discrepancies in the chassis number. Following that incident , the appellant gave her

3 another motor vehicle with registration No. T.708 DTU , make - Hino for use pending the clearance of the confiscated motor vehicle . However, that motor vehicle (T.708 DTU), registered in the name of Lazaro, was also confiscated by the police . Finally, the motor vehicle was taken by the owner , Mr. Lazaro . At the end of the day, the respondent had nothing. Before the trial Court, t he respondent prayed for judgment and decree against the appellant as follows; i) For an order for immediate payment of TZS 128,000.000/= , being specific damages resulting from a debt and losses of business incurred by the P laintiff following failure of the business undertaking triggered by the Defendant, mental anguish and psychological torture sustained by the Plaintiff in following up on the said debt. ii) For an order for payment of general damages as may be assessed by the Court . iii) P ayment of interests at Court's rate of 7% from the date of judgment to the date of complete satisfaction of the decree. iv) Costs of this suit. v) Any other orders or reliefs as the Court may deem fit and just to grant. Upon hearing the case on merit the court entered judgment in favour of the respondent as follows; i) Defendant is liable to pay the Plaintiff specific damages amounting to TZS 35,000,000/= (Tanzania Shillings Thirty - Five Million) and general damages assessed by the Court

4 amounting to TZS 50,000,000/= (Tanzania Shillings Fifty Million). ii. Defendant to pay interest of 7% on the decretal amount from the date of Judgment to the date of complete satisfaction of the Decree and costs of this suit. Back to the appeal at hand, Mr. Enock’s submission in support of the 1 st ground of appeal was to the effect that he argued that the trial court had no jurisdiction to entertain the case because the amount claimed by the respondent exceeded that court’s pecuniary jurisdiction in commercial cases, which Tshs. 70,000,000/=. H e contended that the respondent’s claim against the appellant was payment of specific damages to a tune of Tshs. 128,000,000/ =. To cement his arguments, he referred this court to section 40 (3) (a) and (b) of the Magistrate Courts Act CAP 11 R . E of 2019 , ( Hereinafter to be referred to as the “ MCA”).He pointed out that a court of law must first ascertain whether it has jurisdiction before entertaining a matter . A d ecision made without jurisdiction is null and void , and deserves to be nullified. To support his arguments, he referred this court to the case of Fanuel Ng'unda Vs Herman Mantiri Ng'unda & 20 others, civil appeal no. 08 of 1995 , and Tabasam Clearing & Forwarding Company Limited, Vs. Mwajuma Urassa Malya t/a Inakubalika Store, Civil Appeal No. 113 of 2020, ( Both unreported). Further more , Mr. Enock added that the court had no jurisdiction to entertain a case filed against a party who has no right to sue or be sued, since a trade name cannot sue or be sued. To support his argument he cited the case of Tema Enterprises Limited vs. Emari Provisions

5 Stores Commercial Case No. 136 of 2014 , (unreported) . Concerning the 2 nd ground, Mr Enock submitted that a court of law has to make its decision by considering the evidence adduced by the parties. A judgment must resolve the controversy between the parties; otherwise, it should be nullified. He contended that in the case at hand there was no evidence, such as a bank statement, tendered before the trial court to prove the amount of money claimed by the respondent , thus, the impugned decision has to be set aside. To support his arguments , he cited the case of E dw in Isdori Elias Vs . S erikali ya M apinduzi Z anzibar (2004) T.L.R 297 , Hamis Rajabu Dibagula V s. Republic (2004) T.L.R. 181 and Abubakari I . H . Kilongo and Another Vs. The Republic , C riminal Appeal No . 230 of 2021 , (unreported) . With regard to the 3 rd ground of appeal, relying on section 110 (1) (2) of the Law of Evidence Act , Mr. Enock argued that the law requires that he who alleges anything to prove it. To support his argument, he cited the case of Hemed Said V s . Mohamed Mbilu [1984] TLR 113 . He contended that the respondent failed to produce in court any documents to prove that the appellant paid her Tshs . 35,000,000/= only as claimed. The plaint did not disclose the mode of payment for said Tshs. 35,000,000/=.He pointed out that the parties are bound by their pleadings. He cited the case of Yara Tanzania Limited vs. Ikuwo General Enterprises Limited , Civil Appeal No. 309 of 2019, (unreported) Furthermore, Mr . Enock insisted that, since there is no evidence adduced before the trial court regarding how the admitted amount of money was paid to the respondent, and the pleadings did not disclose the mode of payment, the order for payment of Tshs. 35,000,000/= to th e

6 respondent by the appellant was not justifiable , as the court left unresolved the controversy regarding the mode of payment used by the parties. He cited the case of Abukakari I.H . Kilongo and A nother V s. T he Republic , Criminal Appeal No. 230 of 2021 , (unreported) . On the 4 th ground of appeal, Mr. Enock argued that there was no evidence produced in court to justify the award of general damages to the respondent. He maintained that general damages are awarded when there is evidence to justify them.To cement his arguments he cited the case of Avit Thadeus Masawe V s Isidory Asenga , Civil Appeal No. 06 of 2017 (unreported ). Concerning the 5 th ground of appeal, Mr Enock faulted the trial court for failure to notify him of the date of judgment, in contravention of Order XX Rule 1 of the CPC. Relying on the case of Tropical Air ( z ) Ltd V s. Godson Elion a , a Moshi, civil appeal no. 95 of 2022, (unreported), he implored this court to nullify the proceedings of the trial court and order the case be tried de novo. In conclusion to his submission, Mr Enock implored this court to allow this appeal and set aside the impugned judgment. In rebuttal, for the 1 st ground of appeal Mr. Hussein Juma argued that the trial court was clothed with jurisdiction to entertain the case. The sum of Tshs. 128,000,000/= quoted by Mr Enock in his submission included the prayers for payment of General Dam ages ,which are speculative and awarded at the court’s discretion, thus do not form part of the amount claimed in a case for the purpose of determining the court’s pecuniary jurisdiction . He cited the case of M / s Tanzania - China Friendship Textile Co. Ltd . V s Our Lady of the Usambara Sisters, (2006) TLR 7 0 . He contended that the plaintiff’s claim , as per the facts

7 briefly stated in the plaint, is that the appellant and respondent executed an agreement for the purchase of a motor vehicle with registration No. T 781 DTK, make Fuso, for the consideration T shs . 58,000,000/=. T he respondent’s specific claim was TZS. 58,000,000/=, an amount that falls squarely with in the court’s jurisdiction in commercial cases as per Section 40(3)(b) of the M CA. T herefore, the trial court had jurisdiction to entertain the respondent’s case . He maintained that the case of Tabasam Clearing & Forwarding Company Limited ( s upra ), relied upon by Mr . Enock in his submission, is distinguishable from the case in hand. In response to Mr. Enock's argument that the respondent sued in a trade name which cannot be sued or sue , Mr. Juma contended that the argument has been imposed on the ground of appeal on the court’s jurisdiction, while the same has nothing to do with the court’s jurisdiction as it is about parties’ legal personality. In the alternative, referring this court to Order XXIX Rule 10 of the Civil Procedure Code, (“ the CPC ”). he contended that law allows suing a party using a business name and the liabilities lies to the person doing that business. With regard to the 2 nd ground of appeal, Mr. Juma argued that the trial Court considered thoroughly the evidence adduced during the trial. It framed relevant issue s in resolving the controversy in the case to wit; Whether or not there was a contract between the appellant and the res pondent, whether or not there was breach of that contract and to what reliefs the parties were entitled to. The court subjected the evidence adduced (Exhibits P1, P2, P3, and P4) to the issues and found that there was a valid contract between the parties, which the appellant breached, and issued appropriate orders / reliefs . About the third ground of appeal, Mr. Juma argued that the

8 respondent proved her claim on balance of probabilities as required in law. He pointed out that the appellant paid the respondent part of amount she owed her, that is , Tshs.35,000,000/=. He maintained that the cases cited by Mr Enock in support of his arguments are irrelevant and not applicable to this case, as they involve different facts . Referring this court to th e Abubakari I.H. Kilongo and Another (supra ) cited by Mr. Enock in his submission, Mr. Juma contended that the same is distinguishable from this case as it addresse d judgments failing to resolve contested material issues. He went on to argue that i n ex - parte proceedings, the court's role is to determine if the presented evidence, unchallenged by the absent defendant, suffices to prove the claim . He maintained that in the case in hand , the trial court thoroughly discharged its duty by making clear findings supported by evidence. In response to the 4 th ground of appeal, Mr. Juma argued that general damages need not to be proved. The court assesses them after evaluating the evidence adduced by the parties. He cite d the case of First Assurance Co. Ltd Vs. Abraham Samson Isote, Civil Appeal No. 28627 of 2023 (unreported), to support his arguments. he went on to argue that the trial court's judgment clearly outlines the basis for the general damages awarded, noting that the Defendant's material and fundamental breach materially affected the respondent’s business, and caused her to suffer loss of business, mental anguish and psy chological torture in following up the matter. The court exercised its discretionary powers and awarded the respondent a sum of Tshs. 50,000,000/= as general damages. Mr.Juma insisted that the respondent presented in court sufficient evidence to prove the negative impact on her business following the appellant’s breach of contract. He argued that the appellant

9 had an opportunity to challenge the respondent’s evidence but opted to sit on her right as he did not defend the case. In response to the 5 th ground of appeal. Mr. Juma argued that order XX rule 1 of the CPC is about pronunciation of judgment. He admitted that notice on the date of judgment must be issued to parties even when the matter was heard ex - parte. However, he was of the view that a failure to notify the a party to a case on the date of judgment do not justify the nullification of the proceedings. The remedy is to nullify the judgment and order , and to have the judgment composed afresh and delivered in accordance with the law. He cite d the case of The Attorney General vs Mohamed Liundi & Dar es Salaam Water and Sanitation Authority Successor of Dar es Salaam Water and Sewerage Corporation, Civil revision No. 22 of 2023, (unreported) to support his argument . In conclusion to his submission, Mr. Juma prayed for the dismissal of all grounds of appeal for lack of merit. Having dispassionately analysed the competing arguments made by the learned advocates appearing herein, let me embark on the determination of the merit of this application. Starting with the 1 st ground of appeal on the trial court’s jurisdiction over the case, first of all, it is worth noting that at the trial court the appellant raised a point of preliminary objection on the issue of jurisd iction, that the respondent’s case was a commercial case, in which he was claiming for payme nt of specific damages to a tune of Tshs.128,000,000/= beyond the trial court’s pecuniary jurisdiction in commercial case as per section 40 (3) (a) and (b) of the CPC. The trial court heard the preliminary objection on the merits and dismissed it on the ground that the respondent’s case was not a

10 commercial case. It was a normal civil case founded on breach of contract. Mr. Juma’s response on behalf of the responde nt is that the respondent’s claim was not Tshs. 128,000,000/= as alleged by the appellant, but it was Tshs . 58,000,000/=, which was the value of the motor vehicle she bought from the appellant. It is worth noting that the trial court’s pecuniary jurisdicti on , whose ceiling is Tshs. 70,000,000/= is only for the commercial cases . ( See section 40 (3) (a) and (b) of the MCA). Paragraph 3 of the plaint states that the respondent’s claim against the appellant was a sum of Tshs.128,000,000/ =, being the total amount of debt and losses of business incurred by the respondent following the failure of the business transaction due to the appellant’s fault. The reliefs prayed by the respondent , reproduced in this judgment, indicate clearly that the respondent prayed for payment of specific damages to the tune of Tshs. 128,000,000/= and general damages. Therefore, Mr. Juma’s contention that the sum of Tshs. 128 ,000,000/= =, includes general damages, is not correct. Thus, the pertinent question which a rises here is whether or not the respondent’s case was a commercial case? Upon scrutinising the pleadings, I believe that the respondent’s case was a typical civil action for breach of contract, as the gist of the respondent’s case was an agreement for the sale of a motor vehicle for transportation purposes. There were no continuous business transactions between the appellant and the respondent. After the conclusion of the deal for the sale of the motor vehicle, there was no continuation of business transac tions between the appellant and the respondent. However, since the motor vehicle sold to the respondent was seized by the Tanzania Revenue Authority (TRA ), the respondent had no way out except to return to the appellant ; that is why there was a continuatio n of communication

11 between the appellant and respondent, but that does not turn this case into a commercial case. So, the provision section 40(3) (a) and (b ) of the MCA is not applicable in this case, and it goes without saying that the 1 st point of prelim inary objection has no merit . It is hereby dismissed. Having held that the trial court had jurisdiction to entertain the case , I am constrained to deal with the 5 th ground of appeal for reasons which I will put into light later. I have noted that Mr . Enock’s argument on this ground of appeal are not in line with the contents of the ground of appeal. W hile the ground of appeal indicates that the appellant was not noti fied on the date of judgment of the ex parte judgment, Mr. Enock’s submission suggests that the appellant complains that he was not notified on the date of the ex - parte hearing of the case. T he case of Tropical Air (Z) Ltd (Supra), which he relied upon t o support his argument, concerns the effect of failing to notify the defendant o f the date of hearing, which can result in an ex parte hearing of the case . That case has quite a different set of facts from the case in hand. Thus, Mr Enock’s contention that this court should nullify the lower court’s proceedings and order a retrial of the case is misconceived and unfounded. The court’s records show that the appellant’s advocate was aware of the date set for the ex - parte hearing, as th e order was pronounced in his presence. However, the court’s reveal that the appellant was not notified of the date of judgment as required under Order XX Rule 1 of the CPC. For ease of reference let me reproduce hereunder the Order XX R u l e 1 of the CPC ; Order XX Rule 1 “ The Court , after the case has been heard, shall pronounce judgment in open court, either at once or on some future day , of which due notice be given to the parties or their advocates”

12 The pertinent question which arises here is: what are the legal consequences for failure to notify a party of the date of judgment as required under Order XX Rule 1 of the CPC. There is a plethora of authorities to the effect that a judgment deliv ered in the absence of a party/parties is not operative, valid and effective. And this explains why I had to skip the 1 st , 2 nd and 3 rd grounds of appeal. In the case of Mashishang a Salumu Mashiganga Vs CRDB Bank PLC and others, Civil Appeal No.335 of 2019 ( unreported), the Court of Appeal was confronted with a situation very akin to the one in hand, it held as follow s ; “ Arising from the foregoing, once again we are inclined to agree with the learned advocates that t here was no valid and competent ap peal from an inoperative and invalid judgment. We likewise find it is inevitable to accept the invitation by the learned advocates that th e circumstances of this appeal warrant an order quashing the purported judgment and decree of the High Court signed on 12th April 2019 as we hereby do …. ………. We entertain no doubt that justice will triumph if we make an order directing that trial High Court to compose a fresh ju dgment by a different judge and pronounce judgment in accordance with the law ” . (Emphasis added) From the foregoing, this court finds that the 5 th ground of appeal has merit. On the strength of the decision of the Court of Appeal in the case of Mashishanga Salumu Mashishanga (supra), I hereby quash the impugned judgment and order that the case file be remitted to the trial court for composition of a fresh judgment by a different Magistrate, and pronounce the judgment in accordance with the law. I give no order as to costs , since the respondent cannot be held solely responsible for the

13 failure to notify the appellant o f the date of judgment. Dated at Dar es Salaam this 18 th day of December 2025 B.K.PHILLIP JUDGE