IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IRINGA DISTRICT REGISTRY AT IRINGA MISCELLANEOUS CIVIL APPLICATION NO. 30 OF 2020 (Originating from Civil Appeal No. 15 of 2019 High Court Iringa) MEXON SANGA........ «APPLICANT VERSUS TOTAL TANZANIA LIMITED .. cesses RESPONDENT RULING Date of last order: 25/08/2021 Date of Ruling: 09/11/2021 MLYAMBINA, J. This is one of the rare bizarre applications before the Court. The gripping issue is; whether a trial de novo order issued by the High Court in civil trial is appealable to the Court of Appeal of Tanzania. For better stance, the Court will a/beit give a brief meaning of the term ‘de novo’ or ‘venire de novo’ and its fate on the proceedings. The Court will proceed to reason; whether it is proper for an aggrieved party to appeal against an order of trial de novo. If yes, under what circumstances can a party appeal against the order of trial de novo. Before embarking into this legal ride, I will give brief facts necessitating this ruling. The Applicant being dissatisfied with a trial de novo order issued by this Court in Givi! Appeal No 15 of 2019 (Matogoro, J.) wishes to appeal to the Court of Appeal of Tanzania. But the Respondent is against such move.It is also very imperative to be noted that; the requirement of the law before appealing to the Court of Appeal against the decision of the High Court exercising its appellate jurisdiction is that; the aggrieved party has to apply for leave to appeal to the Court of Appeal from the High Court. Section 5 (1) (c) of the Appellate Jurisdiction Act, Cap 141 (RE. 2019] provides that: 5 (1) In civil proceedings, except where any other written law for the time being in force provides otherwise, an appeal shall lie to the Court of Appeal- (©) with the leave of the High Court or of the Court of Appeal, against every other decree, order, Judgment, decision or finding of the High Court. The record is clear that this application is made under Section 5 (1) () of the Appellate Jurisdiction Act, Cap 141 [R. E. 2019]. However, the Respondent vide his advocate Mr. Ramadhani Karume has raised preliminary objection on the point of law with two limbs, namely: 1.The intended Appeal by the Applicant is barred in law for contravening the /ege officium imposed under Section 5 (2) (d) of the Appellate Jurisdiction Act Cap 141 [R.E. 2019). 2. The instant Application is bad in law for being brought prematurely. The preliminary points of objection afore listed were argued orally. At the hearing, the Applicant was judiciously represented by Mr. Erick Mhimba noble learned Counsel. The Respondent was represented by afragrantly competent Counsel in the name Mr. Mwamgiga Jassey under the brief of Ramadhani Karume learned Counsel with instruction to proceed. Mr. Mwamgiga argued generally that; the basis of their two limbs of preliminary objection is the order of the Court for trial de novo which disqualifies this application and the preferred appeal after this application. Mr. Mwangiga started to define the term trial de novo, as a Latin expression meaning afresh or beginning again. Hence, in his proper view, the literal meaning is new trial. It was his submission that; normally a trial de novo is ordered by an Appellate Court when the trial Court failed to make a determination in a manner dictated by the law. Further, he referred the Court to the Black’s Law Dictionary, 4'" Edition which defines the term suit to be an ending or finality. That is the ending of controversy or a suit. Collectively, Mr. Mwamgiga argued the first and second limbs of their objection to the effect that; the intended appeal is in contradiction to the provisions of Section 5 (2) (d) of the Appellate Jurisdiction Act which bars appeal or revision from /nter alia interlocutory decisions. It provides: No appeal or application for revision shall lie against or be made in respect of any preliminary or interlocutory decision or order of the High Court unless such decision or order has the effect of finally determining the suit. (Emphasis added). Following the letter of the above law, it was Mr. Mwamgiga’s submission that; the order of the Appellate Court for trial de novo has no effect of determining the suit to its finality but remitting the same to the trial Courtfor retrial in order to cure the procedural irregularities and illegalities which occurred at the first instance of trial at the Trial Court. That means, the Court did not determine the suit to its finality. To cement his argument, he invited this Court to the case of Fatehali Manji v. R (1966) EA 344 where it was observed: In general, a retrial may be ordered only when the | trial was illegal or defective. It will not be ordered when the conviction is set aside because of insufficiency of evidence or for purposes of enabling the prosecution to fill gaps in its evidence at the first trial, Fach case must depend on its own facts and an orders for retrial should only be made where the interests of justice require it. Moreover, Mr. Mwamgiga referred this Court to the case of Abdallah Hassan v. Juma Hamis Sekiboko, Civil Appeal No 22 of 2007, Court of | Appeal of Tanzania at Tanga (unreported) at page 8 where the Court had : | these to observe: ...we have concluded as follows. We have seen however that these are not without problems. The same should be quashed as well for the two flaws-one, failure to frame issues which is an incurable irregularity [Janmohamed Umerdin v. Hussein Amarshi and Three Others (1953) 20 EACA 41 cited with approval by this Court in : Edson Mwakandamale v. NBC (1997) Ltd, Civil Appeal No. 63 of 2003]-unreported and, éwo, for failure to decide on the Counter Claim: Having concluded that there was 4 lr lcno supporting evidence the trial Court should have dismissed the Counter Claim. In his conclusion, Mr. Mwamgiga averred that; once there are procedural flaws, the Court should order trial de novo which do not finalize the appeal to its finality. Thus, letting this Court prefer the instant application subjects the Court to a danger of going to the merits of the appeal which is yet to be determined by this Court. Hence, this application was brought prematurely. In reply, Mr. Erick Mhimba, learned Counsel for the Applicant argued that; an order directing the matter to be tried afresh does not mean that Civi/ Appeal No 15 of 2019 was not determined to its finality because this Court made its decision to its finality basing on the grounds of appeal preferred by the Respondent in this Court. Thus, upon visiting the decision in Civil Appeal No. 15 of 2019 at page 2 and 3, this Court listed 10 grounds of appeal and almost all of the grounds of appeal were finally determined by this Court except ground No 3, 4 and 7 because the High Court was of the view that there was no need to determine those grounds as the Respondent Counter Claim was not determined. The appeal was finally determined. There was no Counter Claim to be determined by the trial Court. Mr. Mhimba tried to give the history of Civi/ Appeal No. 15 of 2019in which the suit was preferred by the present Applicant. First, the Respondent filed Written Statement of Defence (WSD) together with Counter Claim. 7wo, later on, there was change of circumstances, where the present Applicant amended the Pleading following an order being granted by the Trial Court 5to amend the respective pleadings, that is a Plaint and WSD. Three, the Applicant filed the amended Plaint. Four, the Respondent filed amended WSD in exclusion of the Counter Claim. Therefore, Mr. Mhimba was of submission that the Trial Court proceeded to determine the suit in reliance of the amended Plaint and amended WSD which had no Counter Claim. As a result, the Judgment and the Decree was delivered by the trial Court in reliance to the pleadings. Thus, it was wrong by this Court to hold that there was a Counter Claim to be tried de novo. Moreover, Mr. Erick insisted that; Civi/ Appeal No 15 of 2019 was finally determined by this Court, as a result, the Judgment and Decree was delivered to that effect. Hence, in view of Mr. Erick, Section 5 (2) (d) of the Appellate jurisdiction Act (supra) which has been cited by the Respondent as the basis of their preliminary objection is inapplicable because such provision restricts someone who is aggrieved only to appeal or apply revision in case the order is resulting from preliminary objection or an interlocutory order or any other order of this Court in which the matter was not determined to its finality. Thus, the decision in Civil Appeal No 15 of 2019 does not fall under such provision. Nevertheless, Mr. Erick challenged the authorities presented by the Respondent's Counsel on two account. One, none of such authorities have stated that an order for trial de novo meant that the matter was not determined to its finality. 7wo, no law which provides that once an order for trial de novo is granted an aggrieved party has no right to appeal. Thus, if this preliminary objection is allowed, there will be a danger of. infringing the aggrieved party to pursue his right of appeal. 6‘As regards to the second limb of objection, Mr. Erick submitted that; the present application has not been brought prematurely because there is no law or case law by this Court or Court of Appeal of Tanzania restricting the aggrieved party to appeal against the Decree of this Court. Thus, the Applicant prayed the objection be overruled. In rejoinder, the Respondent had nothing important to add. However, Mr. Mwamgiga contended that; if this objection shall not be sustained, there is a danger of defeating the order of trial de novo by the trial Court. From the afore submissions and having had an advantage of going through the entire records, I should state without hesitation that; it seems to me anomalous to object an appeal to the Court of Appeal of Tanzania on a mere reason that the decree is directing the matter be tried de novo. In fact, such reasoning is lacking in logic and intrinsically full of anomalies. Justification of this reasoning shall follow in the preceding paragraphs. Another important preliminary observation before taking over to the issue in controversy is that; the fallibility of any conclusion about the order of trial de novo being not appealable reinforces an obviously critical argument of curtailing constitutional right of appeal. The later must be entitled to great respect unless the challenged trial de novo order is by itself a mockery of substantive justice by way of delay. For a wider perspective, I do agree with Mr. Mwamgiga that trial de novo is a Latin word meaning ‘new trial” or “fresh trial”. It is the order of the Appellate Court in hierarch which nullifies the decision passed by the lower Court or Tribunal due to serious irregularities.Indeed, trial de novo in Tanzania occurs inter alia where the procedures were tainted with irregularities or where reliance of the trial Court proceedings will result in miscarriage of justice. I must point out other nine important points prior analysing the issues before the Court: One, there is often a confusion of lower Courts as to whether trial de novo means starting the hearing a fresh or commencing cause of action afresh. However, the proper meaning of trial de novo is starting the hearing afresh. All the pleadings filed and orders therein remain valid, unless nullified by the Appellate Court on appeal or revision Two, if the Court is of the view that the trial by the Court of first instance was incapable of determining the real controversy between the parties, it can nullify the whole proceedings and order trial de novo. Three, the Appellate Court may upon discovering irregularities at certain point of proceedings, order trial de-novo from that stage and require the trial Court to forward the file for determining the appeal before it on merits. Four, a determination to remit the matter for rehearing “trial de novo" to the Court of first instance is “final” in relation to the proceedings before the Court of second instance but not “final” of the issue to be decided on the appeal. If there are some uncertainty on the decision rendered, it is accepted that an aggrieved party may refer the matter to the higher Court in hierarchy for appeal purposes on determination of such controversy. Five, trial de novo order is sparingly issued by higher Court as it attracts re summoning of witnesses who have already testified in Court. Sometimes, 8such witnesses cannot be traced and can render a party to lose his/her rights. Six, the law discourages relitigation of the same issues except by means of an appeal. The Latin maxim is nemo debet bis vexari pro una et eadem causa. It is concerned with the interests of the Defendant. If there are sufficient reasons and the aggrieved party sees that the order for trial de novo will be relitigating the same issue, such party should not be denied with the right of appeal against the impugned trial de novo order to the higher Court in hierarchy. Seven, the law to be applied when the matter is ordered to be tried de novo is such law that existed at the filing of the suit unless the new law directs to the contrary. In Betterment Properties (Weymouth) Ltd v. Dorset County Council, All ER 2007 Volume 2, Brenna J. held: Where, on rehearing de novo, the question for decision is whether an Applicant should be granted a right, the law as if then exists is applied, not the law as it existed at an earlier time. By contrast, in Judicial Proceedings were instituted, the question for decision is determined according to the law existing where the proceedings were instituted unless statute otherwise provides. [Emphasis applied] Eight, the common law requires an adjudicator hearing the matter de-novo not to read the determination of a previous adjudicator unless there is explicit directive to that effect. In Gashi v. Secretary of State for theHome Department (2001) as cited in Swash v. Secretary of State for the Home Department, All ER 2007 Volume 1 it was observed: dt was best practice for an adjudicator hearing an appeal de-novo not to read the determination of a previous adjudicator unless expressly invited to do so. If the adjudicator considers it appropriate to read the determination, he should not do so until he has told the parties of his intention and invited their comments. Nine, if the Superior Court issues an order of trial de novo, it can give a direction as to the time within which the matter so returned to be tried conclusively. In the cited case of Abdallah Hassan (supra) the Court of Appeal of Tanzania at Tanga (unreported) at page 8 held: We are satisfied that for ends of justice a trial de novo should be ordered, as we hereby do without payment of fresh fees. Considering the time the dispute has taken, it is ordered that the Magistrate to whom it will be re- assigned should put it on the first track. With the afore general observation, the Court will proceed to determine; whether the order for trial de novo is among of the appealable orders. Section 74 (1) and Order XL Rule 1 of the Civil Procedure Code, Cap 33 [R.E. 2019] provides the orders which are appealable. Section 74 (1) (supra) provides: 10An appeal shall lie to the High Court from the following orders of the Courts of Resident Magistrates and District Courts and, save as otherwise expressly provided in this Code or by any law for the time being in force, from no other orders- a) an order superseding an arbitration where the award has not been completed within the period allowed by the Court; b) an order on an award stated in the form of a special case; c) an order modifying or correcting an award; d) an order filing or refusing to file an agreement to refer to arbitration; e) an order staying or refusing to stay a suit where there is an agreement to refer to arbitration; f) an order filing or refusing to file an award in an arbitration without the intervention of the Court; g) an order under Section 69; h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention as a civil prisoner of any person except where such arrest or detention is in execution of a decree; or i) any order made under rules from which an appeal is expressly allowed by rules. Order XL Rule 1 (supra) provides that:An appeal shall lie from the following orders under the provisions of Section 74, namely- a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court; b)an order under rule 14 of Order VIII pronouncing judgment against a party; c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; d) an order under rule 13 of Order IX rejection an application (in a case open to appeal) for an order to set aside a decree or judgment passed ex parte; e) an order under rule 4 or Order X pronouncing Judgment against a party; f) order under rule 18 of Order XI; g) an order under rule 10 of Order XVI for the attachment of property; fh) an order under rule 20 of Order XVI pronouncing judgment against a party; i) an order under rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale; 2 eek) an order under rule 9 of Order XXII refusing to set aside the abatement of dismissal of a suit; 1) an order under rule 10 of Order XXII giving or refusing to give leave; m)an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction; n) an order under rule 2 of Order XXV rejecting an application for an order to set aside the dismissal of a suit; 0) an order under rule 3 or rule 8 of Order XXXII refusing to extend the time for the payment of mortgage-money; p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXIII; q) an order under rule 3, rule 4 or rule 7 of Order XXXVI; r) an order under rule 1, rule 2, rule 4 or rule 9 of Order XXXVII; s) an order under rule 1 or rule 4 of Order XXXVIII; t) an order of refusal under rule 19 of Order XXXIX | to re-admit, or under rule 21 of Order XXXIX to re-hear, an appeal; u) an order under rule 23 of Order XXXIX | remanding a case, where an appeal would lie from the decree of the High Court; 23 eeev) an order under rule 4 of Order XLII granting an application for review. [Emphasis added] | There is no doubt that the trial de novo order is not listed under Section 74 (1) and Order XL (supra) as among the orders subject to appeal. Indeed, Section 74 (1) (supra) covers appeals from District Court or Resident Magistrate Courts to the High Court only. However, it is the observation of this Court that trial de novo order, if has the finality effect, is among of the orders which deserve to be appealed to a superior Court in hierarchy. Given the fact that the order made by this Court in Givil Appeal No.15 of 2019has a finality effect in respect of such appeal, the Applicant cannot be precluded from appealing against it on a simplistic argument advanced by the Respondent unless there will be other good cause to be adduced at the trial of the application on merits. Nevertheless, it is neither my power nor part of this Court’s task to assesses the strength and weakness of the impugned trial de novo order. However, the order for trial de novo raises a point of general principle. In particular, whether an impugned trial de novo order has a finality effect? Such issue cannot be answered by this Court. It is the domain of the Court of Appeal on appeal. Even if could be determined by this Court, it needs affidavit evidence consideration. It cannot be determined at this preliminary stage. Counsel Mwamgiga did submit that; if his objection shall not be sustained, there is a danger of defeating the order of trial de novo by the trial Court. 1 find such argument perplexing because it is the Court of Appeal which can ee ___either confirm such order or direct otherwise as it may deem just upon hearing both parties on appeal. Further insights on the point at stake can be illuminated from India where trial de novo order has been sometimes appealed on and being set aside since time immemorial. The orders and judgement of the trial Court had been upheld. In the case of Sita Ram v. Peare, Alhabad High Court, AIR 1925 All 558 in which the appeal against trial de novo order was allowed setting aside the order of the Court below, restored the decree of the Court of the first instance with costs in all Courts. In reaching such decision, the Alhabad High Court made reference to the case of Himmanchal Singh v. Jatwal Singh, A.1.R 1924 All 570; Ram Sundar Misra v. Jai Karan Singh, ALR 1925 All 271 and Syeda Rahimunnisa v. Malan Bi (Dead), Civil Appeal Nos. 2875-2879 of 2010, Supreme Court of India, electronically reported at indiankanoon.org. | Despite of the afore position, I do agree with the Respondent that the law | cited, to wit; Section 5 (2) (d) of The Appellate Jurisdiction Act (supra) prohibits appeal or revision against the interlocutory or preliminary orders | or decision. The reason is obvious, one cannot appeal against a decision made at interlocutory stage which did not finalize the main suit. However, the case at hand is different because the order of trial de novo made by this Court mark ends of Civil Appeal No. 15 of 2019. Hence, an aggrieved | party has the right to appeal on whatever point of law or fact. [See the case of The Director of Public Prosecutions v. Farid Hadi Ahmed & 36 Others, Criminal Appeal No. 205 of 2021] in which the DPP was prohibited to appeal against interlocutory orders. 45 BOWith the afore findings of the first point of objection, the second point is automatically resolved. The reason being that the Appellate Jurisdiction Act (supra) provides for the procedures for a person aggrieved by the decisions ‘or orders of the High Court who wish to appeal to the Court of appeal. Section 5 (1) (C) (supra) requires an appeal to lie to the Court of Appeal with the leave of the High Court or of the Court of Appeal, against every other decree, order, judgment, decision or finding of the High Court. Therefore, trial de novo order of the High Court which finalized Civil Appeal No.15 of 2019 is appealable according to the provision of the law stated herein above. It is further findings of this Court that; an order of trial de novo which forms a substantive part of the final trial is appealable. Needless, a trial de novo order which is in forgetfulness of the proper procedure has to be corrected by the superior Court at early opportune time. In so doing, it will save time of the parties and of the Court. It will remove unnecessary inconvenience of the parties who are likely to comply with such trial de novo order, only to find the same is nullified by the Court of Appeal at later time. However, trial de novo orders which are purely procedural in nature and do not need a drained process to earmark the irregularities are discouraged to be appealed to the higher Court. Otherwise, the higher Courts can be flooded with appeals on orders which are mostly interlocutory in nature. With the afore reasoning, I overrule with costs both limbs of preliminary objection and allow the application be determined on its merit. ee. MLYAMBINA 7 7 09/11/2021 Ruling delivered and dated 9" day of November, 2021 before learned Counsel Theresia Charles holding brief of Erick Mhimba for the Applicant a and Jassey Mwamgiga for the Respondent.