| dc.description | IN THE COURT OF APPEAL OF TANZANIA AT MWANZA CORAM: KWARIKO. J. A.. LEVIRA, J.A And MWAMPASHI. J A CIVIL APPEAL NO. 204 OF 2019
JOHN BARNABA MACHERA VS. NORTH MARA GOLD MINE LIMITED.
(Appeal from the Judgment and Decree of the High Court of Tanzania,
Mwanza District Registry
at Mwanza) Matupa J.
Time limitation-whether the suit was time barred.
Framing of Issues-condition towards determination of prelimnary objection
Framing of issues and reframing of issues.
The appellant is a businessman dealing with mining activities at NyamongoKerede Village, Kemambo Ward in Tarime District. His mining area borders the respondent's mining area and thus they are neighbours. In 2008 a conflict arose based on the conduct of their day-to-day activities which led to the institution of Land Case No. 22 of 2009 in which the appellant sued among others, Barrick North Mara Gold Mine Limited. The suit was not determined on merit having been confronted with a preliminary objection regarding the jurisdiction of the court which was sustained as the High Court was satisfied that the nature of dispute between the parties was based on mineral rights. the appellant instituted Civil Case No. 113 of 2012 in the High Court of Tanzania at Dar es Salaam (Utamwa, J.), this time around suing Barrick North Mara Gold Mine Limited alone the respondent raised preliminary objections on time limitation and cause of action which were dismissed.
The appellant filed an amended plaint as ordered by the trial court, which included the Inspector General of Police (IGP) and the Attorney General (AG) as the second and third defendants respectively who initially were not parties in the original plaint. Upon discovering this anomaly, the High Court engaged the parties to address it on that aspect and the appellant readily conceded. As a result, he withdrew the suit and was granted leave to refile. Acting on the leave of the High Court, the appellant refiled a new suit in the trial court registered as Civil Case No. 29 of 2016 against North Mara Gold Mine Limited subject of the instant appeal. However, the new suit was not free from challenges as the respondent raised a preliminary objection which had two limbs.
First, that the suit was time barred in terms of Item 6 of the Schedule to the Law of Limitation Act [Cap 89 R.E. 2002] (the LLA) read together with Order XXIII Rule 2 of the Civil Procedure Code [Cap 33 R.E. 2002] (the CPC). Second, in the alternative, that North Mara Gold Mine Limited, the respondent herein, was not a party to Land Case No. 22 of 2009 filed in the Land Division of the High Court of Tanzania at Dar es Salaam and Civil Case No. 113 of 2012 before the trial court, thus in terms of Item 6 of the Schedule to the LLA, the suit was time barred.
The trial court (Bukuku 1 - the predecessor Judge) having heard the parties overruled the first limb of objection as she found that the suit was not time barred having excluded the time spent by the appellant in 3 prosecuting his case in court. As for the alternative objection, the learned Judge held that the issue as to whether Barrick North Mara Gold Mine Limited is different from North Mara Gold Mine Limited is a matter of evidence to be ascertained at the hearing of the suit inter-parties. Therefore, she concluded that the purported point of preliminary objection is not a point of law as a point of law cannot be raised if any facts have to be ascertained. Consequently, the alternative preliminary objection was overruled and the suit was ordered to proceed to its next stage.
HELD
i) it is on record that two points of preliminary objection over time limitation were raised in alternative before the predecessor Judge and the decision thereof was delivered. The first preliminary objection was dismissed as the court ruled out that the suit was not time barred; and the second one was overruled on ground that, it was a factual matter which required to be ascertained by evidence.
ii) the predecessor Judge ordered the matter to proceed to the next stage where the First Pre-Trial Conference was conducted and the Mediation process took place unsuccessfully, this was a misdirection of the successor Judge who sat as an appellate Court over the decision of his fellow Judge of the same court which was, with respect, irregular. In a nutshell, the successor Judge was functus officio in determining what had been already decided by the predecessor judge.
iii) we are of the considered view that, reframing an issue which had already been determined by the predecessor Judge was an unnecessary and unprocedural move which we are unable to condone. We therefore, find that it was not proper for the successor Judge 21 to invoke Order XIV Rule 2 of the CPC to take over the matter from where the predecessor Judge ended by reframing and determining a single issue. Suffices to state that, holistic approach of dealing with disputes between the parties to a suit serves time and it ensures certainty of decisions on what is in controversy between the parties, hence timely justice.
iv) The parties should be availed opportunity to participate in the process of framing issues pertaining to their dispute. To be precises, both legal and factual issues. Thereafter, let the court decide them in accordance with the priority provided by the law, that, legal issues have to be determined first.
v) we allow the appeal, nullify the proceedings from where the successor Judge took over the conduct of the case, that is, on 23rd November, 2018 and quash the judgment and orders thereof subject of the current appeal.
Statutory provision
The Law of Limitation Act
Civil Procedure Code
Cases
Abdon Rwegasira v. the Judge Advocate General, Criminal Appeal No. 5 of 2011 (unreported). | en_US |
| dc.description.abstract | i)it is on record that two points of preliminary objection over time limitation were raised in alternative before the predecessor Judge and the decision thereof was delivered. The first preliminary objection was dismissed as the court ruled out that the suit was not time barred; and the second one was overruled on ground that, it was a factual matter which required to be ascertained by evidence.
ii) the predecessor Judge ordered the matter to proceed to the next stage where the First Pre-Trial Conference was conducted and the Mediation process took place unsuccessfully, this was a misdirection of the successor Judge who sat as an appellate Court over the decision of his fellow Judge of the same court which was, with respect, irregular. In a nutshell, the successor Judge was functus officio in determining what had been already decided by the predecessor judge.
iii) we are of the considered view that, reframing an issue which had already been determined by the predecessor Judge was an unnecessary and unprocedural move which we are unable to condone. We therefore, find that it was not proper for the successor Judge 21 to invoke Order XIV Rule 2 of the CPC to take over the matter from where the predecessor Judge ended by reframing and determining a single issue. Suffices to state that, holistic approach of dealing with disputes between the parties to a suit serves time and it ensures certainty of decisions on what is in controversy between the parties, hence timely justice.
iv) The parties should be availed opportunity to participate in the process of framing issues pertaining to their dispute. To be precises, both legal and factual issues. Thereafter, let the court decide them in accordance with the priority provided by the law, that, legal issues have to be determined first.
v)we allow the appeal, nullify the proceedings from where the successor Judge took over the conduct of the case, that is, on 23rd November, 2018 and quash the judgment and orders thereof subject of the current appeal. | en_US |
