Celina Mhumbila v Pindoria

1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

COMMERCIAL DIVISION

AT DAR ES SALAAM COMMERCIAL CASE NO. 159 OF 2023 CELINA MALU MHUMBILA (Managed and represented by Deogratias Felix Mhumbila) ................................ 1st PLAINTIFF DEOGRATIAS FELIX MHUMBILA ................................ 2nd PLAINTIFF

VERSUS PREMJI R. PINDORIA ................................ 1st DEFENDANT M/S DEZO CIVIL CONTRACTORS CO LTD.......................... 2nd DEFENDANT DIAMOND TRUST BANK TANZANIA ................................ 3rd DEFENDANT

RULING April 9th, 2024 & May 10th, 2024 Morris, J The above case is under the preliminary attack by the defendants. They have raised three points of law against the suit (elsewhere, the PO). To them, the suit is bad at law as: it is res-judicata and/or subjudice; it has been instituted by a party not known in law; and the plaint is incurably defective for it is not signed and verified by the 1st plaintiff. It is the defendants’ unanimous prayer that the case should be dismissed with costs. 2 The suit is about breach of contract. The Plaintiffs allege that they executed a development contract with the 1st and 2nd defendants over plot number 500 Upanga West, Kalenga Area - Dar es Salaam. It is alleged further that contrary to the said contract; and in sheer overstep of their mandates under the contract, the subject defendants forged the plaintiffs’ signatures thereby obtaining loan facilities from the 3rd defendant fraudulently. However, the defendants have denied all the allegations contending that none of them has breached the contract; and that the plaintiffs were fully aware and got involved at every step of the loan transactions amongst the defendants. In addition, the defendants raised the stated PO. On April 9th, 2024 the Court allowed the parties to argue for and against the PO vide written submissions. However, only the plaintiffs and 3rd defendant complied with the

Court order hereof. Consequently, the PO raised by the 1st and 2nd defendants is hereby dismissed for want of prosecution. For hearing of the PO, both the plaintiffs and the 3rd defendant enjoyed representation of legal counsel. Advocates Paul Elias and Karoli Tarimo represented the plaintiffs and 3rd defendant respectively. For the first 3 ground of the PO, it was presented by the 3rd defendant that this is not the first time the plaintiffs are lodging in courts similar proceedings against the same defendants. He elaborated that the first attempt was vide Land Case No. 210 of 2022 before the Land Division of this Court. The same, however, was dismissed for want of prosecution on August 4th, 2023. Further, that their Land Application No. 555 of 2023 for setting aside the said dismissal order was equally unsuccessful. It was dismissed for want of merit on November 28th, 2023. Moreover, allegedly, the plaintiffs filed another Civil Suit (No. 882 of 2024) which is still pending in the Resident Magistrates’ Court of Dar es Salaam (at Kisutu). To him, therefore, the present suit is res judicata Land Case No. 210 of 2022 and/or res subjudice Civil Case No. 882 of 2024 respectively. The 3rd defendant was not short of authorities. He cited section 9 and Order IX Rule 5 of the Civil Procedure Code, Cap 33 R.E. 2019 (CPC); Clara Mathias Kavishe v EFC (T) Microfinance Ltd & Others, Land

Case No. 143 of 2020; and Ester Ignas Luambano v Adriano Gedan Kipalile, Civ. Appeal No. 91 of 2014, to buttress his arguments herein. Hence, to him, the present suit must fail accordingly. 4 The plaintiffs contested such arguments. Their counsel was ready and armed with several counter arguments. According to him, the dismissed case at the Land Division cannot qualify to defeat the present matter under the res judicata rule. He advanced various reasons. One, the dismissal did not finally determine the case between parties. Two, the decision was not arrived at on merit. Three, parties were not given the right of being heard. Four, the decision was not after parties adduced and analysed respective evidences. Five, the plaintiffs in this matter have raised a completely different cause of action from the one that was in the dismissed Land Case No. 210 of 2022. Six, the reliefs sought by the parties in both cases are different. Seven, the raised matters by the 3rd defendant are factual/evidence- based and do not qualify as elements of PO. Eight, the defeat in the plaintiffs’ application to set aside the dismissal order does not make determination of the dismissed suit to have final effect on the parties’ dispute. Nine, the dismissed suit was entirely governed by the provisions of CPC while the current proceedings are subject to the High Court Commercial Division (Procedure) Rules,

2012. Ten, the cited 5 authorities by the 3rd defendant are distinguishable hereof because circumstances in those cases are dissimilar to the present suit. Regarding the suit being res subjudice, the plaintiffs contended that this limb of the PO is excessively frail. In addition to the submissions opposing res judicata doctrine above; to them, documents of the alleged case at Kisutu were not attached to the pleadings of the 3rd defendant. Nevertheless, he swiftly reacted that even if they were to be attached, the alleged case is indicated as number 882 of 2024. Hence, the present suit was lodged while there was no pending matter howsoever. In conclusion, the plaintiffs maintained that neither res judicata nor res subjudice is applicable in this case. Plentiful sources of persuasive and binding laws were relied on by the plaintiffs including: Mukisa Biscuits Manufacturing Co. Ltdv West End Distributors [1969] 1 EA 696; George Shambwe v Tanzania Italian Petroleum Co. Ltd [1995] TLR 20; Paniel Lotha v Tanika & Others [2003] TLR 312; Maimuna Alfan & Others v Chilwa Lubawa Kiliari, Land Case No. 235 of 2021; Athnasia Massinde t/a Abeti Primary School v NBC, Comm. Case No. 34 of 2016; Regimanuel Gray (T) Ltd 6 v Mwajabu Mrisho Kitundu and 99 Others, Misc. Land Appl. No. 624 of 2023 (all unreported); Sarkar Code of Civil Procedure, 12th Edn, Vol.1 page 153; and B.D. Chipeta, Civil

Procedure in Tanzania: A Student Manual, page 23. Consequently, they prayed for the PO to be overruled with costs. Regarding the second limb of the PO, the 3rd defendant submitted that the present suit has been instituted by one of the plaintiffs who is unknown in law. Citing the title of the suit, the 3rd defendant submitted that the first plaintiff is described as “Celina Malu Mhumbira (managed and represented by Deogratias Felix Mhumbira)”. Such so-called plaintiff, according to him, is not one of the people who can file a civil suit in any court of law. He cited Order III Rule 2 together with Order XXXI Rules 1 and 15 of the CPC to the effect that authorised persons include the recognised agents; next friends to minors or persons of unsound mind; and donees with powers of attorney. He contended further that the description used in this suit is non­ existent in law. Moreover, the 3rd defendant argued that the plaintiffs’ pleadings do not contain the power of attorney to indicate that whoever 7 purports to represent the first plaintiff is duly authorised for that undertaking. The third ground of PO is linked to the above limb. To the 3rd defendant, the 1st plaintiff not only is an unrecognised person in law; but also she has not signed the pleadings. Accordingly, Order VI Rule 14 of the CPC which requires all pleadings to be signed by each party (or authorised person) and his

advocate (if any) has been contravened. The 3rd defendant strongly argued that the stated anomaly renders the plaint to be fatally defective and incompetent under the law. He reiterated his prayer that the suit should be dismissed for the stated grounds of PO. In counter submissions, the plaintiffs’ counsel argued that the 3rd defendant has misconstrued the law. They contended that the applicable law in the present matter is the Mental Health Act, 2008 [especially section 24 (1), (4) and (5)] instead of the CPC that is cited and relied on by the former learned mind. The plaintiffs maintained that they complied with the law and the second plaintiff is a duly authorised representative of the counterpart - first plaintiff. At the risk of adducing facts and evidence which is beyond precepts of the PO, the plaintiffs stated that the second 8 plaintiff was duly appointed by the Resident Magistrates’ Court of Dar es Salaam (at Kisutu) prior to the filing of the suit. Furthermore, to the plaintiffs, both the procedures under the Mental Health Act, (supra) and the nomenclature adopted by them in the present suit are appropriate. Reliance hereof was sought in Order XIII Rule 2 of the CPC; Lucy Diu Simtoe (Petition for appointment of Manager of estate ofMayson Simtoe, a person ofunsound mind), Misc. Civ. Appl. No. 578 of 2019; Baco & Another v Permanent Secretary Ministry of Defence and

National Service & Others, Comm. Case No. 40 of 2015; and Suzana S. Waryoba v Shija Dalawa, Civ. Appeal No. 44 of 2017 (all unreported). In conclusion, the plaintiffs reaffirmed that the raised PO is without any merit and that it should be overruled with costs. I have dispassionately passed through the pleadings and submissions of the parties. The Court’s task is to answer whether or not the grounds of PO have merit. Primarily, competency of the present suit has been objected by the 3rd defendant on three bases: fitness of the proceedings; locus standi of the so-called first plaintiff; and appropriateness of the plaintiffs’ pleadings. The first pillar of ground one relates to the suit being filed twice or thrice 9 contrary to law. That is, refiling it after the first attempt being completed or while the previous one is still pending. In technical terms, the latter suit becomes res judicata or res subjudice such other (previous) cases respectively. The law, under sections 8 and 9 of the CPC, prevents filing of or proceeding with a new suit if the similar case between the same parties was previously filed and finally determined or is still pending. Under the former provision, if one suit is filed earlier, the subsequently filed case becomes res subjudice. It must be stayed pending full determination of the former. However, the application of section 9 implies that if the suit was

filed earlier and was fully determined; parties therein become barred from refiling similar proceedings. The latter become res judicata. In effect, whereas a res subjudice case should be stayed; the res judicata one is to be dismissed. Naturally, res subjudice scales up and graduates to resjudicata. In the present matter, both doctrines have been raised by the 3rd defendant against the suit. He argues that, the plaintiffs after filing and losing to the defendants in the land case, the suit at hand is resjudicata. In alternative, because the plaintiffs also have filed identical proceedings now 10 pending in the RM’s court (at Kisutu); the suit at hand should be stayed on res subjudice basis. I will analyse the two legal concepts separately. Nevertheless, before I delve into the details thereof, I will state the undisputed aspects in this suit. Firstly, the same parties herein were litigating under Land Case No. 210 of 2022. Secondly, the Land Division of this Court was vested with jurisdiction to adjudicate that case. Thirdly, the subject case was dismissed for want of prosecution. Fourthly, the plaintiffs’ attempt to set aside the dismissal order was unsuccessful. Fifthly, as at the present time, parties therein cannot litigate their dispute in the erstwhile land case. Sixthly, unless and until the subject dismissal order is set aside; in so far as the parties’ dispute therein

is concerned, the matter stands closed. The 3rd defendant’s strength is crocheted in the argument that, if one plugs the foregoing undisputed elements into the provisions of section 9 of the CPC, each of them fits squarely therein. On their part, however, the plaintiffs have heavy reservations in respect of the fifth and sixth element above. For ease of comprehension, section 9 of the CPC is quoted below with necessary emphasis. It states as follows: 11 “9. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try such subsequentsuit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court.” As it can be easily grasped, both aspects disputed by the plaintiffs relate to whether the land case which was dismissed equates to being finally determined. The 3rd defendant submitted that dismissal in law amounts to the matter being determined; in terms of Order IX Rule 5 of the CPC. The plaintiffs contend that so long as the parties did not adduce evidence in support or disproval of framed issues culminating into the reasoned court decision; the suit was not fully or finally determined. Hence, res

judicata is inapplicable in the present situation. In the related line of argument, the plaintiffs submitted that the previous matter was different from the current case as the former cropped from a pure land dispute but this suit relates to breach of a commercial agreement; and that reliefs sought by the plaintiffs in both cases differ significantly. 12 With the above rivalry, the task of the Court is reduced to determining whether the two suits can be said to be substantially the same; and whether dismissal of the suit for want of prosecution amounts to final determination of the matter. The first aspect is, in my view, easy to answer. One simply compares the cause of action in the plaintiffs’ set-pleadings. I have taken keen look at both plaints: one instituting the land case stated above and the other regarding the present suit. The most relevant averment hereof is contained under paragraph 5 of the plaintiffs’ plaint in each matter. In the plaint initiating the land case stated above, the plaintiffs partly stated that their claims “against the Defendantsjointly and severally are for (i) a declaration that due to non-performance the 1st and 2nd Defendants breached the Development Agreement entered on the 7th of October 2015.J” Concurrently, in the present suit, the plaint indicates that one of the plaintiffs’ claims against the latter is “for Breach of a

Development agreement entered between the Plaintiffs and 2nd Defendant.” The quoted phrases indicate the similarity of the cause of action in the two cases. The reliefs sought by the plaintiffs in both cases are mostly identical too. Essentially, the plaintiffs’ motive in both cases is to protect 13 their interest in the land (Plot No. 500 Upanga West Kalenga) in line with the contract arising from or connected with the subject plot. Thus, the two proceedings between the parties herein are substantially the same. Regarding the status of dismissal, I subscribe to the holding in Kamunye and Others v The Pioneer General Assurance Society Ltd (1971) EA 263; Clara Mathias Kavishe v EFC (supra); and FINCA Tanzania vs. Leonard Andrew Korogo, Misc. Civil Application No. 5 of 2021 (unreported) to the effect that dismissal of this kind generally amounts to final determination of the suit. In addition to the reasoning of the ably qualified legal minds in the cited authorities above, I will state the justification of my inclination but further. One, when the suit is fixed for hearing, parties are accorded the ubiquitous opportunity of being heard in support of their stake in the suit. Whoever does not enter appearance, by conduct, denotes prima facie lack of evidence to substantiate his claim. Two, in the absence of such evidence from the plaintiff, the court works on the safe assumption

that the claims in the suit are not provable. Three, as merit of the case is largely embedded in the parties’ evidence, where there is none from the plaintiff (for want of 14 presence and readiness to prosecute); dismissal is technically grounded on plaintiff’s self-proclaimed defeat on merit. On this foundation lays the rule preventing appeals against the dismissal orders of this nature. Essentially, the outcome of the party’s absence is equivalent assuming risks associated with the ‘consented decision’ of the court. Four, unless set aside by the court, the dismissal order becomes the final determination of the court in so far as the parties’ rights are concerned. That is, none of them is allowed to file the similar case in the court of law. That is the main gist of Order IX Rule 5 of the CPC. The rationale of this principle is fourfold: to save time and other resources of the parties and the court; to ensure finality in litigation; to complement and perfect the functus officio rule; to minimize risks of courts trying cases founded on afterthought concoction of causes of action and/or working on adulterated evidence associated with persistent/habitual institution of similar cases by the same parties. In the present case, as the parties are not at loggerheads with regard to the first four elements elucidated above; and in view of my findings that the two suits are interrelated;

and that dismissal of a suit for want of 15 prosecution parallels the final determination of the matter; I hold that the present suit is resjudicata Land Case No. 210 of 2022 which was dismissed by Hon. Luvanda, J for want of prosecution on August 4th, 2023. The second pillar of the first ground of PO is res subjudice. For this rule to apply to the subsequently lodged case, one suit involving the comparable subject matter; and involving the same parties, must be filed first and remain pending determination by the competent court. In the case at hand, allegations by the 3rd defendant that there is a pending suit at RMs Court between the same parties, are not tenable as PO materials. I will justify my holding hereof. As opposed to the land case which was dismissed by the Land Division (whose dismissal order and ruling are available for this Court to take judicial notice of); there is no presentation of similar or equivalent credentials in regard of res subjudice. That is, none of the supplied annexures in the pleadings qualifies for judicial notice under section 58 of the Evidence Act, Cap 6 R.E.

2022. Further, the law prevents determination the PO by production and analysis of evidence. To do so, hearing of the case on merit becomes inevitable. Consequently, the parameters of PO would be overstepped 16 [(Mukisa Biscuits’ case (supra) and Aggreko Energy Rentals (T) Ltd v Cata Mining Co. Ltd, Comm. Case No.5 of 2021 (unreported), followed]. Furthermore, as the 3rd defendant refers to the suit allegedly pending before the RMs court (at Kisutu) as of 2024, evidence will be needed to prove which of the two cases subject of discussion herein (the present suit and the one at Kisutu, if any) was filed first. Be that as it may, if the Court is to work on the assumption that the presented number of the alleged case is correct; as fittingly argued by the plaintiffs, res subjudice doctrine will be applicable to the suit in the subordinate court than otherwise. That is, such suit may be challenged for being res subjudice the present case. On such basis, this pillar is devoid of merit. I disallow it. The PO is also grounded on the point that the 1st plaintiff is unknown in law. This contention will not detain the court for so long. The opposing parties herein unanimously agree that the persons who may sue (and/or appear in court) for and on behalf of the parties to the court are regulated by law. In other words, not every Tom, Dick and Harry will walk in the court to represent

whomever they think of. However, the parties herein are taking 17 up the issue in respect of the law which is applicable to persons of unsound mind; the description of such people in the title of the case; and their legal status(es). Whereas the 3rd defendant argues that the person suing on behalf of another must either be the recognised agent (under Order III Rule 2 of the CPC) or the next friend (per Order XXXI Rules 1-15 of the CPC); the plaintiffs contend that the applicable law is the Mental Health Act. (supra) I have taken labour to read both pieces of legislation. To me, both exist and rule in harmony. Through the provisions of former statute, the interests of the party adjudged to be of unsound mind may be pursued through the ‘next friend’. The Black’s Law Dictionary, 9th edn; defines such friend as a “person who appears in a lawsuit to act for the benefit of an incompetent or minor plaintiff, but who is not a party to the lawsuit and is not appointed as a guardian” (with the court’s emphasis). In the latter legislation, a person who is appointed to protect ascertained property of the person of unsound mind (technically speaking, the incapable/incompetent person) is being referred to as “the manager”. The provisions for appointment and mandate of such person are sections 24 18 and 25 thereof. For precision, section 24 (5) of the subject statute provides as follows; “24

(5): The court may appoint the fit and proper person to be the manager of the estate of any person with mental disorder for the purpose of safeguarding the property of the patient until such time as he is able to leave the hospital” (bolding rendered for emphasis). Logic, thus, dictates that; the difference of names in the two statutes aside, the person of unsound mind can and should sue through another competent person as provided in the law. In the context of the present matter, the name provided by the Mental Health Act(supra) prevails. Settled is the principle of law that, a specific regulation overrides the general one. That is, lex specials derogat lex generals [EFTA Equipment Loans v Armstrong Charles Kiwelo, Civil Appeal No. 1 of 2023 (unreported); and R.S. Raghunath v The State of Karnataka (1992) 1 SCC 335]. The above predominance of the name notwithstanding, in the present case, apart from the title, the amended plaint is silent regarding the status of the first plaintiff. Nonetheless, in his submissions, the plaintiffs’ advocate has wielded some efforts to argue that the first plaintiff is suffering from 19 certified mental disorders. It is alleged further that such status is pleaded under paragraph 5 of the amended plaint. Contrary to that strenuous argument, the stated paragraph and/or the whole plaint, for that matter, bears no facts to such regard. Hence, the

counsel’s submissions thereof are a pack of afterthoughts. The absence of that important fact in the plaintiffs’ pleadings renders it plausible to assume that the alleged legal status of the first plaintiff is not clearly pointed out from the onset. Further, the above inference brings into the equation the aspect of locus standi on the part of the claimed first plaintiff. Unless it is manifest that the first plaintiff is capable of suing as purported in the case at hand, his legal capacity remains wanting. By necessary implication, a dispute regarding the related facets such as his cause of action against the defendants; and the court’s jurisdiction cannot easily go unnoticed. In any event, it remains the duty of the plaintiffs herein to clearly indicate that each has the capacity to sue. That is the essence of Order VII Rule 1 (d) of the CPC providing obligatorily that “where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect” must be included in the plaint. Hence, the competence of the present 20 suit is defeated accordingly. In other terms, as argued by the 3rd defendant, the plaint has been lodged in Court by the party purporting to be one of the plaintiffs against the recognition under the law. Having concluded that the first plaintiff is, as currently presented in this matter, incapable of commencing competent proceedings;

the last ground of the 3rd defendant’s PO is partly merited. That is, the purported plaintiff cannot sign the pleadings for want of locus standi. The law keeps it compulsory that a party (or his duly authorised representative) and his advocate (where there is one) should sign the pleadings (Order VI Rule 14 of the CPC). Accordingly, in the absence of the prima facie competent party to sue, the corresponding pleadings cannot be perfect without the requisite signature. Nevertheless, in a suit with more than one party, the law is not equally restrictive in regard to verifying the pleadings. In principle, verification can be done by a number of people: every party to the suit; or one of them; or some other person acquainted with the facts of the case as sanctioned by the court. Order VI Rule 15 of the CPC is accordingly permissive. 21 In the present case, the second plaintiff signed the verification at the foot of the amended plaint. Hence, the challenge mounted by the 3rd defendant in that connection is overruled. Putting all the above analysis and reasoning into perspective, in addition to the suit being preferred by one incompetent plaintiff out of the two; I find that this suit is res judicata High Court Land Case No. 210 of 2022. It is, consequently, untenable under the law. I proceed to dismiss it. Costs are awarded to the defendants. C.K.K. Morris Judge May 10th, 2024 22 Ruling delivered this 10th day of May 2024 in the presence of Ms. Happiness Karoli, learned advocates for the plaintiffs, 1st & 2nd defendants and 3rd defendant respectively. C.K.K.~Morris Judge May 10th, 2024