albeila international limited vs nbc and two others 2008 tzca 21 2 december 2008

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (CORAM: MSOFFE. J.A.. OTHMAN, J.A. And MJASIRI, J.A.^ CIVIL APPEAL NO. 101 OF 2008 ALBEILA INTERNATIONAL LIMITED.......................................... APPELLANT VERSUS 1. NATIONAL BANK OF COMMERCE LIMITED 2. DR. FAUZ TWALIB RESPONDENTS 3. AMOUR RASHID (Appeal from the Judgment of the High Court of Zanzibar at Vuga) (Mshibe, 3.^ dated the 26th day of February, 2008 in Civil Case No. 2 of 2007 RULING OF THE COURT 1 & 2 December, 2008 MJASIRI. 3.A.: This is an appeal from the decision of the High Court of Zanzibar at Vuga (Mshibe, J.). The appellant was represented by Mr. Ajar Patel, learned Advocate, and the Respondents were represented by Mr. Salim Mnkonje, learned Advocate. The background to this matter is as follows. The Appellant filed a claim in Court seeking various reliefs. 2 The Defendants denied the claim. A Notice of Preliminary objection was filed by the Defendants on 19th March, 2007 raising the following points of law. 1. The su it is incom petent fo r lack o f focus standi by the Plaintiff. 2. The p la in t does not disclose any cause o f action. 3. The affid avit in support o f the application is defective fo r containing leg a l and argum entative m atters. The Appellant filed various applications subsequent to the Notice of Preliminary Objection. The trial judge heard preliminary objections raised in one of the applications filed in court and upheld the said preliminary objection dismissing the Application. The Ruling was dated June 16, 2007 but was delivered by the Registrar of the High Court on 22 June, 2007. On 31 January, 2008 Mshibe, J. made the following orders which are reproduced as under: 3 "Since the A pplicant were told by th is Court on 22 June, 2008 that they don't have a locus stan di to sue; they have autom atically no locus to file an application as they did. To be allow ed to sue o r file an application, they have to fin d the locus standi before m aking anything. For that therefore the application is dism issed as prayed. The trial Judge subsequently made the following Order on 26 February, 2008. "Since the Plaintiff/A pplicant has g o t no locus standi to sue because the Receiver has been appointed, in the sam e m anner the m ain su it is dism issed." Interestingly, this order dismissing the suit was made by the trial judge without inviting Counsel to make any submissions. The trial judge did not deal with the Notice of Preliminary Objections filed by the Defendants prior to the applications on 19.03.2007. If he had done so both parties would have been given an opportunity to address the Court before the trial Court arrived at a decision. An objection which raises a pure point of law if argued as such will 4 dispose of the suit without any need to call for evidence to prove the fact. In the case of Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd., (1969) EA 696 Law J.A. stated as follows at page 700: "So fa r as I am aware, a prelim inary objection consists o f a p o in t o f law which has been pleaded, o r which arises by d ear im plication out o f pleadings, and which if argued as a prelim inary p o in t m ay dispose o f the s u it " When the appeal was called on for hearing the Court suo m otu invited both Counsel to address the Court on the propriety of the High Court judgment, and on the sequence of events and the resulting orders. Both Counsel conceded that the orders of the trial Judge were indeed strange and seemed to have no basis in law. Both Counsel invited the Court to use its revisional powers to nullify the proceedings and to set aside the Ruling and Orders made by the High Court Judge. 5 We entirely agree with Mr. Patel and Mr. Mnkonje and are of the view that the only way out of this unprecedented situation is to nullify the proceedings and set aside the Rulings and Orders of the High Court. For the reasons stated hereinabove, the proceedings before Mshibe J. are declared a nullity. The Ruling and Orders made are hereby set aside and the file is remitted to the High Court in order to proceed with the preliminary objections raised by the Defendants, and filed on 19 March, 2007. As none of the parties were at fault, we make no order as to costs. DATED at ZANZIBAR this 2nd day of December, 2008. J. H. MSOFFE JUSTICE OF APPEAL M. C. OTHMAN JUSTICE OF APPEAL S. MJASIRI JUSTICE OF APPEAL 6 I certify that this is a true copy of the original.