EXIM BANK T LTD VS NEELAM JUNEJA COMM CASE NO

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL CASE No. 41 OF 2018. BETWEEN EXIM BANK (TANZANIA) LIMITED........................................................... PLAINTIFF Versus NEELAM JUNEJA (As Administratrix of the late Qahir Juneja).......... 1st DEFENDANT NEELAM JUNEJA........................................................................... 2nd DEFENDANT RULING MRUMA. J. The plaintiff Exim Bank instituted Commercial Case No 41 of 2018 against the defendants Neelam Juneja (As administratrix of the estate of the late Qahir Juneja) and Neelam Juneja in his capacity as the guarantor of the borrower for payment of Tanzania Shillings One Billion Fifty Five Million Four Hundred Fifty Seven Thousand Nine Hundred Two and Sixty Four Cents being the outstanding principal amount plus accrued interest and other charges. According to the record, the defendants were served on 5th April 2018. The summons to appear and answer the claim required them to appear in court on 9th April 2018. The defendants dully entered appearance through counsel Rwekwama Rweikiza on 9th April 2018 as required. The learned counsel informed the court that the Defendants were served on 5th April 2018 and because they were disputing the claims they wished to file the Defence he accordingly prayed for another mention date so that his clients could file their written statement of defence. The prayer was dully granted and the matter was slated for First Pre Trial Conference on 15th May, 2018 with orders for the Defendants to file their written statement of defence within fourteen days from 9th April 2018. The Plaintiff was given leave to file a reply to the written statement of defence (should they need) within seven days from the date they would have been served with the Defendant's written statement of defence. The Defendants filed their defence on 23rd April 2018 containing a preliminary objection to the effect that the Plaintiff's suit is incompetent for not being preceded by the mandatory statutory notice. On 3rd May, 2018 the plaintiff through her lawyers M/S Ens-Africa Tanzania Attorneys filed a notice of preliminary objection in a separate piece of paper contending that the written statement of defence was filed out of time. The Plaintiff's counsel main ground of objection was that the defendants deliberately neglected to file and serve their written statement of defence within 14 days from the date of the court order and as directed. The main averment in support of this contention is that by filing the defence on 23rd April 2018, the Defendants filed it on 15th day contrary to the order of the court which directed them to file it within 14 days. On the other hand the gist of the Defendant's counsel preliminary objection was that the suit was preferred prior to issuance of mandatory statutory notice to the Defendants. Considering the nature of the objection and cross objection raised, I think it is important to review what the law is in relation to preliminary objections, before I address them one after another. This, I believe will give greater clarity to the law as it is today, on the role of counsel and that of the court in such types objections. A preliminary objection which is now commonly referred to as a "PO" is in substance an objection in a pure point of law. It is may be raised by a party by its pleadings to object the pleadings of the opposite party on the ground that it is barred by law. Rule 1(2) of Order VIII of the Civil Procedure Code (hereinafter to be referred as the Code) requires mandatorily that the Defendant must raise by his pleadings all matters which show the suit not to be maintainable or that the transaction is either void or voidable in a point of law, and all such grounds of defence as, if not raised would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the plaint as for instance fraud, limitation, release, payment, performance, or facts showing illegality. As stated hereinbefore, the Defendant's Preliminary Objection is raised in a separate piece of paper outside the Defendant's pleading (i.e. written statement of defence). This is contrary to the requirement of Rule 2 of Order VIII of the Code. Under Rule 13 of Order VIII of the Code, no pleading subsequent to the Written Statement of Defence other than by way of defence to a set off or counter claim shall be presented except by the leave of the court upon such terms as the court thinks fit. The Defendant didn't seek leave of the court to present a subsequent pleading in the name of a notice of preliminary objection. Thus, on that ground only, it is the finding of this court that the Defendants preliminary objection against the Plaintiff's plaint is not maintainable. Secondly and still on the Defendants Preliminary Objection, I note that the Defendants complaint is that she was not served with statutory notice, that is Land Form No. 45 of the Land (Forms) Regulations 2001 before the suit was instituted. In the famous case of Mukisa Biscuits Manufacturing Co. Ltd V. West End Distributors Ltd [1969] E.A. 696 Sir Charles Newbold President of the Court (as he then was) at page 701 held "..... A preliminary objection is in the nature of what used to be called a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise ofjudicial discretion/' The position in the Mukisa Biscuits case on the preliminary objection has been upheld with approval in our jurisdiction in various cases. This exposes of an objection in point of law though old but is very alive and instructive to date. A preliminary objection should be made if a party so raising it is convinced that when raised the objection so raised will dispose the whole claim and thus save the parties expenses and embarrassment in trying facts that will not determine the rights of the parties. The first person who has to be convinced that the point raised will dispose of the whole claim is the counsel of the party who raises it and that is where the role of the counsel has to be exercised professionally. In the case at hand, this duty was not discharged professionally. In the first place whereas statutory notice is a legal requirement under the law, but the fact whether or not it was served on the Defendant is a factual issue which calls for ascertainment of the evidence to be adduced at the trial. Moreover, the fact that the Defendant was not served with the statutory notice does not completely determine the rights of the parties in the matter. Thus, the preliminary objection against the plaint as raised by the Defendant does not qualify to be a preliminary objection envisaged in the principle laid down in Mukisa Biscuits case [supra]. It is accordingly dismissed. With this holding on the first set of preliminary objection, I shall now address the Preliminary Objection against the Defendant's Written Statement of Defence as raised by the Plaintiff's counsel. Counsel for the Plaintiff has faulted the Written Statement of Defence of the Defendant on the ground that it was filed on the 15th day, which, according to the learned counsel was one day after the expiry of 14 days ordered by the court. I will not waste much time of the court in this issue. There is no dispute that the impugned order of the court was handed down on 9th April 2018 and the Defendant was given 14 days within which to file her defence. Similarly there can be no dispute that the Defendant's Written Statement of Defence was filed in 23rd April 2018. Section 19 (1) of the Law of Limitation Act [Cap 89 R.E. 2002] provides as follows:­ " In computing the period of limitation for any proceeding, the day from which such period is to be computed shall be excluded" . The Law of Limitation Act is the Act designed to prescribe the law for the limitation of action in civil proceedings and related matter. In the case at hand if the day the order was made is excluded, then the 23rd day of April, 2018 falls in 14th day therefore within the time ordered. For the foregoing reasons, the Plaintiff's Preliminary Objection is equally dismissed for want of merits. Each party shall bear own costs. A. R. Mruma, Judge. M Dated 9th September, 2018