exim bank t ltd vs trulite tanzania ltd and others 2020 tzhccomd 2033 2 september 2020

IN THE HIGH COURT OF TANZANIA (COM M ER Cl A L DIVI SI ON) AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO. 42 OF 2020 (Arising from Miscellaneous Commercial Cause No. 47 o f 2019) EXIM BANK TANZANIA L TD ...........................................................APPLICANT Versus TRULITE INVESTMENT LTD ................................................... Is1 RESPONDENT MKXJU GENERAL TRADERS L T D ......................................... 2nd RESPONDENT MILAN M AHENDRA PATEL.....................................................3nl RESPONDENT CHANDANI SAILESH SHAH...................................................... 4th RESPONDENT L a s t O r d e r : 2 8 "' A u g , 2 0 2 0 D a te o f R u li n g : 02'"' S e p t , 2 0 2 0 RULING FIKIRIN1, J. Aggrieved by the Court’s ruling dated 24th March, 2020, the applicant preferred this review under section 78 (1) (a) and (b) and Order XLII Rule 1 (1) (b) and (3) of the Civil Procedure Code, Cap. 33 R.E. 2002 (the CPC), as amended, praying for this Court to review its judgment and decree. Ms. Lilian Kiiza Kagashe swore an affidavit in support o f the application, stating that despite the applicant was not 1 |P a g e appealing the decision, she is however, aggrieved by the decision believing there is an error apparent on the face of records, the errors which have been pointed out in the memorandum of review. Listing the grounds for review, the applicant raised seven (7) grounds namely: 1. That there is an error on the face of records in that the Honourable Court trial Judge having held that the defendant were duly served failed to hold that the same amounted to admission of the facts in the plaint hence entitling the applicant a default judgment. 2. That there is an error on the face o f the records in that the Honourable trial Judge held that the applicant had to tender the originals through the affidavits. Section 67 and 68 are applicable only where there is a trial or hearing in terms o f Order XVIII o f the CPC. 3. That there is an error on the face o f the records in that the learned trial Judge erred in law in holding that the applicant had not proved the allegations in the plaint to be granted a default judgm ent while the accompanying documents proved the same. 4. That there is an error on the face o f records in that the learned trial Judge erred that section 78 and 79 o f the Evidence Act were applicable in the 2 | Pa ge circumstance. The required proof would be required if the bank statement were admitted during trial. It was an error on the face of the record for the trial Judge to raise issues in form o f objection without affording the applicant to be heard on the issues. 5. That there is an error on the face o f the records in that the Honourable Judge held that annexture EXIM-18,19 and 20 (Bank Statements) were not Bankers/Records Book recorded and kept by the bank in the cause o f its business without any fact indicating as such. 6. That there is error on the face o f records in that the Honourable Judge held that there were no details of facilities advanced including how the interest accrued while there was ample evidence to that effect. 7. It is proposed to ask the Honourable trial Judge for the following orders: a) To set aside the default judgm ent dated 24lh March, 2020. b) Order that the deponent o f the affidavit in proof to appear before her Ladyship to admit original documents as per the Commercial Court . practice with regards to witness statements. c) To direct or order the applicant/plaintiff to file written submissions to elaborate on the affidavit in proof. 3 | Page The raised grounds were expounded by filing o f written submission drawn and filed by Mr. Gabriel Simon Mnyele learned counsel appearing for the applicant. In his submission, prefacing it with application o f Rule 22 (1) o f the High Court (Commercial Division) Procedure Rules, 2012, GN. No. 250 of 2012 as amended by GN. No. 107 o f 2019 (the Commercial Court Rules), that the Court can enter default judgm ent if the defendant failed to file a written statement of defence upon being properly served. And that this has to be followed by filing an affidavit of proof as stated in the case of A-Onc Products and Bottles Limited v Techlong Packaging Machinery Limited &Another, Commercial Case No. 105 of 2017 (unreported) p. 9. According to Mr. M nyele all other requirements were complied with but the Court had concern with the affidavit o f proof. Making reference to what were the requirements for an application for review to sustain as provided under Order XLII Rule 1 (1) (a) and (b) o f the CPC, he listed those requirements as follows: (i) that there was a discovery o f new and important matter or evidence which the applicant did not know or could not produce at the hearing or (ii) that there was an apparent error on the face o f record; and (iii) any other sufficient reason. The applicant has therefore to establish one or all o f the three requirements. Bolstering his submission, he referred this Court to the cases of Tina and Company Limited and Others v Eura Africa Bank (T) Limited, 4 | Pag e Commercial Review No. 7 of 2018, in which the Court cited with approval the case o f Nguza Viking @ Babu Scya & Another v R and Chandrakant Joshushose Patel v R [2004] T. L. R. 218, where the Court held that: “There is no dispute as to what constitutes a manifest error on the fa ce o f the records. It has to be such an error that is an obvious and patent mistake and not something which can be established by a long-drawn process o f reasoning on points which there may conceivably be two opinions.'’1 He as well cited the Ugandan case o f Kanyabwera v Tumwebeze [2005] 2 EA 86, which furthered his submission on what amounts to an error apparent on the face o f record warranting grant o f a review. Aside from an error apparent on the face of record, Mr. M nyele was o f the submission that other sufficient causes existed as well. He opted to argue the 2 and 4 grounds together; the 3 and 6 grounds together while the 5 ground was argued separately. On the 2 and 4 grounds he argued that it was an apparent error to invoke the provisions o f the Evidence Act in proving a case by way o f an affidavit as the Evidence Act did not apply in such circumstances. And that this has been well provided for under section 2 o f the Evidence Act. Therefore, the cited provisions of the Evidence Act did not apply to the default judgm ents. This 5 |P a g e included section 66 which required for the tendering o f original documents (best evidence rule) as not applicable. How the affidavit operated has been well established under Order X3X of the CPC, submitted the counsel. Fortifying his stance, he cited the case of Life Insurance Corporation of India v Panesar [1967] EA 614, which discussed extensively on proof by affidavits. Mr. Mnyele further submitted on non-application o f sections 78 and 79 o f the Evidence Act to the bank statements attached to the affidavit, and thus prayed the Court to hold that it was an error on the face of the records to rely on the provisions in the Evidence Act which were not applicable. Pressing on the acceptability o f the rejected documents, he submitted that then the affidavit deponed by Edmund Aaron M wasaga has proved the applicant’s case by establishing the principal borrower-2000 Industries did actually borrow an undisputed amount and defaulted payment. The defendants were notified o f the default but without any reaction. The fact there was no written statement of defence was filed, the matters stated in the plaint were thus deemed to be admitted and therefore making this a fit case for review o f the default judgm ent which would have been proved on the balance o f probability. On the strength o f his submission he prayed for the 3 and 6 grounds of review be allowed and default judgm ent be granted. 6 | page On the ground number 5, the same was the submission that the Evidence Act was not applicable, citing the case of T ru st B an k T anzania Lim ited v L e-M ars! E nterprises L im ited [2002] T. L. R. 144, in which the Court concluded that computer printout were recognized as bankers books, although the printed copies were not legible. On that aspect it was his submission that the Court had discretion and power to request the applicant to provide legible statements, similar to those annexed to the affidavit in order to make sure justice was done under the circumstances and invited the Court to exercise its discretion even at this stage. Based on his submission he urged the Court to set aside the default judgm ent dated on 24lh March, 2020 and enter default judgm ent in favour o f the applicant/plaintiff. Mr. Mnyele proceeded urging the Court in the alternative, that since the Evidence Act was not applicable, then prayer under item (b) in the memorandum o f review and order the applicant to appear with witnesses and admit the documents in accordance with the practice at the Commercial Court. However, this was subject to setting aside the default judgment. I have carefully read through the grounds for memorandum o f review as well as the submission by Mr. M nyele including the referred cases o f which copies were annexed and will answer all the grounds together. From the submission and the cited cases, I am equally in agreement with the principles on what can move the Court to review its decision as provided under Order XLII Rule 1 (1) (b) and (3) of the CPC. The provision o f Order XLII o f the CPC and the cases o f Tina and Company where the cases o f Nguza Viking; Chandrakant and Kanyabwera were cited, what can be gleaned from them, is that a review involves correction of an error which was either apparent on the face of the records or had been evident because of subsequent discovered circumstances or any sufficient reasons. On the contrary, courts have a right to decide wrongly or interpreting the law incorrectly, and this cannot be considered as an error apparent of the face o f the records. See: Attilio v Mbowe [1970] H. C. D. 3. In short an error o f the law is not good reason for allowing review and this is the whole rationale o f having appellate system, lest a Judge or M agistrate sit on his/her own appeal. In the present application for review, my close scrutiny o f the grounds and submissions thereto, I find them lacking to warrant this Court to review its decision. The Court made its decision based on the provision o f Rule 22 (1) o f the Commercial Court Rules which states as follows: “Where a party required to file written statem ent o f defence fa ils to do so within the specified period or where such period 8 | Page has been extended in accordance with sub rule 2 o f Rule 20 within a period o f such extension, the court m ay upon p ro o f o f service and on application by the P lain tiff in form N o .l set out the schedule to these Rules accom panied by an affidavit in p ro o f o f claim , enter judgm ent in fa vo u r o f the Plaintiff. ’’[Emphasis mine] The interpretation I gathered from the provision then and which I still hold on to, is the affidavit and its accompanying documents must categorically prove the claim. In the case o f A-One Products and Bottlers Limited (supra), which Mr. Mnyele relied on, besides underscoring on the requirement that Form No. 1, that it must be accompanied by an affidavit in proof of claim, the Court went on stating which I quote: “....the affidavit in p r o o f m ust be self-explanatory proving every claim in the plaint and the exhibits m ust as well be authenticated and that the three ingredients m ust co-exist fo r the ju dgm en t in favour of the p la in tiff to be given. ’’[Emphasis mine] The emphasis here is on the obligatory requirement in order for the defaul judgm ent to be entered. In the ruling dated 24lh March, 2020, guided by the 9 |P a g e provision o f Rule 22 (1) of the Commercial Court Rules, considered the affidavit in support o f the claim and arrived at the decision. The Court might have wrongly arrived at the decision or interpreted the law incorrectly, but all these as pointed out in Attilio’s case (supra) cannot be considered as an error apparent on the face of the record. This means an error of the law is not good reason for entertaining a review and grant the relief sought. Guided by the decision in the case o f National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, can succinctly provide a guided principle when it stated: “ ..... A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part o f the court. The error or omission m ust be self- evident and should not require an elaborate argum ent to be established. It will not be a sufficient ground fo r review that another Judge could have taken a different view o f the matter. N or can it be a ground fo r review that the court proceeded on an incorrect exposition o f the law and reached an erroneous conclusion o f law. M isconstruing a statute or other provision of law cannot be a ground fo r review. "[Emphasis mine] 10 | P a g e In the instant application, as stated earlier, the applicant has pointed out areas considered suitable for review, 1 however, find the grounds for review enumerated above may be could be appropriate grounds of appeal against the decision o f this Court delivered on 24th March, 2020. To allow this review and grant the reliefs sought, I would amount to entertaining an appeal in disguise. In the cases of National Bank of Kenya (supra) and Lakhamshi Brothers Ltd v R. Raja, Civil Application No. 6 of 1966, East Africa Court of Appeal, did observe rightly when it held: “In a review the Court should not sit on appeal against its own judgm ent in the same proceedings. In a review, the Court has inherent jurisdiction to recall its judgm ent in order to give effect to its m anifest intention on to what clearly w ould have been the intention o f the Court had some matter not been inadvertently omitted. ” Having considered what, the applicant presented before the Court as memorandum o f review, I, instead find them may be could be good grounds for appeal, which this Court cannot adjudicate upon. 11 | P a g e In view of the above, I find the application for review devoid o f merits and proceed to dismiss it. It is so ordered. 12 | P a g e