20130206 TZHC Dar es Salaam

: ,di ~,;~-· ~.""1:. • 1 IN THE HIGH COURT OF TANZANIA i AT DAR ES SALAl~M CIVIL CASE NO. 20 OF 1997 HIGH LAND SOAP AND ALLIED PRODUCTS LTD .. .. PLAINTIFF Vs. NATIONAL BANK OF COMMERCE . . . . . . . . . . . . DEFENDANT Date of last order- 6/11/2012 Date of Ruling- 6/2/2013 RULING , ! 1 Shangwa, J. On 18 th May, 1997, learned counsel for the defendant Mr. Mwandambo presented for filing a notice of intention to move this court to dismiss the plaintiff's suit on grounds that the defendant has no case to answer. This notice was filed after closing the plaintiff's case. On 10 th August, 2012, I ordered that the issue as to} whether or not the ' defendant has a case to answer should be argued by way of written submissions and it was so done by learned counsel 2 ' on both sides namely Mr. Mwandarrl.bo for the defendant l· and Mr. Bomani for the plaintiff Mr. Mwandarnbo submitted that Mr. Bomani did not file his submissions in reply on the date ordered by the court. He said that Mr. Bomani was supposed to file his submissions in reply on 27 th August, 2012 but instead of doing so, he filed them on 4 th September, 2012 and without leave of the court. He prayed that his written submissipns should not be l considered as they were filed out of tiriie and without leave of the court. He cited the case of General Sawmills Ltd v. Parastatal Sector Reform Commission Civil Case No. 147 of 2007 (unreported) in which it was held that submissions filed out of time and without leave of the court · will not be considered by the cou,rt and they will be expunged from the court record. It is true as submitted by Mr. Mwandambo that Mr. Bomani did not file _his reply submissions on 27 th August, 3 ; 2012, instead, he filed them on 4 th Sebtember, 2012, a date \: on which Mr. Mwandambo had to file his rejoinder. For me, I think Mr. Bomani did not hear well the exact date on which he was required to file his reply submissions. That is why he filed them on 4 th September, 2012 a date on which Mr. Mwandambo had to file his rejoinder. For this reason, this court will not ignore his reply submissions which were filed out of time wheb considering as to l1 , whether or not the defendant has a' case to answer and whether or not the plaintiff's suit is incompetent. I will now start the process of considering these two issues. Mr. Mwandambo submitted that the defendant has no case to answer on the following two reasons. First, that the plaintiff has not established that there was an Investment I Agreement between it and the IRiternational Finance Corporation. Second, that the evidence of PW .1 Shiraz Ladhu Jaffer who is the only witness who testified on 4 behalf of the plain tiff is largely hears1ay and contradictory. !' ' Also, Mr. Mwandambo gave two reasons for his submission that the suit is incompetent. First, that the plaintiff company was under receivership of Tanzania Investment Bank and TD FL and that the refore the plaintiff had no power to sue in its own name. Second, that there was no~i Board Resolution to sue the defendant. In general, he prayed the court to dismiss the suit on grounds that the 11 f defendant has no case to answer. Al1ternatively, he prayed the court to strike it out on grounds of incompetency. On the other side, Mr. Bomani submitted that Mr. Mwandambo has a tendency of using legal gymnastics and gambling in law with the aim of defeating justice. In support of his submission, he said that Mr. Mwandambo used legal gymnastics in the case of Tanzania Printers u ! Ltd v. Tanzania Building Agency bnd 2 others, Land Case No. 75 of 2008 (unreported) by assuming the 5 position of an appellate court when h~ said that the case of Pan construction Co. Ltd v. Chawe Transport, Land Case No. 25 of 2008 (unreported) was decided per incuriam and that in this case he has assumed the position of the presiding judge by saying that the plaintiff has not made out any credible case worth any defence. He said, Mr. Mwandambo is gambling in this ipase by saying that if < ' his submission of no case to answer iSf overruled, he should be allowed to defend the case. He said in gambling there is no second chance and that as a matter of common sense and fair play, if Mr. Mwandambo's submission of no case to answer is overruled, he should not be allowed to call r evidence in defence. Mr. Bomani further submitted tl:iat ', Mr. Mwandambo's ,, aim to defeat the course of justice is /further demonstrated in his submission that the suit is incompetent because of having been filed without Resolution of the Board · of 6 Directors while knowing that he had earlier before raised a similar point in his preliminary objection against the hearing of the suit and that it was dismissed by this court on 10 th February, 2011. He said, the plaintiff has never been put under receivership as claimed by Mr. Mwandambo and he wonders why Mr. Mwandambo is r, \. submitting that the defendant has no case to answer while there is evidence to that effect. In general, the test for a submission of no case to answer is mainly lack of evidence to put the other party to its defence. As I shall soon show there is evidence in this case to put the defendant to defence. Looking at the plaint, it will be seen that the plaintiff sued the defendant for reimbursement of USD 599, 276 being penalty interest charged against it by IFC as a result of the defendant's failure or neglect to remit on time to IFC the amount of money deposited with it by the plaintiff for the proposes of 7 discharging its debt of USD 1,375,000 which it borrowed from IFC with the view of financing the construction of a laundry and toilet soap plant at Mbeya. Learned counsel for the plaintiff Mr. Bomani called one witness only to testify on behalf of the plaintiff Company. i This witness is called Shiraz Ladhu Jaffer. In his testimony in chief, the said witness told the court that between 1979 and 1998 the plaintiff borrowed USD 1.3 plus million from IFC Washington with the approval of BOT (Third Party) and that IFC gave the plaintiff a schedule for repayment of their money. He said, the plaintiff undertook to pay the loan through NBC. He said the plaintiff paid the entire loan to IFC through the def~ndant NBC but that NBC did not remit promptly to IFC the amount they used to deposit for discharging their loan. and that as a result they suffered payment of penalty interest amounting to USD 599,276 which was paid to IFC on their behalf by 1 8 their Japanese Associates called Nihon K. J. Kabushiki Kaisha to whom they have to refund the same. He tendered a letter written by NBC to the plaintiff copied to BOT dated 22 nd July, 1992 with ref. No. NBC 3/0.50/10 showing inter-alia the details of the ariount deposited with it and the number of days it delayed: to remit the same to r· l IFC. This letter was tendered in evidence by P.W.1 without objection by Mr. Mwandambo and it was received and marked as exhibit P 1. In my considered view, the oral evidence given by P.W.1 to show that the plaintiff suffered penalty interest of USD 599,276 due to the delays by: the defunct NBC to l remit its deposits to IFC for payment <Jf its loan and a letter ' which was tendered as exhibit Pl in which such delays are admitted, forms the basis upon which the defendant has to be put to defence. This means that the defendant has a case to answer. 9 As a matter of fact, the evidence adduced by P.W.1 in this case is not hearsay or self contradictory as claimed by Mr. Mwandambo for the defendant. P.W.1 told the court of what he knows about the plaintiffs case in his capacity as Managing Director of the plaintiff for► more than 27 years ago. With regard to the issue as to whether or not the suit is incompetent for having been filed by the plaintiff while it was under receivership, Mr. Bomani submitted that, the plaintiff Company was not under receivership when the suit was filed in 1997. I have no reason to disbelieve him. At any rate, this point ought to hav:e been raised at the earliest opportunity during the First pre-trial conference and not at the close of the plaintiff's case. On whether or not the suit is incompetent for having been filed without a resolution of the Board of Directors, Mr. Mwandambo is quite aware that this issue is one of the 10 issues which was raised by the defendant in its Written Statement of defence as a point of preliminary objection and that it was overruled by this court on grounds of having been farfetched and on grounds of incredibility. So, ,i raising it once again while knowing that it has already been overruled by this court is a clear wastage of this court's time and not an assistance to it for dispensing justice as claimed by Mr. Mwandambo. All in all, I hold that the suit is competent and as I have already demonstrated the defendant has a case to answer. ~ A.Shangwa JUDGE 6/2/2013 •· 11 Delivered in open court in the presence of Mr. Bomani for the plaintiff and Mr. Akweso Akonaay holding brief of Mr. Mwandambo for the defendant. - A.Shangwa JUDGE 6/2/2013