NA TZHC Dar es Salaam5 1

_._._: It· .. IN S:mG HIGH COURT OF TANZANIA itT DAR If:S l'u'I.LAAM , ) · A.J. }T;JAKALOBO ) . ) 4. M/.S SIGALLA MO'IDR TR:'-.NSPJ.::1T ) 5. H.K. MWASAi'LJILI )

VBRSUS \ :l • THC G}~lfiRAL M,-\NAGER INCJ\R TANZASIA :urD ' o o o o o o •• • ~ o • o ., I .1 2··Ef-.JlJi~·..... ?1'H 2o THE DIRECTOR GEI'IBRAJ., CRDB, DAR ES S.i\Li\.l'i.M ) .

RULING Thj_s ruling is L'1 respect of an application by the judgement - dei._1~:or,' Applicants seeking for an interpretation of _a decree entered against ther 1 Amo::>.g others, the chamber summons show1: tbat the order prayer: for is, 11 That this Tfonourable Court be pleased to order that the. Decree in Civil Case No. 163 of 199(, o!.' 199G dces not in ally way provid,- that the Decree holders/Respondents should be paid.·•· Tshs. ~ 124,,63t . . ex· any part t~ereof, by the Judgement debt0r/Applicanc o:~ at aL. The Judgemen·~ ueu ,c-:./:'._pj,,lica,nt is rPF''.::sen'ted by ¥1r. Mt-1akipesile, Advo' while Mr. Ngassala, Advocate, represents Respondent., J_3riefly, facts leading to this __ :ate of affairs are as followsp The Decree - holders, Mwanguku, Mwak~lo.bo: Mo.welo, M/s Sigala Motor Transport and hwasambili who sued the ,Judgement - debtor, (the Direct, Genera.l, CRDB) fu'1d the General Man2.ger, Ince.r, (TZ) Ltd, had each ree3 a loan from CRDB (Judgement debtor ;,rnd who appeared as 2nd Def.endn.nt in the s-u.it) which sums were in turn paici to !near (Tz) Ltd (1st Defend3J1t) · viho then supplied vehicles to Plaintiffs/Decree ... holders now Respond:ents, .TJ:ie sums adv::i.nced and vehicles supplied are a.s follows: Shs. 16, 670 1 000/= (m/v Reg, No, TZ B 6~53); Bhs. Ir20,000,00,0;:- . ·: \ (JJ17v Reg., TZC 2776); Shs. 22, 9'1,tO( (H/v. Reg. No. ~ TZC, 4235); Shs.

15,000,·<?0o/== (M/v • Reg. No. TZC 2775); , Shso 15,000 1 000/= (M/v. Reg. No. TZC'- 2242) to 1st, 2nd," 3rd, 4th etnd _5th Piaintiff/Respondent respectively., However, it would seem, the veh,{cles supplied, lVECO FIAT 'IDRINO typc,_h::1.d an intrinsic defeetiveness which ma( th0m unworkable in Tropical- areas, and thus shor,..;ly after being put to ~sc 0 •••• 2/,,,~,., / ' .. " 2 they were 'grounried.o Then the Respondents sued applicants praying for orders:- il(a) A declaration that the sale and purchase of the said rr.6tor vehicles between, the ,Pru-ties is a nullity as 1-'here' is intr·i.·,si.0 value defectiveness of the subject matter, the motor vehicles, ;:lhich Wac n:)t ku~VJ') to parties or which the Defendants ought to have known at the time of the sale and d0livery 0 (b) All interest accrued upo1~• t'.t1G .r·es 1 :·~tive · purchase ·:-i1 i.,·es ;:,3 waived • . .,,.-\ I (c) Costs of this suit to be borne by the Defendants 0 (d) Any other or further relief that this Honourable Court may deem fit and_ just 11 • For reasons which are not clear the judgement debtor/Applicant· failed te' file :::.·written statement of defence within time and the application fo1· extension of time to so act was dismissed on 21/7/'J? by this c,.,-.1rt (Kaj:· as it'was made over 21.days after the pre;-:;cribed pe.r:L·~··'. h,.,c1 ~Ja;;sed (O.VIII, Rule 1 ( .2) CPC as amended '.:y m; ·4~2/94.,

On 22/10/9f'. the plain·:·· Couneel prayed for judgement against the 2..nd Defendant ;or d8fault. Judg'·rnent \JaS granted in the following order, 110rde_E: Judgement is hereby entered in favour of the Plaint'iffs as against. ·the 2nd Defendant (CRDB) as prayed with costs. 11 What transpired immediately thereafte is as follows: - 1 ;Mr •. Ng_~_,:3sa~_J_~el for __Plaintiffs), In view of the order giver. i we pray to -withdraw the case against the 1st Defendant. ~Kesaria ( Counsel for ~'l..s~~--J?~endajit) - We are agreed on tpis a.nd each party (Plaintiff and 1st Defendant) to bear own costs. Order: Suit is marked withdrawn as against the 1st Defendant with no order as to costs. 0 Flowing there from the decree extracted runs as follows:- . ,i THLS COURT DOTM HEREBY o,qDER TH.i\.T • • o• • o3/. •·• • ··- r 3 (a) Judgement be and is hereby entered in favour of the Plaintiff3 as against the 2nd defendD.nt (CRDB) as preyed with costs. (b) Suit be :,.:1•: is h~r0by marked withdrawn as against the 1st defendant with no order as to c.:-st ..:,., 0 19 months after exparte judgement had been entered· the Decree - ho;l..der· .I ' Respondent landed in court with an app~ir, -1.tion for execution bv a ga:.:-, .,. ·. order., The application for execution shows .,_~.o,t the princ.i.pal .:'..U!l c . . .;:i.it:.8 is .].42,088 1 036. 3J. U1-1C>n getting wind of this the applica1,t filed f;. .1

chamber summons seekine; clarification of _the- decree as already ind.icac•·'. at the begirming of this ruling. In the supporting affidavit and written submissions Mr. Mwakipesih for the Judgement debtor/Applicant strongly argues that the cecree did ~ot award Respondents any monetary paymer1t, as it was not claimed in the fh·-::t place; that the '- 1Respondents11 interpretation &"ld or understanding: of th decree in issue is completely ' 1contrw.y 'l-8' 1 common sr:ns<:-: ...:r~,.i reason :.::ic. ther{:-fore unacce·,)tatle in any way o.~d ir. any circumstances", that the or· prayer presented against the□ concer·nell freez.ini; of in-Lr ests on the lo-~·· \-.hid:. Respondents had been aov::i.nced; t11.:J.t. the Respondents• ple2dings clr:-.n_ -~Y show that mo~ey p:1yr!1ent has not been their concerned and Gc.uld . ) be .i1derred by ;;necessary implications:, us their relatiom,hip _u:3 that :.: · a· Borrower an<l li.mue1· ·-:1cl not seller :u.d Buyer; that in any case under OoVII, Rule 2 of the Civil Procedure Code where recovery of mnney is ,s,:,1 . the amount of money cl.::.-~med should pr•;t isely be stated, and finally tha-r "it was incomprehensible and naive fo·, · :;he Respo:::idents/Decree - holder6 to drop their.claim against M/s.Incar Tanzania Ltci having in mind the fact that that was the Company which spld them the fateful trucks11 0 On the other hand, in a nutshell,

the Respondents insist that i•the .judgment fully grants the prayerso- as stipulated in the plaint with ., ..... costs.~. that the. sale of the motor 1tehicles in questio~ is a nullity and :.\lijii,- therefore all monies r~cei~ed by the judeement debtor/Applicant .,.,. must by all necessary/ implications be refunded to decree h0ldersi• and that ''without the refund of the purchase prices the Court Decree will be rendered nugatoryn.. As regards the requirements of ~ r VII, Rule 2 CPC Respondentc argue that ;1closely lo,-:Jking at the pleadings one is bound to note that the Decree holders were prim~1rily concerned to the court nullifying the transaction as betl\le,m the parties with the necessary consequcnces. 0 4 I have carefully considered the arguments fronted and have concluded that it would lead tc o.bsurdity to interprete the decree in questi.on as entitling the Respondents to payment of· shs. 142,O88,O3603:l or 124,563, 432/. (as per chamber .summons) b? Judgement debtor. I h:;,ve so concluded because of the followine reasonso First, alt!.1ough the Respondent,s P:ee,n to urge that th~ judgement - debtors would benefit from the transaction if they are not made to pay that this would be co1rtrary t.9 11 common ,sense and proper :t·eason:i.ng: 1 I . _, failed to comprehend -!:he nlleged benefit +J,a.t wo1.•.lrl ac.:::,~ue to ~,,rJgenh debtor 0 As rightly pointed out by Mro

Mwakipesile for judgerr.ent c.leh::or -er· R_espondents seem to fail to appreciate their relation.ships with j,·.dcm:'m- ➔: debtor and Incar (Tz) Ltd. wi,_,.,.t is clear from -the transaction fa that the .relatiornship between Respondents and the latter is that of Buyer and sell~-- while the one between them and. judgement debtor is that of Lender and Borrmvers. Judgement deb'tor advanced ~cans to Respondent.so Those monies were pocketed by Incar (Tz) Ltd. if there is any benefit due to judgement - debtor it woul_d have been in form of interests on their. advanced money. However, by this Court's decree this interest has bee, H"l.iv~0 ha~,c-e eve: · they are paid the priacipc1.l sum they v:ill :inly 011d u~• ~;i"..,h a :::..0ss, fvr t.., will only get bacl: their .sur.1s with w'~i_;h they h~:ve pad,ed for a. lons tirr;,:: and used by a third party •. Indeed, contrary to what the Responde:its are frontjng it would defeat col'I'm021 sense and J;>roper rcasonin.g; 1 to o., ~er the: .. th•e .i1.:•igement - debto1- pay monies which \·:ere pocketed by a th-;rd party c-t.. · whom the decree holders hcwc found proper to reward ,vith a w:i,thd?>awa,l ,.t a case against t}1em,. -Secondly, again as properly obser T<>ri .by the Applicant, O.,VII, 1 Rule the Civil P-.cocedure Code, in a situatic___ as this, does not give ror:>m. fo.,,., •ii.nfcrenccs" or ;:implications11 on sum payo.bleo The

Rule provides, =1 2. Where the Plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed; Provided that where _the plaintiff sues for mesne profi ts 9 or for an amount \~hich will be foun.d due to him on taking unsettled accounts .between him and the clefendant 9 the plaint; shall state approximately the amount sued for~ 1• . It is true that the judgement declared the transaction a nullity but the sa.id judgement was in line with wh:,t the plaintiff prayed for~ · It is not always the case that once a transaction as the present one is declared a \ It . . .., 5 -~ nullity the su.n1{;e~~ived ;1iould be Daid back. It will depend on facts • . :,'- ~· -~~--·· -~ :.. ;. , .>. • ·_ of a narticu;!Jli .l.. cas·c 3.11<1: what the party suing seeks,- -Even if tha-+,; were :# . . ,:-~·.. , ·,. ~ .-' • the ca,se, pn, the ·fac.t;s::of: -1:his case no Court of justice wo11l"d compellfo;· :~- ·p~~ir- ~!f -~he. position of CRDB, t~ n"!fund w~ t: it r.':! 'i :::iot '.-!·· . . receive., .,I a.t1(surprise·d as did the Applica:it that the decree - holder de<;:id-ed to withdraw the suit against lnc:u- (Tz) Ltd. Thirdiy, even if it· wer~. to be dccre,~d that b-:. :'neces·sary implic. ·. · · I ' the Deere~ holders· were entitled to ~--efuP_._ ti:- rno:-:-:ies 1x=tict -:;o Ij•, ... r (.1::J; I. f . it . coulct·:not by any of the defendants . - '" be decreed that th& 3um

payab.Le i,s 124,563,432/= er 142,088,036.;JJ •. ,O_ue· is le_:ft .. at a loss as b how ':k.s figure is arrived at. Th3 plainf s±t.Jp].y shows. that the loans advanced ·., received by Incar (Tz) Ltd add up. :to' sr.co· 89,580,000/= · onl_y ('1~, 67(),000 -r 2_0_,.900,000 + 22t910,ooo -:- 15,000,000/=)' In conclusio:i therefore the d'ecr-:?e '.)f thi~ · cour·t simply rullifies the ' tranGQction Md waives interests 01,. t~1,;, loans in spirit with the prayers sough:-. by the Decree - holders; in th ..,;_1· pl,33.dings 0 L.B. Kalegeya i

JUDGE Certified True Copy of the Original. I •