20100619 TZCA Tabora1 1

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: RUTAKANGWA, l.A., MBAROUK, J.A., And MASSATI, J.A.) CIVIL APPEAL NO. 85 OF 2009 KALYANGO CONSTRUCTION · AND BUILDING CONTRACTORSS LTD} ............................'. APPELLAN.T CHINA CHONGQUING INTERNATIONAL CONSTRUCTION t VERSUS ' ' CORPORATION (CICO) .............................. ,RESPONDENT (Appeal from the Judgment of the High Court of Tanzania · at Tabora) ' (Mujulizi, J.) dated the 24th day of February, 2009 , in (HC) Civil Case No. 5 of 2004 RULING OF THE COURT 18 & 21 JUNE, 2010 MASSATI, J.A.: The appellant had sued the respondent fdr the tort of conversion seeking damages of shs.113,292,800 for· loss of income and profit and shs.100,000,000/= as general damages. Its suit was dismissed by the High Court (Mujulizi, J.) on 24/2/2009. It has now lodged the present appeal. 1 At the hearing, Mr. Kennedy Fungamtama assisted by Mr. Method Kabuguzi, learned .counsel, advocated for the Appellant, and Mr. Bernard Ngatunga learned counsel, appeared for the Respondent. When the appeal was called on for hearing, we asked the learned counsel to address us on two matters: (i) Whether the record of appeal was valid, having omitted the original plaint and written statement of defence. (ii) Whether the written statement of defence was filed on time In his submission, Mr. Fungamtama, first conceded that, the record of appeal was defective for omitting the origin~I pleadings, but was of the view that, the defect was curable under Rule 2 of the Court of Appeal Rules, 2009, which the Court could· invoke to allow extension of time within which to file a suppl~mentary record containing the missing documents. He suggested in the alternative, that no injustice would result if the original pleadings were not in the 2 I I ·, I record, because they were no longer of practical use. Ho\f\{ever he did I I I not cite any authority. On the second point, the learded counsel, I I I after reckoning the time between servi.ce of the summons on the I I defendant and the filing of the written statement of def~nce, I quickly ' I I conceded that the written statement of defence was filed outside the ,I 42 days statutory limitation. I I I I I It was his view that consequently, the written !statement of i I I defence and the subsequent defence proceedings wer~ a nullity and I i should be expunged, and the original record be re~anded to the I ' I High Court for it to proceed to hear the plaintiff exparte in terms of I I , I Order VIII Rule 14 (2) (b) of the Civil Procedure Oode1966. He I I 1 pointed out that the Court should exercise , its revisionaI1 powers under I . I section 4 (2) of the Appellate Jurisdiction Act (cap 1411- RE2002). ' I I I I I I I Mr. Ngatunga, conceded that, since the defen1ant was served I on 21/9/2004, the 42 days prescribed by O VIII i(2) of the Civil . I Procedure Code, expired on 2/11/2004. Since he filed the original I I written statement defence, on 3/11/2004; it was cle~rly lodged out of I I I I 3 . I time. He, however, hazarded a guess that, the trial judge may have I I I I invoked his powers under s 93, or 95 of the Civil Procequre Code to ,· I extend time. He also urged us to clos~; our eyes and dp substantial I justice under the provisions of Rules 2 ~nd 4 of the Co~rt of Appeal . I Rules 2009. On the issue of the defective record· ofi appeal, Mr. i I I Ngatunga, submitted that, it was wro.pg for the app~llant to have I ·1 I omitted the original pleadings. So, hr urged us to fipd the record : I defective and strike out the appeal, each party bearing his own costs . .: I I . I . I In reply, Mr. Fungamtama just r~iterated his earlier submission 'I i I and prayers. .1 I ;I I I I I We shall begin with the record of appeal. · 1/he record was lodged on 21/7/2009. By then, the µpplicable Rules /were the Court . I of Appeal Rules, 1979. The governirig I rule at that tihie I was Rule 89 .·; I (1). Under the said Rule 89 (1) (c), the record /of appeal must .; I contain the "pleadings. Under O VI(l) of the Civil/Procedure Code 11 I I ·' . I "pleading' is defined to mean, a i plaint or writt~n statement of ·:' I , I defence. In the present case, the record of appeal contains an I 4 ' amended plaint and an amended written statement of d~fence. Mr. Fungamtama has suggested that for the purpose of deciding the I appeal, those amended pleadings were sufficient, and ~he omission ' not necessarily fatal. We think that, that is not the law. The original plaint is the one which instituted the suit. It was the one which brought it into I I existence. It must remain part of the record of the su'it and to omit I I the original pleadings, the appellant should have sought and obtained the direction of a judge or Registrar of the High Co~rt in terms of Rule 89 (3) of the 1979 Rules. In the present case, the appellant did not obtain such exemption. Secondly, it is not true that an original I ' pleading is of little consequence. As the Court of Appeal for Eastern Africa observed in DHANJI RANJI v. MALDE TIM~ER CO (1970) E.A. 422, an amendment does not mean that the o~iginal pleadings have ceased to exist in the record, and may sometimes be referred to ' ' by the court to show consistency. In view of the mandatory wording of Rule 89 (1) and in the l'ight of a sea of a,uthorities on this 5 ::. ' point decided by this Court, we think . that the record of appeal ' in the present case is defective. ' ' Counsel's plea for this Court to invoke Rules 2 ahd 4 of the 2009 Rules of the Court of Appeal, is misplaced. Although Rule 2 was not in the 1979 Rules, historically it was transplanted from ' Article 107 A (2) (e) of the Constitution of the United Republic of I Tanzania. There have been attempts in the past, to press the Court I to invoke it in situations such as the present one. :' The Court's response was that not every rule of procedure is outlawed by that ' provision (See CHINA HEMEN INTERNATIONAL COOPERATION ' ' GROUP v. SALVAND K.A. RWEGASIRA Civil Reference No. 22 of I 2005 (unreported) and that it will not be invoked if no 'injustice would I be occasioned by following the prescribed rule of procedure (See JUSTINE NYAKI v. GUARDIAN LTD, and PRINTA AFRIQUE ' LTD (Civil Application No. 3 of 2009 (unreported):'. The learned ' counsel have not told us, what injustice would be occasioned by following Rule 89 (1) to the letter. As for rule 4, of,:the 2009 Rules, ' I (which was Rule 3 in the former 1979 Rules), we think that the rule 6 can only be invoked where there are no specific rules governing the I ' subject in question. Here, there is a clear and unambiguqus provision I governing the compiling and filing of a record of appeal. It would I not, in our view, be appropriate to invoke the Court's ,discretionary powers to defeat that provision. We thus, have no doubt that, the I appeal is incompetent. On the issue of the written statement of defence being filed out of time, our starting point is Order VIII of the Civil Pr,ocedure Code 1966, as amended by GN 422 of 1994. It reads as follq'ws:- "(1) Where a summons to appear has been I ' I issued, the defendant may, and if so reqifired I by the court shall within seven days befor~ the first appearance, present a written statement of defence. (2) Where a summons to file a defenc~ has been issued and the defendant wishes to ' defend the suit he shall, within twenty one I 7 ' ' days of the date of service of the summon's upon him present to the court a writte(1 statement of defence. I ' Provided that the court may, within twenty o~e ' ' I days of expiration of the prescribed periorf, I grant an extension of time for the presentatipn ; of the written statement of defence on application by the defendant " ' A plain meaning of this rule is that if a defendant fails to file a written ' ' statement of defence within twenty one days, the court may only ; ' ' extend time if the defendant appllies for it within twenty one days I ' after the expiration of the prescribed period. In the present case, the record reflects that wh¢n the appellant appeared in court in the person of Mr. Long Yu - o~ 5/10/2004, he ' ' informed the court that he was served with a surpmons to file a written statement of defence, on 21/9/2004. By a quick reckoning, the first twenty one days expired on 12/10/2004. The defendant had ' 8 I I until 2/11/2004, within which to make an application for extension of I time. However, it was on 3/11/2004 when the defendant's counsel, ' Mr. Ngatunga appeared and asked for and was granted extension of ' time to file his written statement defence. A perusal of the original I record shows that the defence was filed on the same day, 3/11/2004. In our view, after the expiration of the next twenty one days, the defendant was shut out from filing his defence or ,' applying for extension of time. Mr. Ngatunga has suggested that; the learned ' judge might have used his powers under sections 93 and 95 of the I ' Civil Procedure Code. We do not think that he had those powers. I I ' Section 93 could only be applied if the period of limitat!on was set by I a court in its judicial capacity (See PATEL v. SINGH (1956) EACA ' I 209). Similarly, the discretionary power under section 95 cannot be ' used to defeat limitation. (See AUTO GARAGE v. MOTOKOV I (1971) HCD n. 338. In this case the time of fiUng the written I ; statement of defence and within which to apply f~r extension is ' clearly set out in Order VIII r. 2 of the Civil Procedure Code. The court was deprived of any discretion in the matter. , 9 I ' I ' I ' I ' I So, when the learned judge sat and granted extensi'on of time, I he acted in excess of his jurisdiction. The order for extension was I ' I therefore a nullity, and the written statement of defen¢e that was ' I . filed on 3/11/2004 was filed out of time, and ought to be expunged I ' ' ' from the record. Once the written statement of defence is expunged, 0 VIII r. I ' I 14 (2) of the Civil Procedure Code, comes into play Rule. 14 (2) provides: ''In any case in which a defendant who is I I ' required under sub-rule 2 of rule 1 to prefent ' his written statement of defence, fails to dp so within the period specified in the summons or I ' where such period has been extended in ! I ' accordance with the proviso to the sup-rule I within the period of such extension, the :court I may." (a)(not applicable) (b )In any other case "fix a day for ex-parte proof and may pronounce Judgment in favour of the plaint~ff upon such proof of his claim. " ' This is because, in such a case the written statement of defence is not properly before the court, and the court (!lay order ex- parte proof. It was therefore wrong for the trial ~ourt to have proceeded to order the subsequent pleadings and hearing of the defendant. In our considered opinion, since the defendant fully participated ' in the hearing of the plaintiff's case by way of cross examination ' when he had lost such locus, all the proceedings are vitiated. For all the above reasons, we think that, first, the appeal is defective on the ground of the defective record. That means that, 11 I I I • I I I I I I I I I I the appeal before us is incompetent. /second, since :the written I I I I statement of defence was filed late ( eJen by a day), /the written I I statement of defence was not properly/ before the co1rt, and the defendant, although could be present, had no right to cross examine I I I I the plaintiff or his witnesses or be hear~ in defence. Tme trial court I I should have heard the plaintiff ex-pJrte. Its (the defendant's) I I 1 participation vitiated the trial proceeding s. I I ! I I I I I I I In exercise of our revisional pow~rs under sectio~ 4 (2) of the I I 1 Appellate Jurisdiction Act, we hereb~ strike out the appeal; and I ,' iI I I quash all the proceedings after the 2° day of Novem~er, 2004. We 1 I I order that, the case file be remandJd to the High ~ourt for it to proceed with the trial, ex-parte, in aicordance with ~he law before i i another judge. Each party is to bear it5 own costs. / i I I I It is so ordered. I I I I I I I I I DATED at TABORA this 19th day of June, 2010. ' I I 1 I I E.M.K. RUT~KANGWA 'I JUSTICE Of APPEAL I i I I I 12 i .I I 1' I I I I I, ii M.S. MBAROUK I JUSTICE Of APPEAL S.A. MASSATfl JUSTICE Of APPEAL I certify that this is a true copy f the I original. M. DEPU COURT Of 13