KCB RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL CASE NO.158 OF 2023 CASE REFERENCE NO. 20230815000520239 BETWEEN KCB BANK OF TANZANIA LIMITED---------------------------------- PLAINTIFF VERSUS RAWAD ENTERPRISES LIMITED------------------------------ 1st DEFENDANT OMARI HAMAD KHAMIS---------------------------------------2nd DEFENDANT MOHAMED SAID FARAJI--------------------------------- ----- 3rd DEFENDANT MARK ALLOYCE TESHA. --------------------------------------- 4th DEFENDANT NADIR ENTERPRISES LIMITED------------------------------- 5th DEFENDANT RULING 27th Sept & 18th Oct 2024 KIREKIANO J. The plaintiff herein filed this suit against the defendants, under the summary procedure, claiming for a declaration that the defendants are in breach of the contract of loan facility and thus prays for an order to be paid Tshs 1,747,301,780 together with interest and costs. The 1st and second defendants were granted leave to defend the suit; they have, as such, raised a preliminary objection against the plaint thus, 1 The suit has violated order VII Rule 14 Civil Procedure Code CAP 33. When the objection came for hearing, Makaki Masatu, a learned advocate, represented the plaintiff. In contrast, Mr Ally Jamal represented the first and second defendants; it is noted here that the third and fifth defendants defaulted appearance, and the plaintiff abandoned the claim against the fourth defendant. Mr Jamal argued that the spirit of order VII Rule 14 Civil Procedure Code CAP 33 is that the plaintiff should produce the documents along with the plaint, all documents referred to in the plaint. This forms the basis of the cause of action; thus, they are essential in ascertaining the cause of action. In this, the court ought to look the annexure. He cited Panic System Group Co. L Td vs China Engineering Construction Corporation (access) (Civil Appeal 13 of 2018) [2020] TZHC 1342 (18 June 2020) to support his argument. Mr Jamal indicated that annexure KCB -7 is a personal guarantee for the 2nd, 3rd and 4th defendants. Annexure KCB -9 mentioned in the debentures of the fixed assets. Annexure KCB 11 is the bank statement indicating that the defendants defaulted on paying the loan. KCB 12 the demand notice to the 2nd, 3rd and 5th defendants, KCB 13, the 2 company's resolution is missing. All these annexures form part of the statement establishing the cause of action. Without them, it can not be said the plaintiff has established the cause of action against the first and second defendants. As such, it is the company resolution Section 147 (1) (a) (b) of the Companies Act. that gives powers to the plaintiff to file these proceedings of this court. He cited the order of this court in Angesiche Ntahena vs Catherine Ntahena Land case no 9 of 2015 at Mbeya Ngwala J on page 2, where the plaintiff did not attach the annexures and this court ordered that the plaint was defective because it did not disclose the facts showing the jurisdiction of the court. In his reply submission, Mr. Masatu, for the plaintiff, was not content with how the objection was argued. He argued that Mr Jamal submitted three distinct points disguised in one point: the cause of action, the issue of board resolution, and the issue on the annexure. He said that the issue of annexure lacks merit because, under the CPC, documents may be filed in court in three avenues: Order VII Rule 14, rule 18(1), and Order XIII Rule 1 CPC. If the documents are not filed, they are allowed to be filed later. He cited the case of Yara Tanzania Limited vs Ikuwo General Enterprises Limited (Civil Appeal 309 3 of 2019) [2022] TZCA 604 (5 October 2022) on page 14, where the court of appeal held to the effect that Order VII R. 18 (3) of the CPC, documents under any of the provisions, if not attached to pleadings or listed in the list of documents, can be received in evidence with the leave of the court. Mr Masatu argued that the high court cases cited are no longer good law in the event of the cited CAT decision. The suit at hand is found on the mortgage contract, which is attached; in any case, the objection is not a good one since it does not meet the threshold of Mukisa Biscuit Manufacturing CO. LTD Versus WEST END Distributors LTD, EA Law Reports - 1969 if any fact is to be ascertained from the plaint. With regards to the issue of company resolution, he argued that in view of the position of law on Mohan's Osterbay Drinks Limited vs British v American Tobacco Kenya Limited (Civil Application No. 70/01 of 2022) [2024] TZCA 159 (5 March 2024) is not always a requirement for the company to pass board resolution before the company may institute a suit. He thus prayed the objections be overruled. In his rejoinder, Mr Jamal submitted that the objection has no three points, as complained by Mr. Masatu, the cases cited discussed Order VII 4 RULE 14 (2) and order XIII, which all deals with the production of documents during hearing, not at the preliminary stages. The case in Yara Tanzania vs Ikuwo involved a document that was not pleaded. He said as long as the plaintiff mentioned the document, he had to attach it; this is a case of order 7 rule 14 (1), as the document is in the plaintiff's hands. The plaintiff had not established the cause of action without such documents. He argued that the case referred to is distinguishable. He reiterated his submission in chief and prayed that the plaint be struck out. On my part, I wish to start by responding to Mr Makaki's concern about how the objection was raised. In MUKISA BISCUIT MANUFACTURING CO. LTD. v WEST END DISTRIBUTORS LTD. [1969] E.A. 696 at page 701 that: A preliminary objection is in the nature of what used to be 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 if what is sought is the exercise of judicial discretion." (emphasis added). With that note, it is expected that the point of objection will not only raise a pure point on law but must be clear and comprehensive to the other 5 part, giving him sufficient notice for him to respond; the good reason for this is to avoid surprises to the other part which is not part fair play in the administration of justice. In James Burchard Rugemalira Vs The Republic Criminal Appl No. 59/19 Of 2017 Luanda, J.A. at page 10 held; the CAT held thus; It should be remembered that a notice of objection is always intended to let the adversary party know a point of law raised so that when it comes up for hearing, he should be aware in advance what the nature of the point of objection raised is all about and this will enable him to prepare himself for a reply thereof, if any. Emphasis supplied. The counsel for the defendant raised a point, categorically indicating infringement of Order VII, Rule 14, of The Civil Procedure Code [CAP. 33 R.E. 2019]. Admittedly, this order imposes a duty upon the plaintiff to produce, along with his plaint, all documents in his possession or power. Order VII Rule 14 (2) of the CPC reads, 14.-(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in court when the plaint is presented and shall at the same time deliver the document or a copy thereof to be filed with the plaint. 6 (2) Where the plaintiff relies on any other documents (whether in his possession or power or not) as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint. Going by the plaint, it is common ground that some of the annexures mentioned are missing. The annexures have been mentioned in the plaint but were not submitted and served to the defendants. I have considered the effect of this; Mr Jamal's line of argument is that the miss renders the plaint unable to disclose the cause of action. I am alive to the reasoning in John Byambolirwa's case that when the plaint does not disclose the cause of action, it ought to be rejected. In this case, as submitted by Mr Makaki, the plaint at hand involves the breach of loan facility contract which annexed. I have considered the decision in Angesiche Ntahena vs Catherine by Ngwala J. In that decision the court could not find facts disclosing the jurisdiction of the court and thus went on to strike out the same. In this case here the cause of action is disclosed even without the missing annexure. Should this court not strike out the plaint because of the missing annexures? I hasten to say that we will not achieve substantive justice in this case. This is the spirit of the overriding objective and if I may borrow the words of the late Utamwa J in Ayubu Simkoko vs Zela 7 Robert (Misc. Criminal Appl. 77 of 2020) [2021] TZHC 2591 (16 March 2021) The oxygen principle (or the principle of overriding objective) only resuscitates a weak matter but does not offer a resurrection to a dead one. Having noted that there was such a miss to annex the annexure, which was already pleaded, this can be remedied by allowing the plaintiff to make good by filling the same and serving the other part. There can be no argument of prejudice against the other side on this. Since the point raised does not dispose of the suit, the same is overruled. Dated at Dar es Salaam this 18th day of October 2024. A J Kirekiano Judge 18.10.2024 8