20001218 TZCA Dar es Salaam

i.n ·.rrl.l.!.i VUU.t'i.l. U.!.' J-.....r.. .l. .:;;...-u.J V.J. ,., k!SfalmA-. J .Ao ·.,HAMADHAI 1TI; J oA•.,e-,· .An.d .... ~.,C..,.,., •• a.:.:s ,,..~a, .. ......... ,..... LUGAKINGIPA• ,-,_.. ,_.._.., ... ., . .,., •.,., ~ J oA,) .1,,_._,_~.,.__...._.... ... c·"a'.C··-.._•.•·· ... ,.·o-.·•-•~••• ·•··, ..-,t.· •••• .• r···•-•.,,·o.-,..,a CIVIL APPEAL NO. 91 OF 1998 LAElvITHOim RICE CO. LTDo (By their Agent Ajar Patel) • • • • • • Ju'":lPELLliNT AND PRINCIPAL SECP.E'I'ARY, o o o o c c- u o o IIBSPO!'!lJEixJ 11 MINIS'I·RY OF FINANCE (Appeal, from the Ruling of the High Court of Zanzibar at Vuga) dated the 26th day of Augn.st, 1998 in Miscellaneous . · • - Civil ,-_,,,_, An,:-lication .IC.~u·.•"••--·•·•·· v,·.• .. No. 2 ··= of 1997 ~· •·"-•">""A_, JUDGJilff:N'I' OF '111:lt:: COUR'l.' In this s.ppeal it is sought to quash the ruling of the High Court of Zanzibar made on 26 August, 1998, which purpo:r·ted .to revoke and replcJ.ce &.n ex-parte judgment of that court entered on 15 May, 1997 in Civil Case No. L: of 19970 That was a suit aJ.leging breach of contract and instituted ·oy the appellant, 'I'he appellant is a.n enterprise incorporated fa Thailand with its registGred office at 610/5.,6 Songwad. Road, Damphantwongse I in the city of Bangkok. A Zanzibar-,,bas,;::d a.dvocatc, }fr. Ajar Patel, appeared for the appella.nt in the High Court as agent lli"'lder a Power of ;~.ttorney. Th2 respondent was sued on behalf of the Government of Zanzibar. On o::c about 23 Jul:1, 1985 1 the respondent entered into a contract~ with the appellant company for the supply of 39,900 tonnes of rice worth USD 12,935 1 6850 It was agreed that the price or crny balance thereof would carry compc1md :interest at 25% p.a. until full payment • ••• /2 2 The rice was duly delivered in three shioments between 1986 and 1988 and there was part payment of the agreed price. The balance and the 1 accumulated interest amounted to USD 69,044,651.24 as at January, 1997. Efforts to secure settlement of the debt proved fruitless although the respondent did not deny the debt but actually acknowledged it on 15 July, 1996. "The appellant therefore instituted these proceedings in the High Court claiming the said sum of USD 69,044,651.24 together with interest thereon at 259f:, p.a. from 1 January, 1997 until full payment. The respondent, though duly represented by the Attorney General 1 s Chambers in Zanzibar, failed to file any defence due to his lack of co-operation with the Chambers. This led to the Chambers withdrawing in frustration and to an ex-parte judgment being entered on 16 May upon the evidence of Mr. Patel. Following this event, the respondent engaged the services of an advocate, Mr. Theophan Mulamula, who filed Misc. Application No. 47/97 to set aside the ex-parte judgment. When the application came on for hearing on 22 July, Mr. Patel had this to say: I We agree to set aside the ex-parte jud@nent on condition the parties re-negotiate the decretal amount and come to a satisfactory agreement within three months. That marked the beginning of the problems of this case. The presiding judge (Dahoma, J .) made no order setting the ex-parte judgment aside, he adjourned the hearing of the application and fixed a mention for 17 December, to permit re-negotiation of ,the decretal amount as suggested by Mr. Patel. Although the matter was mentioned three times thereafter, it was reported on each occasion that an agreement had not been reached., On 20 February, 1998, the. same Mro Patel applied to the court to ;;restore 1' the ex-parte judgment for failure of a settlement. 0 •• /3 3 Therefore, on 2 March, Dahoma, J. purported to restore the judgment although it had never been set aside. We consider it desirable to set out some portions of the ruling of· 2 March in, order to illustrate generally the ineptitude and confusion that c:b..aracterised the proceedings before the High Court. The learned judge said: In the course of hearing the application to set aside ex-parte judgment there was a suggestion from the parties to adjourn the hearing of the application on condition that the parties re-negotiate the decretal arnount and come to a satisfaction (sic) agreement within three months. This court agreed to adjourn the application pending negotiations for settlement. ••• ••• oo• The plaintiff has not been successful to meet the defendant and negotiate settlement and since there tm.s no possibility of meeting the defendant, he prayed the ex-parte judgment be restored • .•.• . 0. . •• Upon the best consideration that I have been able to give the case before this court and regretting that the anticipated settlement has not been achieved and I see no prospect of such settlement or an end of it 1 I arrived at the following conclusion - It is ordered that the ex-parte judgment delivered on 16/5/97 be restored. Sfoce the judgment had never been set aside, and the first of the above portions confirms this, the position is that the judgment remained throughout unaffected until it was purportedly restored. All the same, ••• /4 4 the above ruling gave rise to three matters Q :First, the appellant applied for execution of the decree on 3 April and listed the following assets for attachment: (i) all assets, wherever situate, of the People 9 s Bank of Zanzibar; ( ii) all ships be longing to the Zanzibar Port Authority/State; ( iii) Bwawani Hotel buildings; and ( iv) such other assets, to be identified, of the judgment-debtor to the extent of the decretal amounto Second and third, on 7 April, Mr. Mulamula applied for stay of exe.cution of the decree vide Misc o Application No o 31/98 and for review of Justice Dahoma 1 s ruling vide Misc. Application No. 32/98. On 9 April, Dourado, Jo granted the application for stay but warned the parties 11 to take their responsibilities seriously", and fixed 24 April for a mention in order to fix 11 a ~irrn date .... for the parties to get together 0 t> 0 to reach agreement and pay the first instalment • 1• While fruitless negotiations were going on, Dourado, Jo rejected the application for review on 18 Juneo On 27 July, he vacated the order for stay, ordering execution to proceed, but immediately suspended execution for a month to allow further negotiationso. I At the expiration of the month, on 26 August, Mr o Patel reported that agreement had not been reached and prayed for execution to proceed. Mr. Mulamula confirmed the failure of negotiations. In attendance also was Mr. Omar Sheha, the Principal Secretary (Finance), who added that the last figure the respondent was prepared to offer was USD 15.5 million. Mr. Patel rejected it and said~ "We don't agreeo They are not in good faith 1 pay $ 20 million first., Then we talk~" It seems the judge had reached the limit of his patience for he proceeded to write and deliver the following interesting rulingo ••• /5 5 ... I trust that I will never have to deal with a case like this. What is not in dispute is that the Zanzibar Government through the Minister of Finance ordered the rice and took deli very. What is in dispute is the amount to be paid., In the Memo of Understanding signed on 16 October, 1991 the Minister of Finance acknowledged that$ 20 million was to be paid. It was witnessed by the P.S • Mr. Omar Sheha and the then Director of Financr-; Mr. Julian Rafael. Later Minister Amina Salum said she signed it in error. This is unbelievable. In attempting to settle the matter Minister of Finance offered to pay$ 11 million plus interest at Eurorates - 3Cf/o., In response Laemthong rejected this and made a counter- proposal of$ 102,645,097.18. First instalment $ 20, 182,377.,21. Balance of 82,462,719.92. This is an over-inflated claim which no one could support. The inflated figure includes interest at 25% p.ao Nowhere in the world could one earn this rate on dollar transactions. In order to get the matter settled once for all I asked Mr o Omar Sheha how far was the Government prepared to go above his faxed offer of 11 million dollars. He said his final o£fer was$ 15.5 million .. I order that this amount be paid in full settlement. If not execution to proceed but not against Government funds with the People's Bank or against Government funds held abroad • ••• /6 6 I do not wish to deal with this case again. So if Decree-holder wishes to appeal to the Court of Appeal, permission is hereby given. Dated this 26 day of August, 1998. Sgd.: W. Dourado - Judge Supplementary order: $500,000 to be paid I within 60 days o Balance will be worked out and presented to Court for approval. Dated 26 August, 1998. Sgd.: w. Dourado - Judge Pursuant to this ruling, Mro Patel drafted a decree which expressly states that the ex-parte judgment dated 16 May, 1997 "is hereby ,: revoked1• • The decree was signed by the judge. It is this rulin.g and decree which are the subject of appeal. The appeal was lodged by Mr. Patel listing two grounds: 1. The trial judge erred in law and ought not to have varied his earlier judgment dated 16.5.97. 2. The trial judge erred in law a..11d ought to have ordered the execution as per the Appellant's application dated 3.4.98. The appeal hence prays that the judgment dated 16 May, 1997 be restored and that the High Court be directed to order its execution as per the appellant's application. When the matter first came on for hearing at Zanzibar on 1 December, 1999, Mr .. Patel appeared for the appellant while Dr. Ringo Tenga appeared for the respondent assisted by Mro Mulamula. Som8thing ••• /7 7 unusual then happened. J\n officer of the appellant company (one Mr. Chu) informed the Court that the appellant had withdrawn instructions from Mr. Patel and protested Mr. Patel ts appearance. There was an unpleasant tug-of-war, Mr. Patel resisting his dismissal. Eventually Mr. Patel withdrew and the hearing was adjoµrned to enable the appellant engage another counsel. The Court next sat at Dar es Salaam on 17 March, 2000 when th~ appellant was represented by Dr. Masumbuko Lamwai. Dr. Lamwai applied for an adjournment in order to prepare and file a supplementary record of appeal as the record filed by Mr. Patel was incomprehensible and also contained some errors. In particula.r the notice of appeal and the extracted decree wrongly cited Misc. Application No. 47/98 as the proceeding in which the contested ruling was made. This error had earlier prompted Mr. Mulamula to lodge a notice of preliminary objections to the appeal,. first to the effect that the contested order was not attached. The second objection was that the appellant had not applied for leave to appeal. After hearing Dr. Lamwai, however, Dr. Tenga conceded that the record of appeal was in serious confusion and acceded to Dr. Lamwai 1 s application, stating that he was in the circumstances not pressing the preliminary objections. Permission was accordingly granted to Dr. Lamwai to file a supplementary record incorporating the necessary amendments. The next sitting was at Zanzibar on 22 August and by then a supplementary record had been filed containing, among other things, a notice of appeal and a decree which cited Misc. Application No. 2/97 as the proceeding in which the ':impugned· ruling was made, as well as Civil Case No. 4 of 1997 as the parent suit. It is necessary to explain here what happened in the High Court. Apart from the parent suit for which a record was opened, there were seven (7) interlocutory applications in the suit for which separate records were opened. For instance, Misc. Application No. 2/97 was an application by Mr., Patel for leave to appear 8 as an agent for the appellant, while Hise. A.pplica~:i..on No. 47/98 was an application to refer the dispute to an arbitratoro :~ach of these had its own file o.s did the rest. Because of this multiplicity of records, parts of proceedings in one matter were transactGd in tho record of miother matter. Hence, ~he proceo2dings culminating in the contested ruling, and the ruling itsolf 1 were transacted in the record for Misc. ilpplication No .. 2/97 1'athor thm1 the parent record of Civil Ct1se No. 4 of 1997., What Dr. Lamwai did, therefore, was to extract and put together in the supplementary record of o..ppeal the material relating to the pa.rent suit, along with the notice of appeal and the extractqd decree duly amended to reflect the correct proceeding where they occurred or derived from. It wns a bit of a surprise to the Court, therefore, when, despite Dr., Lamwai's efforts, Dr., Tenga reactivated the preliminary objections. He argued, first., that the decree was still not attached b0cause the one on record. still cited the wrong proceeding and, second, that leave to appeal had not been obtained because leave c2~Dnot be grnnted suo motu. He submitted in connection with the first objection t:hat under section· 130 of the Civil Procedure Decree (Cap. 8 of the Laws of Zanzibar), clerical errors may be corrected at ony time by the court c::>.nd cit0d ~S:.t!Uk.,!Ell?:.9..1:l~ ..CT,_t_J:,j;d. v. N{~l{"fO, L199i} TLR 107, to support his argument. He chr:rrged that Dro Lrunwai had, despite the o.djournment, not appe3.red before the High Court to apply for corrections. As regards th0 second objection, he cited ,g;~,_Bgtel 1~~?:.9-~...££.t_(l~ouE, __:'!,•.)1i:iE.~j:,~.£.-..2LA~~:lE.?E-_~ /J99.ii TLTI 265. In reply Dr. Lamwni referred to the confused nature of the record filed by Mr. Patel and argued that since the matter wns now on appeal, it WCtS beyond the High Court to make corroctionsc On the second objection, he observ.ed tlB.t the law was silent o.s to whoth0r lec.ve to appeal cannot be gr31l.ted suo motu. ,'\.ltGrnatively, he submitted tho.t the ardor .::.rppenled from, aftor revoking ooa/9 9 the ex-parte judgment, gave rise to an original decr0e which was appcnlable without leave. i\.t the conclusion of arguments we promptly overruled Dr. Tenga 1 s objections c:.md promi.s8d to givo our re2..sons in this judgment., Meanwhile, we directed learned counsel to present vr.ritten submissions on tho substantive appeal. Both counsel lodged their submissions in the t~ne set by the Court but Dr. Lamwai did not reply to the submissions from tho opposite sido. We propose first to giv0 reasons for overruling Dr. Tenag's objections. 1:.s stated, Mr. Pc.tel 1 s appeal record wo.s seriously and frustratingly confused. The use of eight filc::s where one could have sufficed for all matters, was n telling factor in the unfortunate state of that record. Bearing thnt in mind, we think, with respect, Dr. 'ronga 1 s first objection is rather surprising., '.!.'he extracted order or decree: is now h:,aded i:ivJisc • Application No. 2 of 199711 because tho ruling from which it derives we..s made in that record. This was dernonstrnt0d to us beyond doubt when Dr. Lamwai invitGd us at the hearing to look at the original record. That i.11 the confused record of appe8.l the s~c1ne order is headed "H.G. Hise., Application No. 47 of 1998\:, was certainly a"l. error, and no doubt Mr. Patel's error while drafting the decree; he mo.de the same orror on the notice of appeal. These, in our view, are not errors from correction by the High Court. Section 13() of the Civil Procedure Decree, like section 96 of the Mainlruid's Civil Procedure Code, 1966, applies to tho correction of clerical and arith~8tical mistakes j,g juduncnts, docrecs or orders or errors arising therein from any nccidental slip or omission; that is to say, errors of the court involving the meaning or intendment of the jucl.g1nent, ~cree or order which the court rnoant to pronou."1.ce. 'l"hu provision doos not, however, c1.pply to errors committed by the partic.:s in drawing up documents, which ••• /10 9 the ex-parte judgment, gavG rise to an original decroe which was appcalable without leave. i1.t the conclusion of arguments we promptly overruled Dr., Tenga 1 s objections and promisE:d to give our re~sons in this judgment. Meanwhile, we directed learned counsel to prosent written submissions on the substantive appeal. Both counsel lodged their submissions in the time set by the Court but Dr. Lamw.~i did not reply to the submissions from tho opposite side, vie propose first to givo ran.sons for overruling Dr. Tenc,g's object ions. J:;s stated, Mr. Pntel 1 s appeal record wo.s seriously nnd frustratingly confused. The use of eight fi10s where one could have sufficed for all matters, wo.s G tellfag foctor in the unfortuna.tc,state of tho.t record. Bearing the:.t in mind, we think, with r0spect, Dr, 'renga 1 s first objection i,s rc1ther surprising. 'l'he extrncted order or decree is now h::adod •}1isc, l1pplication No. 2 of 1997'11 because the ruling from which it derives was made in that record. This was dernonstro.tud to us beyond doubt when Dr. Lamwai invitGd us at the hearing to look at the➔ original record. That i_r1 the confused record of appcBl the scuno order is headed •·H,C. Misc,. Application No. 47 of 1998", was certainly a.'1 error, and no doubt Mr. Patel 1 s error while drafting the decree; he mo.de the same error on the notice of appeal.·· These, in our view, are not errors from correction by the high Court. Section 130 of the Civil Procedure Decree, 'like section 96 of the Mainl&nd 1s Civil Proc0dure Code, 1966, applies to ,the correction of clerical and arithn1t:tical mistakes in judgments, decrees or orders or errors arising· ~~ therein from any o.ccidento.l slip or omission; that is to say, .errors of the court· involving the moaning or intendment of the judgment, oocree or order which the court meant to pronour1ce. 'I'h0 provision does not, however, apply to orrors committed by the partfos in dra.wing up documents, which ••• /10 10 should, to our undersb.nding, bo amend:i.blc by tho p::i.rty concerned on application to the courto Where, o.s in this case, tho mistake occurs in a document prepared for presentation to this Court, the. applicntion to nrnend should be rnad0 to this Court. 'J.11~.e case of Jewels & Antioues ~ •... ,,,...,_., :·.----~~~-~--- ..,,..,~,,:. •-e;.,,.... •• ,..._.__ ........~.· .. ' whilo deciding that correction of orrors is not subject to limitation of ti.rne, is not authority for the cou:r·ts to correct errors committed by the parties. There was therefore no need for Dr. Larnwo.i to return to the High Court for thnt purpose. Moreover, we think it would hnve be0n rnislea.ding and a misrepresentation of the true po1.-:;;ition to show simply, that the documents in q_uestion rolnted to a deciEion in Civil Case No. 4 of 1997 without citing Hise. Application .Noo 2/97 in whose record the decision wns .::tctunlly made. You cannot get away from reference to Nisc. Application No. 2/97 v1ithout retry:ing the case all over. i:Jo were therefore satisfied that Dr. Lamwai proceeded correctly DB he did and that a proper decree was on rocord. '.r'he second objection is no less surprir;iJ.1e; •.' 'rhe objection arose because, if one reverts to the ruling of Dourndo 1 J •, leave to appeal wa.s c;rantcd suo motu.. According to Dr. '.11enga, this wns not proper leave but there should have been nn application for it. \'Jo th:ink that is strn.ining section 5 ( 1) (c) of the J-1.ppelhte Juri.6diction Act, 1979 which is relevant on this subject. The provision reods~ ( 1) In civil proceedings,· cxcept where provided by any othor wri tton 13.w for the time being in force 1 2,n appeal shall lie.· to the Court of Appeal ••••••••• .. . ·(c) with leave of the High Court or the Court of 1\ppcal, u.gninst every oti-1cr decree, order, judgrne.r.t 1 decision or finding of the High Court. We agreG with Dr. Lmnwai tl1c..t the provision dcles not predicate the grc..nt of loo.ve upon \o.pplication boing mr,de; :i..11 othor words, it does not exclude leave being grca1ted suo motu. If the Leg:i.sb:tur-e had intei1dod otherwise, it could easily ho.VG said so. \Jo see no reason to tamper with the liberality of the provisio-n n.nd to read into it a li.rnit.ation which is not there, but we think whether or not th0re ought to be an application would depend on the circumst,mces of onch c,-:tSc. In this ca.so tho judge well kne,·J that his doc is ion was unacceptetblc to tho app0llnnt which was th0re fore likely to o.ppenl. He knew this bec~rnse he me.de the ruling :in defiance to Mr. Patel 1 s re joction of the respondent 1 o offer. He did not wish the decree-holder to go through a t:i.me-consuming applic2..tion for loave to appeal .since an ~ppeal was incvitablo • \-./e cannot fault the learned judge for being true to reality but w0 commend his action. This is not to say that ,11e arc unm1are of Rule 43 (n) of the Court Hules which is also relevant in the matter. It states - (a) where an appc.:,tl lies with the lctive of tho High Court, c:u:: application for leave may be made inforr:10.lly, vi hon the decision 2cgainst which it is desired to appeal is givcm 1 or by clumrJer summons according to the practice of the llie;h Court, within fourteen do.ys of the decision. As a gener2.l rule, the provisions of a subsidiary legislation cannot • override or add to the pe,ront Act. In this ca.so, too, Rule 43 does not purport to 1:1.dd to the ;~ct. It merely provid.os for the El09-?. of o.pplication, 12 ioe o either in.formally or by chcunber summons, but not for the ~ces;;j ty to apply. Hie .~.':'.~,.J-J:.9toJ._.f':ianf~9.£~":'!l! ce..se to which we were referred, is no authority in this context but it will be revisited in 2. fittfr1g context later. \fa do not, on the other h2111d, h.:w0 to go into whether the subs ti tutod decree becwnc the original decree as the more burni11g question is whether it wnF3 a decree in the first place,. The second objection is 1 in. short, s:i.rnil.:,r1y untcno.blc. Wha.t is r·2quired 1.47.der section 5 (1) (c) is leave of the High Court or the Court of i,ppeal i it r.:ie,tters not how thD.t leave is obto.ined but it would all depend on the circumst&11ces of each cnse. The circunstances of this c:tSe, not le.:tst the defiant manner in which the ruling w.3r3 made, justified tho step taken by tho trial judge. \le now turn to the appeal. In his submissions Dr. 'l'enga raised a quostion of limitation which it is necessary to consider first., 1\s indicated earlier., Dr. Le..mwai did not reply to those submissions, so we did not lr.. ve the adva.ntnge of hiG views on the matter, Dr. Teng-a points out that according to the plo.int tho rice Wc'.S supplied between 1986 and 1988. The suit WEtS instituted on 22 Jctnuary, 1997. He draws attention to Item 4o of tho Bchedule to the Zanzibclr Limitation Decree (Cap. 12), according to which th,..: limitation period for a ,suit for the price of goods sold and deliver0d is thr0e yeo..rs from the date of delivery. Bince this suit was tnstituted we 11 over three years o.fter 1988, he submits tkt it WcIB hopelessly time-barred and should have been disrni.ssod as rc,,quired by section ~ of the said Decr0e. 'I'hat provision sto.tcs: 3 ( 1) Subject to the provisions contD.ined in section 4 to 25 (inclusive), every suit ins ti tutcd after the period of l:i.rnita.tion prer;cribed th.0rcfor by the Schedule shall be dismissed although lirnitcition has not been set up E1.S D. defence. • •• /13 (2) J\. suit .is IDStituted, iJ1 ord:inary cnses, when U.te plnint is presented to the proper officer; in tlie co.se of a l)auper, when his application for lecwe to sue as a pauper is made; e.nd, in tho case of a claim against a compcny which is being wound up by the cou::..·t, when the claimant fi-rst sends in his clc4iln to the official liquidator. Dr. Tenga further argues tho.t although the recpondent acknowledged tho debt in 1996, the acknowledgement was of 110 effect bccc1.u.s0 it C.?JTie after tho period of limit;:ltion had expired. He relics on section 19 ( 1) which sto.tcs: ( 1) Where, E..<:.f.Sr..P.. ~tl~~--,.i3_E?.iE.c::~.:i.9!1."Y.f .~!!~. er.i.£..~-,.P.£.~.E>.?J~A~~.S for a suit in respect of a...'1y property or right an uchnowlcdgement of liability in respoct of such property or right has been mo.de in writing signed by the party ago.inst whom such property or right is claimed, or by some person through whom he derivos title or liability, n fresh period of lilnitation shall be computed from the time when the ackno\-Jledgemcnt was so signed (emphasis added)• Generally, Dr. Tenga argues that on tho ground of limitntion alone, the Rish Court had no jurisdiction to e:htert.J.in the suit and invites this Court to hold so. 'I'he consGn t of the parties to tho proceedings in iG,rnorance of the law did not, he emphasises, give jurisdiction to the High Court, We are grateful to le~trned counsel for raising this issue and for his arguments in connection thereto. Indeed under Item 4o of the Schedule to the L:imib.tion Decree, tho period of limitation for the 14 price of goods sold 2.nd d•..iliverBd 1 wh<;:,rc no fixed p0riod of credit i:.:; the agreed upon, is tJ:u~ee; years from the date of th<c; delivery ofLgood,s; similarly unde.r Item 41, the period is three yo::.rs from the expiry of the 2.greed period of credit., In this co.se tho moneys were ''payable: 360 days fror:1 dnto of Bill of LncJ.iilg for e2.ch of the shipments effected,:: This, we believe, brings the suit under I ter;1 11-1. In 3.ll respects, the period of limitation had a.pp2,rentJ.y long 0xpirod when the suit was :instituted tmd this judgment would have been incomplete without addressing this issue. The question now is whether Dr. '.l\mga 1 s submissions prevail. Unfortunately, they do not c Although the acknowledgement of debt v,as made after the expiration of the ti.me of limitation, it W'::s still co.pable of givfog rise to a fresh p8riod of limitdion if section 19 of the Limitation Decree i.s read with section 29 (a) of the sumo o.nd section 25 of the Contract Decree (Cap. 1~-9). The former provides: 29. Nothing in this D0cr8c sho.11 (a) affect the provisions of section 25 of the Contract Decree. In turn, section 25 (1) (c) of the Contract Decree stat::;s thus: 25 ( 1) An agreement rnt\d.e without consideration is void, unless - (c) itJs,[~. pro1nisc, m:~de in writing and signed by e, person to be charc;ed therewith, or by his agent generally or ~,pccict1ly authoris8d :in that beb£Llf, to y~1y wholly or UL -~c-r.t a .d~bl of which the ere di tor might h:1v0 enforced pay- ment but for the law for the lirnit0.tion of suits (0mpbnsis added). 14 price of goocl.s sold and de1ivered 1 i_.,h,::;ro no fix::!d p0riod of cr0dit is the agreed upon, is tru~eo yuars from tho date of tho delivery ofLgoods; · similarly un·dor Item 41·, the period i,s three ye-:rrs from the expiry of the agreed period of credit. In this c2.se th9 moneys were '\)ayable 360 dc'l.ys from date of Bill of Ls.di.'1.g for each of the shipments effected.:. This, we beliovo, brings the suit under Item 41. In all respects, tho period of limitation had apparently long expired when the suit was instituted nnd this judgment would have been incomplete without addross:i.ng this issue. The question now is whether Dr. 1'enga 1 s submissions prevail. Unfortunately, they do not. Although the a.ck:nowl2dgement of debt was,. made after tho expiration of the time of limitation, it W~'.S still capable of giviag rise to a fresh period of limitation if section 19 of the Limitation Decree is read with section 29 (a) of the sruno and section 25 of the Contract Decree (Cap. 1~9) • The formor provides: 29. Nothing in this Decr<::e shall (a) affect the provisions of section 25 of the Contract Decree. In turn, section 25 (1) (c) of the Contract Decree states thus: 25 (1) /1.11 at;reement rnr:de without consideration is void, unless - ••• ••• o-oe ( c) j-,:LE.,,.~~1'.r-2.!1!_~~~, mc,d.e in writing and signed by a p0rson to be charr;ed thorowith, or by his agent gen0rally or cp1c;cieclly authorised in that bor0lf, to.,JJ,~.Y.-~~9.J-)-:L.~0_£ ~.P£tt_q_,.<J~~l of which the cr8di tor might 112-vc enforced pay- ment but for the la.w for the lirnitr:J.tion of suite (empbasis added). • ../15 15 According to this provision, an aclmowledgement of debt made after the expiration of the period of limitation \,ould give rise to a fresh period of lirnitation if it is couph:d 1.-Jit}1a J;ll~o1;--1is;)_ to pay the debt. CHI'I'f\l.,EY 8: RAO (Vol., I, 1938 ccJ.. 1 P• 640, note 9), makGs thir:, obf;orvation in comments on section 19 of the Indian Limitation Act, 1908 and says: Under this section an c:,cknowlcdgomont of liability in resp,~ct of a do"\Jt must be made bo fore tho expiry of tho :period of limitation, in. order to give a fresh st2-rt of the limitation in respect of such debt. But by virtue of Section 25 Clause 3 of the Contract Act L:;quivalont of Zanzibar's s. 25 (1) (c) cited c.tbovi} 1 a fresh period of limitation for a debt cen be obtained oven aftsr the expiru.tion of the original period, if th0re is a promise to pc.y such debt. It is furth0r stated on P• 6Lf2~ ., •• 2. promise 1.mder Section 25 Clause 3 of the Contr,::1.ct l~ct need not be express. It may be i.mplirc:d; only, it must be implied otherwise th2J1 by o. mere acknow;_ ledgemont of liability. It is a matter of construction of each document whether liability or contains a promise ivithin the mea"ling of Section 25 Clau.s0 3 of the Contract Acto In the co.se before us, the respondent wrote to the appellmt compnny on 15 July, 1996 acknowledging the debt; the question is whether the acknowledgement was coupled with a promise to pay so ns to bring it within tho ambit of section 25 (1) (c) of tho Centro.ct Decree. We think it was, , 16 and for the avoidance of doubt, we set out the most pc::rtinont part of the commu.7.ication. ••. we wish to kindly confinn that cur J.ettcr of Jn..."1.uary 1996 is still valid and that tho ............ - .... :.,, --.JJ .... the debt. Governncnt• is corrtlnittcd to pav ••·•••••:4, .• , . - , ~ .. •1••~ • .J<,:I•-•L,.O.> . . . . . . . . . . . . . . . . . . . . . . •.J,•.l',,.0:..~'.C :,/j•••·•·••l••·••'V .. • . - • • In this respect we v.;ish to suggest Uw rep0.;yT,1ent period indicated in our previous lotter be shifted to September 1996 and that yoUT representative be c,dvised to visit Lio.nzibnr during September or October subject to prior confirmation (enrphas:i.G added). The letter wns duly signed for tho Principal :3ocretary ,md copied to another Mi....'1istry concerned m the o.ffair. This letter is not n mere acknowledgement of liability 1 it is nn oxrrcss commitment to pay tho debt as per the clause we have emphasized. Al though the schedule of payment was subject to re-negotiation, tho.t did not take away from the promise to pay. This letter, in our view, was an acknowloclgornont coupled with a pror,1ise to pay withi..'1. the 1~1eanix1g of section 25 ( 1) (c) of the Contract Decree. It therefore operated to give a fresh start to the period of limitation from 15 July, 1996 1 the date it wns signcdo Since the suit We.S institutcd on 22 Janu2ry, 1997, i.e. six months later, we o.re satisfied, and so hold 1 that it 1;Jas in time, We will therefore proceed to the grounds of appGal. The first ground is the basic one, th8 m)cond being consequential to it. It takes issue with the ruling of Dourado, J • \ 1hich purported to 0 revoke and. replace his cx-parte judgnent :92.ssed a yenr earlier. Dr. Lamwai tries to demonstrate in his submissions thc,t the ex-parte judgment e.nd decree existed up to 26 August, 1998 when the contcn-tious ruling was r:1adc. He therefore argues that the trial judge erred in permitting negotiations on the amount payable as if there was no judG''tJen t and decree. He says ••• /17 17 that si.."1ce a decree existed, the court had. no more role to play, but to execute that decree, because it was tb:m ~,c~t~.- of.:t)~!.2.• He refers to ~~~ Ho~el !'1'3118:&~Ee:riJ_ (:i.bove) t the latter being a case on all fours with the instant case;. Dr., Tenc;a first t::-..kes issue with ,the record of appec,l, stating that it is incomplete. We see no significance in this complaint ,since we were not disadvantaged by any omission in the record in the prepe..ration of this judgmc:;nt. If, howevcr 1 the record was not to learned counsel's satisfaction, he was at liberty to file a supplementary record in accordance with Rulo 92 (1) and (2). As regards the appeal, Dr. '.l\mga's basic argument is that tithe pcsrti0s willfocly aban.doned the decree granted ••. and were willing to re-negotiate the decretal amount.,; In his view, therefore, the contested decree W2.B a consent decree. He refers to tho applic . ,tion . for review a..>1.d contends that it was not concluded, but only conditionnlly rejected, and therefore concludes that the principle of .f~'2£t~~.£f.Eci,o does not arise in this case; the d0cr0e was in a sense yet to be finally determined. Regarding the secc-nd ground, he argues that given the existence of applications which sought to challenge the validity of the ex-parte judgment, it would. have been unlawful for the High Court to order execution of the judgment. The nature of the grounds of appc2.l permits that they be tE.\.ken together. The arguments of learned coum,el translate i.,.,.to the questions., namely, whether the ox-parte decree existed until it we.tS riur:portedly revoked or 1t1hether it was properly V3.cated and replaced with a negotiated one. -1.Q • G. / IV 18 On the first question, we are in agreement with Dr. La.inwai that th0 original decree was in ex:iB tence ur1til it was purportedly revoked and replaced. The review of the events carried out earlfor in this judgment demonstrates that position. \Jo only differ \•1ith the learned counsel where he also contends tbat there was no application for review, for an applicntion there W:IB, sav0 that it was directed at the ruling of Dahoma, J .. which purporh,d to restore the judg1n0nt. Besides~ Dr. Tenga, although contending that •1the parties y1illir.gly abandorn:::d the decroe ,:, actually concedes that the decree subsisted for he also observes thnt "the Court constnntly ;;ave conditional directives and ord0rs which ---~ constantly produced the wrong illusion that the rnattcr was sub...---~-•~.-:--..:. iudice and would be ai11en.::..ble to further consideration despite the existence of an Order of the Court. 11 It is also curious for Dr. Tenga to suggest that the application for :review was not concluded merely bcc2.use its rejection was followed by proposals for further negotiations. In our viev; 1 those proposals had no effect on the finality of the rejection, but thnt wrt.s yet another instance· of the inadmissible acts in the proceedings·. The moment the judge ruled rejecting the application, he W,'3.S LllE.9.:L.~2:ff~.<:.i9. and could not, as it were, reopen the review exercise. In nll considerations, th2rcfore, the decree subsisted until it wns purportedly revoked and replaced •. The above observation applies to the second issue: the parties could not re-negotiate the court 1 s decree• That is something unheru-cl of, hence what happened in this case was without basis in law or precedent; it WDE a travesty of thr:, law. The trial judi:se promoted, encouraged and even compelled re-negotiation of the decretal amount already granted by hi>11. ·l'here is no proviDion i.>1 the Civil Procedure Decree which authorises or countenances such negotiations but the whole exercise wns illcr;al a.,d incredible. J~ven if an agreement were reached, but there was ac'cunlly •••/19 19 none, it would have been void an.d of no effect. The only aspect which can be negotfated is the mode and manner of satisfying a decree but not the content of it., \vhen a decision :i.s made and commun:i.co.ted to the parties, that marks the end of tl~e court's duty. Oversights, errors of substance and after~ .. . I thoughts fil'8 not ·unheard of but, howeye1~. l:mrdening to the consc:ionc~, the court c::.1.nnof suo motu revisit its qee:is:\.on .;lnq :i;,oplace it w:i.th anqth¢r, The law appreciates thi$ fully ancj. IJroviqes i.J.1 its body the ma.qh;4i€lry ;for setting nn ex-part~ decision. asi4c, The justificat~qp .- for . denying pow9:r .- ,. . to resume dccisiona is obviou.s. n, • ' '• • • If cl?c:ipions were to be alte1~0d at ·th~ • • ~'. ~ •' • ~ • •• • -• • • ~- ,,- • • ·f • maker's plensure, there wqul~ be np certatnty of, ~udg111'§mt, arr ess~~rua.i attribute of :my credible syste?ii o:f jµst;i,c~t Trial~ y1ould bf;)· a fat~o a.pd decisions would be moaningloss. The handlillg of this cµ50 was 1 without exaggeration, farcical. We arc particularly disturbed that this had to happen in this co.se, not so long after tho same judge was warned u.gainst which tho present respondent was also respondent, the judge vari.od suo motu an order pr~J-vioi.,-isly-mado by him in a scenario not unliko the preGcnt. The he had given his original order and could not depart from it in the absen<;:e .. ... ' ' f . of an. application for review. It beats :imagination that he was soon at i;Lagain.; . . ,:., '11hc decisions of the Court arc meant to be followed. except ,_, r where Jhe;y: caµ p_o. distii1guishcdo \fo arc sntisfi,c:d that th~ jO.dgc was grossly in error when he revoked a.;d replaced the ox-partE: jutit,ment. Finally, we ai~e unable t"o ~gree with· Dr. Tenga that there existed : :: applications which mi:;..:i.tatcd against execution of the judBfilent,. The application to set the judgmcmt aside W£tS admittedly never heard and, as 20 already shown, the judt:;T11ent was never set aside., However, the application suffered annihilation, if that be the appropriate term, :in the course of Dahoma J's contradictory ruling of 2 March, 1998. In that ruling tho judne first correctly observed that the application was adjourned to permit the parties to re-negoti:3.te the dec1~etal amount. But later on he changed course and treated the applic.:-..tion as having been heard and the ' judgment as having been set aside for he went on to '"restore" tho judgment. Therefore, as far as tho .High Court \·!as conc0rnod 1 that i·,as the end of that application., 'l'he application to review Dahoma J's ruli-11.g was, as al.ready seen, rejected by Dourado, J., as_en.rly as 18 June, 1997. The application to refor the dispute to arbitro..tion was misconceived as it came after judgment was ontered., It wD.S undoubtedly cJ1 alternative device to re-negotiate tho decretal amount. The npplication to stay execution was first granted, then vacated and ezocution orderud to proceod1 but execution was suspended for one month to enable yet more negotiations., At the expiration of the month, the contested ruling was made.- The remaining applications arc irrelevant and need not be mentioned. These events, in our view, do not testify to the High Court's inability to proceed with Gxecution but the court simply did not wish to. Before concluding we wish to co!Ytli1ent on another matter raised by Dr.· Tenga. It is about Hr. Patel's role before the High Court. Mr. Patel was granted leave to act as agent for the appellant but in no time he became agent, witness and advocate, all :in onco This matter has exercised our minds., We think it does not accord with accc:pt.ed pr2,ctice for a litigunt, which essentially Mr. Patel wns, to double as counsel for himself. Tho position has apparently been :inconsistent but we think this view represents the dominant think:ing. Ji'rom B..,.Y.~~J?J.til:!-J>_~ (1844) 1 Cox C.C. 17 ••• /21 "I 21 ' ;,, the position is that where a barrister appears as a litigant in person, he does so as any ordinary member of the public and must not address the court from the advocates' table or in robes• '.I.1he High Court in this country took the so.me position in Akena Adoko Chrur.bcrs v. Mohamed Maganga fi98r;j} T.L.R. 134, and that decision was approved recently by this Court in .Th~ Application No. 4o of 2000 (unreported), where the Coui't further suggested some reasons for that position. In the light of L½ese i.i'lstructive examples, we share Dr. Tenga's discomfort and wish to state that it w2..s :il'nproper for Mr. Patel to assume the rule he did frl. the High Court. As a party to the suit, he should have instructed .::mother counsel to appear for him rather than b8come counsel to h:imself. It is indeed tempting to add that Mr. Patel wa equally responsible for the difficulties of this case. It is he who, surprisingly, first came up with-the suggestion to re-negotiate the decretal ~nount and kept up his enthusiasm to the very end. In the end we have difficulty judging how useful he was to his prfac ipal I s cause. For the reasons we have endeavoured to state, we find merit in this appeal and allow the same. The ruling of 26 August, 1998 is q uashe;d and set aside, a11d the High Court is dir,pcted to proceed and execute the ex-parte j~d@Tient of 16 May, 1997. T'ne appellant is granted costs here and below but it is directed that with the High Court proceedings; the expenses only of Mr. Patel as a litigant will be reimbursed • ••• /22 22 DAT.ED at DAR EE S1'..LAtu"1 this 18th day of December, 2000. R.H. KISANGA JUS-TICE OF APPML AoS.L.RAMJ\DHANI JUSTICE ,. OF --·· -e APPEAL 1;,n'<III.--..,- .... -•,. K.S .K.WGAKINGIRA JUSTICE OF .APPEAL - - ~ ....,........ ·--·•..-.1'1;.-............., I certify that thw i.s a true copy of the original. /J{-1/ '"·ti/, :;J ( AoGo •~Mi\RIJ.A ) --...-----~------···--·- Db"PU'.l:'Y RmrnTRAR