LEILA MEGHJI HOUSE ENTERPRISE VS INTERNATIONAL COMM BANK T LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISCELLANEOUS COMMERCIAL CAUSE NO. 328 OF 2014 (Original Commercial Case No. 144 of 2014) LEILA MEGHJI t/a LE HOUSE ENTERPRISE.......................APPLICANT VERSUS INTERNATIONAL COMMERCIAL BANK (TANZANIA) LIMITED } .........................RESPONDENT 7th September & 15th October, 2015 RULING MWAMBEGELE, J.: The respondent had filed Commercial Case No. 144/2014 against the applicant under summary procedure claiming a total of Tshs. 164,607,000/= being the principal sum plus accrued interests as enforcement of a mortgage. The applicant now has come to this court to seek for leave to have audience and defend against the suit. The application has been preferred under Order XXXV rule 3 (1) (b) of the Civil Procedure Code, Cap. 33 of Revised Edition, 2002 (henceforth "the CPC"). It was slated for hearing on 02.03.2015. On that day, Mr. Nkuba, learned counsel told the court that upon perusal of the respondent's skeleton arguments, he noted a preliminary objection. The learned counsel for the respondent responded that he did not raise it as such but was notifying the court. I adjourned the hearing to the next day so that 1 the preliminary objection could be heard first as practice requires but, for various reasons, it was never heard until the 07.09.2015. Come that day, Mr.Byamungu, learned counsel for the applicant kicked off by a prayer to adopt the skeleton arguments. He then informed the court that the application has been filed under Order XXXV rule 1 (b) of the CPC instead of sub-rule 1 (c) and he thereby prayed to make such amendments. Mr. Kamala, learned counsel appearing for the respondent expressed a no objection to the prayer. On a second perusal, I realized that the issue of incompetence of the said application for the reason of the said defect was raised in the respondent's skeleton submissions, and accordingly was slated to be heard before hearing of the application. I thus directed the learned counsel for the parties to address me first on that issue before arguing the application or making such amendments. Contrary to his expression of no objection to the prayer for amendment, Mr. Kamala, learned counsel, prayed to adopt paragraphs 3, 4, 5 and 6 of his skeleton submissions. These paras are to the effect that the application is pegged on wrong provisions of the law because Order XXXV rule 3 (1) of the CPC was amended vide Act No. 17/2008 by adding sub rule (1) (c) which caters for applications of this nature. They are further to the effect that the effect of non-citation of the relevant provision renders an application incompetent. The decision of Janet Mmari Vs International Schools of Tanganyika, Miscellaneous Civil Cause No. 70 of 2005 was also cited to bolster the argument. The learned counsel then stated that since the 2 applicant had not cited proper provisions of the law, the application is incompetent and should be struck out. On the other hand Mr. Byamungu, learned counsel, stated that since the application was filed by the first defendant who is not a mortgagor then sub­ rule 1 (b) is relevant. He added that since the first defendant is sued together with the second defendant who is a mortgagor, it would not have been irrelevant citing sub-rule 1 (c). According to him, for the purpose of removing any doubt relating to the application, it would be appropriate to add sub-rule 1 (c) and he was making a prayer to make such amendments under rule 24 (1) & (5) (a) and (b) of the Rules. He finally pleaded that since the prayer is not objected to, it should be granted. Mr. Kamala, learned counsel, insisted that the proper provision would have been sub rule 1 (c) because it caters for suits arising out of mortgages but to save time, he was not objecting the prayer. I heard the arguments by the learned counsel for the parties with keen interest. It is apparent that they are not at issue as to the consequences of failure to cite a proper provision of the law is a fatal ailment; that the application becomes incompetent and liable to being struck out is now a settled rule of law in this country. However, in the present case, the counsel for the applicant seems to elect two poles to sustain the application. One, is that since the applicant is not a mortgagor, then sub-rule 1(b) is apposite. But, in alternative, since the defendants are jointly sued, it would be no offence or irrelevant to cite sub- 3 rule 1 (c) and since the prayer is not objected to, amendments have to be allowed under rule 24 (1) and (5) (a) and (b) of the Rules. I have pondered for quite some time on the prayers made by the learned counsel for the applicant. I must admit that on the face value, the prayer is enticing given the said provision of the rules of this court. However, inasmuch as I agree that amendment of pleadings is allowed under the said rule, for the reasons that will be apparent in this ruling shortly, the said pleadings capable of being amended under the said rule, do not include an incompetent application. I demonstrate infra. Firstly, as the law has it, an application pegged on a wrong provision of the law is incompetent and is liable to be struck out for such incompetency. In Black's Law Dictionary (8th Edition), the term "Incompetency" is defined as: "The state or fact of being unable or unqualified to do something". That, in my considered view, has a direct effect of bearing such an application as good as never existed in the eyes of the law since nothing can be accomplished through it. This is certainly so because, incompetency of an application is a defect which goes to the root of the matter; that is, the application (See: Zuberi Mussa l/s Shinyanga Town council, Civil Application No. 100 of 2004 (CAT unreported). In that accord, there is no such remedy thereto as "amendment" because where an application is found 4 incompetent, then there is nothing in existence before the court and as such there is nothing to be amended. I draw such a conclusion by way of analogy from the observations made by the court of appeal regarding the status or rather definition of an incompetent appeal in the case of Fortunatus Masha Ms William Shija & Another [1997] TLR. 41, observations which were quoted with approval and relied on by the same court in the case of 1st Adiiii Bancorp Ltd. Vs Issa Hussein Samma, Civil Appeal No.78 of 2006 (unreported). I will reproduce hereunder: "... we are of the view that where by reason of non-extraction of the decree or orders, as in this case, the appeal is rendered incompetent, the issue of insufficiency or incompleteness does not really arise. The position that arises is simply one of non-existence of the appeal. Because insufficiency or incompleteness connotes something which can be improved upon, say by adding to it. An incompetent appeal is one which in law did not come into existence although efforts were made to bring it into existence. In such circumstances therefore, one cannot properly talk of there being an insufficient or incomplete appeal which one can improve upon by filing a supplementary record, because in law no appeal 5 came into existence in the first instance, there was only a purported appeal if you wish ..." I am mindful to the fact that those two cases may be distinguishable from the present one in that the Fortunatus Marsha and 1st Adilli Bancorp Ltd cases dealt with incompetence of an appeal and in the Court of Appeal whereas in the present one, the question is the competence of the application. This distinction notwithstanding, I have only drawn analogy as far as the effect and or description of the term "incompetency" is concerned that since an appeal which is incompetent is as good as it never existed, this is more so to an application which is incompetent for being instituted under a wrong provision of the law. It is therefore trite to hold that since nothing could be done to rectify an incompetent appeal, certainly, nothing can be done to rectify an incompetent application for the simple reason that it never existed due to the fact that the defect leading to incompetence is one that goes to the very root of its (application's) existence. The above exposition explains why the law as settled now, has it that an incompetent application must be struck out even where there is citation of correct general provisions of the law but wrong sub-section or sub-rule for that matter (See: National Bank of Commerce Vs Sadrudin Meghji [1998] TLR 503, Almas iddie Mwinyi Vs National Bank of Commerce & Another [2001] TLR 83, China Henan International Co-operation Group Vs Salvand K. A. Rwegasira [2006] TLR 220, Citibank Tanzania Limited Vs TTCL & 4 others Civil Application No. 64 of 2003 (unreported), NBC (1997) Ltd Vs Thomas K. Chacha t/a Ibora Timber Supply (T) Ltd Civil Application No. 3 of 2000 (unreported), Antony J. Tesha Vs Anita 6 Tesha Civil Application No. 10 of 2003 (unreported), Marcky Mhango (On Behalf of 684 Others) Vs Tanzania Shoe Co. Ltd & Another, Civil Application No. 37 Of 2003 (CAT unreported) and Edward Bachwa & 3 Others Vs the Attorney General & Another Civil Application No. 128 of 2006 (DSM Unreported). The totality of the foregoing certifies my view that the amendments envisaged under rule 24 of the Rules relates to pleadings and or matters that do not touch the root of the application. To put it more simply and clearer, whereas rule 24 presupposes existence of the pleadings and applications, it certainly cannot allow amendment of a non-existing application or pleading. This is so because, under sub rule (3) (a) and (b) thereof, pleadings are amended for the purpose of correcting any defect or error in the proceedings or to determine real question in controversy or to achieve justice. In my considered view, in order for the court to be able to make an order for such amendment, it is imperative that such pleading or application must be in existence and properly so. This has always been the case because, where the court is not properly moved, it has the impact of impairing its jurisdiction and thereby vitiating the proceedings. As such, to avert such ailment in the administration of justice, the solution has always been, as established, to strike out that application or pleading as the case may be. My conclusion is, therefore, that the application before me is incompetent following a concession to that effect by the learned counsel for the applicant who had sought to amend it despite there being an objection in the skeleton arguments. This is regardless of an argument that the applicant, who is the 7 first defendant, is not a mortgagor and that the prayer to have it amended is not objected to. That is so because, as correctly stated by the counsel for the applicant, the prevailing law has it that an application for leave to defend a summary suit will only be maintainable if brought under Order XXXV rule 3 (1) (c) of the CPC in the light of the amendments effected thereto in 2008 vide the Mortgage Financing (Special Provisions) Act, 2008. Accordingly, the status of the applicant for leave (whether Mortgagor or otherwise) in the transaction that led to the claim against such applicant is irrelevant. That apart, a "no objection to amendment" response by the counsel for the respondent does not merit any fruit either. This is so because, firstly, prayers in the court of law are granted on the basis of their merits and in the purview of the law, not at the wishes or otherwise of the parties or their counsel. Secondly, that response was a mere afterthought, for the respondent's counsel had raised an alarm on the incompetency of the application and prayed for its striking it out. It was this rather objection which had the hearing of the application adjourned on the 02.03.2015 so that it (the objection) could be heard first. In my view, had the counsel intended to save time as he stated in backing his "no objection to amendment", he should have informed this court so on the said date or should have never raised the objection in the skeleton arguments. 8 The above said, I proceed to strike out the application for being brought under wrong provisions of the law. Since the parties were at one to have the application live, I make no orders as to costs. Order accordingly. - d at ed W D A R ES SALAAM this 15th day of October, 2015. iz \ 3 •> ___ ____ > ■' 3 J, C. M. MWAMBEGELE JUDGE 9