CIVIL APPEAL NO 314 OF 2021 MANSOOR INDUSTRIES LIMITED VS UNITED BANK OF AFRICA TANZANIA LIMITED 1

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: NDIKA, J.A.. MGEYEKWA. 3.A. And ISMAIL. J.A.1 ) CIVIL APPEAL NO. 314 OF 2021 MANSOOR INDUSTRIES LIMITED.............................. ......... APPELLANT VERSUS UNITED BANK OF AFRICA (TANZANIA) LIMITED..... .......... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania at Dar es Salaam) ( Rumanvika. J.t dated 10th day of June, 2021 in Civil Case No. 188 of 2018 JUDGMENT OF THE COURT 23rd October & 5th November, 2024 ISMAIL. J.A.: This appeal arises from the decision of the High Court, made pursuant to a prayer for adjournment. The prayer, made by Mr. Enos Kilufi, learned counsel representing the appellant on the day, was intended to allow the appellant to procure attendance of its second and last witness, a Parliamentarian, who was reportedly attending parliamentary sessions in Dodoma at the time. While the prayer for adjournment was not contested by Mr. Philemon Mroso, counsel for the respondent at the trial, the learned trial Judge found that the reasons for adjournment were underwhelming to convince him to accede to the prayer. He thus dismissed the suit for want of prosecution, with costs. The appellant was given a 'life line' to re-file the suit if it so wished but subject to time limitation. This is the decision that rattled the appellant hence the institution of the instant appeal. Brief facts constituting the background to this matter are to the effect that, the appellant and the respondent had a subsisting banker- customer relationship through which the latter granted credit facilities on a rolling arrangement. These facilities were disbursed through the appellant's Bank Account No. 56010030003662, held with the respondent. The appellant's allegation which was valiantly disputed by the respondent was that, under the said arrangement, any debit transaction in respect of the said account was to have the appellant's prior approval. It was alleged that, in what was considered to be an act of totally reneging on this undertaking, on two occasions, the respondent debited a total sum of USD 165,000.00 from the said account. The respondent denied any wrongdoing. While admitting that the said sum was deducted from the appellant, the respondent's firm position was that deduction of the said sum was lawful and caused by the appellant's failure to fulfill conditions precedent to drawdown of a credit facility worth USD 15,000,000. In the respondent's contention, approval and acceptance of the credit facility entitled the respondent to the realization of the debited sum, it being the arrangement fee which was realizable by the respondent and non-refundable to the appellant. The divergence in the disputants' minds meant that the matter had to find its way to the High Court where the suit was filed, After changing a few hands, the matter was eventually placed in the hands of Rumanyika, J. (as he then was) who handled it as a partly heard matter. His immediate predecessor, Mgonya, J. (as she then was) heard the testimony of Benson Luoga, PW1. It is also instructive that, while the matter was still in the hands of Mgonya, 3, Mr. Kilufi informed the court that, whereas the initial plan was to have four witnesses for the plaintiff, the appellant had chosen to halve the number and that, after PWl's testimony, the only other witness was the appellant's Chief Executive Officer, Mr. Shanif Mansoor Jamal, who was a member of Parliament who was attending parliamentary sessions at the time. This triggered the decision to settle for 21st July, 2021 as the day on which hearing would continue. The record informs that this date was pushed forward, following the decision to put the matter on an expedited disposal process that saw it scheduled for hearing on 10th June, 2021. On this date, the appellant's counsel informed the trial court that, owing to his involvement in the parliamentary proceedings, the appellant's second and last witness could not appear in court. He prayed that the matter be adjourned in terms of Order XVII rule 1 of the Civil Procedure Code, Cap. 33 (the CPC) and be set on a date on which the said witness would make an appearance in court. Crucially, whilst the respondent's counsel did not have any qualms about the prayer for adjournment, the learned trial Judge was not convinced that the call for adjournment was reasonable and convincing. He, in turn, declined the invitation and dismissed the suit for want of prosecution with costs. As he did that, he allowed the appellant to re-file the suit, subject to the law on time prescription. In dismissing the suit, the learned trial Judge reasoned as follows: think if, without reservation the courts o f law had to democratize dispute processing such that parties were allowed to set pace and quietly choose when courts to hear cases and when they should not, the courts couid have lost legitimacy. That one in my considered view was dictates o f Orders IX Rule 1 and XVII o f the Code." As stated earlier on, the dismissal order was not to the appellant's liking. Its dissatisfaction was manifested in the memorandum of appeal instituted in this Court on 6th September, 2021. While the memorandum of appeal raised nine grounds of appeal we are of the considered view that the narrow but decisive complaint distilled from these grounds of appeal is that the trial Judge erred in law by dismissing the suit with leave to re-file while the reason for non-appearance of the witness constituted sufficient reason for adjournment of the matter. It is for that reason that, in our view, need does not arise for reproduction of the grounds of appeal. Hearing of the appeal pitted Mr. Selemani Matauka, learned counsel whose services were enlisted by the appellant, against Mr. Tumaini Shlja, the learned advocate who stood in for the respondent. Highlighting the written submissions filed on the complaint, Mr. Matauka contended that the appellant advanced sufficient reasons for adjournment as a certain Mr. Jamal, the appellant's last witness, was a member of parliament who was attending parliamentary sessions. Mr. Matauka argued that this fact was brought to the attention of Mgonya, J who ordered that the matter be set for hearing on 21st July, 2021. He argued that the choice of the said date, which was subsequently re­ scheduled to 10thJune, 2021, was informed by this fact. Mr. Matauka took an exception to the trial Judge's reasoning that the appellant had the option of calling other witnesses while it was on record that the appellant had chosen to drop all other witnesses and remain with one. The learned counsel also decried the trial Judge's reasoning that court proceedings take precedence over the parliamentary sessions which were planned ahead of the court schedule. He bolstered his argument by referring us to decisions in the decision of the High Court in Devota Mathew Minja v. Tito Simon Haule & 2 Others, Miscellaneous Land Application No. 681 of 2019 [2021] TZHCLandD 22; and Tanzania Breweries Limited v. Anthony Nyingi, Civil Case No. 119 of 2016 [2015] TZCA 580. Regarding the dismissal with liberty to re-file, the contention by Mr. Matauka was that re-filing would not be a feasible course of action as time would have caught up with the appellant on the ground that, this being a matter founded on contract, time for instituting a fresh suit expired in May, 2021. This effectively meant that filing of a fresh suit was all but a mirage. He abandoned the contention that the court became functus officio when it ordered re-filing of the suit subsequent to the issuance of the dismissal order. Mr. Matauka urged us to allow the appeal with costs. Submitting in rebuttal, Mr. Shija leapt to the defence of the trial Judge, arguing that there was nothing blemished in the decision to order dismissal of the suit. He argued that under Order XVII rule 1 (1) of the CPC, the grant of an adjournment order is discretionary and it is subject to adduction of sufficient reasons. The learned counsel argued that the proviso to the cited provision explicitly guides that adjournments would only be acceded to where circumstances are beyond the control of the parties. He referred us to page 116 of the record in which counsel for the appellant was recorded as informing the court that the appellant had four witnesses. Mr. Shija was firmly of the view that the court enjoys an inherent power to dismiss suits as part of control and regulation of the proceedings. He fortified his contention by referring us to our decision in Abdallah Kombo v. Republic, Criminal Appeal No. 322 of 2015 (unreported) in which dismissal of the charge and the accused were considered to be an act of invocation of the court's inherent powers. Mr. Shija argued that, whilst the court was informed of the unavailability of the witness on the day, due to his attendance to parliamentary sessions, no evidence was produced to back up the payer for adjournment on the said ground. He, accordingly, urged the Court to dismiss the appeal with costs. From the parties' rival submissions, the singular issue for our determination is whether the trial court rightly exercised its discretion to refuse the appellant's quest for adjournment. As we embark on the disposal journey, we wish to remark that, grant of a prayer for adjournment of the suit is a matter which is entirely in the discretion of the trial Judge or magistrate of that court. Such adjournment must, a matter of law, be based on solid grounds known as sufficient cause. This is what the provisions of Order XVII rule 1 (1) of the CPC guide. It stipulates as follows: "l.-(l) At any stage o f the suit the court may, if sufficient cause is shown, grant time to the parties or to any o f them; and may from time to time adjourn the hearing o f the suit/' [Emphasis is added] As alluded to earlier on, the reason that the appellant's counsel advanced to ask for adjournment was that the court appearance on the day coincided with witness's parliamentary sessions which entered their most crucial phase of tabling, discussing and passing the national budget In Mr. Shija's contention, his counter-part's contention ought to have been evidenced. We respectfully find Mr. Shija's argument specious for the simple reason that the witness's attendance to parliamentary sessions was brought to the court's attention as early as 11th May, 2021, when the parties appeared before Mgonya, J. It is this revelation that informed the decision to slate the hearing on 21st July, 2021, knowing that the said witness would have fully attended to the sessions and the parliament would have adjourned. The fact that the court schedule was revised and brought forward to June, 2021 instead of July, 2021, meant that the court schedule meddled in the affairs of the parliament which were pre­ arranged. It not lost on us, either, that Mr. Kilufi requested the trial Judge to let the witness find a convenient time within the parliamentary sessions and appear in court but this request was rebuffed. We consider the request by Mr. Kilufi as the clearest indication of the appellant's readiness to prosecute its case. From the foregoing, we are of the view that the learned trial Judge failed to take into account that the change in the court schedule was likely to affect the witness's participation in the parliamentary proceedings. We venture to think that this was not a case of an unjustified absence, actuated by any ill intention or negligence. It was an enforced absence whose reason was, in our conviction, plausible and falling in the realm of sufficient cause catered for in the cited provision of the CPC. Our position is bolstered by the reasoning we propounded when we considered an akin situation in the case of Arcado Dennis Ntagazwa v. Buyogela Julius Bunyambo [1997] T.L.R. 242. At stake in the said matter was the propriety of the decision of the High Court Judge to refuse to grant an adjournment while he had been informed that a party was sitting in a Parliamentary Probe Committee whose sessions had been set before the date for his appearance in court was re-schedu!ed. Holding that the trial Judge was erroneous in his decision, the Court held: "The advocate who was engaged on 10.9.96 could not be given full instructions and briefing, and therefore she was asked to travei from Dar es Saiaam to Kigoma and enter appearance in court with a request for adjournment pending receipt o f fuii instructions and briefing from the appellant The appellant cannot be said to have acted unreasonably here. First, considering the expenses involved to hire the services o f counsel, it is not surprising for the appellant to say that he could not raise the full advocate fess within two weeks especially after the hearing date was brought forward from 4.11.96 to 2.9.96. Again considering that the appellant was serving on the Parliamentary Probe Committee, it is inconceivable that he had very little time, as indeed pleaded by him and confirmed by his advocate, between 10.9.96 and 16.9.96, to brief his advocate in sufficient detail on what happened during the election process. Nor can the appellant be said to have unreasonably absented himself from court on 16.9.96. He was serving on the Parliamentary Probe Committee. As stated before, he had accepted appointment to that Committee in reliance o f the original date of 4.11.96 fixed by the court for the hearing o f his case. Had the court adhered to that date the appellant would have completed his assignment with the Committee in time for the hearing o f this case. The appellant was therefore justified in asking for adjournment pending completion o f his assignment with the Committee which he had taken up relying on the original hearing date o f his case as fixed by the court. ... The trial judge was fully appraised o f all these matters through the correspondence sent to the court by the appellant. We think that the trial judge wrongly disregarded them when he refused to grant the appellant's application for adjournment." [Emphasis added] It follows, therefore, that, in the instant matter, since the trial Judge was, as was in the quoted excerpt, fully appraised of the reasons for the prayer for adjournment, the refusal was not premised on any sound basis. We are also alarmed by the course of action taken by the trial Judge when he chose not to accede to the appellant's prayer for adjournment. Our take is that the choice of dismissal with leave to re-file was a misnomer. The record informs that at the time of dismissal, the appellant had led PW1 to testify in support of its case. This meant that steps towards prosecution had been taken and that the worst that the appellant would suffer for its failure to lead in evidence on 10th June, 2021, was to have its case closed to allow the respondent to open up its case and let the court make a decision based on the testimony adduced in court. In our considered view, the irregular decision to dismiss the suit had a finality effect which rendered any subsequent action, including that of re-filing it, res-judicata - see: Ngoni-Matengo Marketing Union limited v. AM Mohamed Osman [1959] 1 E.A. 577. We are decidedly of the view and hold that the learned trial Judge strayed when he refused to let the proceedings stand adjourned to allow the appellant make its case. It was also erroneous for the trial court to order a dismissal the suit instead of closure of the plaintiff's case. Equally anomalous was the order for re-filing subject to the time limitation set by law. In consequence of all this, we find merit in grounds one and five of the appeal and we allow them. Accordingly, on those grounds alone, the appeal is allowed. We set aside the ruling and order of the trial court and remit the matter back to the trial court for continuation of the hearing, picking from where the proceedings ended before the dismissal. Since this was a mistake committed by the trial court, we make no order as to costs. DATED at DAR ES SALAAM this 5th day of November, 2024. G. A. M. NDIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 5th day of November, 2024 in the presence of Ms. Winnie Sengo, learned counsel for the Appellant and Mr. Tumaini Shija, learned counsel for the Respondent is hereby certified as a true copy of the original.