20020227 TZCA Zanzibar

IN THE COURT OF APPEAL OF TANZANIA AT ZANZIBAR (E,Q}iAM ~ ~~....!-J#'.'-~~}3...~~~!-~A_!ld ~.Q.S_Q L.J •!:.,:) CIVIL APPElu., NO. 52 OF 1999 BETwEEN 1. MOHAMED StLUM t APPELLANTS 2. SUDI SAID f AND FE.REJI MBARAK BY HIS AT'IDRNEY MOHAMED KHATIBU •••••••• ~ •••• RESPONDENT (Appeal from the Judgment of the High Court of Zanzibar at Zanzibar). (~12,cz._ma, · ~.!..) dated the 18th February, 1999 in JUDGMENT The case under appeal originated in the Regional Magistrate~s Court in Zanz.ibar where the respondent, then plaintiff who sued as a pauper and by an attorney, was partially successful in his claims. The appellants, then defendants, were not only adjudged liable for part of the respondent's claims, they lost in their counter-claim. So, unhappy with that judgment they appealed to the High Court of Zanzibar.· Their appeal was dismissed with costs and they have resorted to this Court. In this appeal Mro Ajar Patel, learned advocate for the g.ppellants, . filed five grounds of appeal., ) During the hearing of the appeal he abandoned the fifth ground of appeal and ·also thf, alternative to the second ground of appeal. The grounds which were argued therefore were as follows. First, that the trial judge (actually Regional Magistrate) ought riot to have allowed • 0 ./2 2 the respondent to sue in l2!'Il!.a-P~<:..~El~.. Second, that the trial court should have dismissed the suit as the attorney of the respondent had not obtained leave of the magistrate before filing the suit. Third, that the trial court which had found.that the respondent had "failed to prove his case on a balance of probabi- lities as required. by the law11 ought not to have given him judgment for pert of the claim. Fourth and finally, that judgment in favour of the appellants ought to have been entered for the counter-claim .. Before we discuss the grounds of appeal it may be useful to give a brief summary of the case. The respondent who was a businessman applied to the Regional Magistrate for leave to sue as a poor person. The application entitled 11 ombi la faragha;i, which could translate as 11 chamber application11 , appears to be dated 28th May, 1998 aYJ.d was supported by an affidavit of the applicant, now respondent. There was also a "Certificate of Means;: from the HQfisi ya Mkuu wa Wilaya ya Mjini11 p Apparently, acting on those documents the Regional Magistrate granted the leave to sue in .f.?rpia _P':._11,E~!_i_~ on 8th October, 1999. In filing and prosecuting the suit the respondent did not act in person but used one Mohamed Khatibu Maalim to whom he granted a power of.attorney. On 28th September, 1998 the Regional Magistrate granted Maalim leave to act for the respondent on a power of attorneyo According to the plaint which was filed in court, on divers days between 1997 and 1998, the respondent was supplied with dates by the appellc/Jlts but they billed him for a larger quantity than • o•/3 3 was actually suppliedo For example, at one'time they supplied him with dates worth T.sh. 1,288,200/= but billed him for the amount of T.sh. 1,628,400/=, which was some 340,200/= in excesso. On another occasion he was supplied with dates worth 576,000/~= but the bill was for 1,080,000/=, which he paid. That was some 5o4,000/= in excess. The appellants were also alleged to have taken from the respondent an amount of T.shs. 2,550,000/= and also an amount of Tcshs. 1,200,000/:=- for which he did not obtain any benefit·. In all, he claimed from the appellants T.shs. 3,529,200/=• The appellants denied those claims and counter-claimed an amount of T.shs. 669,000/= from the respondent, arising from the dates business. The trial court in its judgment said j_E!_~~-':~~~:- This court having collected the submission . 11 by both parties with their respective wit- nesses is of the view that the Plaintiff hasn 1 t proved his case on a balance of . probability as required by law. As to the point that the Defendant for .the two times received money from the Plain- tiff in excess, this was not exactly denied by the Defendants., For that therefore the court is of the view the Defendant have received two times from the Plaintiff the sum of money more than the costs of the goods they brought. Therefore the court is in a position to make an order to the defendant to pay the plaintiff the dif- ference of money he received from the Plaintiff for the two times i .. e. T~shs. 367,200, T.,shs. 504,000 = T.shs.871,200/=.n ••• /4 -· 4 - The defendants were ordered to pay to the plaintiff the sum of T.shs. 871,200/= plus costs. In their appeal to the High Court the appell'ants filed five grounds, four of which are the same as the grounds of appeal which Mr. Patel 1..lrged before us. In dismissing the appeal in its entirety the High Court (Dahoma, J.) said:- 19 The court is o'f the opinion that there was a _fair trial and judgment and it cannot be persuaded to allow the appeal or order a retrial because there _was n~ irregularity and the suit was conducted satisfactorili•" It is now for this court to consider whether the two lower · court:. judgments are assailable" Order 37 of the Civil Procedure Decree contains provisions which govern the procedure to be followed in the case of suits by poor personso Rule 1 of the order says that an application for leave to sue or defend as a poor person in the High Court or in a court subordinate to the High Court, excepting the Kadhi's Court, is by way of a petition. Rule 3 specifies documents which must support the petitieno Those are a certificate to be signed by a District Commissioner or some other officer mentioned in the Rule and 9 at the discretio'n of the court, an affidavit by the petitioner as to any facts upon which the claim for a certificate is based. Under Rule 6.the court, before granting leave to sue as a :E)auper 9 has to be "satisfied as to the poverty of the applicai."lt a_nd that the applicant has a reasonable cause of action11 • 0 0 ./5 - 5 - We have perused the record in Application No. 62 of 1998 in which the respondent applied for leave to sue as a poor person and we could find no indication that the Regional Magistrate who ~ranted the leave was aware that he had to be satisfied that the applicant had a reasonable cause of action. It is apparent that the learned Regional Magistrate considered that it was enough if the applicant showed he had no sufficient means to pay the pres- cribed court fees. The ruling of the court reads as follows - Having gone through the grounds of this application the Court is satisfied that the applicant at the moment has got no means of paying the Court fees and there- fore the prayer is hereby granted. S.g-d:.·- Mshibe., RM. Court: It is so ordered. Sgd. Mshibe; RM. - " "'!Ill'"' 8/·10/98. 11 It is also to be noted that the plaint in the suit was filed on the same day, apparently after the ruling was delivered. So, it is unlikely that the learned Regional Magistrate was influenced by the contents of the plaint in granting leave. We have given anxious thought to what would be the legal effect of that lapse·on the part of the respondent as well as that of the trial magistrate. We think that in view of the eventual finding by the trial court in its judgm~nt that the 6 respondent was entitled_to a decree in his favour for part of the claim, there must have been a cause of action and that had the magistrate directed his mind to that requirement at the time he \-,as considering the application he would have found that 11 a reason8:ble cause of'action11. existedo We take this v:i.ew to be not only logical but also legal btcause had the magistrate realized that the respondent had to show, but did not show, that he had a_ reasonable cause of action, one of two recourses would have been taken by the court, either to require the respondent to show 11 reasonable cause of action" and then Proceed with the hearing of the application or to dismiss ·the application there and then in which case the suit would not have been filed unless fees were paid. If the respondent were to be given a chance to advance · grounds to show reasonable cause of action but the court found the grounds to be unsatisfactory the application would be.dis- missed and a suit subsequently filed, even with requisite fees paid, would not stand because of want of cause of action. We do not, therefore, feel compelled to find that the failure by the Regional Magistrate to require the respondent to show,reasonable cause of action vitiated the proceedings in the suit which followed afte~ leave to sue as a pauper was granted. We could not find evidence either before or after leave was granted that the respondent had sufficient means to pay filing fees for the suito In view of the Certificate of means from the District Commissioner that the respondent was a poor person.- 11mwombaji akiwa ni maskinin, the appel],.ants needed to controve::.'.'t it by cogent evidence apart from the counter affidavito No such cogent evidence was adduced and this court has no firm basis ••. /7 - 7 - for faulting the lower courts on that finding. The first ground of appeal is therefore dismissed. The second ground of appeal is factually incorfeet andi as ind.icated earlier on in this judgment, the attorney for the respondent was in fact granted leave on 28th September, 1998 in Application No. 63 of 1998, to prosecute the suit on behalf of the respondent. There is no merit therefore in that ground of appeal. We accordingly dismiss it. A hurried reading of the trial court judgment ~ives the impression that it is self-contradictory in that it appears to say on the one hand that the respondent had failed to prove his case on a balance of probabilities and, on the other hand, that part 9r some of the claims entitled him to a favourabie decree. The truth o.f the matter, however, appears to be a mere language difficulty. It is quite apparent, and this is supportable from a reading of the evidence as a whole, that the tr,ial court was saying that for part of the claim which needed to be established by evidence, such evidence was insufficient; but some other part of the claim was not controverted by the appellants and, consequently, the respondent was entitled to judgment in his favour as regards that part only. So, the suit was partially successful. We dismiss the third ground of appeal., As mentioned at the beginning,of this judgment, the appellants filed a counter-claim for shillings 669,000/= plus interest. A counter-claim is like a plaint and if the other p~ty, that is to say the plaintiff in a suit, wishes to dispute it, he has to file a defence to it. ••• /8 ... 8 - The respondent did not fiie a defence to the counter-claim and even when giving evidence at the trial did not advert to it although he told us during the hearing of this appeal that _he disputed it in his evidence but that the trial magistrate did not record ito He also claimed that the appellants did not pursue the counte~claim during the trialo The first appellant, Mohamed Salum, in his evidence at the trial (which was substantially adop~ed by the second appellant, Sudi Saidi) does not appear to have specifically dealt with the counter-claim of shs. 669,000/=, instead he spoke of Tshs. 931,200/= which he said the respondent owed themo It is not clear if the counter-claim was part of this larger amount. The High Court was of the view that the respondent 11 was not required by the court to file a reply to the counter-claim11 and referred to Order 8 Rule 9 of the Civil Procedure Decree as supporting that viewo The High Court found in any case that the counter-claim had not been provedo Rule 9 of Order 8 is in the following words - 11 No pleading subsequent to the written statement of a defendant other than by way of a defence to set-off shall be presented except by the leave of the court and upon such terms as the court thinks fit, but the·court may at any time require a written statement or additional written statement from any_ of the parties and fix a time fer presenting the sa.meo; 1 ... /9 9 - It is curious that Rule 9 which allows a defence to a set-off to be presented to court subsequent to a written statement of defence without first seeking leave of the court appears to exclude· the presentation of a defence to a counter-claim in similar circumstances. Rule 13 of Order VIII of the Mainland Civil Procedure Code, 1966, which is the equivalent of Rule 9 of Order VIII of thJ Zanzibar Civil Procedure Decree, excepts both a set-off and a counter~claim as pleadings which can be filed subsequent to a written statement of a defendant without leave of the court. One is tempted to say that apart from sheer inadvertence on the part of the draftsman of the Chil Procedure Decree, there is no apparent reason for Rule 9 of Order VIII of the Civil Procedure Decree to omit reference to a counter-claim. We are fortified in taking the view we have just given considering that Rule 6 (7) of the same Order 8 of the Civil Procedure Decree provides, and we quote:- ..... 11 (7) the plaintiff or any person named in a written sta.tement as a party to a counter-claim may present a reply by way of defence to the counter-claim within fourteen days of the service on him of · the written statement and counter-claim or within such further period as the court may allowo 11 There is no requirement under Rule 6 (7) for t_he plaintiff to seek leave of the court before presenting a re_ply containing a defence to a counter-claim •. We are satisfied, therefore, that ••• /10 /, Rule 9 cannot be taken to require leave of the court to be sought and obtained before a defence to a counter-claim can be filed by a plaintiff~ It follows that the respondent, if he disputed the counter-claim, should have filed a reply containing his defence to the counter-claim~ But does it imply that the appellants were ipso;:fact0 entitl~d to judgment without adducing any evidence to prove the counter-claim? Rule 10 of the Order 8 of the Civil Procedure Decree provides that where any party ~rho has been ordered to present a written statement or other pleading fails to present the same within the time fixed by the court, the court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit. In the case under appeal there is no claim that the respondent was ordered to file a'reply in defence to the counter-claim but the important point we want to ,,mderscore here is that it does not necessarily follow that because a party does not file a defence to a claim or counter-claim, judgment will be given against him - even where proof of the claim or counter-claim is lacking. are satis~ied that the appellant was not entitled to judgment on· We the counter-claim and the complaint in ground four of the memorandum of appeal has no merito The appea_l is dismissed with costs. It is so ordered. ' . \ •. I If': . • - 'f ' DATED at ZANZIBAR this 27th day of February, 2002 • . Lo Mo MAKAME JUSTICE OF APPEAL AoSoLo RAMADHANI JUSTICE OF APPEAL Jo Ao MROSO JUSTICE OF APPEAL · I certify that this is a true copy of the original.