ms tanzania mining combine ltd vs the board of trustees of the national provident fund 1997 tzca 39 26 september 1997

IN THE COURT OF APPEAL OF TANZANIA AT TANGA (CORAM: MAKAME, J.A. . RAMADHANI. J.A.. And LUBUVA. J.A.) CIVIL APPEAL NO. 17 OF 1995 BETWEEN M/S TANZANIA MINING COMBINE LTD. . . APPELLANT AND THE BOARD OF TRUSTEES OF . . . . . RESPONDENT THE NATIONAL PROVIDENT FUND ■(Appeal from the decree of the High Court of Tanzania at Tanga) (Msuml, J.) dated the 30th day of November, 1593. in Civil Case No. 5 of 1992 JUDGEMENT OF THE COURT LUBUVA, J.A.: In terms of Order XXXV Rule 2 of the Civil Proce<Jupe Code* under summary procedu.ro, the respondent instituted a suit against the appellant claiming the sum of shillings 1,250,000/*. That was High Court Civil Case No. 5 of 1992 at Tang& Registry. When summoned to obtain leave to defend,the appellant filed an application supported by affidavit seeking leave to defend the suit. The High Court (Msumi, J.) in dismissingthe application for leave to defend, held that there was no triable issues as the appellant had no defence to offer. A decree was granted to the respondent under Order 35 rule 2 (2) (a) of the Civil Procedure Code. Aggrieved by that decision the appellant has appealed to this Court. 2 Four grounds of appeal were filed. In essence however, it is our view that there is only one issue of substance. That is whether the learned trial judge erred in holding that the application did not disclose any triable issues. For the appellant, Mr. Tahir Ali, learned counsel gallantly contended that the suit filed by the respondent did not disclose a cause of action. In elaboration, he stated, the suit was based on the dishonoured eh&que on which there was no cause of action. In other words, it was Mr. Tahir Ali's submission that there was no right to sue on the particular checjue. Furthermore, Mr. Tahir Ali also strongly complained that the post dated cheque was presented by the respondent contrary to the agreed arrangement that it was to be presented to the bank on a date after 6.12.1991 and not before. In this appeal we think the main single issue is whether there were triable Issues. Mr. Komba, learned counsel for the respondent was of the view that there was none. He advanced the following reasons: First, that the cheque dated 6.12.1991, was presented on 13.12.1991 and again on 17.12.1991. On these two occasions, the cheque bounced. Second, that there was no other arrangement reached between the appellant and the respondent changing the time schedule for presenting the cheque to the bank. From the submissions made by Mr. Tahir Ali, learned counsel, it appears to us that Mr. Tahir Ali is of the view that the cause of action in this suit is based on the cheque. With great respect, we think that is erroneous because it is common ground that the appellant owed the National Provident Fund, the respondent, the suit amount shs. 1,250,000/.= . In our considered opinion, the cheque, if anything at all is indicative of a process of effecting payment by the appellant. It was, as it were, a means to an end and not .. . / 3 3 an end in itself. Furthermore, we agree with Mr. Komba, learned counsel for the respondent that it is not true as Mr. Tahir All, learned counsel urged us to accept that the cheque was presented much earlier than it was agreed. From the record, the cheque d«ted 6.12.91 was not presented to the bank earlier than that date. Jo the contrary, and as- already pointed out, it was presented on la.12.1991 and 17.12.1991 which is later than 6.12.1991. Then W w r e was the argument that the respondent should not have filed the suit until the expiry of six months from the date of the cheque i.e. 6.12.1991. We find this submission ridiculous and Th« cH«que having been returned by the bank twice marked "Refer to drawer'1 the respondent still exercised such indulgence as to write the appellant a letter dtjterl ?5tH P«t>Fuaryr 1992. This letter sought to request the appellant to settle out«tijrwUtig .amount before legal action was taken. In the circumstances, we are unable to accept Mr. Tahir Ali's *ob8tiseior> tHat there were other arrangements g g r m d in ooflnoction wJLtb the time jjCh^rTuLe fot th« ohequ* to the bonk. At any -rate, even Mr. Tahir All, learned counsel was unable to o« w hat r + th e f ts *>- C o n e e (5 u e n b l y ; like the learned trial judge, we are satisfied that there were no t r 't a b j .e is s u e s . With regard to appellant's diesatisfaction with the costs ai>* intere-ot awarded at the bank rate, we flnct no merit in it* From the plaint, it is common ground- that costs and interest at the bank rate were among the reliefs sought. The learned trial judge properly granted that which was prayed for. The complaint is without foundation. ,../4 For these reasons, the appeal is dismissed with costs. /"■ ** DATED at TANGA this day of 1997. L.M. MAKAME JUSTICE OF APPEAL A.S.L.RAMADHANI JUSTICE OF APPEAL D.Z. LUBUVA JUSTICE OF APPEAL I certify that this is a true copy of the original. ( M. S.' S'HANGALI ) DEPUTY REGISTRAR