19970926 TZCA Tanga

(L, ... . ' IN THE COURT OF APPEAL OF TANZANIA AT TANGA (~: MAKAl"iE, J.t.., RAl"tADHJ\NI 1 J.A. 1 And LUBUVA 1 J.A.) CIVIL APPE/\L 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) (Msumi, J.) dated the 30th d·ay- tyf· Novem~r, 1993. in Civil Case No. 5 o-f 1992 JUDGEMENT OF THE COURT LUBWA, J.A.: In terms of Order XXXV Rule 2 of the Civil l?rocedure Code, under summary procedUJ:'il, the respondent instituted a suit against ·\ the a~llant claiming the sum of shillings 1,250,000/m. That I \ f' was High Court Civil Case No. 5 of t992 at Tanga Ra.gi5b:y. When ,.... J r .summoned to obtain leave to defend, the appellant filed an application suppo~ted by affidavit seeking leave to defend the .,·'. :: . suit. The High Court (Msumi, J.) in dismissing ·the 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 thi! appellant has appealed to this Court. • •• /2 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 l-earned trial judge ·erred in holding that the application did not disclose any triable issues. Por 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 cheque 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 che!'fUe. 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 ~resented to the bank on a date after 6.12.1991 and not before. In this ·appeal we think the·-mein 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 responden.t, the suit amount shs. 1,2so,ooo/=. In our considered opinion, the cheque, if anything at all is indicati:ve of a p·rocess 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. Kombe, learned coun-sel for the respondent that it is not true as Mr. Tahir Ali, learned counsel urged us to accept that the cheque was presented !T'OCh earlier than it was agreed. From the record, the cheque 6ated 6.12.91 was not presented to the ·bank ear.lier th·an--that ~aa·te-. l'o the .contrary, and a& already pointed out, it wa·s presented on ll.12.1991 and 17.12.1991 which is later than 6.12.1991. Then ~re wa~ the argument that the respondent should not have filed the suit until the expiry of six months from the date of the ~heque i.e. 6.12.1991. We find this subrni&&ion ridiculous and ~t.enah-le. The cheque hovl.ng been returned by the bank twice marked "Refer to drawern the respO(ldent still exercised such 1992. This letter sought to request the appellant to settle -t,tlP aut:et"'n,U.ng amouiit J:,,ef'ore legal aetion was ta)cen. Ip the circumstances, we are unable to accept Mr. Tahir Ali's .o~~i<>fl that there were othc~ a.s:-rangement~ 39-"oed 1n· oo<mec t.1.on w:ltb the time :t(:Niitd\Jle ,roe t1~-.,,.nt:l09 tna one(t\>4 to the bonk. lit any .ra·te, even Mr.• Tahir Ali., learned counsel was unable to like the learned trial judge, we are satisfied that there were no With regard t;.o th<> epi:,ellent•s dis~otis~aCtion with the costs aP<1 lntereet awarded at the bank rate, we find no ,nerit in it. From the plaint, it is common g.round. 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 compiaint is without foundation. • •• /4 ~. ;; I ~ ~- ~-~:.:;.__z __ :sc.- t 1• d l'. 4 For these reasons, the appeal is dismissed with costs. ,,,_,.,,._ 0/,TEO at TANGA this Z" day of .J~~7>?~./.f?z,.1997. L. M. MAKA.ME JUSTICE'OF APPEAL A. S. L. RAMA OHAN I JUSTICE OF APPEAL o.z. LUBUVA JUSTICE OF APPEAL I: I certify that this is a true copy of the original. ,ltJtb I ' ( M. s.!£iAfG/:I ) DEPUTY REGISTRAR ,. -. . .t.. "'~-.. - ·e•;.··._,_...,..:,.