NBC LTD VS MM WORDWIDE COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 84 OF 2015 NATIONAL BANK OF COMMERCE LTD ...........................PLAINTIFF VERSUS MM WORDWIDE TRADING COPANY LIMITED JACOB FREDRICK MSAKI -...........DEFENDANTS ANNETE JACOB MSAKI 21st September & 15th October, 2015 RULING MWAMBEGELE, J.; Following a preliminary objection raised by Mr. Mwalongo, the learned counsel who appeared for the defendants in Commercial Case No. 166 of 2014, this court struck out the suit which was filed by the National Bank of Commerce; the plaintiffs herein. Consequent upon that, the plaintiffs preferred this suit. Once again, the suit is facing another hurdle by Mr. Mwaongo, the learned counsel who represents the defendants. The hurdle is in the name of a preliminary objection which was filed along with the written statement of defence. The preliminary objection has two points, to wit: 1. The court is functus officio to determine the matter that has already been declared time barred by a competent court; and 1 2. The matter is subjudice in that the counter claim in Commercial Case No. 166 of 2014 between the same parties that seeks nullification of the same mortgage created on Title No. 42795 Mbezi Area Dar es Salaam is still pending for determination. The preliminary objection (henceforth "the PO") was argued before me on 21.09.2015. Like in Commercial Case No. 166 of 2014, the plaintiff and defendants were, respectively, represented by Mr. Nyika and Mr. Mwalongo, learned advocates. The learned counsel for the parties had earlier filed their respective skeleton written arguments as required by the provisions of rule 64 of the High Court (Commercial Division) Procedure Rules, 2012 - GN No. 250 of 2012. Arguing for the first point of the PO and having adopted the skeleton written arguments earlier filed, Mr. Mwalongo, learned counsel for the defendants, submitted that this suit was before me for the second instance, the first one being in Commercial case No. 166 of 2014 which was struck out for being time barred. The two suits are between the same parties arising out of the same transaction and therefore comprising the same cause of action, he submitted. The learned counsel went on to submit that the court having ruled that the suit was filed out of time, it finally and conclusively determined the matter between the parties on that cause of action. On the principle of functus officio, the court was referred to Laemthong Rice Co Ltd Vs Principal Secretary Ministry o f Finance [2002] TLR 387 and Zee Hotel Management Group And Others Vs Minister Of Finance & Others [1997] TLR 265; the decisions of the Court of Appeal. 2 Understandably, the learned counsel went on, the plaintiff had pleaded continuing breach, but that the opportunity to plead continuing breach was only available before the suit was declared time barred. After that, he submitted, the opportunity to plead continuing breach was lost. The second point, which was argued in the alternative, the learned counsel stated that after Commercial Case No. 166 of 2014 was struck out, there remained a counterclaim which is still pending in this court. The counterclaim, he submitted, is in respect of the same subject matter as the present suit. To bolster up this point, the learned counsel referred the court to the provisions of section 8 of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 on the principle of subjudice and stated that the remedy available is to stay this suit up and until the suit earlier filed is finalized. In response, Mr. Nyika, learned counsel, in respect of the first point, submitted that the preliminary objection is misconceived in that Commercial Case No. 166 of 2014 was struck out because continuing breach was not pleaded therein. In the present suit, continuing breach has been pleaded thus the two suits cannot be said to have the same cause of action. In the premises, the learned counsel submitted, the court is not functus officio because a suit with a cause of action of which is a continuing breach has never been determined. Mr. Nyika went on to state further that the rejection of the plaint because it is barred by the Law of Limitation does not preclude the plaintiff from 3 presenting a fresh suit in terms of Order VII rule 13 of the CPC. As the court, in striking out the suit, stated that the suit ought to have been rejected but because it was not, the court thought the proper option was to strike it out, the plaintiff were not barred by the law to bring the suit afresh. On this premise, the learned counsel stated that the cases referred to by the learned counsel for the defendant's counsel were not applicable in the present case. On the second point, Mr. Nyika conceded that there is a pending counterclaim in Commercial Case No. 166 of 2014 and that if the two cases are tried separately, there is likelihood of the same court issuing conflicting decisions. In the premises, the learned counsel proposed that the court uses its inherent powers endowed upon it to have the two cases consolidated on the case management basis. In a short rejoinder, Mr. Mwalongo reiterated that there was no option to reject a suit which had come into existence. That option, he stressed, was only available before the suit was filed. The suit having been filed, the provisions of Order VII rules 11 and 13 of the CPC cannot be brought into play. He added that the two suits having emanated from the breach of contract on the two credit facilities, the question of continuing breach cannot be said to be a separate breach. If anything, he submitted, the continuing breach is a sub-component of the breach. On the issue of the two cases being consolidated, the learned counsel conceded that consolidation can be a better option; that is, if the first point of the PO can be held to hold no water. 4 I have keenly listened to the learned arguments of the learned counsel for the parties in this PO. The basic issue for determination in the first point of objection is whether this court, having held that Commercial Case No. 166 of 2014 was time barred and proceeded to strike it out, it became functus officio to determine Commercial Case No. 84 of 2015. I start with the premise that the law is clear as to the outcome of a suit being dismissed or struck out. The difference between the two was stated in the oft-cited Ngoni-Matengo Cooperative Marketing Union Ltd Vs Aiimamohamed Osman, [1959] EA 577 and which has been uninterruptedly followed by courts in this jurisdiction. In Ngoni-Matengo Cooperative Marketing Union Ltd at page 580, Windham, J.A speaking on behalf of Sir Kenneth O'Connor, P. and Gould, J.A had this to say: "... [The] Court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this Court ought strictly to have done ... was to "strike out" the appeal as being incompetent, rather than to have "dismissed" it; for the latter phrase implies that a competent appeal has been disposed of while the former phrase implies that there was no proper appeal capable of being disposed of". 5 The above quotation in the Ngoni-Matengo Case was quoted with approval by the Court of Appeal in Abdallah Hassan Vs VODACOM (T), Civil Appeal No. 18 of 2008 (unreported). The Court of Appeal reiterated and emphasized the lucid explanation of the Ngoni-Matengo case in respect of the distinction between "dismissing" and "striking out" an appeal. The erstwhile Court of Appeal for East Africa sat on 21.05.1959 and 11.06.1959 at Dar es Salaam deciding Civil Appeal No. Dar. 2 of 1959. The Court of Appeal in the Abdallah Hassan case (supra) also referred to its earlier decision of Thomas Kirumbuyo & Anor Vs Tanzania Telecommunications Co. Ltd., Civil Application No. 1 of 2005 (unreported) in which, speaking through Lubuva, J.A held: "From the outset, and without prejudice, it is to be observed that the learned judge having upheld the preliminary objection that the application was hopelessly out of time, and therefore incompetent, should have proceeded to strike it out. Dismissing the application as happened in this case, presupposes that the application was competent and that it was heard on merits". That said, it is crystal clear that there is a distinction between striking out and dismissing an application, a suit or an appeal as the case may be. Dismissing an application, a suit or an appeal, as the case may be, would connote that the matter has been entertained on merits. While striking out an application, 6 a suit or an appeal, as the case may be, would imply that there was no matter before the court to be entertained on merits. In the instant case, the previous suit was struck out thereby connoting that the plaintiff was at liberty to refile it again if she so whished. I am not ready to buy the proposition that the doors to this court were closed after this court declared the previous suit as being time barred. I find this PO to be without merit and dismiss it with costs. jOrder accordingly. iTEDjst DAR ES SALAAM this 15th day of October, 2015. J. C. M. MWAMBEGELE JUDGE 7