19940913 TZHC Tabora

J? / n·· T£IE marr' COURT- OF ~ZAlli .__ • AT !mw. · Jt'e.. tJJ!w' CIVIL, APPEAL NO• .5 OF 1994 ... \ •' f!; MTWARA ro.lf1 S: COURT CIVIL; CASE f ,..,' NO. 7 OF 1994 NATIONAL II0USING C0RP0RATI0N •••• APPELLANT versus: CllluffiRASilJGH LAXMIDAS LTD•• •"• •• PLAINTIFF J. U D GM ENT Tb.is appeal raises important J?Oints of law ·,and fact in connection with the scope arid application of O;rder rl Rule 1 of the Civil Procedure Code 1966 1 hereinafter called; the Code. And more, t~f;l appeal 'demonstrates how miserably m'l.fa.miliar, some magistrates a.re, with the provisions; of the Code which relate ~o Plead.irJ.gc• '~ . The District Court of Mtwa.I'.a. (S.J .. Awasi, RM) pron6tutoed judgment . ..- - -- ~-. _. -. . for the respondent °firm, CRAJITlRASINGR L.ll..XMIDAS LIMITED, against the appellant ·Corporation, THE l\TNJ.1101!.AL HOl.JSING C0RPORAT.t0N 9 under Order ~ r• 1 of the Code, on the ground t~t the parties were no-'i; at issue. 'lhe ! •' ' ' 1 gist. of the case was that the app~ilant Corporation had forcibly and- unjusttfiably evicted tho respondent firm :f'rom a resideni.1.al house on Plot 21 Block 10A iri Mtwa.ra town, and the Reliefs being sought were, among others, firstlzt a Declaration that the respondent firm was illegally eVicted and that they wero still a tenant entitled to ocou,py the house . ' and, s,ooncfIJ:, a.n Order compelling the appellant Corporation to readmit the 1·espondent firm into the house. In this a,ppeal, both parties had sought, and obtained, services ·of learned advocates;~• Saidi for -the appellant Corporation, and Mr. Kumwombc for the r0spondent i'Irm. The dut-y of fr<3.1Ding issue_s rests on a trial cour·li1 and it is elementary that at that stag·e the court should only look a"~ the ,/.; I 2 plea.dings in the case, a:nc.l no.thing else. Pleadings in this ease oonsieted .. of the pt!?;,nt, the 'Writter,. Statement of Defence (~D) 1 and the RePll to the defence. These pleadin~ ,·;ere all filed within "llhe time prescribed. under the law. '!hey spoke_ of,· and ce."ltred on,. two. residential houses si tua.nt on Plots 11 Block 10A1 and 21 Bloolc 10A -wi thi11 the '.row.ship of ' ' . Mtwara.. These plots, and ·fuc residential houses on them, are dietinot. A letter of alloc~tion in respect of the house on Plot 21 Block 10A is ann~d to the Plaint as "A", and annexed to the 'WSD as "D11 is a letter of a.lloea.tion for the house on PlotA 1 Block 10A. 'l'he material and tndisputed facts pertaining· to the Pleadings were these. The respondent firm was a tenant of the appellant Corporation. ·The respondent firm alleged in paragTaph 3 of the Plaint that they were tenants in house e>n Plot 21 Bloolc 10A.. · This claim was denied by the appellant Corporation which a.iiegcd in paragraph 3 of ·cha 'WSD that the ' respondent firm was .its te11ant in the house on Plot.J1. Block 10.A.. Up to this stage, it becomes clear that the parties were at issue as to the identity of the house in which the respondent firm ~as tenant. But then oa.me the RePl,l to the defence . ' . in which . the respondent firm changed their stand and stated in Par~aph 2 thereof that .the1 agreed with the a,pp~llant Corporation that they were its te~ts in ·the house on . . ,. Plot 11 Block 10.A.. On that basis, the trial court :found the parties not a.t i,Ssua, and, in consequei:1.00, proiiounoed judgment as already explained.. The main ground of contention by ML-."Sa.idi was th.at the tri.al oourt erred in law in its finding that the parties "!'ere no·~ a.t issue. Mr. Kumwembe' s argument, on tho other hand, was to the contrary. Both lea.med advocates advanocd reas~ns in support of tho:1,,r si.des of contention, and I shall refer to them as and when the need arises in the course of this judgment.. Suffice it to sn:, at this early ~tage tha.t, I Would, in the ciroumsta.noos of the case, respectfully agree with Mr. Said:I.. In the fj.rst place, ~me Repl,r to the WSD was, quite obviously, incompetent ·in law.• It introduced an a.llegation which was inconsistent with the allegation in the Plaint 1 which was that ~e resf.ondent £irm ••••/3•••• 3 ... was a tenant in the house on Plot 11 Block 10.A. Order VI r., 7 of the Code· Prohibits a.ny ·party from raising in a.:ny pleading a ground _of claim which is new or inconsistGnt with llis previous pleading a.xccpt ey w93 of amendment. It reads: '"No pl,eading shall, except by -way of amendment, raise any new ground of claim or contain any. allegation ~ ;. of \ fact inconsistent -with th0 previous pleadings o:f the party plea.a.ing the same." I I What the Rcp_lz did in this case -was to introduce into the ploadings -two absolutely inconsistent state of facts, each of which iia,S desJ1.1-ructi ve of ' ' I , • the other.. This is known as a. dcJ?S,I'·ture in pleading. 0 11 Tho law would not pe.'t'ZD.it that_. It was a.n emba.rras::-..nent to the appellant Corporation, and even to the respond0nt fil:m., How were the respond.rul~li firm to a.d.duoe evidence in support of those two absolutely inc·onsistent state of :facts pleaded by ·them in the Plaint 'and in the Rep1X7 The position in law is that, in ·;;;!:10 event that any acldi tion or alteration is desired. in the · pleadings; either party should apply for amendment undc.r Order VI r 1 -17 of the Code. The purported hijacking of the defence a.llceaJliion by the respondent :firm was, in law, ineffectual. The respondeir~ firm still had their a.llegatic.n in their unamended plaint to reckon wi·lli, which was '\ that ;th~,:w~e. tenants. in tho house on Plot 21 Block 10A. Tho ReElz, (, '"I repeat, w~ incompotent· in law, and it ought to hav~ peen rajected by the district court• -In cori.Sequeno_e, I agree with Mr. Saidi, and· hereby find, that the parties wor.;; at issue on the. quosti_c?n of the identity ·of tb.-c premises in which the respondent firm were tenant• . . Something else too. There is a prerequisite condi "tion for entering judgment under _!)rder0 XY r 1 1 S:f -~he Code which, I am sa·~isZicd, was. not . observed by the trial court. Before pronouncing judgment under Order XV r 1 1 of the Code, the court must lo satisfied as to tho good faith or I identity of· the partie'S. It comes out clearly from the pleadings, that · is, from the Plaint and the WSD1 that the parties -were at issue as to the identity of the tenant of tho appellant Corporation in. -the house \ on Plot 21 Blook 10:A:- The respondent firm alleged in t;hc Plaint that i J 4 they wei;e, whereas the appellant Corporation's con·li0. ntion in its WSD ' was that they were not.- liorc to that, there is no·i;hing in the pleadings indic_~~ive of that the name of the respondent firm, as plaintiff in the Plaint, was the same as the :1aII1e of the person to whom the house on Plot 21 Block 10A was allocated vide the corresponaing letter of allocation annexed to the Plaint as i1A"• ·In fact, -~10 names, on the face of things~ appea.r to be differe:1t. The question as to the identity of the tenant,. in dispute.as it were~ was clearly a, ma;tter 'Which the trial cotn't were to determine at a later s·:;age it' and when evidence was ,., off ere~ I w9uld, in consoq:uonco, stist.:,in lJ,lr. Saidi 1 3 contention, and~- ~ ' hereby hold1 ·that· this. was yot anothor area in which t.."1.e parties were at, issue. And as. though to clinch the ma.-tter, there was tho question of the Reliefs being asked, which wore inc_lusi ve of damages.,. The.t'e is no·thing in the pleadings indicati vc of that the pa.rtics w0ro consensus on this issue. At no stage in the ploadings did the appellant Corporation admit the Reliefs, In fact, as pGr the WS~ the Reliefs aro contested and d~od. There was the question as. to the illcgali·l;y or otherwise of what th<r appellant Corporation did~ as ·a11cged in the Plaint 1 'b':1-t denied in the WSD. .AJ3 rightly s1..,:bmitted by Mr., Saidi~ tho question of Reliefs "!',"- ""'· was ye·~ another area in which tho paJ."ties were at issue. Before I conclude, I would like to repeat i;ha-t, ·the duty of f:;:;aming 1- • • ' issues rests on the trial court~ The proper manner in which this duty is .discharged is explained imder Order xrv rules 1 1 · 2f J2 4 ·and ,2 of the Codee Issaes arise wh~n a material proposition of fao·t. or law is affirmed by the one· Party and denied by the ot:1or. Material p:roposi tions are those· propositions of law or fi3,ct which a plaintiff mUB·t allege in order · · to show a right. to sue, or a. def end.ant must allege in order to constitute ., ' ' his defence. Each material proposition affirmed by orio party and 9-enied 'Qy the otlle:i;' shall form -t.l10 subject of a d:i,stinct issue~ Issues are to be framed only in respeqt of ·lib.o$e material fa.cts wrJ.cn have been alleged by one party and ei ~CJ: doniet\ o~ not admitted by the. other party. It is essenJCiial that proper issues should be framed from the determined ma.te:rial propositions in ordor that the material points in controversy may be rightly decided, a.nd -~}1er0 may be a. finality in litigation. '· •••• /5 •••• 5 'lhe oaaua.1 manner in -which the learned resido..11.Ji; magistrate handled the matter caused· me oonsidorablo a.nzicty. It was fraught with dissatisfaotion. Of one fact 7 however, tr.ere was no doubt. The magistrate clearly failed to demonstra-to that he was :tuJ..ly seized of the pleadings before him, and the law governing that field. I am Satisfied that the appe9-l must, for all the reasons gi vcn, succeed. Accordingly, I allow the appeal with costs, quash a.nd set aside the tr~al court judgmen·~, and hereby ardor that the case be heard de novo before another magistrate ol' competent jurisdiction. B. P. MOSHI JUDGE 13 September, 1994 For APPellant Corporation: l{!:r. c.ro Chimbute For Respondent firm: Mr. Kumwembe. ,·