runyway t ltd vs wia coltd another 2019 tzca 13 30 january 2019

IN THE COURT Oi": APPEAL OF TANZANIA AT OAf( ES SALAAM i~·. _.!' ." (CORAM: MWARIJA, J.A., lViKUY~! ]"A., And WAMBALI, J.A.) CIVIL APPEAL NO. 59 OF 2015 RU1\lWAY (T) LIMITE_D .lIa •• " •••• IIt.I ••• " ••••••• It •••••••• I! •••• , •••••••••••••••••••••••• APPELLANT VERSUS 1. 2. WIA COMPANY LIMITED CASCADE COMPltNY LIMP~ED 1- J ' RESDONDENTS (Appeal from the decision of the High Court of Tanzania ,,... .. _:-1 r....: ..•:_: __ '" _ .•.. n._ •.• __ C_I ' \.\..unUHt::n';ldl LlIVI:::'IVllj d\. IJ~U 1;;::::: .;;J!cuaalll) (Nyangarika, J.) dated the 18th day of December, 2014 in Commercial Case No. 87 of 2011 RULING OF THE COURT 3ptOctober 2018 & pt February, 2019 MKUYE, J.A. The appellant, Runway (T) Limited is challenging the decision in Commercial Case No. 87 of 2011 in which Nyangarika, J. (as he then was) dismissed her suit with costs. In the said suit, the appellant/plaintiff had sued "the respondents/ defendants for failure to install, supply and test hardware and software systems known as point of sales (POS), payment and inventorv systems to be used for the provision of services in, operating, monitoring and controllinq its stock and financial transactions in the appellant's club .. For i.i IdL feaSUl1 the appellant sued the respondents complaining that they have breached the contract and prayed for the trial court to order the following:- "i} . . 'A' declaration that 1st and ;:nd rracnnnr/anrc•....... L't_.'-'j-/VIIU '/Lo..JJ 7 IL..II'-'J\./Il'''''f ;:lrt=J iriintlv: ;:lnri f.AI''-'' c:pvpr;J//v in hrp;Jrh ---.,.-, ••..•. ,'./' ,,, _11 .• ' nf _. the agreement entered into by and between the appellant and respondents: ii) The Honourable Court order the defendants [respondents] to pay the plaintiff [appellant} for the following:- (a) A total sum of United States Dollars two thousand one sixtJ/ hundred (US$ 2/160) being refund of monev j1;:Jiri hy the plaintiff to the 1st defendant as pevrnent for th~ supply of WIAMAX Standard tee: Internet bandwidth-and purchase of CISCO Router. 2 (b) ,~ total sum of United States Dollars forty five thoussna seven hundred (US$ 4~700.00) peing . refund 0/ money paid to the 2)~ detenden; as poymcnt for the purchase/ installation testing -end. commissioning of the hardware end software for . the POS payment and inventory system: and (c) Payment of other resultant costs and expenditure incurred by the plaintiff; (iii) Order for payment of delay in interest (''penalty interest"). computed : at the rate of 2.5% compounded and accruing daily on the purchase price of United States Dol/ars forty seven thousand eight hundred and sixty (US$ 47,860.00)/ agreed to be paid to the plaintiff by the defendants in respect to the defendants failure to suppty, instelt, test and .''': I. commission of the hardware and sottwere for the r. POS payment and inventory system, 3 (iv) Order for payment of specitk; !::Jeneral and punitive damages suffered by tite plaintiff as a result of the detendsnt's failure to heed to the terms and 'Conditions' ul the 'agreement for the supp/~" ," .,' , . "." ", " installationl testing and commissioning of the" hardware end software. for the P05~ payment and inventory system/ and payment of other costs and expenses incurred by the plaintiff as a result of the detendent's failure and breach; (v) Order for payment of interest on the decretal sum at Courts rates from the date of judgment till full satisfaction of the decretal sum; (vi) Costs of this suit' and (vii) ,Llny other relief(s) the Honourable Court may deem tit to grant, // In reply, the defendants/respondents filed a joint written statement of defence together with a counter claim claiming for: 4 1) Payment of US$ 43/235',:;0 or its equivalent in Tanzania shillings being the amount due and payable to. the respondents by the appellant for the services and goods supplied to her. 2) Payment of general damages' EO' bttassessed,I)y court. ·'.fo',,· _".",., •. " ., 3) Payment of interest at the commercial rate in (i) above from the date of agreement' to the date of judgment 4) Payment of interest on decretal sum at the Courts rate from the date of judgment to the date of final payment. 5) / Costs of the suit. Upon a full trial, the High Court dismissed the suit for lack of sufficient evidence. On what the trial court stated, we take the liberty of reproducing the portion of the decision as follows: "There is enough evidence on record that the whole - .-' -. - '. • :-~""'"'. }".A < -.",,.·n t, ~•• I amount' for work done was not fully paid by the plaintiff{apoel/ant) as agreed. There is also enough evidence that the biometric system was partly 5 instal/'3o' .end completed by 75% only by the defendants. Therefore/ there is nothing to be awarded to either party. // Aggrieved with that decision, the appellant lodged this appeal on 13 grounds' of appeal which for a reason to follow shortly we shall not reproduce them. When the appeal was called on for hearing, the appellant was represented by Mr. Nduluma Majembe learned counsel; whereas the respondent enjoyed the services of Mr. Juvenalis Ngowi also learned counsel. At the hearing of the appeal; we required the parties to address us as to whether there was a valid decree or rather whether or otherwise it tallied with the judgment. We raised this issue because we observed that in the reply to the plaint the respondents filed a written statement of defence together with a counter ciaim but neither the cldin r in i.h';:',"C:~i:;;?t2;- , OJ.' , claim nor its decision were reflected in the said decree. 6 ~~( Majernbe was the first to respond Tea(_:t. He contended that though the respondent raised a counter claim there was no evidence, that was lerl to prove it. For that reason, he said,' since the decision .ofthe trial COUlt pivoted on the' dismissal of the suit, the decree appearinq at page 364 of the record of appeal was quite proper. He added that, the content .- " of the decree was sufficient for the disrosal of the appeal at hand. At any rate, he argued that, even if there is a defect in the decree for not showing the counter claim and the decision thereof, such defect did not prejudice the interests of the respondent who, in fact did not appeal. When his attention was drawn to ground No. 12 which hinged on a counter claim, he asked the Court to abandon it. He ultimately, prayed to the Court to find the decree properly before the Court and proceed with hearing of the appeal on merit. In reply, Mr. Ngowi prefaced by arguing that the decree did not comply with Order XX Rule 6(1) of the Civil Procedure Code, Cap 33 RE '1()()'1 ~vv~ (t-ho \.LI:~ rDr\ '-'I '-') frw =Vl nnt- !!V~ ::lnrooinn ~-!'d!'-''''''''!!!~ with I!:!"'~' th~ ,,-,1- ;llrlnm~nt ;--:::;: ••. -..••.....••. Hp _ nnintpn :-- _- nut that _-- __ .. _- the decree does not include the determination on the counter claim. He added ti lat, sinCe Rule 96 requires a decree to be included in the record of 7 'appeal, inclusion of a defective decree renders the record of appeal incomplete. On top of that he said that, since the appellant was the one who prepared the appeal, she oug'lt,tn have noted the defect and request .: . . the trial court to rectifv' it. ' 'kegarding ground no 12 of appeal, ~v1r. Ngowi·, ' , argued that so long as the appellant raised a ground of appeal 'in respect of , the counter claim and submitted on it, he cannot now ask for its abandonment. He implored the Court to strike out the appeal for being incompetent with costs. In rejoinder, Mr. Majembe reiterated that Order XX rule 6(1) of the CPC was complied with as the decree agrees with the judqment. As to the prayer to abandon the ground of appeal, he argued that it was allowable during hearing of appeal. He maintained that the decree was quite proper and the defect was not material enough, From the submissions by both counsel it is evident that the parties from either side acknowledge that before the trial court the suit was encountered by the counter-claim raised by the respondents in their joint written statement of defence appearing at pages 33 to 50 of the record of -,,' - . . ~ appeal. At page 40 of the record of appeal through paragraphs 21 to 24 of 8 the counter claim the resporvicnts claimed against the appellant the SUI!I of US$ 43,235.50 being the unpaid amount for the services and equipment .. .; provided to the appellaot, rl8spite the fact.that she was enjoying rile coeds "and services they had.rendered to 'he't.'''Th'ey .aiso 'claimed for payment of, general damages to be assessed by court; payment of interest at the commercial intp r.1 the decretal amount from the dateof Aoreernent to the date of tudqment: payment of interest on decretal sum at the court's rate from the date of judgment to the date of final payment; costs of the suit; and any other relief as the Court may deem fit. In reply to the respondent's joint written statement of defence the appellant filed a rejoinder along with the written statement of defence as shown at pages 54-55 of the record of appeal. In particular, in repiy to the counter claim, the appellant alleged in paragraphs 33 and 34 that:- "33. The contents of paragraph 23 of the counter _ ...• claim are disputed. The plaintiff disputes that : . ',,:.' - .... ,'-. ~ ., the Defendants is entitled to any payment of US$ ,43/235.50 being consideration for the " services' and equipment's supplied to the 9 P/a/ntiff as alleged or at all. The Detenr=nt« are put to strict proof of the allegations made ,1,' -,' under parag~Clpk23 of the counter dsirn. 34. The defendants are not entitled to the reliefs .. ,..' . ,~ . "., sought by way of counter claim or 'at all. The Plaintiff states turther tnst [ile::'Defendants deim are tttvolous, vexatious and an abuse of court process." Besides that both parties made final submissions in relation to the counter claim as shown at pages 69 and 82 of the record of appeal. For instance, the appellant stated as follows: "The defendants also filed a counter claim along with their WSD which they have for reasons best known to them faded or refused to prosecute and ,Drove to the satisfaction of the court. The-plaintili ' , . r , " will pray to the Court that the said counter- claim be dismissed for went of prosecution with costs to be awarded to the plaintiff. 11 10 [Emphasis added] On their part, the respondents submitted as follows> liThe defendants in their counter claim pray that the - . plaintiff be ordered to pay the sum of USD 43F 235.50 unpaid amount for services provided by the defendants to the plaintiff. As submitted eettier. the plaintiff did not pay the full amount invoiced by the defendants and this is not disputed. The defendants are entitled to be paid the unpaid amount as per exhibits PEJ and PE4. The plaintiff should pay for the services of internet which were provided to it by the defendants. Based on evidence tendered in Court it is our humble submission that there is no consideration paid to the i" deteudon: a:--:.j ct t'ic same time the plaintiff paid only part of the consideration but despite . ~ such . failure the defendants proceeded to . , execute the cant/act and the same was full installed 11 but part of the system of biornetric has not been utilized and this is due to plaintiff's own problems . ; ",.~'.\' . [lVe humbly pray the! thep/aintiffs suit be dismissed with casts and the court be pleased to grant prayers as prayed in the counter claim. rr -r . At page 349 of the record of appeal, the trial court acknowledged the claims raised by the defendants in the counter claim and after having considered all the material before it, it dismissed the suit with costs. For clarity we find it appropriate to quote what the trial court stated as follows:- "In the upshot and for the foregoing reasons the suit is hereby dismissed with costs". The extracted decree thereof which is the center of our inquiry, . reads as followc: I'IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION A T DAR ES SALAAM l <_ ' ; CuMMERCIAL CASE NO. 87 OF 2011 RUNWAY (T) LIMITED " PLAIN71FF , VERSUS ' 1. WIA, COMPANYLlfrlITED ~ :.15T DEFENDANT· 2. CASCADE COMPANYLIMITED 2ND DEFENDANT DECREE "vVHEREFORE the Plaintiff had filed a suit against the defendants praying as follows:- i. A declaration that the 1st and e= Defendant are jOintly and severally in breach of the agreement entered into by and between the Plaintiff and the Defendants. ii. The Honourable Court order the Defendants to pay the Plaintiff for the fo//owing:- (a) .4 total sum of United States Dollars Two Thousand One Hundred and Sixtv/US$ 2,160) being retundot' money paid by the Plaintiff to the I'" Defendant as payment for supply of WIAMAX' Standard lee, Internet bandwidth and purchase of aSCO Router; 13 (b) ;: totalsum of United States Dollars forty (il/p Tbouseod Seven . Hundred (US.,t 45,,700,00) being refund of money paid to-the ;?'r! Defendant 2.5, payment for the purchase/ -instelletion. testing , and commissioning of the hardware and software for the PO~ payment and inventory system; and ,:;" (cl - Payment of other resulteni costs d;,d expt::!IJJiture incurred by iii, Order for payment of delay interest; (penalty interest? computed at the rate of 2,5% compounded and accruing daily on the purchase price of United State Dollars forty Seven Thousand Eight Hundred and sixty (US$ 4~860.00J agreed to be paid to the Plaintiff by the Defendants in respect to the Defendants! failure to supply instel), test and commission of the hardware and software for the pas, payment and inventory system. iv. Order for payment. of specific/ general and punitive damages suffered by the Plaintiff as a result of the Defendants! failure to heed - to the terms and conditions of the agreements for the 14 suppty. installation testing and ,"Y)mmissioning of the hardware and software for: the POS; payment and inventory system, and ,,"",' ,-.-/_.' peymentotother costs and expenses inanred.bvthe Plaintiff . as a result ot.the-Oetenasnts' failure and breach. v, Order for payment of interest on the decretal sum at Courts rate form the odie u/ jUO[/i r .eot till full setistectio. i uf if It: VI: Costs of this Suit; and, vii. Any other relief(s) the Honourable Court may deem fit to grant, The metter cominq up for Judgment on this 1 Efh day of December; 2014/ before K.M, Nyangarika/ J, in the presence of Mr, John Muhozya counsel for the Plaintiff; but in the absence Defendants and their counsels, . , The suit is hereby dismissed with costs. 15 Given under my hane! anc! the seal of the court, this 1ffh day of Deccmber Ztn». REGISTRAR ,.,1 " Extracted on 1ffh December, 2014 Issued on .1._J.~:l2.Ql5..~' We have given such a long background so as to enable us explain' why we think the decree was not properly extracted. As it can be vividly gleaned from the pleadings, evidence, final written submissions and judgment, the issue of the counter claim was acknowledged. The manner a counter ciaim can be dealt with by the court is well explained under Order VIII rule 12. of the CPC which orovides as follows: , . I "12. Where a defendant has set up a counter claim the court may, if it is of the opinion that the subject matter of the counter claim ought for suit order the counter claim to be struck out or order it to be tried separately or make such other order as maybe expedient. // 16 [Emphasis ;:Jc1ded] Our understanding of the above provision is that, it presupposes the - 'counter claim to He dealt together' 'With the suit. However. If [he 'court 1 considers that such counter claim ought to .bedealt with separately, it has to make a specific order either striking it out; directing it to be tried SCpCH'dLeiy, ui' oilY other order it deems appropriate. In this case, as we have elaborated above, neither an order for trying the counter claim separately or striking it out was made by the trial court. This explains why even in the judgment the trial court made reference to the claim in the counter claim. Under normal circumstances, as the trial court acknowiedged its existence, it was duty bound to make a finding on it. That, the trial court did not do. Of course, Mr. Majembe forcefully argued that the counter claim and its finding could not be reflected in the decree as the respondents failed to prove it. We are, however, of the considered view that ev=» if thp r=spondents might have Jailed ~.? adduce evidence to prove the' 'counter claim, that did not relieve the trial court from the duty of making a decision thereon. ~ '. -_.,. "~.,, .: . 17 This stance was taken by the Court of Appeal of Uganda when faced with a situation lil«: the one at hand in the case of L nga v; Center;q,xy Rura~ Development Bank [1999J, lE.A. 175 (CAU). In that case, the respondent had included in a counter claim, a claim seeking to recover a sum of Ushs. 5,576,987/= as principal and interest on money allegedly loaned to the appellant but the trial court did not make a ruling on the said counter claim. On appeal to the Court of Appeal, the Court found merit in the ground of appeal and it held as follows:- lilt is an elementary principal that the respondent had the duty to prove its claim in the counter claim to succeed. As it adduced no evidence in proof of the claim, the trial judge ought to have made appropriate finding thereon. Untortunstely, she did not. I think this was an error. There is merit on this complaint and the ground "",_ '.\ .•• ,., ''-''~2~"-':';':'I.·:·,·:,t'-'I . , ..,,~.•.•.•- ,. ;.'....;,.- ""f";.~"&o";"""",!"",~.~""."-"" ~.': ...;1 .•• , .- would succeed. N [Emphasis added] ; ," ') 18 • ,\,,~ ~.~. I ~, ";,-.~ , 1. On OULPart, we subscribe to that decision. Even in this case, we are settled in our mind that, though the respondents might have not Jed evidence .toprove their counter claim, Since the nartics at varlousstaoes . ~ ;. ," " . ,--: acknowledged it and 'the triai judge ..~ - highlighted . ,. / it in the judgment, he _- \ ought or rather was duty bound to make an appropriate finding on it. As it ls.rhe - left ." ~ the issues raised in the counter ,~ '.. clalm unresolved, - On the other ,- hand, we think that this might have had an impact on the decree we have reproduced earlier on. Order XX rule 6 (1) of the (PC which deals with the contents of the decree states as follows: "The decree shall agree with judgment/ it shall contain the number of suit. the descriptions of the parties and particulars of the claim and shall specify the relief granted or other determination of the suit" In this case, the appellant had filed a suit and the respondents filed a • ~,' • -: y ".. '.. '., • • '. -.--. ,_ - ".,.,. , '" , _,-' ,,; joint written statement of defence together with a counter ciaim which according to Order VIn rule 6 (2) of the CPC was a cross suit. In its decision the trial court dismissed the suit with costs and said nothing in 19 relation to the counter claim raised by the respondents. The decree which V)?s extracted reflected only the reliefs sought in the plaint and its outcome which was' dismissal with costs. It did include the reliefs sought by the respondents in -their counter claim' and' their outcome, Though' Mr .. Majembe argued that the decree at page 364 of the record of appeal was in compliance with the law so long as it suits his appeal, we think that, such claim could have been relevant if no counter claim was raised and deait with to the extent we have endeavored to show herein above. Since, there was a counter claim with its reliefs sought, they ought to have been decided and their outcome reflected in the decree as required under rule 6(1) of Order XX of the (PC. In the absence of the citation of the reliefs sought in the counter claim for which no order of the court was made in terms of Order VIII rule 12, we think it contravened the provisions of Order XX rule 6(1) of CPC with the effect of rendering the decree invalid. We find that this was a fatal irregularity. ~,_.' • ,,_: -,}. '1'1,> • ,.lAc:: ",~~. , •.•.~.'" Iii- ~'~.. •• ~ t·" "':', Given the circumstances, we invoke our revisional powers vested on us under section 4(2) of the Appellate Jurisdiction Act, Cap 141 F,tE; 2902 and nullify the proceedings, quash the decision and set aside the order of 20 the High Court dated 18/12/2014. We further direct the High Court to rehear the suit and the counter claim in accordance 'Nith the law. Wp make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 30th day of January, 2019. A. G. MWARIJA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OF APPEAL F. L. K. WAMBALI JUSTICE OF APPEAL I certify that this is a true copy of the original. cr~~\ B. A. MPEPO . . .~_Er~I,!"~5GISTRAR COURT.OF APPEAL I_.'. _ '.' ',._ 21