RULING SAHARA MEDIAand 3 others v KCB Bank

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA CIVIL CASE NO. 36 OF 2022 SAHARA MEDIA GROUP LTD ...……………….…..…..……….…..….1st PLAINTIFF CONTINENTAL FOUNDRIES AND FORGING COMPANY LTD …………………………………………………………….2nd PLAINTIFF ANTHONY DIALLO MWANDU…………………………………….…….3rd PLAINTIFF VERSUS KCB BANK TANZANIA LTD………………….…………………….………DEFENDANT RULING 2 & 12 July, 2024. nd th ITEMBA, J. The plaintiffs herein instituted this suit against the defendant for several orders. At the preliminary stage, the plaintiff moved the court Under Order VI rule 17 and order VIII rule 23 of the Civil Procedure Code (the CPC), to vacate the scheduling order dated 13th July 2023 and grant the prayer for amendment of their Plaint. The application was allowed and the plaintiffs were granted leave to amend the plaint to the extent explained in the chamber summons. Consequently, the defendants had to file an amended Written Statement of Defence. The defendants countered the amended plaint through a preliminary objection predicated on the following grounds: i. The plaintiff’s amended plaint was filed out of time contrary to courts order. 1 ii. The amendment of the plaint has been made contravention of the order and beyond the scope which was permitted by the court. iii. The plaintiffs have pleaded allegations against KCB Bank Kenya Ltd and Bank Fund SPC Ltd who are not parties to the suit; the plaint is bad in law for non-joinder of the said parties. iv. The plaintiff alleges breach by the Defendant of bank-customer relationship and other matters related thereto; the suit ought to have been filed with the Bank of Tanzania whose specific forum is provided under the jurisdiction of the Bank of Tanzania (BOT) in terms of Regulation 42 and 51 (i)(a)(b) of the Bank of Tanzania Financial Consumers Protection) Regulations GN. 884/2019. Submissions were done in writing by learned counsels; Mr. Boniface Sariro for the plaintiff and Messr. Gaspar Nyika and Libent Rwazo for the defendants. Starting with the 1st ground the defendant submitted that the plaintiffs were allowed to amend the plaint within 14 days. That, the 14th day was falling on 1st of April which was Easter Monday. The refore, the amended plaint was supposed to filed on 2nd of April. Instead, it was filed on 15th of April 2024 which was out of time. In the second ground he submitted that, the amendment went beyond the scope. That, the plaintiff substituted the existing plaint with a total new one. 2 Thirdly, he submitted that the plaint is bad in law for non joinder of KCB Bank Kenya Limited and Barak Fund SPC Limited who are impleaded in paragraphs 3, 12, 13 and 14 of the plaints. That, the plaintiff has prayed for the mortgages issued in favour of KCB Kenya Limited and Barak Fund SPC to be nullified and discharged. That, the suit cannot be finally and conclusively determined without joining KCB Bank Kenya Limited and Barak Fund SPC Limited who are necessary parties and whose interest are at great stake. Lastly, he complained on the plaintiff’s failure to refer the suit to a specific forum. That, due to the nature of the claims, the proper forum was the Bank of Tanzania. In reply, the plaintiff’s counsel submitted that the defendant has misconceived the plaintiffs’ case especially on the amended plaint and as a result, defendant has created a strange case against the plaintiffs. That, all points of preliminary objections raised by the Defendant against the plaintiffs’ case do not qualify to be preliminary objection as per the guidance of the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributions Ltd (1969) 1 EA 696, because they are not based on pure points of law. That, the objections are ambiguous and 3 unclear because the same have not indicated clearly the provisions of the law that has been breached by the plaintiffs’ and not otherwise as per requirements of the law and the case of Mukisa Biscuits (Supra). He also cited the case of James Burchard Rugemalira Vs. The Republic And Another, Criminal Application No. 59/19 of 2017, Court of Appeal of Tanzania at Dar es Salaam (unreported). Moving to the grounds of objections he submitted that; filing the amended plaint out of time prescribed by the court first it is not a pure point of law as per the case of Mukisa Biscuits (Supra). That, ascertainment of this point of preliminary objection will need evidence from all the relevant sources contrary to the requirement of the law regulating preliminary objection. In the second ground he submitted that the plaintiffs asked the court to amend their plant by introducing 5 facts and that the amendments made by the plaintiffs to the original plaintiff are within the limits because the large part of the Amended plaint is typically similar with the original plaint. In the 3rd ground the learned counsel stated that information relating to KCB Bank Kenya Ltd and Barak Fund SPC Ltd are found under paragraphs 12, 13 and 14 of the Amended Plaint of which no allegation or claim that 4 have been pleaded against them. That, under paragraph 13 of the Amended Plaint, it has been indicated that KCB Bank Kenya Ltd and the 1st Plaintiff executed Baking facility that was varied through the addendum on 06/04/2018 and for that matter KCB Bank Kenya Ltd was to provide standby letter of credit which was called on by Barak Fund SPC Ltd. That, there is no claim, allegations or liability that has been raised by the plaintiffs against the KCB Bank Kenya SPC Ltd or Baraka Fund SPC Ltd as alleged by the Defendant. That, all allegations on the Amended Plaint are against the Defendant herein and not otherwise, and that the plaintiffs are intending to call Officers from Barak Fund SPC Ltd and KCB Bank Kenya Ltd as their witness. Lasty, he cited the case of Abdullatiff Mohamed Hamis Vs. Mehboob Yusuph Osman And Another, Civil Revision No. 6 Of 2017 Court Of Appeal Of Tanzania At Dar Es Salaam (unreported) which laid down two tests to determine whether a person is a necessary party to a suit or not the tests are:- i. There has to be a right of relief against such a party in respect of the matters involved in the suit. ii. The court must not be in a position to pass effective decree in the absence such a party. In the last ground he submitted that the point of preliminary objection is an abuse of the Court process and the same is vexatious and frivolous 5 because the Defendant had already raise the same objection in the Misc. Application 3639 of 2024 against the parties herein which was also the subject of amending the same plaint. That, the court is functus officio to entertain this point. I have considered the lengthy submissions by both parties. The law is settled that preliminary objections must be based on a pure point of law and it can not be raised when other facts have to be ascertained.’ For clarity, I will quote the passage in Mukisa Biscuits: "A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. (emphasis supplied). On the 1st ground, the defendant contends that the amended plaint was filed contrary to the order of this court dated 18/3/2024 for the plaint to be filed within 14 days which ended on 1st day of April 2024. That the same was endorsed by registry officer as filed on 15/4/2024 therefore according to them it was out of time. He went further to submit that court orders need be respected as stated in the case of Kakori Chogoro vs Waitihache Merengo, Civil Appeal No. 164 of 2018 (unreported). It was 6 further submitted that the date of payment of court fee is considered as the date of filing reference was made to the case of John Chuwa vs Antony Ciza [1992] TLR 233 and the case of Muganda Michael vs Simon Liduckey, Misc. Civil Application No. 23 of 2023. The counsel for the defendant invited this court to strike out the plant and dismiss the case as the original plaint ceased to exist. In reply it was submitted that the point of preliminary objection is not a pure point of law as it needs some facts to be ascertained by evidence from various sources. They harbored their argument with the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969)1 696. He went further to say that, the plaint was filed within time because the 14 days were occupied by three public holidays that is; Good Friday on 29th March, Ester on 31st March and Ester Monday on 1st April of 2014. That the public holidays are on judicial notice under section 59 (1) (g) of the Evidence Act Cap 6 R.E 2022. That it is the law that when filing ends on public holiday the filing should be done on next day as stated by s. 60(1) (h) of the Interpretation of the Laws Act Cap 1 R.E 2019. According to him the stated 3 days are to be excluded from counting 14 days. Further reference was made to the case of Nakomolwa Matapeli 7 Shila vs Mwanahamisi ally Nongwa, Civil Application No. 327 of 2021. That, for the plaint was filed on 2/4/2024 it was filed within time. Lastly, it was contended for the plaintiffs that the date of filling online is considered as a date of filing in accordance with S. 21 of the Judicature and Application of Laws (Electronic Filling) Rules, 2018 GN. NO 148 of 2018. Further reference was made to the case of Mohamed Shashil vs. National Microfinance Bank Ltd, Labour Revision No. 106 of 2020 (unreported). According to him the principle stated by the case of Edward Chuwa (supra) is no longer a good law as it has been overtaken by GN NO. 148. Having considered the submissions by both, I had a time to revisit court’s records through the judicial online filing system. It is on record that the amended plaint was filed online on 2/4/2024 and payment were made on 12/4/2024. It was the contention for the plaintiffs that the 3 public holidays are excluded from counting when computing the time. In my view this it is a misguide. The only day which is counted off is the last date of filling which for this case is 1/4/2024 which was Easter Monday. The cardinal law is that, when the last day for filing the matter is on weekend or holiday, the due date shall be the first following working day. 8 As stated in the case of Backlays Bank (T) Ltd v Jacob Muro, Civil Appeal No 357 of 2019; Abraham Abraham Simama vs. Bahati Sanga, Civil Application No. 462/17 of 2020 (both unreported); and Makomolwa Matepeli Shila v Mwanahamisi Ally Nongwa (supra). Section 19 (6) of the Law of limitation Act Cap 89 R.E 2019 provides as follows: “Where the period of limitation prescribed for any proceeding expires on a day when the court in which such proceeding is to be instituted is closed, the proceeding may be instituted on the day on which the court reopens.” (Emphasis added) The same position is stated by s. 60 (1) (h) and (2) of the Interpretation of Law Act Cap 1 R.E 2020 which provides that “(h) where an act or proceeding is directed or allowed to be done or taken on a certain day, or on or before a certain day, then, if that day is an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day that is not an excluded day. (2) For the purposes of this section, “excluded day” means Saturday, Sunday or public holiday throughout or in that part of which is relevant to the event, act, thing or proceeding concerned.” 9 In this matter at hand counting from 18/3/2024, the amended plaint was supposed to be filed on 1/4/2024 which was Easter Monday therefore the next date is the date of filing. Regarding which date shall be considered as a date of filing between the date of filing online and the date of payment of court fees, this court has advanced two schools of thoughts. The first is that, under section 21 (1) of the Electronic Filing Rules (supra); electronically filed documents are considered to have been filed in court on the date the same are so submitted online. See for example the case of Cata Mining Ltd v Obetho Joseph Werema (supra); Rose Ongara and 2 others v National Health Insurance Fund, Labour Revision No. 313 of 2022; Mohamed Shashil vs. National Microfinance Bank Ltd, Labour Revision No. 106 of 2020, (all unreported). The second school is that the date of payment of court fee is the date of filing. See the cases of John Edward Chuwa (supra); Emmanuel Bakundukize (Kendurumo) and 9 Others v Aloysius Benedictor Rutaihwa, Land Case No. 26 of 2020; Bakema Said Rashid v Nashon William Bidyanguze and 2 Others, Election Reference No. 1 of 2020 (both unreported); and Muganda Michael vs Simon Liduckey (supra). 10 Whether or not the pleadings were filed timely will depend with other factors. To substantiate this aspect, I will be guided by Robert Maziba v Emil Maziba @Erasto Maziba Misc. Civil Application No. 135 Of 2022 (HC) Mwanza where my brother (Hon. Dr. Morris, J), among others, explicated in detail that the two co existing school of thoughts and how other factors has to be considered in determining whether the case is within time. It was stated: ‘Four, the Electronic Filing Rules does not outlaw the orthodox physical filing of court documents. Hence, the said Rules preserve the laxity associated with physical filing of such documents. That is, e-filing and manual filing systems coexist. So, the two schools of thought should not conflict anyhow. Principles suitable for the manual filing system, including the date of payment being considered as the date of filing; can and should continue being applicable. However, such principles are not expected to, in my view, suppress the twin IT-filing system which, too, has its unique perfectly operating protocols. The court went on and held that: ‘Six, to strictly insist on the date of payment to be the only determinant factor, would be unrealistic a principle. I bring in my mind matters whose documents do not attract court fees. For instance, labour disputes; legal aid cases; proceedings for and against the Government; and fee-exemption under convention. That 11 is, it will be imprecise for courts and parties to ascertain when exactly respective documents were filed. Seven and last, e-filing technically involves digitized documents getting out of the party’s mandate/control after submitting them on-line. Consequently, the Court’s registry takes over. So, time taken before the court generates the requisite control number for the party to pay (where applicable), is determinable on case-to-case basis. It would turn to be unfair if such time is also deducted from the party.’ Therefore, bearing in mind the process of online filing, among others, the court will need to speculate the evidence as to when the control number was generated and when payment was made for the purpose of ascertaining whether a party acted diligently and was not negligent on affecting payment. Doing so, will undermine the principle that the point of preliminary objection shall be on pure point of law which does not require further evidence. Nevertheless, I have considered all the above factors and the circumstances of this case that the e filing was done on 2/4/2024 and payment was done on 12/4/2024 which is 10 days later and I find that the delay in payment was not inordinate. Therefore, the amended plaint was filed timely. The first ground of objection fails. 12 Moving to the 2nd to 4th grounds and without reiterating the parties’ submissions the following are my observations: In the second ground, it is noted in 12 of the plaint that the 1st plaintiff’s negotiation with Barak Fund SPC did not materialise. And, from paragraph 13 of the plaint that the 1st plaintiff, the defendant and KCB Bank Kenya Limited executed a banking facility which was never performed. Therefore, I agree with what the plaintiff’s counsel has explained that the two companies KCB Bank Kenya Ltd and Barak Fund SPC are pleaded but they have no claims against them. The test set in Abdullatiff Mohamed Hamis Vs. Mehboob Yusuph Osman and Another (supra) is not met because I see no right of relief against such parties and the court can still pass effective decree in the absence both parties.Further, if anything, the plaintiffs have stated that they intend to call them as witnesses during trial. The third ground regarding scope of amendment, I find it not a point of law because it deals with facts. There are a number of assessment and comparison between the former and the amended plaint which need to be done in consideration of this ground. In the face of it there are no additional claims made which are not related to the new facts added. 13 As for the last ground of objection, the defendant is claiming that suit ought to have been filed at the Bank of Tanzania which is the specific forum and not this court. As correctly submitted by the plaintiff’s counsel, this very specific issue has already been discussed and decided by this court in application no. Application 3639 of 2024 hence it is functus officio. I find it is irrationally brought in the same proceedings for the second time and it is absurd for the defendant’s council to do that. If aggrieved by the earlier decision, the defendant knows that they have a right to appeal at the right time. The same issue which was chased through the door cannot be brought back to court through the window. The 4th grounds is unmerited and it is dismissed. That being said, all grounds of preliminary objections are dismissed with costs. L.K.J ITEMBA JUDGE 12/7/2024 14