sarbjit singh bharya another vs nic bank tanzania ltd another 2021 tzca 212 25 may 2021

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE 3.A.. KO ROSSO, 3.A. MWAN DAM BO, J.A.'i CIVIL APPEAL NO. 94 OF 2017 1. SARBJIT SINGH BHARYA >- 2. SHARYA ENGINEERING & CONTRACTING CO.LTD ....... ........ APPELLANTS VERSUS 1. NIC BANK TANZANIA LTD 2. STRAIGHT LINE AUCTION MART .RESPONDENTS (Appeal from the Ruling and Order of the High Court of Tanzania (Tanga Registry) (Amour, J.l Dated 10th day of July, 2015 in Civil Case No. 1 of 2007 JUDGMENT OF THE COURT 19th March & 25th May, 2021 MKUYE, J.A.: The 2nd appellant, (the former 2nd plaintiff) is a company incorporated under the laws of the United Republic of Tanzania, engaged in construction industry. The 1st appellant (the former 1st plaintiff) is a director and shareholder in the 2nd appellant's company. In 2006 the 1st appellant secured a loan from the 1st respondent (the former 1st defendant) i for the purchase of construction equipment which was guaranteed by the 2nd appellant's movable properties being various equipment used by her (the 2nd appellant) in carrying out of its business. However, it would appear that the 2nd appellant did not honour part of the bargain by repaying the loaned amount which had accrued to Tshs. 231,512,210.00 plus interest. Then, the 1st respondent, in the exercise of its rights under the loan agreement sought the services of the 2nd respondent (former 2nd defendant) and the latter on behalf of the former seized the 2nd appellant's equipment while at a construction site at Soni, Lushoto area. Having failed to come to terms with the action taken by the respondents, the appellants lodged a suit in the High Court, Civil Case No. 1 of 2007 in which they sought the following reliefs: a) A declaration that the defendant's act o f seizing the plaintiff's earth equipment and machinery in Lushoto Tanga is illegal and out o f contractual terms. b) Specific damages o f TAS 9,000,000/= for each day o f seizure o f the said earth moving equipment and machinery being liquidated damages under the road construction contract, equipment higher costs, and idle labour costs, 2 c) General damages o f TAS 300,000,000/=. d) Costs o f this suit. e) Any other further relief that this Honourable Court will deem equitable and or just to grant. It is on record at page 269 of the record of appeal that on 1/10/2013 after having changed the advocate, the appellants made a prayer before Hon. Msuya, J. (as she then was), in the absence of the respondents, for leave to amend some defects in the original plaint. The High Court granted the prayer. Then, in compliance with the order of the High Court, the appellants filed an Amended Plaint on 20/3/2014 in which they sought the following reliefs:- a) A declaration that the Defendant's act o f invasion, seizure and confiscation o f the 2nd Plaintiff's construction equipments at her site at Soni, Tanga is unlawful. b) A declaration that the act o f the Defendants to announce sale auction o f the 2nd Plaintiff's equipment was unlawful. 3 c) A declaration that the Defendant's act of obstructing the 2nd Plaintiff to proceed with their work is unlawful. d) An order for compensation in the sum o f Tshs. 5.000.000.000/= being value o f the construction equipments seized by and eventually disappeared in the hands o f the Defendants at the Son's site in Tanga. e) An order for compensation in the sum o f Tshs. 1.700.000.000/= being value o f the tender project which was terminated. f) An order for compensation in the sum o f Tshs. 720.000.000/= being the amount paid to CBRD Bank for the loan it had extended to the 2 Kl Plaintiff. g) An order for compensation in the sum o f Tshs. 200.000.000/= being expenditure costs for medical treatment o f the 1st Plaintiff. h) An order for compensation in the sum o f Tshs. 4.000.000.000/= being loss o f the Vingunguti plot sold by the Bank. i) An order for payment o f general damages amounting to Tsh. 7,000,000,000/= j) An order for payment o f punitive damages amounting to Tshs. 3,000,000,000/= k) Compounded interests on the Principal Sums claimed at the commercial rate o f 30% per annum from date o f institution o f this suit until the date of judgment. I) Interests on the decretal sum at the prevailing Court rate from the date o fjudgment to the date of full payment o f the decretal sum. m)An order that the Defendants pay costs o f and incidental to this suit. n) An order that the Defendants pay costs o f and incidental to this suit o) Any other order or relief this Honourable Court may deem fit and just to grant considering the circumstances o f this claim. In reply, the respondents filed their written statement of defence to the Amended Plaint together with a notice of preliminary objection (PO) to the effect that:- 1) The Amended Plaint is bad in law for introducing new causes o f action. 5 2) The causes o f actions and reliefs sought in the Amended Plaint are time barred. 3) The Amended Plaint is bad in law for failure to plead facts showing jurisdiction o f the Court. 4) The High Court lacked territorial jurisdiction to entertain the matter. 5) That the suit was res judicata. At the hearing of the PO, the respondents abandoned the 4th and 5th points of objection. Upon hearing the remaining points of objection, the High Court sustained them and eventually dismissed the entire suit in terms of section 3 (1) of the Law of Limitation Act, Cap 89 R.E. 2002 (the LLA). Aggrieved by that decision, the appellants have now appealed to this Court on the following grounds:- 1) That, the trial judge erred in law and fact in giving an inconsistent dismissal order hence occasioning failure o fjustice. 2) That, the trial judge erred in law and fact by failing to analyse properly the submission made by the appellant's counsel in reply to the points o f objection raised by the respondent's counsel hence reaching to an erroneous order. 6 3) That, the trial judge's act o f dismissing the suit to its entirety amounted to illegality in law as it has the effect o f denying the appellants right to be heard. When the appeal was called on for hearing the respondents were represented by Mr. Adronicus K. Byamungu, learned advocate. The appellants defaulted appearance despite being served through Mr. Michael Mwambeta learned, the advocate for the appellants. On that basis, Mr. Byamungu invited the Court to invoke the provisions of Rule 112 (4) of the Tanzania Court of Appeal Rules, 2009 and determine the appeal on the basis of the respective written submissions which the parties filed earlier on. We granted the prayer and, hence, this decision wiil be based on the written submissions from both sides. Submitting on the 1st ground of appeal, the learned counsel for the appellants argued that, though the trial judge found merit on the three points of objection raised by the counsel for the respondents, he did not make the appropriate order and, instead, he erroneously dismissed the appellant's case. In elaboration, he contended that the proper remedy in the instant matter was to reject it or order an amendment of the Plaint under Order VII rule 11 (c) of the Civil Procedure Code, Cap 33 R.E. 2002 (the CPC). He contended further that, since the trial judge was convinced that the plaintiff's Amended Plaint entailed a series of facts which were otherwise barred by law, the only order ought to have been rejection of the Plaint or an order for its amendment and not dismissal as he did. He added, the dismissal order has occasioned failure of justice to the appellants having regard to the fact that they had already filed the original Plaint with claims which were not time barred. This, he said, amounted to condemning the appellants unheard. With regard to the 2nd ground of appeal, it is the learned counsels' argument that, the learned trial judge failed to analyze properly the submission of the appellant's counsel in relation to failure to show the jurisdiction of the court. He pointed out that in his submission he was not praying for the amendment of the Plaint in reaction to the PO raised. It was his argument that it was wrong for trial judge not to show if the suit could have been dismissed on the ground that the Plaint does not plead facts to show the court's jurisdiction. On the 3rd ground of appeal, the learned counsel has submitted that the trial judge's dismissal of the suit to its entirety at its earliest stage is 8 illegal, as the proper remedy was rejection under the proviso to Order VII rule 11 and Order XIII of CPC. That, the trial judge's order was illegal as it prevented the appellants from enjoying their constitutional right to be heard as provided for under Article 13 (6) of the Constitution of the United Republic of Tanzania Cap 2 R.E. 2002 (the Constitution). For those reasons, he urged the Court to find that the appeal is meritorious and allow it. In response, the respondents resisted the appeal. In relation to the 1st ground of appeal it was argued that the dismissal order was proper since according to section to 3 (1) of the LLA, a suit which is filed out of the time set out in the 1st Schedule to that law is liable to dismissal as opposed to rejection under the CPC. The respondents explained that the appellants introduced new causes of action in their Amended Plaint different from those in the original Plaint and altered the nature of causes of action which were also time barred. As to the consequences of the suit filed out of time, the respondents referred us to the cases of Stephen Masato Wasira v. Joseph Sinde Warioba and Another [1999] TLR 334 and Hashim Madongo and Others v. Minister for Lands and Trade and Others, Civil Appeal No. 27 of 2003 9 (unreported) for the proposition that under section 3 of the LLA, a proceeding which is instituted after the prescribed period has to be dismissed. It was added that the rejection of the suit under the proviso to rule 11 (c) of Order VII of the CPC is made if the statement in the suit is bad to the extent that it cannot be entertained by the court. As regards the 2nd ground of appeal faulting the trial judge for failure to analyze the submission by the counsel for the appellants, the learned counsel for the respondents submitted that the trial judge considered the arguments from both sides and dismissed the suit. He pointed out that the appellants failed to show how the causes of action in the original Plaint differed from the causes of action in the Amended Plaint instead the counsel for the appellants gave general assertions that the Amended Plaint did not contain new causes of action and that they were not time barred. The learned counsel argued further that the appellant's proposition for an order for amendment to cure the omission in not pleading the jurisdiction of the court was superfluous upon the High Court dismissing the suit for being time barred. In relation to the 3rd ground of appeal, the counsel for respondents argued that there is no question of illegality in the dismissal order as the 10 trial judge exercised his powers under the law. That, the purpose of the LLA is to avoid multiplicity of suits if plaintiffs are left free to bring their cases at any time they wanted without limit and that the appellants cannot be heard to have been denied their right to be heard. After examining the counsel's written submissions, we think the issue for this Court's determination is whether the trial judge erred in dismissing the suit under section 3(1) of the LLA instead of rejecting it in terms of Order VII rule 11 (c) of the CPC. Before embarking on the merit of the appeal, we find it necessary to observe how the terms "dismissal" and "rejection" are applied. It is noteworthy that the two terms are covered under distinct laws for purposes of the respective laws. Rejection is covered under Order VII rule 11 of the CPC and it lists situations under which a plaint may be rejected under the said law. According to the said rule, there are three situations which may lead to the rejection of the plaint which are; one, where the plaint does not disclose the cause of action; two where the relief claimed is undervalued and the plaintiff, upon being required by the court to correct the valuation within a specified time fails to do so; u and three, where the suit appears from the statement in the plaint to be barred by any law. The effect of the order for rejecting a document is that it does not bar the party against whom that order is made from filing the document afresh after rectifying the defect which resulted into its rejection. It follows that where a plaint is rejected due to the reasons stated under Order VII rule 11 (a) and (c) of CPC, the court may allow the plaintiff to file an Amend Plaint - See Sunlon General Building Contractors Ltd and 2 Others v. KCB Bank Ltd, Civii Appeal No 253 of 2017 (unreported). Moreover, in terms of Order VII rule 13, the rejection of the plaint on any ground set out under rule 11 does not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. As opposed to rejection, dismissal is provided for under section 3(1) of the LLA which states as follows: "3(1) Subject to the provisions o f this Act, every proceedings described in the first column o f the Schedule to this Act and to which is instituted after the period o f limitation prescribed thereof opposite 12 thereto in the second column shall be dismissed whether or not limitation has been set up as a defence."[Emphasis added] The Court has pronounced itself in numerous cases involving time bar. For instance, in the case of Hezron M. Nyachiya v. Tanzania Union of Industrial and Commercial Workers and Another, Civil Appeal No. 79 of 2001 (unreported), the Court emphasized that under section 3 (1) of the Law of Limitation Act, the consequences for any proceedings instituted out of time without leave of the court is dismissal whether or not limitation has been set up as a defence. The effect of an order for dismissal is that it connotes that the matter has been concluded - see Ngoni - Matengo Corporation Marketing Union Ltd v. Ali Mohamed Osman, [1959] E.A. 577. Besides that, if the matter is dismissed, the party cannot come back on the same matter to the court - see VIP Engineering and Marketing Ltd v. SGS Generalle De Surveillance SA and Another, Civil Reference No 32 of 2006; and Cyprica Mamboleo Hizza v. Eva Kioso and Another, Civil Application No 3 of 2010 (both unreported). In this case, it is without question that the trial judge dismissed the suit after being satisfied that the Amended Plaint introduced new claims 13 which were tortious or founded on breach of contract after the limitation period of 3 and 6 years respectively had expired. Incidentally, even the appellants do not dispute that the suit was time barred. Their point of contention is that as the suit was barred by law as per Order VII rule 11, the trial court ought to have rejected it rather than dismissing it. We have revisited the LLA on when such causes of action ought to be instituted. Our examination has taken us to items 6 and 7 in Part I of the First Schedule to the LLA which prescribe the period of limitation for torts and breach of the contracts to be 3 and 6 years respectively. The causes of action in the Amended Plaint are reckoned from 4/7/2007 when events occurred until on 20/3/2014 when the Amended Plaint was filed. This was a period of over seven years lapsed which was far beyond the period of 3 years and 6 years prescribed by law. Hence, there is no doubt that the causes of action were out of time. We understand the appellants complained that the respondents ought to have raised the PO at the time when they applied for leave to amend the plaint. But we think, the learned counsel for the appellants is not candid. We say so because, the application for leave to amend the plaint was made by the appellant's counsel in 14 the absence of the respondents. For clarity, we take the liberty to reproduce a portion of what transpired on that date as hereunder: Date 1/10/2013 Coram: U. Msuya J. plaintiffs: Mr. Sungwa. 2 ....... defendants: Absent Mr. Sungwa for the plaintiff: I pray to amend the plaint we were instructed on 23/1/2013. We have noted some defects in the original plaint filed. Sgd. (J. Msuya J. 1/10/2013. Order: Application to amend the plaint is granted as prayed. An amended plaint to be filed by 16/10/2013 and the same to be served to the defendants. Mention on 21/11/201'$." As it were, we do not think the respondents could have raised such objection because they were not in attendance. But again, the manner the counsel for the appellants presented his prayer that "there were some defects" without elaborating such defects, we think, even if they were 15 there, it could have been a nightmare for the respondents to figure out what those defects could be for them to be in a position to raise a PO. Reverting to Hezron M. Nyachiya (supra), the appellants instituted a suit against the respondents after his employment was terminated on allegation that he caused his employer to lose members. When the matter was called on for hearing, the respondents raised a PO on, among other grounds, that the suit was time barred. Upon hearing the parties by way of written submissions the High Court sustained the PO and held that the suit was time barred and dismissed it with costs. Aggrieved with that decision, the appellants appealed to this Court on a three grounds memorandum of appeal among them faulting the trial judge for holding that the matter was time barred. Upon hearing both sides, the Court discussed at length the thrust of PO and stated as follows:- "The only crucial issue is as to what is the effect of an application which is time is barred. According to Mr. Magesa, such an application is to be struck out. But according to Mr. Kalolo, it is to be dismissed under section 3 o f the Law o f Limitation Act, 1971..." 16 Then, the Court went to say that:- "That law o f limitation has a provision for the consequence where a proceeding is instituted out of time without leave o f the Court,: It is section 3. Under that provisions that is, section 3, the consequence is that, such proceeding shall be dismissed whether or not limitation has been set up as a defence....... Thus, the appellant's application which was instituted without leave o f the Court, deserves to be dismissed". [Emphasis added] The appellants are of the view that the same ought to be rejected in terms of order VII rule 11 of CPC. As we said earlier on, the provisions are applicable where the plaint does not show the cause of the action; where the relief claimed is undervalued and the plaintiff, being required by the court to correct the valuation within a specified time fails to do so; and where the suit appears from the statement in the plaint to be barred by any law. However, we think, the circumstances of this case not fall within the provisions of that Order as we had explained earlier on. We note that the appellants have also argued that by dismissing the Amended Plaint under section 3 (1) of the Law of Limitation Act, the trial 17 judge curtailed their right to be heard in relation to the claims contained in their original Plaint. Be it as it may, we take it as an admission that the Amended Plaint was time barred. Nevertheless, we think, this contention by the appellants is unfortunate. This is so because, it is trite law that when a pleading is amended, the previous document ceases to have any legal force/effect as it is taken as if it was never part of the record - see Tanga Hardware & Auto Parts Ltd and 6 Others v. CRDB Bank Ltd, Civil Application No. 144 of 2008 (unreported) citing the case of Warner v. Simpson and Another (1959) 1 Q.B. 297 where it was stated: "...Once pleadings are amended\ that which stood before amendment is no longer material before the court" See also General Manager, African Barrick Gold Mine Ltd v. Chacha Kiguha and 5 Others, Civil Appeal No. 50 of 2017 (unreported). Based on the above cited authority, we are settled in our mind that since the appellants filed an Amended Plaint following an order of the High Court to do so, the previous plaint ceased to exist and as such it could not be resurrected so as to pick the causes of action which might have been within time at the time the previous Plaint was lodged. The other appellant's complaint is on the trial judge's failure to analyse properly the submission of the appellants' counsel in reply to the preliminary objections. It was submitted that, though Order VII rule 1 (a) to (j) of CPC governs the manner the plaint is to be drafted, it does not provide for the remedy in case any of the ingredients is omitted. He referred us to the High Court case of IPP v. Ernest Coovi Adjovi, Kora Entertainment SA (pty) Ltd, Commercial Case No. 66 of 2002 (unreported) at page 6 where the High Court held that where the plaint omits to state facts that the court has jurisdiction, the defect is curable through amendment. In this appeal, the learned counsel contends that in the High Court he did not make a prayer for an amendment of the plaint but rather his submission was in reply to what was submitted by the respondents that the omission was curable through amendment. On the other hand, the counsel for the respondents argued that the trial judge had considered the arguments from both sides and dismissed the suit. He pointed out that although the appellants were given time to respond, the appellant's 19 counsel failed to show how the causes of action in the Amended Plaint differed from the cause of action in the original Plaint; instead, he gave general assertions that the Amended Plaint did not contain new causes of action; that, they were not time barred; and made the prayer to amend the plaint. The learned counsel for the respondents argued further that the appellant's proposition for an order for amendment to cure the defect of not pleading jurisdiction of the court was overtaken by the consequences of the suit that was time barred. That, since the matter was time barred the court lacked jurisdiction to entertain it. We note that, in dealing with this issue the trial Court rejected the appellant's prayer to include the issue of jurisdiction of the court because that would be preempting the PO that had been raised by the other party. We have had an opportunity to peruse the proceedings before the High Court and we must state at once that the appellants are misleading the Court. The appellants are blaming the trial judge for having misconstrued their submission that they did not pray for amendment of the plaint but rather were responding to what was submitted by the respondents. The record of appeal at page 285 clearly shows that in his 20 submission Mr. Sungwa, the learned advocate who represented the appellants, prayed to amend the plaint as hereunder: "/ therefore pray that the plaintiffs be allowed to make amendments to incorporate the facts stating that the Court hasjurisdiction." So, much as the appellants have misled the Court, we think this ground is baseless because, one, the trial judge properly considered and analyzed the material before him and came to the conclusion he made. Two, the trial judge could not have granted the prayer when the PO had already been raised since it could have amounted to pre-empting it. Three, and most importantly, in our view, the trial judge could not have granted the prayer as it could not supersede the jurisdictional issue of time limitation. In this regard, we do not find any reason to fault the trial judge's finding. We now turn to the last complaint that trial judge's dismissal of the suit in its entirety at its earliest stage was illegal as it curtailed the appellants their constitutional right to be heard. The counsel for respondents, on the other hand, is of the view that there is no question of illegality in the dismissal order as the trial judge 21 applied his powers under the law geared towards avoiding multiplicity of suits if plaintiffs are left free to bring up their cases at any time they want without limit. He added that, the appellants cannot be heard to have been denied their right to be heard. We have considered the matter wholistically and in particular, the nature, how and when the rejection and dismissal can be applied and their effect. In this case, it is common ground that the suit was dismissed for being time barred. As already alluded to, in order for the provisions of the proviso to Order VII rule 11 to come into play, the court must be satisfied that if the plaintiff is permitted to amend the plaint, such plaint will disclose the cause of action or that the suit will cease to be barred by law. In our considered view such defects would entail minor issues and not crucial issues involving time limitation. In this regard, we wish to emphasize that the issue of time limitation is not a technicality which can be glossed over as it involves the jurisdiction of the court with to entertain the matter. Besides that, the law of limitation is a creature of statute which is geared towards regulating litigants to abide to the time limits set by the law in bringing up their cases. Otherwise, leaving the litigants free to bring their cases when they want 22 it may amount to chaos and this will defeat the public policy to avoid multiplicity of suits. Likewise, we are mindful of the fact that the right to be heard or fair trial is enshrined under Article 13 (6) (a) (ii) of the Constitution which provides as follows: "When the rights and duties o f any person are being determined by the court or any other agency, that person shaii be entitled to a fair hearing and to the right o f appeai or other iegai remedy against the decision o f the court or o f the other agency concerned. " (See also Mbeya, Rukwa Autoparts and Transport Ltd v. Jestine George Mwakyoma [2003] TLR 251). In this case, the record of appeal bears out that, the appellants were heard on all points of PO which were raised by their counterparts. And, the trial judge determined the matter on the basis of the material which was available before him. He considered the arguments from both sides. In any case, it is our considered view that, considering that the right to be heard is not unlimited in the sense that it has to be exercised in accordance with other laws among others being the LLA, there was 23 nothing to be termed as an illegality as the appellants seem to suggest. In this regard, we do not agree with the appellants that the trial judge's order to dismiss the suit was illegal as it was issued in accordance with the law. Hence, we find that this ground unmerited and we dismiss it. With the foregoing, we are settled in our mind that this appeal is without merits. Consequently, we dismiss it in its entirety with costs. DATED at DAR-ES-SALAAM this 21st day of May, 2021. R. K. MKUYE JUSTICE OF APPEAL W. B. KOROSSO JUSTICE OF APPEAL L. J. S. MWANDAMBO JUSTICE OF APPEAL The judgment delivered this 25th day of May, 2021 in the absence of the appellants and in the presence of Mr. Adronicus K. Byamungu, the learned counsel for the Respondents, is hereby certified as a true copy of original. _ .