stanbic bank tanzania limited vs sumry bus services company limited others 2022 tzhc 15452 1 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 386 OF 2022 STANBIC BANK TANZANIA LIMITED.......................................... APPLICANT VERSUS SUMRY BUS SERVICES AND COMPANY LIMITED............ 1st RESPONDENT AMOUR MOHAMED SUMRY (As Administrator to the Estate of the late HAMOUD MOHAMED SUMRY............. 2nd RESPONENT SALUM MOHAMED SUMRY.............................................. 3rd RESPONDENT AMOUR MOHAMED SUMRY.............................................. 4th RESPONDENT SUMRY HIGH CLASS LIMITED......................................... 5th RESPONDENT (Arising from Civil Case No. 125 of 2018 RULING 16th November & 1st December, 2022 KISANYA, J.: In this application, Stanbic Bank Tanzania Limited has moved the Court by way of chamber summons preferred under Order VIII, Rule 23, section 68 (e) of the Civil Procedure Code [Cap. 33, R.E. 2019] (the CPC) and section 147(4) of the Evidence Act [Cap. 6, R.E. 2022], to grant the following orders: 1. That this honourable court be pleased to make an order of departing from the scheduling order made in the first pre­ trial conference to allow the applicant/plaintiffto apply for this application. 1 2. That this Honourable Court be pleased to lift/vacate its order of closing the applicant’s case which was recorded on 17th June, 2021, 3. That this Honourable Court be pleased to recall PW1 for further examination in chief to tender the documents which were annexed to the applicant’s plaint but were not tendered and testified; OR/ALTERNATIVELY That this Honourable Court be pleased to alow the applicant to add another witness to tender the documents which were annexed to the applicant’s plaint but were not tendered and testified. 4. That this Honourable Court be pleased to alow the applicant to add another witness to further testify on the loan disbursed to the respondent for the purposes of determining the real question in controversy between the parties. 5. Any other reliefs this Honourable Court deems fit and just to grant: 6. Costs to follow the event. The chamber summons is supported by affidavits of Lilian Gawile and Albert Lema, the applicants’ Legal Manager/Advisor Dispute Resolution and advocate, respectively. To oppose the application, the respondents filed a counter affidavit sworn by Mr. Dickson Vanance Mtogesewa, their advocate 2 The factual background leading to this application is straight forward. On 10th July, 2018, the applicant, through the legal services of Kesaria & Company Advocates, filed a case against the above named respondents, praying to recover a debt of Tshs 2,005,908,811.2. On 17th June, 2021, the applicant’s case was marked closed at the instance of her counsel. By that time, the applicant had called one witness namely, Honory Inyasi Kwayu (PW1) and tendered in evidence several exhibits. However, the defence case could not proceed due to demise of the then 2nd defendant whose estates is being administered by the 2nd respondent. The hearing was adjourned several times pending appointment and joining of the administrator of the estate of the deceased 2nd defendant. On 4th May, 2022, a law firm styled as CRB Africa Attorney was engaged to take the applicant’s case from Kesaria & Co. Advocates. That was after demise of Dilipkumar Kesaria who was managing Kesaria & Company Advocates. On 14th June, 2022, the newly engaged law firm through advocate Albert Lema perused the court file in order to prepare with the hearing of the defence. He discovered, among others, that six documents appended to the plaint were not admitted in evidence. The said documents included personal guarantee of the 3rd and 4th respondents, corporate guarantee of the 5th respondents, demand notice, deed of appointment and court order. According to the applicant, the foresaid documents were not produced when the case 3 was called for hearing on the ground that she could not retrieve the original. Therefore, upon retrieving the same from the old archive, the applicant filed the present application for the above stated reliefs. As intimated above, the application is being opposed by the respondents. It was averred, inter alia, that the applicant’s case was prosecuted by one, Stanlaus Ishengoma who is alive and that the late Kesaria did not enter appearance for the applicant. It was further averred by the respondents’ counsel that there was no testimonial records from PW1 that the said documents were not retrieved, lost or misplaced. By consent, this application was disposed of by way of written submissions. Both parties filed their written submissions in accordance with the time fixed by the Court. The applicant counsel, Mr. Albert Lema commenced his submission by referring this Court to the 3rd and 4th prayers in which the applicant is seeking to recall PW1 to tender and add another witness. Referring to Order VIII, Rule 23 of the CPC, the learned counsel submitted that departing from the scheduling order was necessary for the interest of justice. He was of the view that this Court is enjoined to grant the first and second prayers in order the applicant to pray for the third and fourth prayers. To bolster his argument, the learned counsel relied on sections 95 and 68(e) of the CPC. 4 Mr. Lema submitted that the third prayer is based on section 147(4) of the Law of Evidence Act which empowers the Court to permit a witness to be recalled for further-examination in chief. He went on submitting that the applicant had accounted reasons warranting recalling of PW1 to tender the documents appended to the plaint. It was also his contention that the said documents are crucial for determination of the real issue in dispute between the parties in the main case. In alternative, he urged the Court to grant the prayer under sections 95 and 68(e) of the CPC. He also referred this Court to the case of Michael Ngareku Shirima vs African Banking Cooperation, Commercial Case No. 54 of 2016 (unreported). He was of the view that, the application to recall witness may be made even if the defendant has closed its case. On the fourth prayer, the applicant’s counsel submitted that the applicant is seeking to add another witness to testify on the loan disbursed to the respondent and thus, determining the real question in controversy between the parties. It was also his argument that sections 95 and 68(e) of the CPC empower this Court to grant the prayer and that the applicant had shown sufficient cause. In conclusion, Mr. Lema submitted that the respondent will not be prejudiced if the application is granted. He urged this Court to consider that 5 the defence case is yet to start and that the intended witness will be cross­ examined by the respondents’ counsel. Submitting in rebuttal, Mr. Mtogesewa started by adopting the respondents’ counter affidavit. He was of the view that the issues for determination are whether there is justification to depart from the scheduling conference order and vacate this court’s order closing the applicant’s case; and whether this application discloses sufficient grounds or circumstances justifying reopening the plaintiff’s case and for recalling or adding a witness. It was his contention that both issues are answered in the negative. On the prayer to depart from the scheduling order, Mr. Mtogesewa submitted that the applicant has not demonstrated the interest of justice as required under Order VIII, Rule 23 of the CPC. He was of the view that the interest of justice does not exist in vacuum without taking into account timely justice for both parties, giving evidence and making prompt or timely application. He urged this Court to consider that the application was made after the applicant had closed her case on 17th June, 2021. Citing the case of Alexander Baranguza vs the Law School of Tanzania and 2 Others, Misc. Civil Cause No. 11 of 2022, he submitted that the applicant had not complied with procedures of adducing evidence including attempting to produce secondary evidence under section 67(1) of the Evidence Act. 6 The learned counsel further submitted that PW1 did not testify that there were lost or un-retrievable documents. He contended that PW1 stated that the documents were lying in the applicant’s office. It was also his submission that the affidavit of PW1 was not taken. Mr. Mtogesewa went on arguing that the applicant was duty bound to make follow up of the status of her case. To expound his argument, he relied on the case of Elias Masija Nyango’oro and Others vs Mwanachi Insurance Company Limited, Civil Appeal No. 278 of 2019. Submitting further, the learned counsel stated that this application calls for a finding whether there was loss of very important bank credit facilities. He contended that such evidence is wanting as the loss report was not tendered in evidence or given by PW1. He was of the view that the case of Michael Shirima (supra) is distinguishable because the application was made before closure of the plaintiff case and the witness had attempted to produce secondary evidence. Mr. Mtogesewa argued that there were no special circumstances for this Court to exercise its powers of recalling witness under section 147 (4) of the Evidence Act, after closure of the applicant case. To buttress his argument, he referred this Court to the commentaries by Sakar’s Law of Evidence. It was further submitted that recalling or adding witness for the purpose deposed in paragraph 6(iii) of the affidavit of Lilian Gawile is not tenable in law. Restating 7 the principle that documents speaks for themselves, he contended there was no need of recalling witness to testify on the admitted documents. To expound his argument in opposition of the application, the learned counsel urged this Court to be persuaded by the case of Prosecutor vs Charles Taylor, Case No. SCL 03.10 in which it was held among other that, application of this nature is determined by considering whether with reasonable diligence, the evidence could have been identified and presented in the evidence in chief of the party making application. He also asked this Court to find the application as an abuse of judicial process for want of timeliness, delay or rather not acting promptly. In that regard, the learned counsel prayed that the application be dismissed with costs. In his rejoinder submission, Mr. Lema submitted that the prayer to depart from the scheduling order is based on the reason that the applicant cannot apply to recall and add a witness without praying to depart from the scheduling order. On the contention that the applicant had not produced the loss report and affidavit of PW1, the learned counsel submitted that the affidavit of Lilian Gawile was sufficient to support the application. He further submitted that the applicant was not intending to add new evidence or to fill lacuna and that the case cited by the respondent’s counsel are distinguishable. The learned 8 counsel reiterated his submission that the applicant will not be prejudiced if the application is granted. Having considered the rival submissions, the key issue to be addressed is whether the application is meritorious or otherwise. As shown herein, Mr. Lema argues that the first and second prayers are based on the third and fourth prayers. That being the case, I find it appropriate to address the said prayers before reverting to the first two prayers. For convenience in determination, I prefer to start with the fourth prayer. In that prayer, the Court is asked to allow the applicant to add another witness to further testify on the loan disbursed to the respondent for the purposes of determining the real question in controversy between the parties. Mr. Lema was of the view that the provisions of sections 68(e) and 95 of the CPC empower the Court to grant the said prayer. In terms the settled law, section 68 of the CPC is supplemental provision which summarizes the general powers of the court in regard to interlocutory proceedings. That being the case, the applicant must indicate the specific Order of the CPC which supplement section 68. I am fortified by the case of Se Saigon Shipping Limited vs Mohamed Enterprises (T) Ltd, Civil Appeal No. 37 of 2005 (unreported) in which the Court of Appeal held: 9 “Since Section 68 merely summaries the general powers of the court in regard to interlocutory proceedings, whoever applies for a specific order must cite the order under which he is applying for. “ Now that the specific order of the CPC under which the application is preferred was not cited in the chamber summons or referred to in Mr. Lema’s submission, I hold the view that the fourth prayer cannot be determined under section 68(e) of the CPC. With regard to section 95 of the CPC, I am guided by the decision of the Court of Appeal in the Tanzania Electric Supply Company (TANESCO) vs Independent Power Tanzania LTD (IPTL) and 2 Others, Consolidated Civil Application No. 19 and No. 27 of 1999 (unreported) where it was, inter- alia held that "the said provisions do not constitute no authority for the High Court to entertain the respondent's company's application". That decision was cited in MIC Tanzania Limited vs Hamisi Mwinyijuma and Another, Civil Appeal No. 222 of 2018 (unreported) in which this Court went on to hold as follows the application made on section 95 of the CPC: “I have perused the decision of this Court in Hassan Karim & Co. Limited V Africa Import and Export Central Corporation Ltd [1960] EA 369 commenting on Section 151 of the Indian Code of Civil Procedure as applied to Tanganyika then and now Section 95 of the 10 Civil Procedure Code, where the Court held that Section 95 of the Civil Procedure Code does not independently confer any power on the court nor any rights to the litigants. See also the decision in Omari Mbuzini Kilama v Nehemiah Jeremiah Makofia, Civil Case No. 92 of 1995. The same position was also adopted by the Court of Appeal ofTanzania in the IPTL case.” In view of the foregoing position, I respectively disagree with Mr. Lema who was of the view that sections 68(e) and 95 of the CPC apply in relation to the fourth ground. On that ground, the fourth prayer cannot be determined by this Court. Second for consideration is the third prayer that the applicant be allowed to recall PW1 for further examination in chief or add another witness in order to tender the documents which were annexed to the applicant’s plaint but were not tendered and testified. In their contending submissions, both counsel were at one that, under section 147 of the Evidence Act, the court is enjoined to allow a witness to be recalled for further examination in chief. The section stipulates: “The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross­ examination and if it does so, the parties have the right of further cross-examination and re-examination respectively 11 As it can be glanced from the above provision, the law does not specify the stage of the case within which the court can permit the witness to be cross-examined. Nothing to suggest that such power must be exercised before closure of the case for the plaintiff or defendant. In the case of Michael Ngareku Shirima (supra), this Court (Mwandambo, J, as he then was) held the view that such power may be exercised after the witness has finished his evidence or before being called for cross-examination. His Lordship stated: ”... the power to permit further examination in chief can be exercised after the witness has finished his evidence or before he is called upon for cross-examination as it were in these proceedings.” Therefore, since the power to recall witness for further examination can be exercised after the witness has finished to adduce the testimony, it can be exercised even after the party has closed his or her case. In the case of MacEchern vs Rennie 2009 BCSC 1858, the Supreme Court of British Columbia, underlined that such power can be exercised before the judgment is entered. For that reason, I find no merit in Mr. Mtogesewa’s argument that the application ought to have been made before closure of the plaintiff’s case. I am also in agreement with Mr. Lema that the court can allow the witness to be recalled for further examination in chief to tender documents 12 which were not in possession of the applicant. See also the Michael Ngareku Shirima (supra) where it was held that: “the power may be exercised for any purposes including tendering documents not originally tendered.” That notwithstanding, I entirely agree with Mtogesewa that recalling of witness for further examination in chief or even cross-examination is a departure from the ordinary circumstances. According to the commentaries by Sakar’s Law of Evidence, referred to me by Mr. Mtogesewa, the court has discretion to allow a witness to be recalled due to unforeseen situation or inadvertent omission, but not to fill the lacuna in the evidence. The learned author states at page 2747: “Under ordinary circumstances it is not necessary or permissible to allow a witness once examined and dismissed by a party to be recalled, for it is expected that the advocate will interrogate him on all material points including his case. Unforeseen situation may however develop and there may also be inadvertent omissions. In such case, the court may in its discretion allow a witness to be recalled. But surprise or prejudice to the other party should be guarded against, as when the other party has dismissed his witnesses after close of the case of both parties. Nor should a party be allowed to fil up lacuna in evidence under the pretext ofa recall.” 13 I associate myself to the above position. The facts deposed in the affidavits in support of the application shows that the documents intended to be tendered had been misplaced or lost when PW1 adduced his evidence in court. In that regard, I am convinced that unforeseen event developed and led to inadvertent omission of tendering the documents which are subject to the third prayer. The fact that PW1 did not testify on the whereabouts of the said document is not sufficient to reject the prayer. Such question may be put to her during further cross-examination. Further to this, the facts discloses that the applicant was not sure whether the documents were misplaced or lost. Therefore, the application cannot be dismissed for want of the loss report. I have further considered Mr. Mtogesewa’s argument that the applicant was not diligent. It is on record that the defence case was adjourned several times pending appointment and joining of the administrator of estate of the deceased, second defendant. And since the application arises from the main case, it could not be lodged against the deceased second defendant. It is on record the application was filed forty days after the Court’s order of joining the second respondent in lieu of the deceased second defendant. In the circumstances, it cannot be said that the applicant was not prompt. Another issue for determination is whether the respondents will not be prejudiced if the application is granted. I agree with Mr. Lema that the answer 14 to this question is not in affirmative. This is when it is considered that the defence case by the respondents has not commenced. Further to this, the documents intended to be tendered are to the knowledge of the respondents. They were appended to the plaint served to the respondents. As if that is not enough, the respondents will be accorded the right to further cross-examine PW1. In view thereof, I am of the view that it is in the interest of justice that the third prayer be granted. However, PW1’s evidence in chief should be limited to tendering of the documents appended to the plaint. Reverting to the first and second prayer, it is not disputed that this application was made after the court has recorded the scheduling order and the order as to closure of plaintiff’s case. Having resolved that it is necessary in the interest of justice to allow the applicant to recall PW1, I agree with the applicant’s counsel that the Court is also enjoined to vacate its power under sections 95 and Order VII, Rule 23 of the CPC by departing the scheduling order and vacate the order of closing the applicant. In the final analysis, the application is partly allowed to the extent stated. For avoidance of doubt, the applicant is allowed to recall PW1 for further examination in chief to tender the documents which were annexed to the applicant’s plaint but were not tendered and testified. In consequence, the scheduling order made during the first pre-trial conference is departed and 15 the order of closing the applicant’s case recorded on 17th June, 2021 is vacated. Given that the departure is made in favour of the applicant, she shall bear the costs. It is so ordered. DATED at DAR ES SALAAM this 1st day of December, 2022. S.E. KISANYA JUDGE 16