dsm region trading coltd vs ayub mwenda 1997 tzhc 203 5 december 1997

IN THE HIGH COURT OF T A N ZA N IA

AT P A R ES SA LAA M CIVIL REVISION N O .23 OF 1997 (Original civil Case N o. 8 o f 1997 o f the Resident M agistrate's Court o f DSM at Kisutu) THE D SM REGION TRADING C O .L T D ......APPLICANT

VERSUS AYIJB M W E N D A ............................................. RESPO NDENT

OR DPR IN REVISION KAL KCEYA, J. I he applicant in this matter was the Defendant before the trial court ( I he Resident M agistrate's court o f DSM. at Kisutu) in Civil Case N o.8/07. 1he Respondent instituted a summary suit against applicant under O . W X V ol the Civil Procedure Code. I 'nlortunatelv however, when the A pplicant's application for leave to detend came up tor hearing the said applicant did not appear and the court ordered. " C ham ber application fo r leave to defend is dism issed due to the applicant D efen d a n t's absence in court. Judgem ent entered for the p la in tiff as prayed. ” That was on 27/2/97. The day following, the applicant tiled a cham ber application praying. " The H onourable court be p lea scil lo restore the applicant s Application that was dism issed <>n 2 hehruary. I 1) 1) !<>r Lick of prosecution, (of course, the s a id application could not he r e sto re d hi-fore selling aside (he judgement entered in favour o f p lain tiff.) Reasons ad\an ced for the absence of applicant were pro\ided in Samel Katala s supporting affidavit in which he states, that he was the one who was assigned the duty el making a follow up of the case; that on 27 2 A>7 the vehicle which he boarded broke down at Kamata Traffic lights and had to look for an alternative means ot transport, and that by the time he arrived at the court premises the matter had already

been dismi>sed. Samel is the Personnel and A dm m istrati\e Officer ot the applicant In a brief ruling thereon, the trial court dismissed the application in the following wording, " The advocate fo r the applicant was absent on the m aterial day. The affidavit o f Saniel K atala cannot be co n sid ered as he has fa ile d to disclose sources o f information. In the case o f Prem chand Raichand vs O uarry Services / 1969)(EA) 51 where Spry J A. held “An affidavit in support o f an application which does not disclose sources o f inform ation should he disregarded. ” Mr. Saniel Katala s affidavit does not give sources o f inform ation as to how his car broke down, reg. No. M echanical problem s, which alternative transport he took. 1 therefore dism iss this application with costs. Dissatisfied, the Applicant came to this court praying. " That this H onourable Court m ay be p leased to call a n d revise the record and ruling o f the H onourable Mr. Sam e/a RM. d ated 6'h May, 1997 issued in civil case S o .# o f 199? betw een the pa rties herein m entioned a n d the decree and order oj execution be set aside and leave to def end the suit be gra n ted t<> the applicant Defendant. Ms Bayona, Advocate, appeared tor the applicant while Dr. Mvungi o f the South Law Cham bers (Advocates), appeared for the Respondent. They made their arguments by way o f written submissions. Ms Bayona

vehemently argued, first, that the decree was based on a defective plead inti in that having brought an action under O.XXXV, Rule 1(a) ot the (P C the plaintiff should also have indicated therein that he had complied with S.48 and 49 o f the Bills o f Lxchange Ordinance (Cap 215) bv issuing a notice ot dishonour. ( iting llu sse u u li Dharamsi llasmani versus 1he National Bank ot India, Ltd (l^M*) 17 LAC A. page 55. in support thereof she insisted. " Since there was no such notice of dishonour the suit was incom petent for failure to disch)se a cause o j action a n d the plaint should have been struck out under the provisions of (117/, Rule I l i a) CPC " Secondly, Ms. B ayona argued that having proceeded under O .X X X V , rule 1(a) C P C the plaintiff should have claimed just shs 3,385,701/= allegedly being the sum indicated on the dishonoured cheque, and not crossing over into claims for dam ages, and that due to the latter’s inclusion the matter should have been treated as a normal suit (cited Haja Arjabu K asule vs F.T.Kawesa (1957) E.A 611. She went further and stated that the sum s aw arded over and above the liquidated amount o f shs3, 385,701/=, without proof, was contrary to the provisions o f orders VIII, Rule 14(2) and IX rule 6 ( 1 ) CPC (cited Kulwa Daudi v Rebecca Stephen (1985) T.L.R 116. Finally, she argued that the trial court erred in concluding that the

affidavit was defective as it clearly indicated that all that was stated w as in accordance with deponent's knowledge save para.7 whose source was disclosed; and that they have all along acted diligently in filing the various applications, which behaviour should be awarded by revising the verdicts entered by the trial court, i.e. dism iss the suit or alternatively be granted un-conditional leave to detend. Countering, the Respondents stated that the argument regarding a defective plaint is m isconceived because the requirement o f notice would only have been relevant it R espondent was not aware o f the dishonouring o f the cheque which is not the case here as it was the one which gave a stop payment order to the Bank; that H A S M A N s case is irrelevant as no one was seeking for am endment o f the plaint; that O.VIII, rule 14 (2) and IX, Rule 6 (l)(a ) CPC do apply where a party has failed to file a written statement ot defence but not in a claim based on a cheque. Finally, they insisted w ithout elaboration in relation to the facts at hand, rely ing on Premchand Reuchand versus Quarry Services (1969) HA 517. that " an affidavit in support o f an application which does not disclose the sources of information should be disregarded." 1 will start with the question o f whether or not the affidavit ot Katala was defective in a m anner alleged by the trial court. With respect to

the trial court and the South 1 aw Cham bers (Advocates), the authority cited is irrelevant in this situation vis m uch as the charges lev elled against the relev ant affidav it are unsupportable. For clarity. even at the danger o f making this ruling unnecessarily long, let the w ording (it the affidavit itself, in full, portray the picture: "I. S A M E L K ATAI.A. Adult. Christian and resident o f Dar-e.s-Salaam. do hereby m ake oath a n d stale a.s follow s 1 That l a m a P ersonnel a n d A dm inistrative O fficer w ith the A pplicant Company.

2. That the A pplicant is the D efendant in the m ain suit.

3. That on the 2 (fh February, 1997 the applicant f d e d C ham ber application in this C ourt seeking fo r unconditional leave to appear a n d defend the suit. '**»l h 4. That the sa id m atter w as fix e d fo r hearing on the 27 February, 1997.

5. That 1 am the one who was assigned by the A pplicant to m ake a fo llo w up o f the sa id m atter in court.

6. That on the m orning o f 2~,h February, 199". I left our H ead Office at Syerere R oad fo r the Court. While on m y w ay to Court, the M otor Vehicle I was travelling in broke dow n near K am ata Traffic Lights a n d 1 h a d to look for another transport.

7. That by the time 1 arrived at the court I m et the Court ’.v Clerk who told me that the m atter h a d been ca lled up and dism issal order entered against the Applicant.

8. That the non-appearance o f the applicant in court when the m atter w as called up was not deliberate but was beyond our control.

9. That as the A pplicant has a genuine a n d strong defence in the m ain suit, and in the interests o f justice. I p ra y for the orders sought in the C ham ber sum m ons 10. What is sta ted hereinabove is true to the best of my ow n knowledge cxcept Para which is b a sed on inform ation the course of which is disclosed. Looking at the above quoted affidavit can one justify the trial C o u rt's condem nation ot the same? The answer is obviously negative. All the main facts alleged should have obuoush been in the deponent's knowledge. Possibly, the trial court, in part, had a quarrel with para, seven for not disclosing the name ot the court clerk who told him (Katala! that the case had been dismissed. While conceding that it would h a \e added 4 flavour if the deponent had disclosed the name, on the facts o f this case, it was not necessary as m uch as it was not necessary at all to state that he had been told o f the dismissal o f the suit. He could have simply said " I fo u n d the application already dism issed" Why? This is an undisputed fact. The case had been dismissed and that's why the application which was being considered had been tiled. The deponent could have left out para. 7 and the affidavit would have remained unaffected. The above apart, it is now trite law that if an affidavit contains an offending paragraph, which however, if removed would not affect the

otherwise full import o f the said affidavit, the court should expunge it (para) leaving the other part ot the affidavit intact. That apart 1 need not emphasize that “ a R egistration n u m ber o f a vehicle," M ech an ical p ro b lem s and related are in law, not “sou rces o f in fo rm a tio n ' envisaged in an affidavit. It is clear therefore that the trial court erred in basing its decision entirely, on irrelevant consideration and this alone is enough a ground entitling this court to intertere with the trial court's proceedings by way o f revision. Next is the question o f whether or not the claims as laid down by the Respondent properly fall under O .X X X V o f the Civil Procedure Code. The Respondent claimed in his plaint that having been retrenched by the Respondent he was paid terminal benefits amounting to shs 3,385.701/= through cheque No.009374914 o f 1/11/96 whose payment was however stopped by the drawer. In the concluding part o f the plaint Respondent prayed: ” W H EREF O R E the Plaintiff prays fo r judgem ent and decree as follows (il That the defendant pays to the plaint iff his term inal benefits of T shs 3.3*5. ~ 0 l" - as p er paragraph 4 above (ii) That the D efendant pays to the plaintiff dam ages o f T.shs 5.000.000.00 as per paragraph 6 above (Hi) That the D efendant p a ys to the Plaintiff p er diem allow ance at the rate o f T.shs 3.000 - per day

from the date he stopped paym ent of the cheque to the date he shall lift the stop paym ent order i (iv) Interest on (i) (ii) an d (iii) hereinabove at the com m ercial rate o f 40% p.a. fr o m the date the cause o f action to the date ofjudgm ent. (v) Interest on (ij(ii) and (iii) hereinabove at the Court s rate fro m the date o f judgm ent to the date when fu ll paym ent is made. (vi) Costs o f this suit. (vii) A ny other relieffs) this honourable court m ay deem f i t to grant. " Although in para (i) o f the prayers the Respondent states o f terminal benefits, in accordance with the body o f the plaint it stands out clear that he is referring to the cheque whose pavment was stopped. In my considered view failure to use the usual magic words " the am ount o f the dishonoured cheque'' is not latal in the circumstances as the substance is clearly the same. This would be a proper claim under O.XXXV CPC. But then, what about para, (ii) - (iv)? Can claims for general damages, interest at 40% and per diem allowance be claimed under O.XXXV CPC? In my view the law does not permit. Neither does the CPC allow this nor the Bills o f Exchange Ordinance. O.XXXV CPC provides in part: “ /. This order shall apply to ■­ a) suits upon bills o f exchange (including cheques) or prom issory notes h) .......(not relevant c) ........ “ " d) ........ " ' ei .... " " f) ........ “ “ 2. i' 1)...(not

relevant) < 2 ) ................................................................ (a) where the suit is a suit, referred to in paragraph (a), (b) or (d) of Rule I or a suit for the recover) of m oney under a m ortgage and no other relief in respect of such m ortgage is claimed, to a decree for any sum not 6 exceeding the sum m entioned in the summons, together with interest at the rate specified ( if any) an d such sum fo r costs as may be prescribed, unless the p la in tiff claim s (b) more than such fix e d sum, in which case the costs shall be ascertained in the ordinary way, a n d such decree may­ be executed forthw ith; (c) .(not relevant) (d) .(not relevant)" The quoted part o f O.XXXV does not provide for dam ages in the nature claimed by Respondent. Even Rule 6 under the same order which provide for recovery of expenses incurred in relation to the dishonoured cheque does not go to the extent of providing for damages. It prescribes: " 6. The holder o f every dishonoured bill o f exchange or p ro m isso ry note shall have the sam e rem edies fo r the recovery o f the expenses incurred in noting the sam e for n o ­ acceptance or no-payment, or otherwise, by reason o f such dishonour, as he has under this O rder for the recovery o f the am ount o f such bill or note. " The same picture is presented by the provisions ot the Bill ot Exchange Ordinance (Cap 215). S.57 thereof

states as follows: '' 5 7. Where a bill is dishonoured the m easure o f damages, w hich shall be d eem ed to be liquidated damages, shall be as follow s:- a) the holder m ay recover from any p a rty liable on the bill, a n d the draw er who has been com pelled to p a y the bill m ay recover from the acceptor, a n d an indorser who has been com pelled to p a y the bill may recover from the acceptor or from the drawer, or from a prio r indorser i) the am ount of the hill; ii) interest thereon from the time of presentm ent for paym ent if the bill is payable on demand, and from the m aturity o f the bill in any other case. iii) the expenses of noting, or. when p ro test is necessary, and the protest has been extended, the expenses of protest; hi in the case o f a bill which has been dishonoured abroad, m lieu of the above damages, the holder may recover from the draw er or an indorser, a n d the draw er or an indorser who has been com pelled to p a y the bill m ay recover fro m any p a rty liable to c) him the am ount o f the re-exchange with interest thereon until the tim e o f paym ent; d) where by this O rdinance interest may be recovered as damages, such interest may, i f justice require it, be w ithheld wholly or in part, and where a bill is expressed to be payable with interest at a given rate, interest as dam ages m ay or may not be given at the same rate as interest

proper. Can we read damages and interest in the nature claimed by Respondent in his prayers to the plaint? It does not require an eye o f an expert in law to arrive at the obvious negative answer. I:rom the above I have no difficult in upholding the applicant’s submission that it was wrong to have included other claims which basically are not directly related to the dishonoured cheque and which are purely contenstible and not disposable by way ol summary suit. I should hurriedly add however that under O.XXXV CPC, a party claiming is entitled to interest on the amount indicated on the dishonoured bill but that should be at the court rate. Now. let us turn to the argument that failing to issue a notice ot dishonour to the Applicant and/or failing to disclose the tact ot the notice of dishonour in the plaint rendered the p la in tiffs suit incompetent: incapable o f giving rise to a lawful decree. 1 do appreciate that, legally, a notice o f dishonour should generally be given by the drowee to the drawer or endorser and that failure thereof o f discharges the latter. 1he principles stated in the cited case o f HASMANI are not as irrele\ant as the Respondent would want us to believe. True, in the case at hand there was no prayer for amendment o f the plaint but vs hat is stated therein is that failure to implead in the plaint that a notice o f dishonour was issued and served makes

the pleading defective. This is clearly put in the Bills o f Exchange Ordinance. S.47 describes what is meant by dishonouring o f the cheque. S.48 shows the effects of failure to issue such notice. S.49 provides what should be done for a notice o f dishonour to be \alid and effective, l et part ot the \ery wording of ss.47 and 48 speak for itself- 8 " S.47 - (1) A bill is dishonoured by non-paym ent.- a) w hen it is duly p resen ted fo r paym ent and paym ent is refu sed or cannot be obtained; or b) w hen presentm ent is excused and the bill is overdue a nd unpaid, (2) subject to the provisions o f this Ordinance, when a bill is d ishonoured by non-payment, an immediate right o j recourse against the draw er a nd indorsers accrues to the holder. S .

48. Subject to the provisions o f this Ordinance, when a bill has been d ishonoured by non-acceptance or by non-payment, notice o f dishonour m ust be given to the draw er and each indorser, and any draw er or indorser to whom such notice is not given is discharged: ” On the facts at hand the Respondent admits that he never acted even a speck closer to what is prescribed in the quoted provisions o f the law. He hurriedly adds however that he was not supposed to issue any notice. The learned counsel lor the Respondent did not cite any authority in support thereof but 1 am o f a settled view that he is correct. This stand finds support in S.50 (2) o f the Bills o f Exchange Ord. which provides: - “ 50 (I) ( not relevant) (2) N otice o f dishonour is dispensed with- a) ..(not relevant) h) ...(" “ ) c) as regards the drawer in the fo llo w in g cases, namely: - i) .. (not relevant) ii) (not relevant) iii) ..{not relevant) ivi ..(not relevant) v)where the drawer has counterm anded payment. d). (not relevant/ " 9 The word “countermand” is easily comprehended but to borrow the definition given in The Black’s Law Dictionary, sixth Ed, put simply, the word means, " A change or revocation o f orders, authority, or instructions previously issued. ” The evidence on record, at least as presented by the plaintiff in the plaint and its annextures, shows that the applicant issued a cheque to

Respondent but by the time he presented it to the Bank the former had already issued a stop order! A copy o f the cheque forming an annexture to the plaint speak aloud o f this. In the premises then, the Respondent has an advantage o f having the matter falling under the exceptions where a notice o f dishonour is dispensed with. The applicant’s attack on this is accordingly dismissed. Now, the above said, what should this court do? We have already concluded that the trial court erred in taking into consideration irrelevant matters and or misconstruing the principles o f law pertaining to defective affidavits. Indeed, the discretion here was exercised arbitrarily and based on total misunderstanding o f principles governing use of such discretion let alone o f the principles dealing with the issue before the court. Here, we are not referring to the verdict given by the court, i.e dismissing the application. No. We are looking at the manner by which it arrived there. We have concluded that the Respondent was perfectly right in filing the suit under O.XXXV CPC in relation to the dishonoured cheque; that he was not required to issue and serve notice o f dishonour on Applicant but at the sametime we are agreed that the claim for shs 5,000.000/= damages; 40% interest, and per diem allowance was out of place. I have carefully considered the question o f what course should this court

take. Should I remit the file to the trial court with directions that the application for leave to defend he dealt with according to law or should 1 put myself in the trial court's shoes and decide on it? After due consideration I have concluded that the latter course will meet the scales o f justice, and more specifically regard being had to the lapse o f time involved. Having carefully analysed the affidavits in support o f the applications to set aside the exparte order and for leave to defend 1 have been convinced up to the standard required that even if the trial court had properly directed itself on the principles of law involved in deciding on a defective affidavit it would not have granted the former 10 application as no sufficient reason for failure to appear before the court had been adduced nor could it have granted the latter (for leave to defend) because the Applicant had not revealed any substantive arguable issues. Here, we take it that in whatever hearing that could have taken place no new evidence would have been adduced apart from expanding or illustrating what is contained in the two affidavits. Regarding the application to set aside the dismissal order, merely asserting that the vehicle which he boarded broke down and had to hire another one is not enough. The applicant's officer's movements were within the city o f DSM. The alleged car breakage took place

at Kamata Traffic Lights which is almost in the city centre. The exercise o f looking for another vehicle can hardly take three minutes. In any case, if it had involved substantial time applicant could not have failed to specifically point it out. Katala didn't. We remain with only one reasonable inference that whatever attempts were made to make an appearance in court, if any, were com menced late hence late arrival at the court premises. It need not be stressed that this cannot be a sufficient ground which can co in in ce the court to set aside a decree passed specifically because o f the party's failure to be diligent. Mr. Katala knew very well the lime when court proceedings were to start. A part) w ho is supposed to make appearance in court has to give him self/herself enough time in which to act and has to give an allowance for such possibilities as breakdown o f the motor vehicle, traffic jam s and the like. It he he/she camps on mere chances she cannot be heard to call the same to his her aid when courts pass decisions exparte due to his her late arrival. So although based on different reasoning, both the trial court and this court's findings are the same: that the application deserved dismissal. What about the application for leave to defend? The answer is the same. Applicant does not dispute retrenching Respondent: does not dispute issuing him the cheque; does not

dispute issuing a stop order thereto. T lie only reason advanced for its u- turn is that it later came to realise that the Respondent had already reached 55 years of age and therefore due to retire, and that mistakes were made bv the accou nt's personnel. Apart from the obvious that the relevant affidavit tells lies because A ccounts personnel generally .deal with payments as per the authority of the administration hence could not have decided on their own regarding Respondent's retrenchment or otherwise, it is self­ contradictory tor stating that though retrenched it came to realise that he had struck the retirement age o f 55. The respondent cannot be victimised on applicant’s laxity or related. Applicant does no allege any fraudulent or related behaviour on Respondent let alone conniving with any person either in the Administration or accounts Department. The above apart, the applicant does not allege that Respondent was paid any other terminal benefits such that paying him on the dishonoured cheque would be double payment. The obvious is that they retrenched him; computed his dues and issued a cheque. Appreciatively, a party confronted with a decree under O.XXXV CPC emanating from a dishonoured cheque for shs 3,385,701/= which has shot up to shs 12,369,981.40, and more specifically, which includes shs 5,000,000/= purportedly being damages and shs 3.534.250/= as interest at

40%, whose source cannot be easily comprehended is bound to put up a fight but. as I have already illucidated that tight has to have legs on which to stand if leave to defend is to be granted, and unfortunately, here there is none. In conclusion, acting under the wide powers o f this court provided under S .4 4 (l) o f the Magistrate's court Act, 1984, 1 hereby revise the trial court's ruling in which dismissal o f the application was made simply because the affidavit was allegedly defective by substituting it with a dismissal o f the application but on reasons that no sufficient cause was established by Applicant for their failure to appear before the court. In exercise o f the same powers, 1 confirm the decree on the amount o f the dishonoured cheque, shs 3.385,701/= and at the sametime set aside part o f the decree which cannot be granted under O.XXXV CPC; that is, the decree for shs 5,000.000/= as damages and shs 3.534.280"-- as interests at the unprecedented rate o f 40%. On interest, in substitution thereof, it is ordered that the Respondent be paid interest on the sum o f shs 3,385.280/- from the date when the cheque was dishonoured till payment at court rate. It is further ordered that, as legally, the Respondent is entitled to costs expenses specifically incurred in pursuing the dishonoured cheque in terms o f O.XXXV, Rule 2(b) and Rule 6 o f the Civil Procedure Code

and S.57 of the Bills o f Exchange Ordinance (Cap 215) (that is. before the filine o f the suit), the same to d r a w n up and filed before the trial court fo r determination after hearing both parties. However, considering the fact that each party has won because each has had some o f the issues decided in its favour 1 will pass no order as to costs which usually follow events in suits. For that matter, all orders made by the trial court regarding costs are set aside. Each party to bear its own costs both in the court below and this court save what I have specifically provided for and sketched above. Application for revision partly succeeds. L.B.KalJfgeya,

JUDGE