19860329 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 31 OF 1984 BETWEEN .. 1. THE NATIONAL INSURA.NCE CORPORATIONJ, • APPELLANTS 2. M.B. S. FUBILE t AND . SEKULU CONSTRUCTION COMPANY • • • RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam (Mtenga, J.) dated the 16th day of June, ·1903 in ~ivil Case No. 140 of 1978 JUDGMENT OF THE COURT MUSTAFA, J.A.. : The ae tion in the High Court commenced with a simple claim, Sekulu construction co. Ltd. (the respondent herein) filed a plaint against one Fubile and the National Insurance Corporation {the appellants herein) claiming that the appellants had unlawfully converted to their own use a concrete mixer and a vibrator machine, the property of the respondent, and claimed ge·neral an'd spec:ii,.l damages for such wrong. The respondent prayed for· ( 1) genet-fll damages (ii) special damages amounting to shs. 260,820/... U;ii) · ( costs of the·suit (iv) int~rest at 9% from date of suit to date Of payment (v) a declaration that the respondent is the owner of the said machines. The appellants in their written statement of defence denied unlawful conversion of the said machines and asserted that they had the right to use tham in terms of a contract made between the first appellant and the respon?ent. The fi~st appellant filed 'a counterclaim with the statement of defence, and in the counterclaim:alleged delay and defective work by t~e respondent in the construction of a building in terms of a build·ing contract made bet~n the respondent and the first appellant and claiming from the respondent as a consequence of such breach of contract a sum of shs. 722,070.30. , ••••••o••/2. 2 The respondent replied to the statement of d~f~nce denying the appellant's right to use the machine11i', together With a defence to the counterclaim denying negligence or delay on its part and alleged that it worked properly and with due diligence~ The respondent also called in aid an arbitration clause contained in the building contract and demanded that the dispute be referred to arbitration. Then followed, in the same document, a most unusual claim~ headed "counterclaim to second defendant's (i.e. first appellant) counterclaim". The respondent in this so called counterclaim to a counte.J:'claim all,eged that the first appellant had wilfully and unlawfully preached the building contract and claimed from the appellants Ca) a sum exceeding shs. 898,000/~ for general damages (b) .Costs of this suit (c) interest on above at 12% from date of counterclaim until final payment. Apparently at that stage the pleadings ended. It will be noticed at once that t9_<ire, is,no• suc,h thing as a counterclaim to a counterclaim. Such a creature is,unknown to our civil proceedings and pleadings. We refer to the , "'\( ... provisions of Order 8 in the Civil Procedure Code which deal 1:ii' with written statements, set offs and counterclaims. As English·cornmon law developed, in civil pleadings, briefly speaking, an action begins with a statement of dlairn, or what we -call a plaint, then a written defence is fiiea, to which a reply is made. In the written defence, a counterclaim can be included, which-can be rebutted in the defence.filed with the reply. Thereafter, until the court gives permission, no other pleading can be filed. Further pleadings may include a rejoinder and then the Old ones of surrejoinder, rebi..ttter and surrebutter, the last three being now perhaps out ci use. In any event thepe can only be one counterclaim, which in I fact is a cross suit, in an action filed. There cannot be two. _,.__ ·e•o••oe/3. -,f ..., ' . In the circumstances the suit in the· High Court which resulted in the appeal before us 1 bocame very confused, both in its p.rOceeditlgs and in its finai decisiofil To us it :ls clear that the o.t:t'9i~al claim was confined to a claim for damages for Wf.Ongful use of.the respondent's two pieces of tnacn~nerf by. ~he appellants~ The appellants: denied any wrohgful use,· and ¢uunterclaimed for damages for delay and negligen~ ,work arising from a bUilding contract. All the tespondefit could do was to file a defe~de to the counterclalnl I denying such allega~ionsl which in faet the respondent did. If at that stage the respondent Had wanted to sue the appellants for damages for alleged bteaeh of the building cqntract, the respondeht should have· applied for leave to amend it~ plaint and expan~ it to include .-tlt:h all• at1ons and claims. Ot the tespOtl.dent ooul.d perhaps also have filed en action on the bu1lding contract alleging hreadh by the appellants, and ,. consolidate toe two suits, assuming the matt•rs in dispute cent.i:'ed on the bu~.l~ihg contract. But the respondent could not have proce~~~d ir{ the. way be did, by' filing a counterclaial ,, to ~ counterclaim. He was in fact filing two distinct suits based on two, separate ~a~ses of action, in the first one the respondent was merely suing for ·damages. for wrongful us·e Of hi$ two pit3C8S .. of machines, and in the second the re$pOndent was suing for- damages for breach of a building contract. We will examine briefly what happened after the pleadings were closed. Three agreed issues were framed 1. Did the 1st defendant tonvert the concrete mixer and vibrator of the plaintiff in persue (sic) of the contract? 2. Did any party suffer any damages after the termination of the contract 3. Depending on answer to issue No. 2 - which party was at fault? - 4 ... In the course of the trial, and in view of the -issues framed, it seems that in·a claim for ' damag~s for wrongful use of 2 pieces of mac::hin-ery, a claim for breach of a building contract was adjudicated upon, by a side wind, as it were. There were ov~rMnt, and cQunt$r-avQrments of who was in breaGh, whether the appellante were right in d&Uirmining the contract owing to delay a~d bad workmanship on the part of the respondent and so on and so forth. The trial judge was obviously confused from the way the trial went; perhaps in view of the state Of the pliadings:.· In the c'ou~se of his judgment, the judge stated inte.r: aU,.e.:. 1iAfter the termination of the contract, the teehriical officer (D.W. t) req·uested the plaintiff .to preee?\t to the second defendants the~r claim, and t~a plaintiffs duly complied with this advice t'\d they demanded to be paid Shs. 903,860/- excluding toe charges of hi~ing machinery such as v~brator and.. ~ conc:reta mixer the subl~ct matters of ;sh&s suit•.._, •• " . M 4 - (underlil"ling supplied) _-:,. Even at the stage of writing the judgment the judge was of the v'!ew that the subjaet matter of the suit was the alleged wrongful use of the 2 pieces of machinery. Obviously, if that were so, the evidence adduced concerning the alleged breache• of the building contract were really not relevant. At another stage in the judgment the judge stated "'llle 1Gizure Of the machines and the building materials, was,:: ~he ref ore, wrong£u J. and the def endanta; are liable to pay.for damages as prayed and.it is so ordared 0 , And finall.y towards the end of his judgment, the judge stat~3d "The secuniJ defendant, tharefore, cannot be heard counterclaiming that he spent a lot of money well over Shs. 1 million to complete the building,,.•o••• Accordingly the counterclaim lodged by the defendants 11 llereby _dism!ssed with costs~ Because of the aforesaid, I enter judgment for tiile plaintiff$ as prayed pl us costs and interest"• ••o••oee/5. I 5 In the evidence adduced at the trial, a number of issues were canvassed, issues not m8ntioned in the pleadings nor specifically referred to in the agreed issues framed. For instance such issues included whether· the agreed period for completion ?f the building.as contained in the building contract was extended by certain acts of the first appellant and what such extende<l period should be. It appeared that the issue of extension became 0ne of the main bones Of contention between the parties, as it allegedly affected the validity or otherwise of the termination of the contract by the appellants. In any event the judge in his judgment merely dismissed the counterclaim of the appellants with costs and entered judgment for the respondent as prayed wit~ costs. He did not in fact finally decide on the other matters in c_ontroversy relating to the building contrac_t although he made certain observations in connection with some of them. l'he decree as drawn up was consistent with and reflected the Judgment and order of the judge. I The decree reads: "DAR .ES SALAAM CIVIL CASE NO~ 140 OF 1978 SEKt.JiiU CONSTRUCTION CO. (i) LTD. • • • l?LAINTIFF ' i. 2. M. S., FUBIL~ Versus NATIONAL INSURANtE C0~0RATI0N • ! • DEFENDANTS DECREE The plaintiff pfays judgment and oecree against the defendants jointl'y and severally for: (i) General d~mFJges; (ii) Sp,2cial da~ages amoun~ing to shs. 260,820/;;i; · (iii) Costs of tl-\is suit; (iv) Interest on ·c1), (ii), (iii) ~bove at 9% p:.a~ from the date of"filiJlg this suit un~il final payment and delivery, (v) A declaration "that. the ptii1ntiff is the owner df the said ·tnachd.~_es. ., :-•, \.'\, I {vi) ·Any Other reli"ef thtit this coutt-·rhight· dE:'lem fit, to grant. ~His case cQming·on this day for final disposal in court .tn the pre$ence of before --~ON. •. M'I'ENGA, Judge MCHORA Eiq., Advocate fbr the ·plaintiff and MUSATI Esq., Advocate for the defendants~ IT ~I~ HE:REB~ ORDERED, .l{.N_D DECB§,f.: THAT: 'rhet-e is no evide~C!e to the ~ifect :·that _'tl'fis new oohtractor spent any money in buying additional· building rna~tials •. The second defendant therefore can not be heard cou.nter ciaiming that he spent a _lot Of money well over shs. 1,000,000;~ to complete the building by paying to this second contractor. Accordingly the counter c;laim lodged by the def and ants is het-eby disini.ssed with costs• - - 8ec~us$ of the: ·l:ifd>.relsaia judgment is entered for .. . plaintiff is pr~Yed plus costs ahd intetest. the . l1ay THEl COURTII Giv~n uhder my hand end ttte Seal of the Court this 16th day of June·, 1983.· ,, REGISTRAR"• It will thus be seen that the decree in favour of the respondent Wps qnly for shs. 260,820/c special damages, plus interest ~ndl costs, and a declarationthat the respondent is the owner of the said pieces of machinery, in terms of the prayer as contained in the plaint _filed by the respondent. The appellant's counterclaim was dismissed with costs. There was no sum given for general damtges awarded, and the inclusion of ·the item, general damages, was mere surplusage. However in the application for· execution Of the decree dated 5.7.82 (the decree was extracted on 16.6.83) the sum shown a_s owing for principal was Shs. 3,353 ! 983.00. Interest was charged·at_10% p.a. from 12.5.77 to 16.6.83-apd·amounted to Shs, 335,398.30 making a total sum of Shs. 3,689,381.30. • • • o o o o o • eJ7 • 7 There was another sumo~ 2,041,426010 for interest-at 9% from 12.5.77 to 1606 83. 0 Costs were taxed at 91,037.50, making a total decretal sum Of 5, 821;844. 90. The application for execution was drawn up and signed by Mro Mchora, Advocate for the respondent .. It is crystal clear that the figures shown in the application for execution of the decree have not the slightest connection with the decree as drawn and with the judgment given. Mr. Mchora before us was unable to explain how the figures were arrived at. It is astonishing why there were two sets of interest charged, nor·why interest was at 10% on one such amount. The sums set down would seem to have been the figments of· somebody's imagination.• To make matters WOL'Se Mr. Mchora stated from the Bar before us that both the Registrar of the High Court and the trial judge had seen. . and approved the figures in his application for execution. If -chat were true, we can. only sa 1 that we find the wholEl exercise inconceivable and beyond our co'('llprehension. We thus 1•1ave a strange state of affairs as revealed in the appeal. The pleadings were in a form unknown to our· civil proceedings, and w~re confused and confusing. At the tr:.:...1 a r.11mber of issues were c,nvassed and· evidence was given on them. Som2 such issues were related to matters vaguely raised in the so-called "counterc.!.airn to a · counterclaim". The trial judge i::\ the _o.onr~e of his judgment ~- ' made remarks and Observations on some of these matte~s raised in the "counterclaim ·to the counterclaim", but made ho final decisions on them. The judge rest·.i:icted his final finding to the prayer as contained in the plaint and to the cot)nterclaim by the appellant. It seems to t.:.S i.:hat the judge r-d effect, I in his judgment and decree; only finally dealt lili.th the pleadings I as contained in the plaint, the wr:~tten statemei,·t of defence, the coi.mter-Glab1 and the reply thereto,. But the judge did deal copiously with other issues outside those conta,ined i in the pleadings ending with the repJ.y -in the body; of his judgme.nt. In fact the judgment and decree~ i~ a manner of speaking, was at variance with the evidence led and the case as conducted at ~e ·••ooe•Je~ ,. - 8 triaf; as ·'the trial judge did not make any finding 9n issues on which he had adjudicated. That is one unsatisfae,oi:y featur~, Then there is the variance between the decree as drawn and the figures contained in the application for. execution of the decree. We understand that.a garnishee_order for .the decreta~ sum as reflected in the application for execution was obtained. We had considered whetner we coul.i;l salvage t.his matter · by .dealing in this appeal only with tl:\~, .affective part of. the; •. '-~ • I ' proceedings, i.e. the judgment and-.~~_cree as drawn ~nd the evidence which concer·--ad the matters contained· in the pleadings 'it I . • . 81'.lding. with th.e respondents· reply and defence to the appellant• s · •:··' ' countercl_aim. Such a step would necessitate the reco~ciliation ·· of the. decretal sum in the execution application ~ith· that ·as reflected in the·decree • Such a reconciliation aeerns ·:impossible• .. . . And· in any e·vent, such a course may prejudice ?ne or both the parti-es· in respec.t of the other substantial mattera in c;:ontzaaversy -in- connEiction with the building contract, matters which the trial judge had h~ard evidence on and adjudicated upon, but on some of which he had made no final decision. :Wa- find ourselves in a quandary in this extraordinary and .,. · i ,;· ·,strange situationo We have decided thet the only ~oursQ open ~ _to us is to declare the whoie trial null a~d void because of :· :' \. .. :;-: ·. '.the. fundamental divergence between th~ imprOper form of pleadings and the evidence adduced at the trial,· and that between what, was tried and what was finally decreed, and between th~ sum decreed as due and the sum allowed in execution prqceeding1. In the circumstances we allow the appeal, with ~Q order a, to co5ts. We quash and set aside the judgment And ,ecree of the High Court, and declare the trial a nullity. We alsa·daclaret should the parties hereto de&ire to proceed to law if1 respaot of 9 the matters in controversy between them, that the perion between , 11th October, 1978,, the· dnt~ of the filing of the plaint to tha date of t ) 1 ~ n t be excluded for purposes of calcUlntion of the period of l~mitation of actions. DATED at DAR ES ShLAAM this c..51J!:;- day of March, 1986. A. MUSTAFA JUSTICE OF APPEAL JUSTICE OF APPEAL R. H. KIS,\NGA r.,.. • - - - - . . . . JUSTICE OF APPEAL I certify tha,t this is a true copy of the original. REGISTRAR COURT OF APPEAL OF TANZANIA • • "