national insurance corporation and another vs sekulu construction company 1986 tzca 17 29 march 1986

IN THE COURT OF APPEAL O f TANZANIA AT P AR ES SALAAM CORAM; MUSTAFA, J.A. ; M A K A M E , J.A. And->KISANGA, J . A . CIVIL APPEAL NO. 31 OF 1984 BETWEEN % i THE NATIONAL INSURANCE CORPORATION! APPELLANTS M*B.S. FUBXLE B AND SEKULU CONSTRUCTION COMPANY. . . RESPONDENT f f (Appeal from the decision of the High Court of Tanzania at Dar es Salaam (Mtenga» J.) dated the 16th day of June, 1983 in Civil Case No. 140 of 1978 “JUDGMENT o f t h e c o u r t MUSTAFA. J . A « : The action in the High C o urt commenced with a simple claim, S ekulu Construction Co. Ltd. (the respondent herein) filed a p l a i n t against one Fubile and the National Insurance Corporation (the appellants herein) claiming that the appellants had unlawfully c onverted to their own use a concrete mixer and a vibrator machine, the property of the respondent, and claimed general and special damages for such wrong. The respondent prayed f o r •(1) general damages (ii) special damages amounting to shs. 260,820/- (iii) costs of the suit (iv) i n t e r e s t at 9% from date of suit to data of payment (v) a declaration that the respondent is the owner of the said machines. The appellants in their written statement o f defence denied .unlawful conversion of the said machines and asserted that they had the r i ght to use them in terms of a contract m ade between the. first appellant and the respondent. The first appellant filed ‘ a counterclaim w i t h the statement of defence, and in the counterclaim alleged del a y and defective work by the r espondent in the'construction of a building in terms of a building contract made between the respondent and the first appellant and claiming from the respondent as a consequence of such b r e a c h of c o n t r a c t a sum of shs. 722,070.30* ............../ 2 . The respondent replied to the statement of dcf^nce denying the appellant's right to use the machine#, 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 r espondent 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 c l aim - headed "counterclaim to second defendant's (i.e. first appellant) c ounte r c 1a im". The respondent in this so called counterclaim to a counterclaim alleged that the first appellant had w i l fully and unlawfully breached the building contract and claimed from the appellants (a) a sum exceeding shs. 898,000/« for general damages (b) Costs of this suit (c) interest on ab o v e at 12% from date of counterclaim until final payment. Appare n t l y at that stage the pleadings ended. I t will be notided at once that there- is no such thing as a counterclaim to a counterclaim. Such a creature is unknown to our civil proceedings and pleadings. We refer to the provisions of O r d e r 8 in the Civil Procedure Code which deal with written statements, set o f f s and counterclaims. As English common law developed, in civil pleadings, briefly speaking, an action begins with a statement of dlalm, or what we call a plaint, then a written defence is filfed, to which a reply is made. In the written defence, a counterclaim c a n be included, which c an 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? rebutter and surrebutter, the last three being now perhaps out of use. In any e v e n t there can only be o ne c o u n t e r c l a i m , w h i c h in f a c t is a c r o s s suit, in an a c t i o n filed. Th e r e c a n n o t be two. In the circumstances the suit in the High Court which resulted in the appeal before uffj became very confused, both in its proceedings and in its final decisioftj To us it is c l e a r that the o r i g i n a l c l a i m w a s c o n f i n e d to a c l a i m f o r d a m a g e s f o r w r o n g f u l use of the r e s p o n d e n t ’s two p i e c e s of machinery- b y the a p p e l l a n t s * The a p p e l l a n t s . d e n i e d a n y w r o h g f u l use,- and C o u n t e r c l a i m e d for d a m a g e s for d e l a y and riegligent w b r k a r i s i n g firom a b u i l d i n g co n t r a c t . All the r e s p o n d e n t coiild d o w a s to file a defefitie to thfe c o u n t e r c l a i m d e n y i n g such dllega t i o n s i w h i c h in facts the r e s p o n d e n t did. If at that stage the respondent Had wanted to sue the appellants for damages for alleged btedbh of the building contract, the respondeht should have applied for leave to amand li« plaint and expand ii to Include atifch all** ations and claims* O t the respondent could perhaps also fiave filed an a ction o n the building Contract alleging b r eadh by the appellants, and fconsolidate the tWo suits, assuming the matters in dispute c e ntred on .the buildihg contract. But the respondent could riot: have proce<Wted ifr the way he did, by filing a counterclaim to ^ counterclaim. He Waa in fact filing two distinct suits' based » on two separate causes of action* in the first one the respondent was merely suing for damages for wrongful use of his two pieces of machines, and in the second the respondent was suing f or damages for breach of a building contract. We will examine briefly w h a t happened after the pleadings were closed. Three agreed issues were framed 1. D i d the 1st d e f e n d a n t C o n v e r t the c o n c r e t e m i x e r a n d v i b r a t o r of the p l a i n t i f f in p e r s u e (sic) o f the c o n tract? 2. Did any party suffer any damages after the termination of the contract 3. Depending on answer to issue No. 2 - which party was a t fault? ......./4. 4 - In the c o u r s e of the trial, and in v i e w of the i s s u e s f r a m e d , it seems t h a t in a c l a i m for d a m a g e s for w r o n g f u l use o f 2 p i e c e s of mac h i n e r y , a c l a i m for b r e a c h of a b u i l d i n g c o n t r a c t w a s a d j u d i c a t e d upon, by a side wind, as it were* There were averments and count«r-av«rments of who was in brea<jh» w h ether the appellants were right in determining the contract owing to delay and bad workmanship on the part of the respondent and so on and so forth* The trial judge was obviously confused f r o m the way the trial went, perhaps in view of the state of the pleadingSi In the course of his judgment, the judge stated inter altar "After the termination of the contract, the technical officer (D.W.l) requested the plaintiff to present to the second defendants their claims and the plaintiffs duly complied with this advice ***3 they demanded to be paid Shs. 903,860/- excluding the charges of hiring machinery such as vibrator arid concrete mixer the subject matters of this suit.^^a.. (underlining supplied) E v e n at the stage of w r i t i n g the j u d g m e n t the judge w a s of ijftQ view t h a t the' subj e c t m a t t e r of the suit w a s the a l l e g e d wrongful use of the 2 p i e c e s of m a c hinery. O b v i o u s l y , if that w e r e so, I . the evidence adduced concerning the alleged breaches of the building contract were really not relevant. At another stage in the judgment the judge stated "The seizure of the machines and the building materials, w a s , t h e r e f o r e , wrongful and the defendants are liable to pay for damages as prayed and it is so ordered”. And finally towards the end of his judgment, the judge stated "The s e c o n d d e f e n d a n t , therefore, c a n n o t be h e a r d c o u n t e r c l a i m i n g that he spent a lot of m o n e y well o v e r Shs. 1 m i l l i o n to c o m p l e t e the b u i l d i n g ......... Accordingly the counterclaim lodged by the defendants is hereby dismissed with costs. Because of the aforesaid, I enter judgment for the plaintiff* as prayed plus costs and interest". .......... / 5 . In the evidence adduced at the trial, a number of issues were canvassed, issues not mentioned in the pleadings nor specifically referred to in the agreed issues framed. For instance such issues included whether the agreed period for comple t i o n of the building as contained in the building contr a c t was extended b y certain acts of the first appellant and what such extended period should be. It appeared that the issue of extension became one 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 witl^ costs. He did not in fact finally decide on the other matters in controversy relating to the building contract although he made certain observations in connection with some of them. The decree as drawn up was consistent with and reflected the judgment and order of the judge. The decree reads: "DAR ES SALAAM CIVIL CASE NO. 14Q OF 1978 SEKULU CONSTRUCTION CO. (T) LTD, . . . PLAINTIFF VG rsus 1. M. S. FUBILE ) ^ 3. . DEFENDANTS 2. NATIONAL INSURANCE CORPORATION} D E C R E E The plaintiff pjrays judgment and decree against the defendants jointly and severally f°rs (i) General damages; (ii) Special d a m a g e s a m o u n t i n g to shs. 260,820/s* (iii) Costs of this suit; (iv) Interest on (1), (ii), (iii) above a t 9% p.a. from the date o f f i i i ng this suit until final payment and delivery. - 6 - (V) A declaration that the plaintiff is the owner of the said machines. (vi) Any other relief that this court might deem fit to grant. This case coming oft this day for final disposal before HO n . MTENGA, Judge in court in the presence of MCHO r a Esq., Advocate for the plaintiff and MUSATI Esq*, Advocate for the defendants. IT IS HEREBY ORDERED AND DECREE T H A T ; Thete is no evidence to the effect that this n ew contractor spent any money in buying additional building m a t e r i a l s . . The second defendant therefore can not be heard counter claiming that he spent a lot of money wall over shs. 1 ,000 ,000/= to complete the building by paying to this second contractor. Accordingly the counter claim lodged by the defendants is hefeby dismissed with dosts* Because Of the aforesaid judgment is Entered for the plaintiff is prated plUs coats ahd interest. •'BY THE C O U R T 1' cJivfen uhdeir m y hand and the seal of the Court this 16th day of June, 1983. REGISTRAR". I t will thus be seen that the decree in favour of the respondent was only for shs. 2 6 0 f820/= special damages, plus interest $ n # costs, and a declaration that 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 damages 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 as owing for principal was Shs. 3,353,983.00. Interest was charged at 10% p.a. from 12.5.77 to 16.6.83 and amounted to Shs, 335,398.30 making a total sum of Shs. 3,689,381.30. ./7. - 7 - There was another sum of 2,041,426.10 for interest at 9% from 12.5.77 to 16.6.83. C o sts 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 Mr. 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 wo/se Mr. Mchora stated from the Bar before us that both the Registrar of the High Cou r t and the trial judge had seen, and approved the figures in his application for execution. If that were true, we can_only sa\ that we find the whole exercise inconceivable and beyond our comprehension. We thus have a strange state of affairs as revealed in the appeal. Tfoe pleadings were in a form unknown to our civil proceedings, and wpre confused and confusing. At the tri^l a number of issues were c a nvassed and evidence was given on them. Some such issues were related to matters vaguely raised in the so-called "counterclaim to a counterclaim". The trial judge i n the course of his judgment made remarks and observations on r,ome of these mattejrs raised in the "counterclaim to the counterclaim", but made no final decisions on them. The judge restricted his final finding to the prayer as contained in the plaint and to the counterclaim by the appellant. It seems to us that the judge in effect, in hie judgment and decree, only finally dealt With the pleadings as contained in the plaint, the w r i t t e n statement of defence, the counterclaim and the reply thereto,. But the judge did deal copiously with other issues outside those contained in the pleadings ending with the reply in the b o d y of his judgment. In fact the judgment and decree, in a manner of speaking, was at variance with the evidence led and the case as conducted at the .. . . . . ./8. trial, a s +the trial judge did not make any finding On issue# on which he had adjudicated. That is one unsatisfactory feature. 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 decretal sum as reflected in the application for execution was obtained. We had considered whe t h e r we could salvage this m a tter by dealing in this appeal only with the. effective part of the proceedings, i.e. the judgment and decree as drawn and the evidence which concer-ad the matters contained in the pleadings ending with the respondents reply and defence to the appellant*s counterclaim. Such a step would necessitate the reconciliation of the decretal sum in the e x e c u t i o n application with that as reflected in the decree. Such a reconciliation seems impossibly. A n d in any event, such a course may prejudice one or both the parties in respect of the other substantial mat t e r s in controversy in connection with the building contract, matters which the trial judge had heard 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 strange situation. We have decided thet the only course open to us ig to declare the whole trial null and void because of the fundamental divergence between the improper form of pleadings tv ' , and the evidence adduced at the trial, and that between what w a s tried and what was finally decreed, and between th 9 sum decreed as due and the sum allowed in execution proceedings* In the circumstances we allow the appeal, with nq order as to co*ts. Wa quash and set aside the judgment and flecraa of the High Court, and declare the trial a nullity. We algo declaroj should the parties hereto desire to proceed to law ifi respect of the matters in controversy" between them, that the period beti^en 11th October, 1978,, the datS of the filing of the plaint to tha date of this^judgment be excfuded for purposes of ^calculation of •• the period of limitation of actions. * * DATED at DAR ES SALAAM this day of March, 1986. A. MUSTAFA JUSTICE OF APPEAL J __ . L ,. rim r o /U U i ™ . *3 f JUSTICE OF APPEAL R. H. KISANGA JUSTICE OF APPEAL < this is a true copy MhLtj t'iu (L.' a . A. KYANDO) REGISTRAR COURT OF APPEAL OF TANZANIA.