Barretto Hauliers (T) Ltd vs Tata Africa (Tanzania) Limited (Civil Appeal No. 321 of 2023) [2025] TZCA 1235 (3 December 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE, J.A., MAIGE 3.A. And KHAMIS J.A.l CIVIL APPEAL NO. 321 OF 2023 BARRETTO HAULIERS (T) LTD .................................................. APPELLANT VERSUS TATA AFRICA (TANZANIA) LIMITED.......................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania (Mansoor. dated the 13th day of May, 2016 in Commercial Case No. 132 of 2015 JUDGMENT OF THE COURT 7 th November & J dDecember, 2025 MKUYE, J.A.: This appeal originates from the decision of the High Court of Tanzania (Commercial Division) at Dar es Salaam dated 13th May, 2016 in Commercial Case No. 132 of 2015 in which a summary judgment was entered against the appellant, BARRETTO Hauliers (T) Ltd, and in favour of the respondent, TATA Africa (Tanzania) Limited, out of a suit filed under Order XXXV of the Civil Procedure Code, Cap 33 R.E. 2002 now R.E 2023 (the CPC). In the said suit, the respondent sought recovery of a sum of USD 132,000.00 based on dishonoured cheques issued by the appellant. Before embarking on the merit of appeal, we find it appropriate to narrate, albeit briefly, the facts of the matter as follows: On 12th July 2012, the respondent and the appellant entered into a contract for sale of various motor vehicles including eleven (11) units of TATA LPT 713 Chasis Cab Trucks, one (1) unit of TATA ACE Mini Pickup, and one (1) unit of TATA Safari XX 4 x 4 Station Wagon. Pursuant to the contract, the appellant paid the initial, USD 25.000.00 while the remaining amount was to be paid through post - dated cheques issued in four instalments. However, in between 30th March 2013 to 30th September 2014, 18 cheques amounting to USD 132.000.000 were dishonoured due to insufficiency of funds as shown by the records of Stanbic Bank Tanzania Ltd and Habib Africa Bank Ltd (Annexure TATA -3). Despite repeated demands for payment, the appellant failed to remit the outstanding amount. Consequently, the respondent instituted Commercial Case No. 132 of 2015 under a summary procedure seeking recovery of the outstanding amount, contractual and penal interest, general damages and costs. In reply, the appellant lodged Misc. Commercial Application No. 329 of 2015 in the High Court, Commercial Division, seeking 2 unconditional leave to appear and defend. The said application was supported by an affidavit deposed by Jude Barretto, a Director of the appellant who admitted a partial liability to the tune of USD 96,859.00 but raised an issue that the vehicles were defective and thereby affecting the company's operations. On her side, the respondent resisted the application, averring that the appellant's affidavit did not raise any bonafide triable issues as per Order XXXV rule 3 (a) of the CPC and a persuasive Indian Jurisprudence and Commentary by MULLA. It was argued by the respondent's counsel that, the appellants' defence was vague, evasive and intended to delay the matter. On 31s t March, 2016, the High Court, having heard from both sides, granted conditional leave to defend. It found that there were triable issues regarding the precise outstanding amount and the number of cheques which were presented and dishonoured. However, following the appellant's admission of liability of USD 96,859.00, the High Court ordered the appellant to deposit the said amount within two months from the date of the ruling as a condition for defending the suit. Then, the matter was scheduled for mention on 29th April, 2016 to confirm compliance of the order made. However, the record is silent if the matter was called on for mention on that date as was scheduled. 3 What is clear from the record is that, the matter was called on for mention on 13th May, 2016 and the appellant reported her failure to comply with the conditional order. The High Court proceeded to cancel the leave to defend the suit where upon the counsel for the respondent prayed for summary judgment. The trial court, pursuant to Order XXXV rule 2 of the CPC, deemed the suit uncontested and entered a summary judgment in favour of the respondent awarding USD 132,000.00; interest at the rate of 12% per month from 1s t August, 2014; penal interest at the rate of 2% per month on each dishonoured cheque until judgment; and post judgment interest at the rate of 7% per annum. However, it did not award general damages and costs. Dissatisfied with the entire judgment, the appellant now appeals to this Court on four grounds as hereunder: 1. The learned trial Judge erred in law and fact by entering summaryjudgment on I3 h May, 2016 before the expiry o f the two months period (from 31st March, 2016 to 31st May, 2016) granted in Miscellaneous Commercial Application No. 329 of 2015 for the appellant to pay USD 96,859 as a condition for filing its Written Statement o f Defence, thereby violating the appellants'right to a fair hearing. 2. The learned trial Judge erred in law and fact by conditioning the grant o f leave to defend the suit on payment o f USD 96,859, despite finding triable issues, which warranted unconditional leave to ensure genuine defence were not unjustly excluded. 3. The learned trial judge erred in law by granting summary judgment inclusive o f interest at 12% per month from 1st August, 2014 and 7% per an annum on the decretal sum, in the absence o f any contractual agreement or legal basis for such interest 4. The learned trial judge erred in law and fact by entering summaryjudgment without duly considering affidavit evidence that the motor vehicles supplied by the respondent were defective, which raised triable issues, regarding the respondents'entitlement to the claimed sum. When the appeal was called on for hearing, the appellant was represented by Mr. Mpaya Kamara, learned advocate, whereas M r. Antipas Lakam, also learned advocate, represented the respondent. Since both counsel filed their written submissions in support and in the opposition to the appeal, they sought leave to adopt them to form part of their respective submissions. Nevertheless, before the hearing could commence in earnest, we required the learned counsel to address us on whether the appellant was to pay the undisputed amount of USD 96,859.00 within two weeks or two months from the date of the order which is basically, the gist of the first ground of appeal. Mr. Kamara argued that, according to the order of the High Court, the amount was to be paid within two months from the date of the ruling. This, he said, was reflected in the ruling as shown at pages 78 to 85 of the record of appeal and its drawn order at page 21 of the supplementary record of appeal. He explained that, reckoning the date of the ruling, 31s t March, 2016, the period of two months was to expire on 31s t May, 2016. However, he argued, on 13th May, 2016, prior to the expiry of that period, the trial court cancelled the said leave to file the written statement of defence. In this regard, he was of the view that, the trial court's decision to cancel the leave to defend the suit before expiry of the time set and entering a summary judgment in favour of the respondent was improper and violated the appellant's right to a fair hearing. It was argued that, the order cancelling leave to defend the suit denied the appellant the right of hearing which is guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania of 1977 and restated in the decisions of this Court including Fakhria Shamji v. The Registered Trustees of the Khoja Shia Ithnasheria (Mza) Jamaat [2022] TZCA 77, where the Court stated that: "The right to be heard before adverse action or decision is taken against such a party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach o f naturaljustice". It was argued in the written submission that, as the High Court had set a period of two months for the defendant to pay the sum of USD 96,859.00, as a condition to defend the suit, the same court was functus officio to reverse its own order by entering a summary judgment against the appellant about sixteen (16) days prior to the expiration of the two months period. To support his argument, he placed reliance on the case of The International Airlines of The United Arab Emirates v. Nassor Nassor, [2022] TZCA 685, where the Court observed that, it was not appropriate for the same court to overrule its own decision. Apart from that, the appellant argued that, the High Courts' subsequent order cancelling leave to defend the suit did not augur well with the rule of law and smooth administration of justice as it could create chaos and uncertainty. This is so because, courts orders are required to be respected and complied with by all. He cited the case of Tanzania Breweries Limited v. Edson Dhobe, Misc. Application No. 96 of 2006 (CAT) (unreported) referred in the case of Buruhani Omari v. Victoria Revelian, [2021] TZHC 6704, in which the Court had this to say: "Court orders should be respected and complied with. The Court should not condone such failures. To do so is to set a bad precedent and invite chaos. This should not be allowed to occur". In response, the respondent in the first place, conceded that on 13th May 2016, the conditional leave to defend the suit granted to the appellant was cancelled following the appellants' advocate report that the appellant failed to pay the amount ordered. In any event, it was argued that, even if that submission was by mistake, then the proper way was for the appellant to apply for leave to set aside the summary decree under Order XXV rule 8 of the CPC. Otherwise, the appeal would in Mr. Lakam's view, sound premature for want of exhaustion of the available remedies. In support of this stance, the case of Yara Tanzania Ltd v. DB. Shaprya & Co. Ltd, [2020] TZCA 265 and Mulla, the Code of Civil Procedure (Abridged) 14th Ed. were cited. As regards the issue that summary judgment was entered prematurely prior to expiration of conditional period, the respondent refuted it submitting that the appellant was granted two weeks (14 days) from 31s t March, 2016, the date of Order, to pay the undisputed outstanding debt of USD 96,859.00 and not two months as contended by the appellant. The respondent insisted that, as the appellant was granted leave to appear and defend on 13th May, 2016, following her admission to the claim of USD 96,859.00, she ought to have paid it in full within two weeks from the date of order. On top of that, it is argued that, on 31s t March, 2016, the date when summary judgment was entered, the trial court made an order fixing the date when the case was to be mentioned as follows: "Ruling delivered today in the presence o f the above coram. The case will be mentioned after one month to see whether the condition for leave to defend the summary suit was satisfied so as to allow the defendant to file Written Statement of Defence". [Emphasis added] It was the respondent's counsel argument that, if the court had granted two months to fulfill the conditions for leave, then it could not have fixed the matter to come for mention within a month. In this regard, it is argued, as the appellant was granted two weeks, then mentioning of two months in the ruling is a mere typographical error. Thus, even the appellant's contention that the summary judgment was entered on the 43r d day contrary to the 60 days given to fulfil the condition, is baseless and an afterthought. Having examined the relevant ground of appeal, written submissions and oral submissions in this matter, we think, the issue for this Court's consideration is what was the duration of the order of the High Court between two weeks and two months. If the answer is two months, whether it was proper for the trial court to reverse its previous order. Before embarking on the issue raised, we wish to begin with the issue raised by counsel for the respondent that the appellant ought to exhaust the available remedy at the High Court by applying for setting aside the summary judgment under Order XXXV rule 8 of the CPC under exceptional circumstances, before lodging an appeal to this Court. The counsel for the appellant is opposing such line of argument. Order XXV rule 8 of the Rules provides: "After a decree the court may, under exceptional circumstances, set aside the decree and if necessary stay or set aside the decree and if necessary, stay or set aside execution, and may give leave to the defendant to appear to the summons and defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit." This provision has been interpreted in numerous decisions such as Intergrated Property Investment Ltd & Others v. Company For Habitat and Housing in Africa, [2018] TZCA 556, where the Court held that, a party who is dissatisfied with a summary judgment must exhaust the alternative remedy before exercising his right to appeal or revision and if this is not done, the appeal or revision will be struck out. According to the above authority, for the aggrieved party to be entitled to such remedy, he/she has to show exceptional circumstances which prevented him/her from entering appearance in court and also a good defence in the suit. [See also: Indian Code of Civil Procedure - rule 4 of Order 37; and Yara Tanzania Ltd (supra)]. Applying the above principles in our case, we find that they do not apply to the matter at hand. This is because, in this case, there is no question of non-appearance of the appellant when summary judgment was entered. On top of that, the issue of showing good defence did not apply more so, when taking into account that the appellant was granted a conditional leave to defend only that she did not comply with the court's order. We are, therefore, of a view that, the argument by the respondent's learned advocate is misconceived in the circumstances of the case. We now turn to the main issue in the matter, in which essentially, the appellant's complaint is that it was wrong for the Court to enter a summary judgment on 13th May, 2016 before the expiry of two months period (from 31s t March, 2016 to 31s t May, 2016) that was granted by the Court in Misc. Commercial Application No. 329 of 2015 for the appellant to pay USD 96,859.00 as a condition for filing its Written Statement of Defence. Before tackling the issue we have raised, we wish to begin by pointing out matters which we think are undisputed. One, it is not disputed that, the appellant lodged Misc. Commercial Application No. 329 of 2015 supported by affidavit seeking unconditional leave to appear and defend. Part of the Ruling as found at pages 84-85 of the record of appeal reads: "Applicant (now appellant) shall only be given leave to defend the summary suit on condition that the admitted amount o f USD 96,859.00 is paid in full before the suit can be tried as a 12 normal suit for the remaining unpaid balance. This amount should be paid within 2 months from the date o f the Ruling, and the applicant will be required to show proof o f full satisfaction o f the payment o f USD 96,859.00 before it can be allowed to file the written statement o f defence. The application succeeds conditionally". [Emphasis added] Two, it is also common ground that on 31s t March, 2016, following an order of conditional grant, the trial court made an order among others, fixing the matter to be mentioned after one month (29th April, 2016) to see whether the condition for leave to defend the summary suit was satisfied so as to allow the defendant to file Written Statement of Defence. Three, it is crystal clear that when the matter was mentioned on 13th May, 2016, it was the appellant's advocate who intimated to the Court that the appellant did not pay the amount as ordered to be paid within two weeks from 31s t March, 2016. (See page 89 of record of appeal). Then on the same date the court made an order canceling the previous order. In our view, the respondent's advocates' contention that they were granted two weeks to pay the amount was not correct because; one, it is not reflected in the record of appeal. According to the order of the 13 trial court that was quoted earlier on, the appellant was granted a period of two months to pay the agreed amount. Two, ordering payment of USD 96,859.00 which is a huge sum of money to be made within two weeks might be beyond all imagination. Even common sense does not support that, that could have been the intention of the court to give the appellant only two weeks to pay such a huge amount of USD 96,859.00, more so, considering that the she was unable to pay it even on demand. It was unimaginable if she could have managed in such a short period. It is clear from the record of appeal that on 31s t March, 2016 the appellant was granted conditional leave to appear and defend if she had paid USD 96,859.00, so that she could be allowed to file her written statement of defance. She was granted two months to comply with the order. However, on 13th May, 2016, the conditional leave was cancelled. By simple arithmetic, as the order was issued on 31s t March 2016, its cancellation on 13th May, 2016, was done prematurely. As was rightly submitted by the counsel for the appellant, the cancellation of the conditional grant for leave to defend was done prematurely as the appellant still had 17 days for satisfying the Order of the court and for that matter, she was not accorded a fair hearing as she could not be in a position to utilize the whole period that was granted to her to comply with the order. 14 As was argued by the counsel for the appellant and a well settled position of the law, the right to be heard is a fundamental right afforded to any party to the suit. It is enshrined under Article 13 (6) (a) of the Constitution which states: "Where the rights and duties o f any person are being determined by the Court or any other Agency that person shall be entitled to a fair hearing and to the right o f appeal or any other legal remedy against the decision o f the Court or o f the other agency concerned", This position was emphasized in the case of Mrs. Fakhria Shami (supra), where the Court stated that: "The right to be heard before an adverse action or decision is taken against such a party has been stated and emphasized by courts in numerous decisions. That right is so basic that a decision which is arrived at in violation o f it will be nullified even if the same decision would have been reached had the party been heard because the violation is considered to be a breach o f naturaljustice". [See also: Abbas Sherally and Another v. Abdul Sultan Hahi Mohamed Fazalboy [2005] TZCA 105. 15 In view of the foregoing, we are satisfied that the duration of the order of the Court to pay the undisputed amount of USD 96,859,000 was two months. Thus, it was not proper for the trial court to reverse the previous order by cancelling leave to defend against the appellant. We find that the contention by the respondent that if the court had granted two months to satisfy the conditions for leave, then it could not have fixed the matter to come for mention within a month to be immaterial as we could not glean any law prohibiting the court to make such an order. To the contrary, we think, such an order could act as a control mechanism to instill pressure on the appellant so that she complies with the previous order within time as scheduled. Moreover, if at all the two months period was a typographical error, then the respondent would have applied for review in order to correct the error before filing the instant appeal. In this regard, ground no. 1 is hereby allowed. Since this ground alone is capable of disposing of the entire appeal, we did not belabour to deal with the with the remaining grounds of appeal as doing so would amount to a mere academic exercise. In the final analysis, we allow the appeal, quash the summary judgment issued on 13th May, 2016. Considering the circumstances of the case in totality, we grant unconditional leave to the appellant to file 16 her written statement of defence within sixty days from the date of this judgment to pave way for the suit to proceed on merit in accordance with the law. DATED at DODOMA this 25th day of November, 2025. R. K. MKUYE JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 3r d day of December, 2025 in the presence of Mr. Mpaya Kamara, learned counsel for the appellant, M r. Denis Francis Mbaga, learned counsel for the respondent, via virtual Court and Mrs. Janekisa Bukuku, Court Clerk is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 17