M/S Miombo Estate Company Limited vs M/S Diamond Trust Bank (T) Limited & Another (Civil Appeal No. 543 of 2022) [2025] TZCA 1217 (25 November 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. 3.A.. MAIGE 3.A. And KHAMIS J.A.) CIVIL APPEAL NO. 543 OF 2022 M/S MIOMBO ESTATE COMPANY LIMITED ................................ APPELLANT VERSUS M/S DIAMOND TRUST BANK (T) LIMITED ........................... RESPONDENT M/S PERTOSOL (T) LTD......................................... 1 st INTERESTED PARTY MR. ABDUL LATIF K. SULEIMAN ......... . ................ 2 nd INTERESTED PARTY M/STUCK MAN MINE AND MINERALS LTD, ............ 3 rd INTERESTED PARTY (Appeal from the Judgment and Decree of the High Court of Tanzania (Commercial Division) at Dar es Salaam) fMaaoiaa. J.^ dated the 18th day of October, 2019 in Commercial Case No. 33 of 2017 JUDGMENT OF THE COURT 12th & 25th November, 2025 MKUYE. J.A.: This appeal arises from a decision of the High Court (Commercial Division) dated 18th October, 2019 in Commercial Case No. 33 of 2017 in which Magoiga, J determined it in favour of the plaintiff (the respondent herein) as against the appellant (the former 4th defendant). The brief facts leading to this appeal are that: The respondent, Diamond Trust Bank (T) Ltd, instituted a summary suit against Petrosol Tanzania Limited, Abdul Latif Suleiman and Tuckman Mines and Minerals Ltd (the 1st, 2n d and 3rd interested i parties herein) together with the appellant, M/s Miombo Estate Co. Ltd (former 4th defendant). In the said suit, the respondent prayed jointly and severally, inter alia, for the following orders: "1) Judgment in favour o f the plaintiffjointiy and severaily against ail defendants for Tshs. 5,455,389,635.85. 2) Interest at the rate o f 17% per annum on the sum o f TZS. 4,070,435,256.88 (being the aggregate o f the overdraft amount outstanding and due) from 1st February, 2017 until judgment or sooner payment. 3) Interest at the rate o f 18% per annum on the sum o f TZS 1,384,954,378.97 (being aggregate amount outstanding and under the working Term Loan No. I and II) from 1st February, 2017 untii the judgment or sooner payment 4) Interest at the Court rate postjudgment. 5) Costs o f the suit'. It is gathered from the record of appeal that, on 24th October, 2013, the respondent availed credit facilities to the 1s t interested party of the aggregate sum of TZS. 2,000,000,000.00 and USD 380,000.00 made up of the following: 1) Overdraft facility o f TZS. 1,000,000,000.00 for a period o f 12 months. 2) Continuation o f an existing working capitai Term Loan (No 1) o f TZS. 500,000,000.00 with outstanding balance o f JZS 250.000.000.00 payable over a remaining period o f eight (08) months. 3) A new working capital Term Loan (No. II) o f TZS. 750.000.00.00 repayable over a period o f sixty (60) months including a moratorium o f six (6) months; and 4) Renewal o f a Bank Guarantee o f USD. 380,000.00 for a period o f twelve (12) months. The said credit facility letter was personally guaranteed by the 1s t, 2n d and 3r d interested parties and also secured by a legal mortgage on the appellant's (former 4t f 1 defendant's) immovable property known as Farm Unit No. 17, Kiru, Hanang District, Manyara Region with CT No. 1783. It appears that the 1s t interested party defaulted payment of the outstanding balance of TZS. 5,455,389,635.85. Despite being served with a notice of default, the appellant and the interested parties neglected to repay hence the suit. Upon being served with the Plaint, the 1s t, 2n d and 3r d interested parties together with the appellant applied for leave to defend vide Misc. Commercial Application No. 108 of 2017 but was denied. On the other hand, a similar application by the appellant (former 4th defendant) was granted following which she filed a written statement of defence contesting the claims by the respondent and prayed for dismissal of the suit with costs. Meanwhile, following the trial court's refusal to grant leave to appear and defend the suit to the 1s t, 2n d and 3rd interested parties, on 24th November, 2017, a default judgment was entered as alluded to earlier on under Order XXXV rule 2 (2) (a). The prayers 1, 2, 4 and 5 in the Plaint were duly granted. Of importance, the three interested parties were ordered to pay an aggregate sum of T7S. 5, 455,389,635.85. The appellant filed her written statement of defence disputing the respondent's claim and the matter proceeded to trial with six, issues recorded for determination, namely: 1) Whether or not the credit facility was availed to the 1st defendant and if so, upon what terms and for what amount 2) Whether or not the afore-said credit facility, if any, were guaranteed interlia by the 4 h defendant. 3) Whether the 4 h defendant was served a notification letter. 4) What is the amount o f outstanding balance due to the plaintiff. 5) The liability o f 4 h defendant to the plaintiff, if any 6) Reliefs entitled to parties. Upon trial on the issues framed, the trial Judge found that, the outstanding amount due to the respondent was TZS 3,253,911,893.13 and not TZS. 5,455,389,635.85 as earlier on decreed against the 1s t, 2n d and 3rd interested parties in a summary Judgment. The basis of the trial Judge's decision was the Bank Statement (Exh. P6). The trial court, therefore, made an order that the appellant was only liable to the respondent to the tune of TZS. 3,253,911,893.13 which she was ordered to pay. Aggrieved by that decision, the appellant has appealed to this Court fronting five (5) grounds of appeal which for a reason to become apparent, shortly, we shall not reproduce them. When the appeal was called on for hearing, Mr. Elvaison E. Maro, learned advocate, appeared representing the appellant together with all three interested parties and M r. Godwin Nyaisa, also learned advocate, represented the respondent. Both counsel prayed to adopt their respective written submissions to form part of their oral submissions. Nevertheless, M r. Maro took off by intimating to the Court on existence of two conflicting/contradictory judgments and decrees arising from the same cause of action. He took us to pages 399 to 340 of the record of appeal where a summary judgment entered for the respondent as against the 1s t, 2n d and 3rd interested parties showed the three interested parties were ordered to pay TZS. 5,455,389,035.85. He also referred us at pages 833, 848 and 849 where a judgment and decree showed the appellant was ordered to pay TZS. 3,253,911,893.13. He pointed out that, the two judgments resulted out of the same plaint, same cause of action and same facts were made by the respondent against the appellant and all interested parties. He was of the view that, ordinarily, the plaint with common cause of action and relief sought could not have resulted into two contradictory decisions and decretal sums. He also argued that, the claims were against all the defendants jointly and severally. As to the way forward, the learned counsel informed the Court that he was unable to lay a hand on any authority in our jurisdiction except for an Indian decision in the case of Suresh Chandra (Deceased) THR. LRS & ORS v PARASRAM & ORS, arising out of SLP (C) Nos. 15900-15902 / 2022 dated July 18, 2025 which he sought the indulgence of the Court to be inspired. In the said case, the Supreme Court of India (page 52) attempted to give explanation on a situation we have encountered as follows: "/£ in suit, a plaintiff, makes a claim against a number o f defendants on common grounds and all the defendants also can contest the suit on common grounds and the suit is decided in favour o f the plaintiff against ail the defendants, an appeal filed by all the defendants can be heard in favour o f the remaining defendants after one o f the appealing defendants has died during the pending o f the appeal and his legal 6 representatives have not been bought on record so that his appeai has abated, only if the rights and interest o f the surviving defendant were not joint and indivisibie with those of the deceased defendant, and in the event o f the success o f the appeal, it does not lead to two inconsistent and contradictory decrees". In the circumstances, M r. Maro was of the view that the two decisions could not co-exist. He thus, implored the Court to invoke its revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 (the AJA) to nullify all the proceedings and both judgments and decree thereof and order that appellant and the three interested parties be granted leave to file their written statements of defence to pave the way for the suit to be herd on merit. In reply, M r. Nyaisa resisted the arguments raised by his counterpart contending that the interested parties were satisfied with the summary judgment as they did not appeal against it. He argued that, although the claimed amount was scrutinized by the High Court following the grant of leave to defend the suit to the appellant and it arrived at a different figure appealed against in this appeal, it cannot affect the previous summary judgment as the same was also reached in accordance with the law after leave to defend the suit had been denied. He insisted that, the interested parties cannot now raise to challenge the summary judgment as they did not appeal against it although they had such right. M r. Nyaisa argued, in relation to the case of Suresh Chandra (Deceased) THR & Others (supra) that, it is distinguishable because it did not relate to summary judgment and that, even if it did, the two decrees are incompatible in the sense that they are executable. He stressed that in this case the parties did not contest the suit on common grounds but they had different grounds. As to the way forward, Mr. Nyaisa had a different view. He contended that, the option suggested by Mr. Maro is not tenable in a situation where the interested parties were satisfied with the summary judgment. In rejoinder, Mr. Maro argued in relation to the case of Suresh Chandra (supra) that, although it did not discuss summary judgment, what is at stake is the sanctity of the decision of the court. The point being that, it is unusual to have two contradictory decrees on the same cause of action be it based on a summary suit or normal suit. Having examined and considered the rival submissions on the matter raised by Mr. Maro, we think, the issue for determination by this Court is whether the two decisions can co-exist or rather are executable. But before dealing with the matter on merit, we wish to commence by pointing out the matters which are not disputed. These are: one, the matter from which this appeal originates was commenced as a summary suit under Order XXXV of the CPC. Two, upon being served with the Plaint, the appellant together with the 1s t, 2n d and 3rd interested parties filed an application for leave to defend which was denied to the the 1s t, 2n d and 3r d interested parties and granted to the appellant. Three, following a denial of leave to defend to the 1s t, 2n d and 3rd interested parties, a summary judgment was entered against them ordering among others, for them to pay the claimed amount of TZS. 5,455,389,035.85. Four, following the conclusion of the trial after the appellant had filed her written statement of defence, the trial court entered a judgment against her and ordered her to pay TZS. 3,253,911,893.13. This means that there are two decrees resulting from the same cause of action. Admittedly, the matter sought to be challenged was instituted as a summary suit under Order XXXV rule 1 of the CPC, which in essence prohibited the defendants from defending themselves unless granted leave of the Court to do so. It should be noted that in the said suit, the 1s t respondent (former plaintiff) claimed for among others, the judgment in her favour jointly and severally against all defendants (appellant and the 1s t, 2n d and 3rd interested parties) for TZS. 5,455,389,635.85.00. Ordinarily, as rightly submitted by Mr. Nyaisa, following the denial of leave to defend the suit to the 1s t, 2n d and 3rd interested parties, the trial court was to enter a summary judgment as per Order XXXV rule (2) of the CPC which states as follows: ’7 /7 any case in which the plaint and summons are in such forms, respectively the defendant shall not appear or defend the suit unless he obtains leave from the judge or magistrate as hereinafter provided so to appear and defend, and in default o f his obtaining such leave or o f his appearance and defence in pursuance thereof, the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled- (a)where the suit is a suit, referred to in paragraph (a), (b) or (d) o f rule or a suit is for the recovery of money under a mortgage and no other relief in respect o f such mortgage is claimed, to a decree for any sum not exceeding the sum mentioned in the summons together with interest at the rate specified, if any, and such sum for costs as may be prescribed, unless the plaintiff claims more than such fixed sum, in which case the costs shall be ascertained in the ordinary way and such decree may be executed forthwith 10 (b) n/a (c) n/a" [Emphasis added] As Mr. Nyaisa submitted, the trial court properly entered summary judgment as per the above reproduced provisions and therefore, did not go astray in deciding against the 1s t, 2n d and 3r d interested parties. On the other hand, under Order XXXV rule 3 (1) and (2) of the CPC, the suit was properly tried against the appellant after being granted leave to appear and defend the suit. At the end of the trial, the trial judge decided the suit in favour of the respondent ordering the appellant to pay an outstanding loan of TZS. 3,253,911, 893.13. As it is, there are two decisions emanating from the same suit, same cause of action and same reliefs sought. This can be reflected in the respective contradictory decisions found at pages 339 to 340 and 831 to 849 together with its resultant decree at pages 851-852 of the record of appeal. The question that arises is whether the two decrees can co-exist or be executed. While Mr. Nyaisa is of the view that they are executable, more so, since the interested parties were satisfied with it for their failure to appeal, M r. Maro is of a strong view that they cannot be executed. ii This issue has really taxed our mind. This is so because, as alluded to earlier on, the decisions resulted from the same pleadings in which the respondent's claim against the other parties was jointly and severally. According to the pleadings, the subject matter which is the loan facility that was taken by the 1s t interested party, was secured by the appellant together with the 2n d and 3r d interested parties. However, the end result of the case was that the same was decided in favour of the respondent twice. She was awarded two decrees on the same suit. One, against the three interested parties to the tune of TZS 5,455,389,035.85 and another one against the appellant to the tune of TZS 3,253,911,893.13. However, the two decrees are irreconcilable in terms of the amounts of money granted out of the same claim or cause of action. It is to be noted that parties are bound by their pleadings. (See: James Funke Ngwagilo v. Attorney General, [2004] TLR 161). Assuming the two decrees can be executed as the learned counsel for the appellant seemed to suggest, we wonder if the amounts awarded to the respondent will tally with the relief she had sought in her pleadings. This is so because, taking the totality of the award, it definitely exceeds the amount sought in her pleadings. Besides that, the first decree is against the three interested parties and the second one is against the appellant alone. We see difficulty in 12 executing them as the claim from the beginning was against the appellant and the three interested parties jointly and severally. How now are they going to be separated? It is for these nagging questions, we do not agree with Mr. Nyaisa that the two decrees are executable merely because the interested parties did not appeal. Due to the nature of the decrees, we find that their execution to be next to impossible. In the circumstances, we agree with Mr. Maro that the two irreconcilable decisions cannot co-exist and therefore their execution is impossible. They cannot be executed at all. They deserve to be nullified. As to the way forward, we agree with Mr. Maro's proposition. We, therefore, invoke our revisional powers under section 6 (2) of the AJA and nullify the proceedings for both summary judgment and the entire suit, quash the resultant summary judgment and judgment; and set aside the decree with its orders. Further to that, considering the uniqueness of the matter, we think, if all third parties were granted leave to appear and defend the suit, we would not have found ourselves in such a mess. In the circumstances, we order that the matter be remitted to the High Court in order to proceed on merit before a different Judge after the appellant and all the interested parties have filed their written statements of 13 defence in accordance with the law. Given the nature of the matter, we make no order as to costs. DATED at DODOMA this 21s t day of November, 2025. R. K. MKUYE JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Judgment delivered this 25th day of November, 2025 in the presence of Mr. Godwin Nyaisa, learned counsel for the 1s t Respondent also holding brief for Mr. Elvaison E. Maro, learned counsel for the Appellant, 2n d , 3rd and 4th Respondents through video link at Dar es Salaam and Mr. Ladislaus Msuba, Court Clerk; is hereby certified as a true copy of the original. A. DEPUTY REGISTRAR COURT OF APPEAL 14