Prime Catch (Exports) Limited and Others vs Diamond Trust Bank Tanzania Limited (Civil Appeal No. 273 of 2019) [2022] TZCA 3037 (4 October 2022)

PRIME CATCH (EXPORTS) LIMITED AND OTHERS v. DIAMOND TRUST BANK TANZANIA LIMITED COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 273 OF 2019 (Appeal from the Judgment and Decree of the High Court of Tanzania, Commercial Division at Dar es Salaam (Seheli) dated the 15th day of May, 2017 in Commercial Case No. 93 of 2016) CORAM: MUGASHA, J.A, LEVIRA, J.A. and MWAMPASHI. J.A. Civil Practice and Procedure – summary suit- Whether parties who were not privy to the mortgage deed may be impleaded in a summary procedure and summary judgement entered against them – Order XXXV Rule 1 (C) (i) of the Civil Procedure Code Cap. 33 R.E. 2019. Legal Methods and Practice - Statutory Interpretation – Plain Meaning Rule. Civil Practice and Procedure – Right to be heard – whether denial of right to be heard renders a decision nullity. The appellants challenge the summary judgment and decree issued by the High Court (Commercial Division), which ruled in favor of the respondent, ordering the appellants to jointly and severally pay USD 237,389.27 and TZS 466,591,656.33, along with interest and costs. In 2010, the respondent advanced a credit facility of USD 900,000 to the first appellant, with the second to fifth appellants as guarantors. After the first appellant defaulted, the respondent issued a statutory notice and filed a summary suit. The appellants' application to defend the suit was struck out for citing an incorrect legal provision, leading to a summary judgment against them. The appellants' subsequent appeal was struck out for being time-barred, but they later obtained leave to appeal out of time, resulting in the current appeal. Among the grounds, the appellants argue that the trial court wrongly entered summary judgment against the second to fifth appellants, who were guarantors and not parties to the mortgage deed, thus violating their constitutional right to be heard under Article 13(6)(a) of the Constitution of Tanzania. Appeal allowed

Held: (i) The right of a party to be heard before adverse decision is taken against such party is so basic that a decision arrived at in violation of it will be nullified. (ii) it is cardinal principle of statutory interpretation that the meaning of a statute must in the first instance, be sought in the language in which the Act is framed. (iii) When a summary procedure is used to recover monies secured by a mortgage, only the parties to the mortgage deed should be impleaded, and others who are not parties to the deed should not be included in the proceedings, in accordance with Order XXV Rule 1(c)(i) of the Civil Procedure Code. Statutory provisions refeered to: (i) Order XXV Rule 1 (c) (i) ,Order XXXV Rule 3(l)(b), Rule 3(2) and section 95 of the Civil Procedure Code, Cap 33 R.E. 2002 (ii) Article 13 (6) (a) of the Constitution of the United Republic of Tanzania 1977 (iii) Section 78 of the Law of Contract Act, Cap 345 R.E. 2019 (iv) Bills of Exchange Act, Cap 215 RE 200 Case referred: (v) R.S.A Limited v. Haspaul Automechs Limited and Govinderajan Senthil Kumal, Civil Appeal No. 179 of 2016 (unreported). (vi) Jomo Kenyatta Traders Limited and 5 others v. National Bank of Commerce Limited, Civil Appeal No.48 of 2016 (unreported). (vii) Prosper Paul Massawe and 2 Others v. Access Bank Tanzania Limited, Civil Appeal No.39 of 2014 (unreported). (viii) The Republic v. Mwesige Geofrey Tito Bushahu, Criminal Appeal No.355 of 2014 (Unreported) (ix) Geita Gold Mining Limited v. Commissioner General Tanzania Revenue Authority, Civil Appeal No. 132 of 2017 (unreported). (x) Mbeya Rukwa Autoparts and Transport Ltd v. Jestina George Mwakyoma [2003] T.LR. 253 (xi) Transport Equipment Limited v. Devramp Valambhia [1998] T.L.R. 89 (xii) Abbas Sherally and Another v. Abdul Sultan Haji Mohamed Fazal Boy, Civil Application No. 33 of 2002 (unreported). (xiii) Connect Cut Nat'l Bank v. Germain, 112 s.ct.1146, 1149 (1992 Books referred: (xiv) Anson's Law of Contract 25 th Edition (Century Edition) by AG. Guest, M.A. at Page 461- 462." Mr. Ruben Robert, learned advocate for Appelant Mr. Zacharia Daudi learned advocate for the respondent