Tanzania Venture Capital Fund Limited v Igonga Farm Limited (Commercial Case No. 14 of 2000) [2000] TZHC 695 (3 November 2000)

304 TANZANIA LAW REPORTS [2002]T.L.R. A sufficient indulgence. The plaintiffs ’ rights should be seriously taken into account. Having considered all the circumstances in this case, I do hereby order the defendant to pay interest on the decretal amount. It is accordingly ordered. B TANZANIA VENTURE CAPITAL FUND LIMITED v. c IGONGA FARM LIMITED HIGH COURT OF TANZANIA AT DARES SALAAM (Nsekela, J.) COMMERCIAL CASE No. 14 OF 2000 E Civil Practice and Procedure - Applications - Application for leave to withdraw suit with liberty to file a fresh suit in respect of the abandoned suit - Order XXIII Rule 1(2). F Civil Practice and Procedure - Written submissions by order of Court - Governed by practice. On 20 April 2000 the plaintiff applied for and was granted leave to withdraw its suit with no order for costs by amicable consent of the parties. Subsequently it filed the G suit afresh. In its written statement of defence the defendant raised a preliminary legal point that the suit was not properly before the court on the ground that the plaintiff had instituted a suit similar to the present one and the same was withdrawn without leave to refile it. H The parties were ordered by the court to make written submissions on the preliminary legal point. The defendant made its written submission in contravention of the court order in that it presented the written submission long after the date set by the court. In the reply to the submission of the defendant the plaintiff raised a preliminary objection I that the defendant ’ s written submission be struck out since they were filed out of time

TANZANIA VENTURE CAPITAL FUND LIMITED v. ____________________________ IGONGA FARM LIMITED _________________________ 3^ and without a court order to that effect. The court considered this preliminary objection made by the plaintiff and the preliminary legal point raised by the defendant. Held: (i) While Court orders must be complied with by all concerned, the contravention of the court order dated 13 July 2000 has not occasioned any prejudice to the plaintiff; (ii) There is no provision in the Civil Procedure Code, 1966 governing the presentation of written submissions to the court; it is a practice of the court which should be encouraged and supported by both the bench and the bar; (iii) Since the plaintiff was not prejudiced by the late filing of the written submissions by the defendant, it is a curable defect; (iv) If a plaintiff wants to withdraw a suit wi th the permission of the court with liberty to file a fresh suit in respect of the abandoned suit, the only way to do so is to invoke Order XXIII, rule 1(2); (vii) It is abundantly clear from the record of the proceedings on the 20 April 2000 that the plaintiff did not make an application to withdraw the suit with liberty to file a fresh suit in respect of the same subject matter; Preliminary objection upheld; plaint struck Cases referred to:

1. VIP Engineering and Marketing Ltd v. Said Salim Bakhresa Civil Application Number 47 of 1996 (unreported) Statutory provisions referred to:

1. Civil Practice and Procedure, Order XXIII, rule 1(2)
2. Civil Procedure Code 1966, Order XXIII, rule 1, (1)(2) and (3) Mr Galati, for the Plaintiff Mr Mbwambo, for the Defendant

306 TANZANIA LAW REPORTS [2002]T.L.R. RULING (Delivered 3 November 2000) Nsekela, J.: The defendant in this suit, Igonga Farm Ltd, in its written statement of defence dated the 14 June 2000 raised three “ preliminary legal points ” including the following, namely: (1) In view of the fact that the plaintiff had instituted a suit similar to the present one, and the same was withdrawn without leave to refile it, the present suit is not properly before this Court ... and a court order to that effect was annexed to the written statement of defence. In the reply to the written statement of defence, the plaintiff countered this allegation as follows: (1) That as the plaintiff had applied to withdraw the suit with leave to refile it the present suit is maintainable regardless the silence in the attached order regarding leave to file a fresh suit. On the 13 July 2000, 1 made an order to the effect that the learned advocates for the parties submit written submission on the preliminary legal points raised by the defendant according to this time-frame. The defendant was to submit the written submissions on or before the 27 July 2000 to be followed by the plaintiff on or before the 10 August 2000 and lastly a rejoinder, if any, by the defendant on or before the 17 August 2000. The learned advocates for the defendant wrote a letter to the court on the 31 July 2000 seeking an enlargement of time to file the submissions with similar indulgence being granted to the plaintiff to file the written submissions. No formal order was granted to that effect, but the defendant ’ s submissions were filed on 1 August 2000. On the 25 August 2000, the Registrar of this Court wrote a letter to the learned advocate for the plaintiff informing him that the learned advocates for the defendant had filed their submissions on 1 August 2000 and reminded him of the court order dated the 13 July 2000. In response, the learned advocate for the plaintiff filed a reply to the defendant ’ s written submissions on the 30 August 2000

TANZANIA VENTURE CAPITAL FUND LIMITED v. IGONGAFARM LIMITED 307 and on his part raised a preliminary objection that the defendant ’ s written submissions be struck out since they were filed out of time and without a court order to that effect. Mr Galati has made a valid point but I am not prepared to accede to it. I am in complete agreement with him that Court orders must be strictly complied with by all concerned, but having said that I am of the settled view that contravention of the court order dated 13 July 2000 has not occasioned any prejudice to the plaintiff. In the case of VIP Engineering and Marketing Ltd v. Said Salim Bakhresa (1), Samatta, J. A. (as he then was) stated thus: There can be no rational dispute over the fact that procedural rules are enacted to be complied with. Usually there is a legal principle behind every procedural rule. But those rules differ in importance. Some are vital and go to the root of the matter; these cannot be broken, others are not of that character and can, therefore be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice is occasioned. I am not aware of any provision in the Civil Procedure Code, 1966 governing the presentation of written submissions to the court. It is a practice of the court a very good practice - if I may be permitted to say so and which should be encouraged and supported by both the Bench and the Bar. In this particular case, I do not see how the plaintiff was prejudiced by the late filing of the written submissions by the defendant. It is a curable defect and accordingly I do hereby enlarge the period within which to file the submissions to 1 August 2000 when the submissions were actually filed in court. I now turn my attention to the defendant ’ s preliminary objection on which he made written submissions. This preliminary objection revolves around Order XXIII, rule 1 of the Civil Procedure Code and is best captured in the following passage in the written submissions. It reads as follows: Your Lordship, it is trite law that the principle underlying Order XXIII, rule I of the Civil Procedure Code 1966 is that once a plaintiff has instituted

308 TANZANIA LAW REPORTS [2002] T.L.R. A a suit in Court he cannot be permitted to institute a fresh suit in respect of the same subject-matter again without prior permission to refiled the same. Order XXIII, rule 1(1), (2) and (3) provide as under: B 1 (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim. (2) Where the court is satisfied: C (a) that a suit must fail by reason of some formal defect, or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit, or part U of a claim, it may on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim; g (3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or P such part of the claim. If a plaintiff wants to withdraw a suit with the permission of the court with liberty to file a fresh suit in respect of the abandoned suit, the only way to do so is to invoke Order XXII, rule 1 (2) reproduced G above. Mr Galati, learned advocate, has submitted in part as follows, and I quote him: On the 20 April 2000 we appeared before the trial judge and prayed to withdraw the said suit with leave to refile it. We did so because the H lifespan of the case (for example 2 years) was due we had agreed with the defendant ’ s Counsel that they should waive costs. In view of the agreement the court allowed is to withdraw the suit with no order for costs, [emphasis supplied] I

TANZANIA VENTURE CAPITAL FUND LIMITED v. IGONGA FARM LIMITED 309 Let us compare and contrast Mr Galati ’ s submissions with the record A of the proceedings in the High Court, Mwanza on the 20 April 2000. The court record is in the following terms: Nchalla, J. B Mr Galati, Advocate: I apply to withdraw this suit. We, have agreed with the defendant that the suit be withdrawn with no order for costs. Mr Rutaisire, Advocate: That is the position my Lord. Order: On the application by Mr Galati, learned advocate for the plaintiff to withdraw this suit with no order for costs which application has been conceded to by Mr Rutaisire, learned advocate for the defendant, it is hereby ordered that this suit is withdrawn with no orders for costs by amicable consent of the parties. Order accordingly [emphasis supplied]. J It is abundantly clear from the record of the proceedings on the 20 April 2000, that Mr Galati did not make an application before my brother, Nchalla, J. to withdraw the suit with liberty to file a fresh suit in respect of the same subject matter. He made an application to withdraw the suit with no order as to costs, as agreed upon with Mr Rutaisisre, and the learned Judge unhesitatingly, granted them permission to withdraw the suit with no order as to costs. Under Order XXIII, rule 1(2), the court must be satisfied either that there is a formal defect which will render the suit to fail or that there are other sufficient grounds. The application that was made is different from an application to withdraw a suit with liberty to file a fresh one. In the latter case there are conditions to be fulfilled by the G applicant and the court'must be satisfied that one of them has been complied with. I am therefore unable to accede to Mr Galati ’ s contention that the application he made on the 20 April 2000 was one to withdraw the suit with permission to institute a fresh one. In the result, I uphold n the defendant ’ s preliminary objection and strike out the plaint with costs. It is accordingly ordered.