Stanbic Finance Tanzania Ltd v Trupia and Another (Commercial Case No. 42 of 2000) [2000] TZHC 688 (3 October 2000)

STANBIC FINANCE TANZANIA LTD v GIUSEPPE TRUPIA AND CHIARA MAL AVASI with the figure awarded, he would certainly, have appealed The story a of the priest coming back to him and celling him that after aH, he (appellant) deserved more money is an afterthought. Where was the priest with his figures at the time the litigation was on? I agree with Mr Mtaki that the matter is res judicata. r The appeal is dismissed with costs. STANBIC FINANCE TANZANIA LTD u GIUSEPPE TRUPIAAND CHIARA MALAVASI HIGH COURT OF TANZANIA ° AT DARES SALAAM (Bwana, J. ) COMMERCIAL CASE No. 42 OF 2000 Civil Practice and Procedure - Cause of action - Plaint not disclosing a cause of action and plaintiff not having a cause of action - Difference between $ the two. Civil Practice and Procedure - Cause of action - Non disclosure of cause of action - defendant having a defence to each allegation raised in the plain t

• Whether that means there is non disclosure of cause of action. G In ajoint Written Statement of Defence filed by the defendants, a preliminary objection was raised that the suit was incompetent and should be struck out/dismissed ge the ground that the Plaint did not disclose a cause of action. In reply, Counsel for the plaintiff contended that the defendants were mixing up two different concepts that of H a plaint failing to disclose a cause of action and, on the other hand, a plaintiff having no cause of action against the defendant. Held: (i) A cause of action arises when facts exist which give rise or occasion to a party to make a demand or seek redress, all depending on the kind of claim; a cause

218 TANZANIA LAW REPORTS . [2002]T.L.R, A of action arises when facts on which liability is founded do exist and its disclosure is reflected in the claims as presented in the plaint and not as weighed against the defence statement; (ii) Going by the pleadings it is clear that the facts of the plaint do disclose a cause of action as required under Order VII of the Civil Procedure Act 1966. (iii) The defendants have attempted to show in their Written Statement of Defence that they have a defence against each and every allegation of claim raised by the plaintiff against them; that is, however, different from saying that the plaint discloses no cause of action. Preliminary objection dismissed Cases referred to: D

1. Jeraj Sharrif and Company v. Chotaji Fancy Stores [1960] EA 373
2. John Byombalirwa v. Agency Maritime Internationale (T) Ltd [1983] T.L.R. 1 E 3) Reid v. NBC [1971] HCD n. 340
3. Grayson and Company Ltd v. AH Wardle (Uganda) Ltd [1963] EA 582
4. African Overseas Trading Company Ltd v. Tansukh SA Charya [1963] F EA 468
5. Mukisa Biscuit Manufacturing Company Ltd v. West End Distributors Ltd[\969} EA 696
6. Simone Emanuel and others v. Edison Jubert CA 49 of 1996, Seychelles ( j Court of Appeal
7. Chand Kaur v. Partap Singh (1888) 16 Calcutta, 98
8. Serafin Antunes Affonso v. Portan Enterprises and others Com. Case H Number 17 of 2000
9. Dyson v. Attonery General [1911] 1 KB 410 Statutory provisions referred to: I 1. Civil Procedure Act 1966, Order VII, rule 1(e)

STANBIC FINANCE TANZANIA LTD v. GIUSEPPE TRUPIA AND CHIARA MALAVASI 219 2. Law of Contract Ordinance Chapter 433, Sections 78 and 97 Captain Kameja, for the Plaintiff Professor Fimbo, for the Defendant RULING (Delivered 3 October 2000) Bwana, J.: In a joint Written Statement of Defence filed by the defendants a preliminary objection is raised that the suit is incompetent and should be struck out/dismissed on the ground that the plaint does not disclose a cause of action. Three points are shown in support of the above averment. It is averred that the plaint does not disclose a cause of action because: i. There were no contracts of guarantee between the plaintiff as creditor and the defendants as sureties/guarantors or any one of them; ii. It is not pleaded that the plaintiff has failed to realize the principal securities for the company ’ s indebtedness, that is to say: (a) first floating debenture jointly with the plaintiff over all the company ’ s assets including stocks; (b) deposit with the plaintiff of original registration cards of the following assets: iii. There was/were no valid letter(s) of demand from the plaintiff to the defendants o? any one of them. In his written submission in support of the averments, Professor Fimbo has cited several cases inter alia the following: I. Jeraj Shariff and Co v. Chotaji Fancy Stores (1); 2. John Byomabalirwa v. Agency Maritime Internationale (T) Ltd (2); 3. Reid v. NBC (3).

220 TANZANIA LAW REPORTS [2002]T.L.R. A With great eloquence Prof. Fimbo equally cited excerpts from text writers such as Messrs. CB Drover, RWB Bosley, and page JM Fidler in their Sheldon ’ s Practice and Law of Banking (1972) and J Milnes Holden in his Securities for Bankers Advances 1971. He also relies B on sections 78 and 97 of the Law of Contract Ordinance Chapter 433. In his written submission in reply, Capt. Kameja also cites the same cases of John Byomhalilwa (2); Jeraj Shariff (1) and Reid (2), cited above. In addition he cites Chitty on Contracts Volume c 1 at page 21 as well as the following cases:

1. Grayson and Company Ltd v. AH Wardle (Uganda) Ltd (4);
2. African Overseas Trading Company v. Tansukh SA Charya (5); D and
3. Mukisa Biscuit Manufacturing Company Ltd v. West End Distributors Ltd (6). He strongly contests the averments advanced by Professor Fimbo and prays to this Court to rely on the provisions of Order VII, rule 1(e) ofthe Civil Procedure Code and dismiss the preliminary objection. His main point of contention is that the defendants are mixing up two different concepts on the one hand, a plaint failing to disclose p a cause of action and, on the other hand, a plaintiff having no cause of action against the defendant. Indeed, having examined the averments before me, it is apparent that the issue is to determine what does the plea in limine litis entail? Before I do so, it is important to state, albeit briefly, what is the law on such issues. It is settled law that any party is entitled to raise by his pleadings, any point of law. It is then preferable that a point so raised, should be disposed of at the earliest stage of the proceedings H unless the parties themselves agree to its being heard at a later stage or the court orders so. It is also the law and practice that preliminary objections are raised where in the opinion of the party doing so expects requests the court to make a decision which disposes of 1 the case. In other words, in the opinion of the court, if such a decision

STANBIC FINANCE TANZANIA LTD v. GIUSEPPE TRUPIA ____________________________ AND CHIARA MAL AVASI __________________ substantially disposes of the whole cause of action (or ground of A defence counter claim or set off) then the suit should be dismissed. In the case of Mukisa Biscuits (2) to which Counsel have made reference, the words of Law, J. A. are very clear; so far as I am aware, preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings and which if argued as a preliminary point, may dispose of the suit. In the same case, Sir Charles Newbold, page had the following to add: a preliminary objection is in the nature of what used to be a demurer. It raises a pure point of law which is argued on the assumption that all the p facts pleaded by the other side are correct. It is my view that Professor Fimbo is just applying for that - the suit be dismissed because it discloses no cause of action. However on further examination of his submission, it appears that he has entangled E himself with a further view as submitted by Captain Kameja. The rejoinder filed by Professor Fimbo, reconfirms his earlier views. What does “ disclosure of cause of action entail ” ? A cause of action as frequently defined, is (per Black ’ s Law Dictionary, (6 ’ ed): the fact or facts which give a person a right to judicial redress or relief against another It was stated by the Seychelles Court of Appeal (in the case of Simone Emanuel and others v. Edison Juber l (7 ) that a cause of action is: ... that particular act (or omission) on the part of a defendant which gives the plaintiff his cause of complaint. M A cause of action arises when, in my view, facts exist which give rise or occasion to a party to make a demand or seek redress, all depending on the kind of claim. In other words, a cause of action arises when facts on which liability is founded do exist. In the old 1

222 TANZANIA LAW REPORTS[2002]T.L.R. A case of Chand Kaur v. Partap Singh (8), Lord Watson had this to say: the cause of action has no relation whatever to the defence which may be set up by a defendant. Nor does it depend upon the character or the relief prayed for by a plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or in other words, to the media upon which a plaintiff asks the court to arrive at a conclusion in his favour. c Briefly considered therefore, it may be said that a cause of action reflects the claims as presented in the plaint and not as weighed against the defence statement. This Court (per Kalegeya, J.) had a recent opportunity of restating what the position of the law is when it stated in the case of Serafin Antunes Affonso v. Portan Enterprises D and others (9) thus: the trite position of the law is that when deciding on whether or not a cause of action is disclosed, we only have to cast our eyes within the four E corners of the plaint. We only have to peruse the plaint alone together with its annexure, if any ... With this limited ambit, we do assume that the factual allegations thus made, whether expressly or impliedly are true ... [emphasis supplied] F I consider the foregoing to be a correct interpretation of the law, as supported by the cases of Jeraj Shariff (1) and The African Overseas Trading Company (5) {Supra). In the instant case, (going by the claims as contained in the plaint), G the defendants entered into a Lease Agreement with the plaintiff through which the latter accorded banking facilities in form of lease finance in the amount of TZS. 55 000 000. The plaintiff annexed documents (ann. SF (1, 3 and 4) which purport to show that the two H defendants guaranteed the payment of all the above sums of money on the terms as specified. The plaintiff avers that the debtor failed to meet his obligations. The two defendants (together with the debtor) were then notified of that failure by a letter dated 17 January 2000. T The plaintiff demanded settlement of the said debt. The debtor and

STANBIC FINANCE TANZANIA LTD x ’ GIUSEPPE TRUPIA AND CHIARA MALAVASI ,223 defendants have refused, neglected or otherwise failed tb pay the a sum demanded or any part thereof, hence this suit wherein the plaintiff prays for payment of TZS. 115 747 548-60 due; interests and costs of this suit. All this information is contained in the plaint. Going by the authorities cited above, particularly the words of B Kalegeya J. and Law, J. A., it is clear that the facts of this case as summarized above do disclose a cause of action as required under Order VII of the Civil Procedure Code. It is stated, particularly under paragraph (e) of the said Order VIII, rule 1 that: c The plaint shall contain the following particulars: (a) ••• (e) the facts constituting the cause of action and when it arose [emphasis ® supplied]. As stated in the Byombalilwa case (2) , the expression “ cause of action ” is not defined. However, I have done so above. It is important to add the words of the court - just to emphasize the point - in the Jeraj case (1) where in it is stated: the question whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone, together with anything attached so as F to form part of it and upon the assumption that any express or implied allegations of facts in it are true ... [emphasis supplied] Therefore, examining the preliminary objection in light of the above authority, I am of the view that what the defendants are asking this g Court to do amounts to making this Court peruse beyond the plaint and its annexure. That stage is yet to come in the course of these proceedings. The court should not at this stage, determine whether it is correct, or not that the debt was guaranteed by the defendants; K or whether or not such guarantees were valid. Likewise, the court is not required to establish at this stage, the validity of the demand letter.

224 TANZANIA LAW REPORTS [2002JTLR. The defendants may wish to prove and indeed they have attempted to do so in their Written Statement of Defence that they have a defence against each and every allegation claim raised by the plaintiff against them. That is, however, different from saying that the plaint discloses no cause of action - the issue at hand. Therefore all the above considered in their totality, I am of the considered view that the plaint, in its present form and on the basis of the law and cited authorities, does disclose a cause of action against the defendants. It was stated in Dyson v. Attorney General (10) thus: The plaintiff should not be driven from the judgment seat without the court having considered his rights to be heard, excepting in cases when the cause of action was obviously and almost incontestably bad. That is not the case now. My view is that the statement of claim, as raised by the plaintiff, discloses some cause of action. Further, it raises questions and issues which ought to be decided by the court at an appropriate stage of the proceedings. For now, the plea in limine litis does not provide the appropriate and just avenue to do so. The preliminary objection therefore fails and is accordingly dismissed with costs.