Muhindi v People's Bank of Zanzibar and Others (Civil Appeal No. 28 of 1999) [1999] TZHC 520 (20 December 1999)

194 TANZANIA LAW REPORTS |2001]T.L.R. A was left with no alternative but to direct my ministry ... to get another contractor, and (b) As soon as another contractor ... is appointed ... the work will commence ... ” The language is explicit. The makers of the decision to terminate the award process clearly meant to exclude b the applicant from the re-floated tender. It is thus impossible to avoid the conclusion that tender number 22 of 12/99 was designed to keep out the applicant. In the final even and for all the reasons I have given, the application c is granted with costs. The second respondent ’ s letter of 16 June 1998 is quashed. The same with tender number 22 of 1998/99. The third respondent is directed to finalise the award process of the original tender or terminate it in accordance with the law. D MAHMOUD AMEIR MUHIDINI v. PEOPLE ’ S BANK OF E ’ ZANZIBAR AND TWO OTHERS HIGH COURT OF ZANZIBAR AT VUG A F (Umar Sadiq, J.) CIVIL APPEAL No. 28 OF 1999 (From original decree in Case No. 52 of 1998) Civil Practice and Procedure - Pleadings - Plaint - Amendment of plaint - Application for leave to amend plaint - When such application may be H made. A Regional Magistrate refused an application for leave to amend a plaint on the ground that the advocate was in possession of the plaint for a long time and did not care to file the application for leave to amend on mention dates but waited until the date fixed for I hearing that he made the application. Aggrieved by the decision of the Magistrate, he appealed to the High Court of Zanzibar. The High Court considered the law applicable.

MAHMOUD AMEIR MUHID1NI v. PEOPLE ’ S BANK OF ZANZIBAR AND TWO OTHERS 195 Held: (i) Both in law and equity an advocate is required to take proper steps at the A earliest time to apply for leave to amend pleadings; (ii) The advocate of the appellant was in possession of the plaint for a long time and was required to apply for leave to amend at the earliest possible time; B (iii) The delay in applying for leave to amend the plaint meant the advocate had elected to proceed on the plaint as originally drafted. Appeal dismissed Case referred to:

1. British Indian General Insurance Company Ltd v. Parmar [1966] EA 172 Statutory provisions referred to: D (1) Transfer of Property Decree, sections 67(s)(a) and 69(1) (2) Laws of Zanzibar Chapter 8, Order 6, rule 17 JUDGMENT E (Dated 20 December 1999) Umar Sadiq, J.: This is an appeal against the ruling and the decision F of the Regional Magistrate in Civil Suit Number 77 of 1998 given on the 2 July 1998. The appellants in their memorandum filed seven grounds of appeal: G
2. The Magistrate erred in facts and law and ought to have allowed the appellant to amend his plaint which had been prepared by a court official in ignorance of the facts and the law pertaining to mortgages. H
3. The Magistrate erred in facts and law and ought to have agreed with the issues framed by the appellants as were consistent with the pleadings. I

TANZANIA LAW REPORTS [200 1] TLR. A 3. The Magistrate erred in facts and law and ought to have held that the sale of the house was contrary to the terms of the Mortgage Deed and the law pertaining to the mortgages. Further, he ought to have held that the first and second respondents had reached there B statutory duty of care owed the appellant by failing to obtain a best possible price for the house. 4. The Magistrate ought to have held that there was clear conspiracy between the respondents themselves at the expense of the appellant. C 5. The Magistrate erred in law and ought to have drawn adverse inference due to the total lack of interest or defence shown by the second respondent throughout the trial. D 6. The Magistrate erred in facts and law and ought not to have given judgement for the first respondent on its counter claim which had not been proved on balance of probabilities. 7. The Magistrate generally conducted the trial unsatisfactorily and E ought to have entered judgement for the appellant as prayed by him or more appropriately as evidence disclosed. Whereof the appellants prayed as follows: F (i) That the judgement of the Magistrate be set aside with costs. (ii) That the sale of the house be set aside and its title be confirmed for the appellant. (iii) That alternatively to prayer number 2 above, judgement be entered G for the appellant for TZS. 8 000 000 (Eight million shillings) as damages with costs thereon. (iv) That the issues raised by the appellants at the trial be confirmed and the under lying suit be remitted back to the Magistrate to retry H the suit accordingly. (v) Such other relief(s) be granted as may be just under the circumstances. Arguing the appeal, Mr Patel advocated to the appellant admitted 1 that he wants to be allowed to argue grounds one and two jointly as

MAHMOUD AMFIR MUHIDINI v PEOPLE ’ S BANK OF ZANZIBAR AiX-D 1 vV O O 1 HL RS 197 they relate to each other. Mr Patel said that the plaint and the Chamber A summons/application were clearly prepared by the court clerk in complete ignorance of Transfer of Properties Decree Chapter 1 50, CPD Chapter 8, Registration of Document Decree Chapter 99 and Auctioneers Decree Chapter 165, Laws of Zanzibar. b Advocate told the court that all the relevant section of these laws have been given to the Magistrate in their written submission. “ By the time 1 was instructed to appear for the appellant, the defence has been filed, I went through the pleadings and found that the plaint c requires an amendment and while waiting for the right opportunity to make that application, in the meantime. I file the document which needed to be filed and also give a notice to produce to the defendant. However on the 9 March 1999, I submitted/frame issues at page D 2 of the Magistrate Court of proceedings, which entails all the necessary grounds that was necessary to make an application under Order 6, rule 17 of Chapter 8 of Zanzibar and this order provides for an amendment to be made at any stage of the proceedings. On this application the E Magistrate gave this ruling on 10 March 1999. Advocate cited the case of Indian General Insurance Companies v. Parmar (1) which clearly outlines that amendment should clearly be allowed which entails four grounds: f (i) It should not cause injustice to either side, but if there is injustice it can be compensated by cost. Whereof the respondent at page 3 lines 22-25 the respondent did agree that if amendment were to be allowed he will be quite happy with the cost. ® (ii) It should not been amendment to introduce a new cause of action. Advocate said that in this case it was on breach of Mortgage Deed, and wishing to afraid on the relief thought not even the cause of action. (iii) The right acquired by the other parties should not be allowed to be disturbed by the amendment. But those rights we have already challenged due to the breach of the Mortgage Deed. ■

1 98 TANZANIA LAW REPORTS [2001 [T.L.R. A (iv) The amendment must go to the real controversy between the parties, but the RM unfortunately dismissed my application. Advocate said the question of amendment is a dictionary matter which must be exercised judiciously, by the Magistrate. Unfortunately restricted B consideration to only pleadings that were before him, he also said that if he were to allow the amendment it would result in injustice to the other side. At page 5 line 4 of our written submission, there are 5 requisites c which a court must consider before allowing an amendment. In our case my application was made before the actual hearing of this case, and therefore application made bona fide. My submission is that in the event of our appeal succeeding allowing us to amend, then the D rest of the issues in the appeal should be aborted. Advocate said at the auction sale even though the third respondent was the highest bidder he was not declared the winner but was left subject to the bank approval of the price, this was in line with the E evidence of DW1 at page 10 lines 19-20. Advocate said that I submit that this was against the rules of auction sales. Also referred is the evidence of the appellant given at page 7 lines 18-20 where he said that he will announce another date for the auction, in view of the F low price received. Also referred to at page 13 lines 18-21 where the bank official clearly admitted that contrary to the loan agreement which allows simple interest, the bank were charging compound interest; however G in the annexures it is shown that the loan was a simple interest. Also referred by Council to the appellant was section 67(s)(a) of the transfer of property decree of which a three months notice is obligatory and in page 14 line 3. DW2 admitted they gave 14 days notice and then waited for one more year which amounts to a very serious breach as well. The fourth breach is of that of duty of care by the mortgage to the mortgager when exercising this power of sale. This is so because the house, under mortgage was valued TZS. 1 8 120 000 in appeal 1994 but some 5 years later was sold at TZS. 1

MAHMOUD AMEIR MUHIDIN1 v. PEOPLE ’ S BANK OF ZANZIBAR AND TWO OTHERS 199 700 000 at the auction sale and this amount to a clear breach of a duty. Section 69(1) of the Transfer of Property decree requires court intervention but in this case such an action is sought and neither a given before the sale. B The last is the breach committed by the auctioneer, the second respondent by selling the house by private treaty instead of by public auction, wh ich is very counter to section 18 of the Auctioneers Decree Chapter 165. It is clear that there was conspiracy by first, second and third respondent to which themselves and there is surely a reasonable ground to belief there was conspiracy to the detriment of the appellant. Not only that the appellant lost his house at throw away price, but the counter claim allowed to the bank, should not been allowed because D it worked on compound interest. On the fact that the second respondent did not take part in the proceeding, the Magistrate should have drawn an adverse inference that he had accepted the allegation made against him. On grounds number 7 that the Magistrate conducted the trial generally unsatisfactory. On prayer, Mr Patel advocate, said this prayer is very clear and F he need not say more. In his reply counsel/advocate representing the first and third respondents said that he reply grounds 1 and 2 together and said that the first and second grounds of appeal hold no water, because G the learned advocate for the appellant had been in possession of clients pleadings for about 6 months (before the date when issues a said to be joined for the commencement of trial) for all these period advocate ought have seek to amend the plaint earlier but did not H seek to amend until his hanged issues were rejected by the court. Another reason is if the court would allow such an amendment it will bring an injustice to the other side. See the case of British India General Insurance Company Ltd v. GM Parmar and Company

200 TANZANIA LAW REPORTS |2001]T.L.R. A (1), page 172. Where five conditions were entailed of which the Magistrate Court was aware of but still refuse the amendment. Respondent ’ s advocate said that on grounds 3 and 4 it is not true that the sale of the house was contrary to the Mortgage Deed, and B the law pertaining the mortgage. According the terms of the mortgage which was in Kiswahili dated the 22 April 1994 the first respondent willingly for he appointed the second respondents to be his agent for the purpose of the sale of his house in issue of the loan repayment. That is to say there was an actual authority by express agreement. The allegation, that the first respondent breached the duty being an agent such allegation is baseless because the price sold was the best and proper accordingly D to public auction. Advocate to the respondent also said on the ground that there was a conspiracy due to the estimated amount at TZS. 8 120 000 in E 1994, but 5 years later was sold for TZS. 1 700 000 to consider devaluation of the property. The fact that the house was sold in a public auction, and the highest bid was TZS. 1 700 000 proved that the agent had done his duty to his principal by selling to the highest bidder. F On the issue of section 69(1) of Transfer of Property Decree, the appellant has appointed the first respondent to sell the house to put the consent of the court and would like to insist that the house G was not sold as a result of a private treaty, but a public auction. On the issue of the second respondent not taking part in the trial at the Magistrate even though made a defendant our submission is that the second respondent is an agent of the first respondent therefore H it suffices. Although the first respondent is the agent of the appellant the doctrine of deligutus non deligary does not apply in the circumstances because his principal has also already a appeared. I

MAHMOUD AMEIR MUHIDINI v. PEOPLE ’ S BANK 01- ZANZIBAR AND IWO OTHERS 201 On the sixth ground of appeal which is on the issue judgement A to the respondent on his counter-claim. We submit that the counter claim was proved on a balance of probability. The loan given was the sum of TZS. 2 000 000. Subject to the interest at 30% and this rate of interest is well known to all the clients of the first respondent b even though not provided in the agreement. Advocate for the respondent conclude that the judgement of the trial court was fair not only to the respondents but also the appellant. We pray this court to dismiss the appeal. In his agreement in the c appeal Mr Patel advocate continued grounds of appeal number and find and argue the grounds together. It was his contention that he wants to amend the plaint because it was initially drafted by a court in complete ignorance of the provisions D of Transfer of Properties Decree Chapter 150, Civil Procedure Decree Chapter 8, Registration of Documents Decree Chapter 99 and the Auction Decree Chapter 165 Laws of Zanzibar. E Mr Patel said after being briefed to appear for the appellant, I went through the pleadings and found that plaint requires an amendment while waiting for the right opportunity to that application, in the meantime I filed all the relevant documents which need to be filed F and also gave notice to proceed to the defendants. Advocate said that on 9 March 1991, 1 submitted my framed issues which is towards my application under Order 6, rule 17 of Chapter 8 Laws of Zanzibar which order permits for amendment to be made at any stage of the proceedings but it which the Magistrate refused the application and G ruling dated the 10 March 1999. discretionary power of course to be exercised judiciously. It is allowed that amendment could be ordered at any stage of the proceedings to a deserving party. This right is not relent exception which depend in each given circumstances in each given case.

202 TANZANIA LAW REPORTS [2001JT.L.K. A In this particular case, advocate admitted getting the brief in this case after the plaint was drafted and filed by the court clerk admitted finding the plaint faulty and did not take any step to amend same until only on the date accepted to be set for hearing. B The advocate took part in mentioning the case on 17 November 1998 and 17 February 1999 and specifically ahead for a date for hearing on 19 February 1999. The advocate only raised the issue to amend after issues are asked to be joined then ask for a leave no amend which application was resisted by the respondents advocate on the reason that the advocate has had the opportunity to amend the pleading but only decided to that after the issues to be joined as proposed by him was rejected D by the court at the point of trial. Mr Patel referred to the case of The British India General Company Ltd v. G.M. Parmar Company (1). E In which case the fact that amendment is a right to a party but to be allowed ability subject to the discretion of the judge an agree circumstances of every case. In this case, the advocate right from the onset admitted seeing F the mistake or defects in the plaint but has elected to continue with the plaint even though defective, taking part fully in the preliminary stage of the case which includes mentioning the case on the successive dates, without making reference to any application or intention to G amend. In the ruling before the Magistrate Court, the RM said that it is in the interest of justice for both parties that when a person gets his right he gets it without the right of other parties being then out H unreasonably ” . This piece does not tally with the issue now at hand, because amending a plaint does not take away the right of the adversary, but at most, delays the process.

MAHMOUD AMEIR MUHIDINI v. PEOPLE ’ S BANK OF ZANZIBAR AND TWO OTHERS 203 In the plaint before the Magistrate Court the plaintiffs only made A reference as to illegality only the sale of house as done irregularly and at an under valued price. On this, the RM said that “ in my view the word just means justice for both parties in a suit and that amendment should be allowed only B for the purpose of determining the real question in controversy between the parties, therefore as it is seen from the plaint filed by the plaintiff the real question in controversy between the parties are together the security (house) of the plaintiff was sold by public auction or c privately. The question of mortgage has not been pleaded, specifically by the plaintiff. The RM concluded that the question of amending the plaint arises at a point of disagreement with the issues of mortgage to be included, therefore to allow the plaintiff to amend the plaint, d the court will be insisting the plaintiff to frame his case according to his issues in his mind hence diverting the whole subject matter from an illegal auction to whether that was a simple mortgage or not ” . E According to the Record of Proceedings before the RM the advocate of the plaintiff admitted knowing the defect in the plaint but only said to be waiting for the right opportunity to make an application to amend it is a well known practice that where an amendment is f made by the plaintiff the defendant as well has to be given the right of reply/defence. Therefore waiting for the right opportunity should not be construed to mean waiting for so long as in this case up to the time when hearing G date is set and witnesses in court issues agreed to be framed. However the new reasons given by the RM for refusing the application may not suffice in this case “ that where the RM said it refused because the amendment with advise new cause of action that is the legality of the mortgage and secondly that the amendment will create injustice to the other party. I

204 TANZANIA LAW REPORTS [2001] T.L.R. A But the sound reason given was that of the delay in applying to have the amendment thereby electing to proceed on the plaint as it was drafted immediately. The advocate is both in law and equity required to take the proper B steps at the earlier time to effect the amendment therefore as it is said he who comes to equity must come with clean hands. This was certain the ruling of the RM where by he said in part “ also it is in this court view that the amendment will create unnecessary delay bearing c in mind, that Mr Patel had this plaint for a long time, whereby he was supposed to have seen the issues (defect) in his case and did not ask the court for leave to amend the plaint. Far the foregoing the grounds of appeal in this issue fails. On the third ground of appeal the advocate submitted that at the auction sale even though the third respondent was the highest bidder he was not declared the winner but was left subject to the bank approval of the price, (this piece was in line with the evidence of DW1). E However the appellant in his evidence said that the auctioneer (DW1) amend that due to the low price at the bidding the sale was adjourned to another date which was to be announced later. This evidence as given by the appellant in his evidence as PW1 and also in the evidence of PW2. This was against the evidence of DW1 and DW3 who said they were at the auction and have even bid to buy the house. The adjournment of the sale in itself does not make the sale void G because it only amounts to breach of the Auctioneers Act which has provided a penalty of such a breach. Therefore the sale to the bidder at the sum TZS. 1 700 000 was proper in law. H Consequence upon which grounds of appeal number three fails. Coming to the fourth ground which provides that there was a conspiracy between the respondents to enrich themselves. I However, all I need to say here is that I don ’ t see any conspiracy here because according to designation of conspiracy is that “ it is an

MAHMOUD AMEIR MUHIDINI v. PEOPLE ’ S BANK OF ZANZIBAR AND TWO OTHERS 205 agreement of more than one person to commit an illegal act or illegal A act by an illegal means ” . As per in this case the Deed (Mortgage) has provided the clause for sale of the house if there is any breach from the part of the Mortgage without resort to court Order. B Therefore in this case the power of the bank as to the sale was proper. The auction was published accordingly and properly, as it was done where the public had gathered and bid publicly without any restriction. The house was in the end sold to the highest bidder. For the above reasons, the grounds of appeal number 4 hereby fails. D On grounds of appeal number five which says that the Magistrate should have drawn inference due to the total lack of interest or defence shown by second defendant respondent throughout the trial. On this ground all I will say is that there is no law which prevents the court to proceed ex parte particularly in civil case, it is therefore correct for the tried Magistrate to proceed ex parte in the absence of the second respondents. I want to say that, had any order in the judgement to affect the second respondent it will be carried out against the second respondent as if he had partaken in the trial. In this case the trial magistrate was right in the conduct of his trial in relation to the absence of the g second respondent. Therefore this also fails. On ground of appeal number six, where the appellant said the Magistrate erred in law and in facts as he ought not have given judgement for the first respondent counter- claim which had not been proved H on the balance of probability. However this ground of appeal was contained in the memorandum but also as in the trial at the trial court, nothing was said in arguing the appeal before me. 1

206 TANZANIA LAW REPORTS[2001jT.L.R. A Counter-claim as it is requires defence which should be traversed and denied specifically, however in this case the appellant on cross- examination by the respondents advocate admitted to being in debited to the tunc of “ four million three hundred and thirty seven thousand, B two hundred and thirty nine shillings TZS. 4 379 239 which includes the amount loaned with the corresponding interest that generates within the period of the loan. In his words, the appellant before the Magistrate Court said “ On the question of me being owed TZS. 4 c 3/9 239 I am not disputing it ” . Therefore this ground also fails. Lastly as all the grounds argued have failed judgement is hereby entered against appellants and the appeal hereby dismissed D --------------------------------------------------- AFRED MTATIRO v. SHELTER CONSTRUCTION LIMITED, THE REGISTRAR OF TITLES AND TAALIB E MBOWE t/a AMIN AND COMPANY HIGH COURT OF TANZANIA AT DARES SALAAM F (Kalegeya, J.) CIVIL CASE No. 195 OF 1996 G Civil Practice and Procedure - Status Quo — Order to maintain status quo - Whether the order has more force in terms of duration than would a normal temporary injunction - Order XXXVII, rule 3 of the Civil Procedure Act 1966. H The applicant/plaintiff appeared before this court praying for an order committing the third respondent/defendant to prison for contempt of court. The contempt is alleged to have arisen because of the respondent/defendant ’ s violation of the Orders of this j court dated 16 August 1996 and 23 May 1997 which ordered that the status quo be