Chefrona Building Contractors Ltd vs The National Bank of Commerce (Civil Appeal No. 39 of 1994) [1998] TZHC 2091 (21 August 1998)

. IN TH"2 EIGH COURT 9F TANZANIA DAR ES' SALA.AN DISTRICT REGISTRY A.T DAR. Es· ·sAL.AAl'-1, CIVIL AFtEAL NO. 39 OF 1994 CHEFRONJ\ BUILDING CON'l''.-tACTORS LTD VERSUS THE NATIOiljAL BANK OF· COl-ihBHCE • O. ♦ o • o • & o o • o /·1 .. J U D G M E' N .3i. BUBESHI, J: AFFLICANT- This court granted leave to· the ap;::ellant to proceed ·exparte after the respondent failed to r,iake •.:>Urt a1pearanee despite being aware o:f the hearing date. Mr. Kashumbugu le2trned counsel appeared fer the aPPellant company. Four grounds of apj:,eal tad been filed. These where in sun.n:ary :that the trial court erred to separa-.e the hearing of the counter claim f_rom the main suit, seondly that the trio.1 court erred to note arrl appreciate ' "'th.at tl1e defendant now appellant had fulfiliect his part r of _the obligation, thirdly that the trial court erred in facrt and laid · failil':'.' to r,ote and appreciate that the responde·11t maliclc,usly retained a large part of the .overdraft facility thereby uncapaci tating the appellants project operations. Fourthly that the trial court erred . to assert that· the :f.'uncls for the project motor vehicle had been s·ur,plied to the a;;pellant when in actual fact "':,_that was not the cas·e. Learned. counsel i' 1 li:-; Kashumbugu filed written submissions to substa,ntiate his argun,ents. o_gound' one of 2pp1?.al, learr;ed counsel attacked the trial magistrates order to proceed with the counter claim se~retely. Mr.· Kashumbugu complaint is levelled at the court' s Jliore. -- . ·1? Counter clims are governed by _O VII! R 12 which states as fol.lows: -

. - .. ;• 2 _i!Where a defendant has set up a counterclB;im, the court may, if it is of the opinion that the subject matter of the counter claim ought for any reason to be disposed of by a ·separate suit, order the counterclaim to be struck out or order it to be tried separately - - - - - - - - - -" The court therefore may proceed suo motto, without any promptir;g from any party. The issue here is whethr. · the court exercised its discretion judiciously. ·otherwise, stated is, was the appellant prejudiced by that move? was he required to give any reasons? . ..; Going by the court record page A (bottom) of the (,.-;' typed proceeding the trial court is recorded to have stated: "Gourt - .. Owiri.g to? the nature of the countercla,im I arr. of the opinion that the hearing of it should be conducted separately after the main suit has been determined" The question this court has to answer is whether the course taken by the trial court was justified, in other words whether the· counter claim as.filed called for a separate trial. What was the Particulars of the cou11ter claim, It is not in dispute that the appellant was loaned. by the respondent TShs.2,200,000/= of the furr..i ture project, which amount. was inclusive of machinery and motor vehicle .. The appellant has, contended that onJ.y 66% of that amount was disbursed, ar,.d th,3.t out of theagreed or approved additional figure of TShs.600,000/=, only TShs.265,000/= was advaiced, So in assence what the appellant is submi ttir~ is that by the nature of the counter claim, whose basis is. the same loan agreement signed between parties o~ 15/9/1984 there was no need to order for a separate t;rial. I agree with 1vir. Kashurnbugu here. While the trial ccurt may suo niotto, order for a counter claim to be tl;'ied separetely; in this case there was no need so to dq. •.•. /3 ·' r· .: ' ~-;. ':""

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-- .... •• • 3 The facts are interreL1ted so iJJUch so that to call for a separate trial ',·'-'ouLi in nq -view, only Plolong 8.Dd delay determination of this case. In the premises I ollov,r this t;rou:ry'! of appeal and direct that the matter~ be tried de novo before different magistrate other than the one who heard the suit. Havi:ri.g so ordered there is n-) need to go into the merits of the other grounds of appeal filed by the appellant • Delivered Ms Ligate for Respon:lcnt. Appellant in person. '. i\ / . ,·• . ,.· /") I .-•-.!; I ;1/ • ; : " { ... ·· ,1,J· ... ~ .. > i-t,l~;-_,: .. ~~ \ A. G. BUBESHI JUDGE 21/8/98