Peoples' Bank of Zanzibar v Suleiman (Civil Case No. 23 of 1997) [1998] TZHC 2550 (12 August 1998)

PEOPLES ’ BANK OF ZANZIBAR v. NAUSHAD MOHAMED SULEIMAN 269 whether or not errors or mistakes by counsel can constitute a ground a for review. But since it was not established that counsel, or indeed anyone, had committed an error in the instant case, we think that it would be of no practical value to decide on such matters. In the result, and for the reasons set out above we refuse the B application with costs to the respondent. c PEOPLES ’ BANK OF ZANZIBAR v. NAUSHAD MOHAMED SULEIMAN D HIGH COURT ZANZIBAR AtVuga (Dahoma, J.) E CIVIL CASE No. 23 OF 1997 Civil Practice and Procedure - Suits - Withdrawal of suits - Oral application for withdrawal of suit - Order XXVII, rule 1 of the Civil Procedure Rules. p Civil Practice and Procedure — Withdrawal of suit - Liberty to bring a fresh suit after withdrawal - Order XXIII, rule 2 of the Civil Procedure Rules. Limitation of time - Limitation of time for suits - Computation of time of limitation for a suit previously - Items 34 and 52 of the schedule to the Law of Limitation Decree Chapter 12. A suit filed in the High Court of Zanzibar and was withdrawn, upon an oral application to withdraw, even before a written statement had been filed by the defendant. It was H subsequently argued that the withdrawal of that suit did not bar the plaintiff from bringing a fresh suit on the same matter, and that the new suit was not time barred as it was based on fraud and therefore fell under Item number 34 of the Law of Limitation Decree Chapter 12. It was noted that the leave to withdraw the suit granted was not accompanied with libertyto bring a fresh suit.

270 TANZANIA LAW REPORTS [1 999] T.L.R. A Held: (i) Permission to withdraw a suit with liberty to institute a fresh suit on the same subject matter contemplated under Order XXIII, rule 2 of the Civil Procedure Decree is required to be specifically sought and granted by an order; (ii) The plaintiff is precluded from instituting any fresh suit in respect of the same g subject matter because the suit was withdrawn without the leave to file a fresh suit; (iii) This case is not based on fraud but is a clear case of negligence on the part of the employees of the plaintiff who cannot escape the blame; as such, the claim does not fall under item 34 of the Law of Limitation Decree, Chapter 12 of the Laws of Zanzibar, and is time barred under item number 52 of that law, which prescribes three years. Suit dismissed with costs D Statutory provisions referred to: (1) Civil Procedure Rules, Order XXVII, rule 1 and rule 2 Mr Mbwezeleni, for the Defendant E RULING (Delivered 12 August 1998) F DAHOMA, J.: In this suit, the plaintiff filed a suit by presenting a plaint in the High Court being Civil Case Number 13 of 1995 on 15 June 1995 and as is provided by Order V, rule 12(a) and (b) of the Civil Procedure Rules, a summons was issued and served on the G defendant ordering him to appear and answer the claim on a day therein specified. Under Order VIII, rule 1 the court required the defendant to present a Written Statement of Defence. Before the defence was lodged the H plaintiff applied orally to withdraw the suit under order XXVII, rule 1 as per directives from shareholders (Ministry of Finance.) At the request of the plaintiff the suit was marked withdrawn on j 12 February 1996. On the 20 November 1997 the plaintiff brought a fresh suit against defendant on the same subject matter demanding

PEOPLES ’ BANK OF ZANZIBAR v. NAUSHAD MOHAMED SULEIMAN 271 repayment of USD 429 793 70. This suit was objected to by counsel A for defendant. It was agreed by both side to file written submissions. Counsel for plaintiff pleaded in his submissions that the prayer for withdrawal had the meaning of prayer for indefinite withdrawal which is the same as sine die, and the order of the Registrar was B null and void and the suit was not time barred. This was a clear case of withdrawal under Order XXVII, rule 1 and the Registrar of the High Court under L 1 Rules may exercise the powers and duties of a judge or a magistrate and may pronounce judgments, pass and sign c decree and make orders and transact the business of the High Civil in the case referred to in the Order XXIII and rule (3). Leave to withdraw the suit was not accompanied with liberty to bring a fresh suit. Permission to withdraw with liberty to institute a D fresh suit contemplated under Order XXIII, rule (2) is required to be specifically granted by an order. Even on the assumption that the order was improperly made, it is conclusive between the parties, because however erroneous it might be deemed to have been, it cannot E rightly be regarded as made without jurisdiction or does not indicate total want or loss of jurisdiction so as to render the order a nullity. I therefore think neither of the authorities referred to by counsel for plaintiff could assist in this case because this was a case withdrawn without liberty to file a fresh suit. The application by the plaintiff to withdraw the case was in effect a confession that upon the law as it then stood the plaintiff would not be able to give evidence which would entitle him to succeed. The principle under Order XXIII, rule G 1(3) is founded on public policy to prevent institution of suit again and again on the same cause of action. Counsel for plaintiff alleged in his written submission that this case is based on fraud. It cannot be said that this case is based on fraud. I find it most difficult to hold that the conduct of the defendant amounted to fraud. I ought to say that from the plaint, it is a clear case of gross negligence on the part of the employees of the plaintiff and they cannot escape the blame. The plaintiff ’ s written submission 1

272 TANZANIA LAW REPORTS [1999]TL.R. A in reply to defendant ’ s preliminary objections does not appear to merit serious consideration. I think it should be regarded as a failure of this suit. Now, for the purpose of considering the question of limitation B the claim is time barred. The ground here alleged is the long delay amounting to lathes on the part of the plaintiff in instituting the suit. The plaintiff shall be bound by the law of limitation as if the first suit had not been brought. This would be sufficient to bar the c plaintiff from succeeding in this action. Item number 34 of the law of limitation cited by the counsel for plaintiffin his written submission is not at all relevant in this case because the said item deals with specific movable property lost or D acquired by theft or dishonest misappropriation or conversion or compensation for wrongfully taking or retaining the same. But item number 52 of the Law of Limitation which deals with money payable to the plaintiff or money found to be due from the defendant to the E plaintiff on accounts stated between them is applicable in this case and the claim is time barred by reason of item number 52 which provides the period of three years. For the above reason, the suit is dismissed on the ground that the plaintiff is precluded from instituting any fresh suit in respect of such subject matter because the suit was withdrawn without the liberty to file a fresh suit and the claim is time barred under item number 52 of the Law of Limitation Chapter 12, which is the period G of three years. Suit is dismissed with costs. H I