M/S Southen Paper Hilis Co. Ltd vs Cassian Mosha (Miscellaneous Civil Application No. 15 of 1990) [1991] TZHC 2271 (11 July 1991)

iN THF 1 1 1 1 IG'J.1 COURT OF TANZANIi

AT NBEYA O 1 5 0 J2 i/s SOUPHEN PAPER T1ILLS CO. .LTS. ... APPLICAJT Versus CASSIAN MOSHA RESPONDENT. R U L I N G This is an application by i-i/s SOIE-RN PAPER MILLS CO. LTD., through their counsel, Mr. Baeyunga, learned advocate, for setting aside an Ex Parte judgement entered by this court for the Respondent, one CASSIAN NOSHA, on 15/9/1989, and for an extension of time for filing W.S,D. • The Respondent 'was granted leave to prove his case Ex Parte upon failure by the Applicant/Defendant Company to file any written Stctemen± bf Defonce, within twenty one days as ordered by this court on 20th Hay 9 1989. The Applicant/Defcdant Company was duly served wth Sumrnoñ for orders for the purpose on /7/1989. When signing such summons for orders th Applicant Cbmpanr endorsed it with the following remai- ks:. The Company has been sued and the bae in progrss on the same allegations in alowc-r court(Lifiiga).. We do not selgality of appearing in another court of Law at the same while the cas.e in a lower court has not been concli,ded. However we shall seek legal advice in thu interim eriod." That was followed by a telex message of 10/7/89, almost to tho seine effect, though erroneoisly citing Hafinga {strict Court Civil Case No. 17 of 1939, as the case pendi:-.; before a lower court, when in fact it was ihafinga Primary Court (;j'r Case 17 of 19380 iothing was then heard froi the 'Applicant/Defendant Company by way of socking extension of time for filing 1-britten Statement of Defence 7 until the .ospondont/Plaintiff applied for and was granted leave to prove his case Ex Parte on 24/8/1989, which then he accordingly made on r

By the time this application was filed on 2nd day of August 1990, the Pespondeit/Plaintiff had already obtaii'ieö and executed an attach- mont order that was issued by this court on At the hearing of this application the Applicant had already paid into this court the sum of three million, seven hundred and sicy one thousand, and nine hundred seventy one shillings 0 This application.has boon fi1c4under.s 93, 95, 0 XXIV R54; 0, IL R013; aM0 VIII Rl of the C.P.C.1966 and S. 14 of the LenlIXT of Limitation Act 1971. The main reasons for seeking to haie the Exparto judgement set aside as contained in the Applicant's Affidavit can be stated as follows: That the applcants'de1ay in filing the Written Statement of Defei.ce was caused by i. leir sincerc belief that the claim in Civil Case Nc 13 of 1989, was the same or similar to the one instituted by the Respondent against the ManaEnr of the applicants at Mafinga Primary Court in Civil Case No0 17 of 1988 which was still pending in court, and therefore contrary to Imown legal principles; That if thcc Parc jurL,emnt is set aside, the applicants have a good and reasonable dofoace againsb the Respondent/PlaiLiff's claim as indicatad:in thu W.S,D0 annexed to the application, which hinges on the claim that the suit by the Respoidont was incompetent for being time barred under S3 oi theLaw of Limit a-- tion Act 1971, and under S8of the C,P,C. 1966 as there was still a pending Civil Case No 0 17 of 1988, of Mafinga Primary Court. Before this court Mr. Baieyunga, learned counsel for the Applicants argued, inter alia, that the delay of the Applicant Company to filq a WOSOD. Was due to the erroneous belief that the same suit was before the

• T -

) -.--. , 3= lower court, conceding, however, that there was a need for an informed reasonable person that after receiving such orders from a higher court, he had to obey the same.inprofer.obd to the one from a lower court; that it was soon after the Respondent had ob1aihod jdgement on that he proceeded to withdraw Mafihg' Priniary Court Civil Case No 0 17 of 1988, which wes then marked as withdrn on 12J2jD; that the amonded plaint which was the one served uon the DofCndants/Applicants had been so amended and filed bythe Respondent • ithoix the leave of this court, and it was upon such amended plaint that the judgement was entcrod for the Rospondcat 0 Evidence was then,.adduced for the Applicant, by one REGINA KASAIIBALA, (np. w.i) a Primary Court Mgistrate at I1afinga Urban Prinary Court, one MEMROD s/o SI1ALUA, (AP. W02) an Mministrative aid. Personnel Manager with the Applicant Company, and one RWEYEMAMU s/o NDIBALEMA, (AP. W.3) a.legal.Assistant to Bateunga & Co. Advocates of Mboya. They were all iitendec1 to counter the Respondent s allegations in his counter affidavit According to the evidence of A,W1, one REGINA d/o KASAMBALA, the learned Primary Court Magistrate who heard the case that was instituted by the Respondnt before filing the same in this court, it appears and this is clearly suppoxed by the recoxd of such courti that the case - before Mafinga Urban Primar l y Court was against one OBEDI K. iELO, described as the Director of, 11anpover and Administration SPOM* . Mgololo 0 IL was instituted on /5J38 The claim was for the recovery of various domestic articles iji -it had been left within the premises of ihe Company at the time the Rc-spondont was arroètod and placed under police custody on J4J85, pajmont of. half his salary as from 5/5/87 to 31/12/87 and transport costs for his trw1 from Lcgololo' to Moshi 0 Surprisingly the primary court admitted .t11 ôlim after charging a minimal court

4= fees of shs6/, when the value of such various things claimed had not been determined 0 That was clearly wrong 0 The determination of the monetary vàiuë 'of such claim, which by the .way'was capable. of being so. determined very easily, was important in twb rsects to determine the actual court fees payable and the pecuniay juisdiction of the cour-t In fact the Respondent/Plaintiff had and did, in fact, produce a long ljst of such ar -ticles There is no doubt that this was a tortious claim 0 That:as will be considered later, raises the question as to whether thaVwas a' tortibus wrong under customary law as to fall under the jurisdiction of the Primay Court with unlimited pecuriay boundery. I The trial weit up't defence stage 0 It came to be withdrawn just before the defence case had been closed 0 When such withdrawalwas made that is disputed by the:prties. While it is the Respondents claim in his' counter affidavit that he withdrew the case before the Primary Court on 18J8J1, the Applicant has maintained that such withdrawal was duly made on 12/2192 1 sm; months after the institution ofthe suit before this court, That is the effect of the evidence of the Pimary Court iJagistrate as also vindicated by the rucord of her court in Mafinga Urban Pri1iary Court. Civil Case No, 17 of 1988. It could not be otherwise. For by his letter dated /199, which could be seen in th0 record of the Primary Court and could not be disputed by the Respondent, the Respondent is on record to have complained that his request for withdrawal of his case made at the previous sitting of the court, which, according to the record of such court was first made on 30/ll/l9, when it was refused on .aocornrt'of the absence of the Applicant/Defendant, ad again on 2/1/90 1 when the same was accepted on cpndit ion that he should ut the request in w'iting, had not yet been complied with. So that makes clear that the withdrawal could not have been made on 18J8j15. The date of the withdrawal as appears in the Civil Register of 1\hafinga

.__..; •._, = 5 = Urban Prima.ry'Cour is questionable as it has been tempered with and difficult to tell what it actually is. Equally unaceptable on this point is the Respohdeit s letter purporting to have been dated 116J 1 9 ExhibitR.4 in support of his counter - affidavit, ptrpo'ting to have been an information to the m.gis±rate, Mafinga .1ban Primary Couxt ht he had opened his civil case &n the High Court following the advice of such'bo'urt that it had no jurisdiction aiid requesting to mark such 'ithdrawn This is so because the'biginal date has been eras'ed and such letter c'uld not be found in.:the record of Mafinga Urba.ii iniaryCoiirL Infact, the A.W1 7 the learned Primary Court Magistrate categorically denied to haveever received such letter. So rnudhfor'he evidehbe of the A,W010 . That of Al2 was esseaially to counter the Respondent T S claim in his counter - affIdarit that the company's. failure to file W.S.D. In time was not due to sudden termination of service by one IBRPJ1IIi WEJE, who had ben handling the casc.hofo'e, while assisted by one Steven Nyä.mbo,who also left employment later, thdoubtedly, the Applicant's clairn that their failure to rospondolLt to the order of this court to file .was'partly due to sudden termination of employment by the said officers who are alleged to iiavu been handling the case is untenable. For &ccording to the A,11.2 T s on words before this court, it appears that the said IBAHIM WJE left employment . on 22j/989 and his assistant one Steven Nyambo, terminated his services on 15/9/l Yet the summons for orders was duly served upon the Applicant Company on 6J7/l9, much earlier than the dates when such officers left their employment Apparently, according to the A,Ti2's evidence, it is he and one Mhembelo the then Dixector of .Isonnol . - nd. Administration, who personally received and handled the summons for orders, after which the witness was instructed by the said 1'heiibolo to tellex this court stating almost

t - = 6= the samathing as endorsed by them on the Summons for orders, complaining that the RLSpo.1de1rt had a similar suit pending before he rimary.Court at Mafinga Tho witness admitted that their refusal to appear, before the High Court hich is a superior court to a Primary Court,..on the thiderstanding that a similar suit was pending in the Primary Court, was out of ignorance as to the legal implications Yet ho also admitted to have constod their legal adVisers in the 14D a C 7 who then advised them to wait for a reply from this court a Nevertheless, ignorance of law is no defoace So this an not be cons.idered nsa good cause for the Appliccintts failure to fIle their WOS.Dd in time The evidence of A0143 1 One EYtANUS/0NDIBALEA was to counter the osponden- ts claim inhis couflter affidavit that Bateyungri & Co. Advocates were not competent to defend the Applicant Company because they are theones who draitod his amended plaint for a fee Before this court Mr NDIBALA categorically denied to have drafted the Respondent's amended plaint as allcgod ho however admitted to have 1own the Rospondoirt as from. August l98 when he called in Bateyunga's office in the.Company of-one SHAYO, counsel with T.L.C. who then introduced the Rospondnt as his relative. He went on to say that sometime early OctobOr 1990, the Respondent called at their office and asked to be issued with a receipt as eviaince of his expenditure in the si4t before tiis court, to show that so ac of the expenses incurred were oii m ers The Respondent is said to have first asked for a receipt for shs15000j= as fees for preparing various papers he had taken to this coiir -t, which was accordingly rejected. Then Rospodent retiixnëd th following dar and further persuaded him for the iseunoo of the .reccipt This time the witness yielded on the influence of his familiarity with Rosponcloirt's relative one SHAYO. He than issued him with a receipt for shs.1092/ after the Respondent had

procured reverue stamps for sks.3Q04, ThL receipt had. to be backdated to l8/J, not numbered, a'iowa as fees for preparation of pleadin,s in IIih Court Civil Case 1\jo, 13/89 1 though, as alleod no money was paid by the Respondent. Bcfo'e such receipt there was another receipt issued on 2pl y Z10 6 Acually thu receist in question is numbered 009 (hibii R5) 0 The receipt Book from which such receipt was. was admitted as ExhibitA4. It is an official receipt book used by Bateainga and Co. Advocates, Mr 0 NDIBALEMA further denied tothave boon ho author of Draft Amended Plairt, handwritten shown to him by the Respondent (hibit R.1) 0 le,donied to have ever seen the Respondciii o 16J6L89 nor to hive received any money from him 9 On being cross examined by this c urt Mr. NDIBALEMA maintained that he issued tho Res-oondont the receipt requested for simply to help him He also told the court that he had not paid such money appearing in the receipi to Batoyuna Co. Advocates, bixi communicaled the same to M. Bat eyimga, who is said to have bitterly reprimanded him verbally, .ding that isuoh remains to be a loss to the COmpany. He added that thoornmunication to Mr. Bateyiuga about such receipt was made aftr the Respondent had made his claim ii his counter affidavit about the alleged lega]. servicos. said to have been rendered by i3nteyunga and Company, Advoct ;es 0 In reply the Respondent, one CASSIAN s/o MOSHA maintained that the ]]ix Parte judgemont had. been justity entared in his favour on the grounds that after being duly served with the summons for orders the Applicant company deliberately failed to file their written StatemirL of Defence within the eriod prescribed nr did they fina fit to appear before this court to seek leave to h;w. the time for filing their Written Staioment of Defence extended And this they did upon their oroneous belief that a similar suit was pending before a lower court, (erroneously stated Mafinga District Court Civil Case No. 17 of 1989, instead of

=8= Upon such contention as to whether or not Bateyunga & Co, Advocates rendered legal services to the Respondent through 1he Legal Assistant, one 1iDIBALEMA who is alleged to have even drafted the Respondent 's Draft Amended p]aint, this court ordered to have an expert handwrIting comparison report on the alleged handwritten Draft Amended Plaint, and specimen handvriting: from the said NDIBALEMA. According to the Handwriting Expert Comparison Report Ref, No, IB/DOC/LAB/72/91 dated 20/4/91, such Draft Amnded Plaint has been confirmed to have been smilar to the upecimen handwriting given by Mr 0 DDIBALEMA, Even any body's naked eyes cannot fail to give testimony to that effect. It follows, therefore, that there is every reason to believe the Respondent's claim that such Draft Amended Plaint was, in fact, prepared by one NDIB.ALDMA, Legal Amsistant to Bat eyunga & Co Advocates, I therefore reject the denial by Mr. NDIBALEMA to that effect, It has been argued that no fees was charged and received by Bate3runga A ço0 Advocates for rendering any :Legal services to the Respondent, it being alleged that the receipt for shs,i9O0/= was sirn1y issued to satisfy the Respondent 's request for the Same to facilitate his claim for such allegedly fictitiOns claim, before this court, adding That such payment could not have been made by the Respondent on as appears on the receipt, but was simply back dated upon request by the Respondent, because such receipt came to be issued after other receipts, of the year 1990 4 I am not peuaded that for all his training and experience Mr. UDIBAIEMA could have fallen pray to such Respondent 's alleged frandulent

• deal for nothing, knowing very well he was thereby going to damage his relationship with his employer, Ba±e3runga & Co. Advocates, and inOS't probably be required to refund such sum of shs.10,,000/=, unaccounted for, and having in fact, an adverse effect on the ornpys income tax returns

=9 = Mafinga Urban Primary Court Civil Case No 4 17 of 1988). He maintained that his suit before MafinRa Urban Primary Court in Civil Case No,17 of 188 was against one OBED K. MHOMBELO in his personal capacity 1 riot in his official representative capacity 0 He further argued that the Applicant is educated and irnows well the legal process in our country, and therefore his claim that he did not understand the procedure as to what to do after receiving the summons for orders from this court could not be accepted. He therefore submitted that the Applicant had no sufficient cause for disturbing the Ex Parto judgemont of this court. As to the question of nis withdraw of Civil Case No l8 from Mafingi Urban Primary Court that has been dealt with, supra, Ad found that the case was and must have been withdrawn by him on 1?j?j12O and not on iLLKa, as alleged by the Respondent0 As to his claim in his counter—affidavit that the counsel for the Applicant was incompetent to represent the Applicant Company he mainta- ined that the counsel had all along until the day he (Respondent) obtained xparto jud.gement boon giving him legal advi'ce and the oounsol's 1gal Assis±an±, one UDILALEMA (A.W.3) was actually the person who drafted for him his ejnend'd plaint, on which the Ex Parte judgement was ba—aed, for which services he was charged and paid oash shs10,009, and issued with a receipt No.00 18§1 11 receipt which he tendered as Thchii3it R.5, He also tendered in court the original draft of the amended plaint which he charged to have been written by the said NDIBALEMA, as Exhibit R.l0 He denied to have been rendered such legal services cx gra- ia, as alleged. In the circumstances he prayed to have this application dimissed,

11 'xnoo sitrq. q po.wp put p uti.x inp ttO0L q.ou IYt PSQ SM UOW0YflC 0IrI. 1T4M UOda pw q.moo s s ttq. aajoq p0tj I-U -113 Td PPU 0 W 0WPPP°H 0tt JO JOLJOt (0) 'iL61 °V ,ToTO.'C$ -TUjTri JO Nlcri 0L JO jo-p-mi p iq-owiuioq joj uo.adwoovi siii &wrEo snOtJoq 'z irtUq .JTL00 sTLTeoJoq q.iiopuodse ZI o tj n. Lq Tlls aq. q0L1 xo Jotj. (ci) '9961 'O'cI°D OU. JO tiOt05 ttiL:JLO0 JOJ qflOqOdWQOtti sx inoc sttq oxo;oq q.topuocIso otfl. Jq çno oij. q.ou ia10 Ll TOLTil() totOi0t1dd stqq. tn anssi V3ionJo 01 tJnq)J 1ou £pttnc tq LU 'pOp)t0Cl Os ac 01. isq t p otquo 'JOtTJiO pai000x ouow oqq. ioJ witj o ponosi cteooi oqat2q oq. Jn1p2J o; uopuoc.soj otq ict p Jissjd .oci ° p -T iciTcussod et nqot qOLI nop 'pOOp St pOp—)jOtiQ Rjdum 'cxci 'o66i u portsst .V11'n'1oi tM idTO?J Otfl. qiitfl. 0i2J ot ° q.uopuodscy o otnq otj tn qs u sT It t'tuodso qatt tn SP0 0f5 ' I ITt ittouwo3 qtrsoicId 0 I pot'oqoJ &tocl qd000i O. soq200Apv Jti E!oopur UrLJco1a J0J 0i02 waojto otiqut l i,-)doid ' 7sL, M , qi 'soiq.o i zotssojodo OIQ oq. sqx-.rL.Qt'Jtn / oojo t-t 'titj 'qJoicIcIv usexcIox o paioj;o JOtq. oxà;oq oci; tn JOJ u1CptT0dS0j otq oq. SOOTAJOS 1tZ'01 J)pU0J £I3t.J itt 'pip SOq.iOOApJ 0') ) tnrnoa oi2t. LtTpuij w q owooi; o) ptr Jo,00tj;o St VN5,rrjTTqjC[l,,T • otq. q '7o' ;o wris oi1q. jo quaLuAlod uocin ponsot sW so ooApV 'o rniCoa jo q.d.-tnoox raToTjJo oi Puno; uooq 2UTAeLl rc p- : :wiai jo uTTJIpuor o irc toq oruT oq. pttno; uooq sroilquroL popuowv jJxç OITT ooui • • 0 ,.dOEO0OJ reoTJJ0 StitndWO3 tIons r?noxti. Vtrudwo STTT AcI poAiooJ Still tn/000 r 01SttS JO WflS 0L. tiuI !.IOIA Otn. ,0 JC1JS010 UIti pod000tn 0itn0 &utidwoD sno. ssoij OJOLU tn 0t11 I.T OS 'Wt JO POIJUnJOJ uooq q,ou pov,=7öo67OT7stts J0.WrLS i0fls .Jnoo siqq. o.xojoq itis oq tInotIopn.oxts StiM 7'['TVaIc['N 'JLI 'qouJ j = 3_I = 4

uOSJod ut Rq. , Tvd kq opew aq 'sqoiip os moo eq ji 'its cot redde ons Lt'c qcq. poptAoJd . JPT-IOq ui wtq .icq pozTtorqn13 iCnp iootjjo oTictud le 'ct &xod v Si o12o ottioq aqq oJot[z.t .10 JtOq su to pu o, peq.irtoddt inp oqiiooApc trc Vq ia 'Jj srq, i2q j o uosxod Ut iqxtd oi. q cuop io epow oq 'ooioj in uioq E)VIT otq. io; tAuo .Vq poptAOJd ssojcIxe esiiioqqo eiot cIoxo '&tw 'q..inoo qons in rcd t Aq cuop io opew eq oq mi -q paz oqno o pexinbax Jt1OO JCUt oq. 10 UI Ot JO UOI 01 'Ootttjtoddt 1 U1T I ° : :optAoJct ' i o OOUOJOJ)J JO cseeioj OAttI qott pip 0 ,jaqyjE Mjq pits oq. a q uo a e pozIUoaoJ st St ov os o q. cuodwoo qons WOJJ.f tJOTqflt we :1t1 OAi3t oq tj&flo Otj 'ittocTuoO .uzoiTcCIV otfl jo ;[ taq uo put eueep UI ptrt'qs o. uosJocI o so oniamI OX aro PTUS Otfl JOJ 9961 T3 OTJ. JO

• pire I O U T 1170 jo SWJe UI 'aJOwJeqqm L [ UOTh SI St O[WOtW FItS OT'll. JO SUOI.Ot InJ?LtOJM aq. JOJ o T qeTT pq os 2uteq JIeSqI .Vuodwo ot. jo 'trtdwo3 qJit0tdd Oi. TJ ~ T b i i '. Tj.uToC JO .Lcqtotth?o ItUOSJod STtJ uT oioqwotj pits e. ens o. uoido
• et. uoptrodseH ot[j. q.J3 tttrq °S0t Inj53uoJM uMo s 1 ooquIet Jo no paroociclostp Os AtL pnao 'sStwoxd s tttdwo uUvtIcIdV Ot. WOJJ I.SOT ictOtj 'saIo1re s 1 quopuodsej jo ssoi, a eqissod ouLb stN. q.t Jc1 j' m-dwoo q.treoidd oqq. T nq pens eq o. .uosed q x ISf Ta et. q.ou sti ooueJap SIt! Ut pepood JOADU pot oloqujotri ,! pits E) .qj , 9 9uoapl SUM 'pens TtUnoU StM qttfl.. .&tttdwoo 0t4 SUM q.t 31 St eouejop c .titwtx; iVq UMO Sqt St oT1191"r1IN qsuit'u Osto etfl. pewnSst put qno eweo Vtr12dwo3 tot1cc1V OiT 9. T31kiOta toodoo ituosiod sçt{ uç tIOUS so 0>1 ao ouo pans 1topuodsoN otn Ut[q. xoeio St q1 JQJ qmoo S1Ifl CJOJOq'SUM so so -trod ours o. uoeqeq SUM 9i JO LTT6I oso

ITATO UT JttO3 £IUWTJd USCiJI1 o7utJiiiT4 eJoJoq qrns Oiq. jUtfl JToq.JoO uqiit pits eq .outtoo q 'eooid 1.SJtJ CL U] 5UO5130.I U1MOIIoJ Otfl JOJ OS St ttt °JqUR PIOT OW oq. .xoocl?o J ou soop 1 9961 °00d°D et. jo JCUfl iOqadWQOU SUM 9 , ,moo S -EI. oxoJeq qtns S 4 uopuodsoj otq. 'ino x'cwTJd uoqJfl Uttt;UI;I 0xOJOq ?utpiioc1 SUM sotq.xtcl owos UoOMq.Oc put q.tns roItwts 'o .00trts qllooTddv eq JOJ s qttewnxo eta, '(t) enssi ttM roqs uw I 31 = 11=

= .]2 = 2, That recognized agents of parties by whom such appearances, applications and acts may be made or done aro (a) parsons holding powers of attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; 3 (not appli cabl e )? • (Underscoring sunniied)' With that provision, it can hardly be said that in suing the said OBD K. 141H/IBEL0, as such the despondent sued him in his represcn;iativc canaorty on behalf of the Applicant Company. That would have been the case if the respondent sued him in his official capacity, that is Cuing the Director of personnel and Administration of the Applicant Coinpexy, which pdst the said tIHEhiBTO was then holding, Cocondly, I amciearly of ti!C oninion that the claim by the Fespondent is a tort in detinue and partly contractual. As such tort it was clearly not one that ould properly be said to 'be Governed by Customary Law as to fall under the jurisdiction of the lower Primary Court, with no boundaries of pecuniary jurisdiction. Apparently, I have net been able to find a provision under tho H.CAG 1984, which provides for Civil jurisdiction of Priiary CoDrts on matters of tort other than those governed by customary law, See S. 13(1)(iii1) of the ,COAO 1984, On /= ly matters of contract with a pecuniary limitation of shs,1O,000 have boon provided for besides recoveries of dues to the central or Local Government, as, provided for under such section of the MOCt 1984, . it is only in matters properly governed by customary law and Islamic ]aw a niat,Primary Court has no 1imi to its pecuniary juisdiction As to Lo other aspect of contract, that involved the claim for payment of money for Respondent 's transport for the traispor±ation. of , his luggege back hono after termination of his employment which he had been under paid amounting t o 9hsl3931/= 4 Again such amount exceeded the pecuniary, jurisdiction of the Picimary Court in suits arising oixL of condract as provided for under S,10)(1)(iii) of •L K,COA 1984,

-r = 13 = 'Jith the above consideralions the suit filed by the Respondent before the Mafinga Primary Court against one OBED K. MHBELO in civil Case ho. 17 of 1988 could not stand as a bar to his action of subsequently instituting another suit no he did before this court, under S. of the U.P.C. 1966 For ease of roforence S8 of the COP,CO 1966, provides 8. No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom -bio or any of them claim litigating uader the sante title where such suit is pending in the same or any other court in Tanganyika havin _ )2Eisdic t kon to r ant t ho relief cl aim ed (IJnderscoriug sup Lied). us, as stated above, for the above section to apply to the suit before this court it ought to have bii' proved that the parties in Nafinga Primary Court Civil (aso No,17 a 1988 were th; same as are in Civil Case Noi3of9&9 before this court and that the Primary Court had jurisdiction to grant the reliefclaim Cd.As found above,neither has it been proved thatthe parties were the amei -i the to suits nor thc t3ie Primary Court had jurisdiction togrant the relief claimed, It follows therefore that the provision uder S. 8 of the C.P.C. 1966 cannot be rolied upon in this applicetion. It is totally inapplicable, :ven if it were for the Applicant to avail himself of such a defence he ought to have so pleaded in his pleadings in his defence as provided for under O.VIIIR.2 of the C.P.C. 1966. Merely standing at a distance with such armament in his hands could not be of any help to him U.icler such Rule of O,VIII it is provided, thus: R,2. The defendant fuzt rcise by his ploadin 0, all matters whici show the suit is not to be maintainable, or that the transaction is either void or vo.iable in point of law, and all such grounds of defence as, if not raised, would be likely to take the onposi party by surprise, or would raise issues of fact not arising' out of the plaint, as for inotexice, fraud, limitation, release, payment. performance or facts Showing illegality.'

*IetTvco uuie - i.0 ectpcy sn.00 st OpTsv 2uiqqos JOJ punoaV pooV t Uoq @AutT Iou pLoO £osno POOD ou xoj °j tons aTTJ oq perj qtrcotdd qq. sv GeoId q.sitj u- t S - ILT trç suTpoId s.twoiiddV otq. UT pEsx ec oq. -puil I ooq. 'ç iqoJu qiziotddv aq. aoi uo -q.ue.uoo rons o. oqtaosqns oxojo,xot. q.ott p'rtoo qmoo stLp ° wçq I.SUT02U s2wçp0000xd '[tnxTwtJo oilq. tfltM dn O4 0J0!4 JO P3 UTEdwO0 s.uoJM et. uotjd wojj osi?oIox STLI xo.jc xcIoxd siTq oq. StXO.xM Otfl. sseipoi 0q iquriq.oddo jo pet7A oq pip.ots nopuodsoj aqT r, TTT TsnC pt otqod iuo eoJeo s1 -j uO PtiO Ut? O. E)UJt2O OStJO Otfl. TTlTtn T2O oaom s2u.tp0000d UeulwTaO OIfl. Y{ItM flOqnOJtfl. pono 00r1od xepuri pot si.t et sec..xodojd stq SUt UO t? t[OflS JOJ SSOJpo.x 3100S O. qxiopuodsoR ax{q, xoj otcttssodwt ueoq DEell PIflOM t sosocLxnd poq.t?Jd IV- xoj 'ejow tqn uot. TTTT SflOrLUt0O OUtE?WOJ UOtOt3 JO OStlUO ot . 7i/tI'i peuTwJoq. 96fjO9°O 00 PUPJTT0 qJflO3 oçtqs TPUTJnW UT uopuodso ETT. SUTt?1t? St?3 tUtWti3 Otfl. Owt. Ot. oq du Rut?dwo3 uotIddV at. £q PIOt[ ec o. POflUT WOO seoTqx s WePttOdSO)J ot. UO.Xe os). q3t4 Vt?s pynom i 4 eot2IdsJ -rJ oq. tii ' 77ôuo pesejjti 2UTaq uodn Esnot StL WOXJ Pe1OTAe St?M quopuodsag etjq. O3p UO Quo esoac UOT.OT2 JO osrtx?o WTI PTt?S OUUE?O T p.cIeoo oq OU pnoo &OTA &w tI1J prJc2q—eWTq St?M XtlOO STT OIOJOq juopuods;Djj OtIJ. Sq tns OT ST STtI '(q) enss - oq. 2UtUxnj OAOq-, jo ssodstp Jt?b1 'OOUJOp STt UT SJOq.t?UJ 1[OflS SUTSTIUJ OWT. UT i-T OTTJ °1- OanTTeJ S Wt?OiIddbJ JJ U0It? pUflOJ UO eq OU pnoo uoTWoTIddt? STtr OSt?O .tt4sttT aq. ut Oqt?otddt? Oxet '9961 0°d ° 0 OT4T JO 9 JT UCAO i.t?tT4 SMOtIS 2c1xt?e10 qt?ttI, = •i;'I =

=15= - Finally, we comè.to issue (c), which is whether the Respondent's amended plaint, which was the one served upon the Applicant and upon which V the cx Porte judgement of this court rested, was properly boaro this court for want of an applicalion by the Respondent and leave of this court for him to have his original plaint admitted by this court, amended and filed with this court This, in my view, is the most important issue upon whichthis appli- catidn stands to fall or succed Providing for thô general power to amend, S9j of t-he;CP0C 1966, stces and I quote: - 0 97. The court nar at anylime and on such terms as to costs or otherwise as it may think fit, almond any defct or error in any proceeding in a suit, and all aecessary amendments shall be made for the purpose of determining the real question or issue raised by or dependin' on such procooding. of Under OVI. R. 17,/the C.P.C. 1966 it.is provided as follows: R17 0 The court mor at any stage of the proceedings allow eJ toalroiondhad in such manner. and on such terms as may. ho just, and all such amendments shall be made as may be nocossary for the purpose of determiiing the real questions in controvery between thë parties' It is clear f'om the above provision under R 0 17 of O.VI of the CPØC that before any party can emend his pleaAingA filüd with the court, he must make an application for the same and get leave or • permission of tho court to do so That, unfortunately, does not apoar to have been the case with the Respondent 's amended plaint that was subsequently filed with this court on 9j6j19, vide E.R.V. No9/00310 of evthi dato Going through the record of.this court ii Civtt Case No.13 of 192 it is noted that the Respondent's original plaint ws filed and admitted by this court on 1 9j4Jl99. From such date the case coma up for mentions on 2j/i2 7/29, 28Ll50 and 2/J1B9, On all such dates the Plaintiff/Respondent attended while theDofendant/ Applicant was ant oral as Qsaut ,

'Suowwrts t[0flS Jo OOUJnSSt Olq fltOJ)q qwçd Vui . S iao tons puoar O. 0At01 sut1.qO put 1OJ soi1ddv JJtIiiZ1(T oqq, ssotm WiId ttttt]TJo 0t( 110 u1otTddv/uupuoJoa Ot o onsot oq sopxo xoJ SUOWU!tS tTSOLJ uOtW0TIdCC Sç1fl MO112 q nq T om c t c o I As ,-) oucTsLunOaTO °n- T. TJ 'qtoTdv/qtzt1pw)Joa ot uodu 2trptrçq Riit axt oioop puv quowo)paC a tions ptvs oq, qotttro qt ' qmoo tiq. o,xoJq AIxcTojd qou s& qttq, tttid popttews cqq. ttodn pesoq 01DM wxoop ptro piowëpnC oro xj ot. S ucotidcI Otfl. ttodn pOAIOS Otto otq qott st torqt q.u -t1 cI -iu -t? -rjo otq. 513M q.xaoo stq OoJq tODtr. 0M Wtjj.; .Xn0O STt[ 0JOJ0 - WTO Otfl q.0T2 tTi IQJ 0J x:prid popuouJo qons 110 Wi1.Y{O stIr OA0ICI oT p0000CI o opitpcIsoJ/JJtut11Td O11. 0{Ett0 I mOl ItT 0t1 pTflOO I. uttt popuo . ulu qons oq S Tdoa ut 00 j sit .ot; o. onroj stOttdV /uupiIoJocr 01.JcIuE)tbostxo3 °qxaoo 5T aoJoq SSM t[ J.t01Ct tl tfltM TIV W @ OtAa OV 512M 'Ltt00TTddY/Wpt20J0a oq. uoctn oujjs oiq. jo 00tAx0S oqq. SnqJ, :noo stqq jo pxooei otq jo T xcd pue oxoJact 1IocOJa T QU si qurold popuottm S 4 .Lt0pUOCIS0J ot. 'M{ tn 'qq. 'ooJatoqq. 4SM0OJ Id •1tt0O SttEJ0 DAUOT VLOL IT VA OUrJS oqq. OitJ Ptm t11'10 stq 110 q.T op 0. pop0000lci °H W1d sTiT ol. . 9 A'c oT wTLj TM , , IE- mop sral. puLc ioj , ~ t ddo Tu opuodsaj. pip oartq ott o'xdd11 i1 siy urs - d popuounI oqq. 110 quowo 2 prLp poc1T1qo ptnI oxuj osco s-tq DAOJd o pop0000d q uopvodsoU oilT lo=o * r, ' I _ 'oP etq uottM 071'l 110 jooxct oq.rcd )c5J JOJ pOXTJ UOqq. SUM OSUO 01 1J 'owoqojoxojoq ogn cl x 7 [,0000ld oT oAeoT pOtttI4qO ptnI pot2OdcIt .tt1)pUOdS0èI 61//7 tu O1d—XI poeood O. DAVOT toj j±797t/ o sxoqunIqo Ut opnC V ojojoq poo's1d JD4DW oqT OA'3t[ oq. popio 11014 srcm U °WtVO Stt{ JO JOOld 01UJJqj xOJ pai5xd ptro suowwns po.xos .&np ttooq pzq .1JootTddV /cropuoJeü oq 11Ot13qUOS01d stq ep3w, q.uoptzodsej etjueqM s -t c77tuo 'popueuio q. upid stq oriq 0 4.E) A'0 0 T IOJ u0TUot1cCco UqJoA SM au' t puodso/JJttttUId ot pip ttOtSU000 ott Uto 91 = .06

-. 37 = I make no order for costs Delivered in Chambers a1 IThoya this 11th day of July 1991, in hc presence of Mr 0 B±erunga for applicant and the respondent, in person 0 R.J.A. Mi/IKASU JUDGE Ordor: Mafinga Urban Priria.ry Court Civil Case No1/88 and Civil Rogistr for 1987/91. to be retu.rned to lower court of origin, It is hereby further ordered that Bateyunga and Co. Advocates amo hereby disqualified from representing the Jpplicant Company iS t ted supra. RJJU% o t / JUDGE 1 1/7/199 1 . ( ---::-