IN THE COURT OF APPEAL OF
AT DAR ES SALAAM
(CORAM: KAJI. J, A.
RUTAKANGWA, J.A And KIMARO , J. A,)
CIVIL APPEAL NO 78 OF 2001
ARUSHA PLANTERS AND
TRADERS LTD
JAYANT
NARSHIBHAI PATEL. ..........APPELLANTS
ROZINA
JAYANT PATEL
VERSUS
EUROAFRICAN
BANK (T) LTD………………………...........RESPONDENT
(Appeal from
the decision of the Court of
(Dr. Bwana,
J.)
Dated 30th
day of May, 2001
in
Commercial
Case No. 58 of 2001
JUDGMENT OF THE COURT
5th
December, 2007 & 28th December, 2007
KAJI,
J, A,
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The
respondent Euro African Bank (Tanzania) was the plaintiff in the High Court Main
Registry Civil case No. 279 of 1998, whereby Arusha Planters and Traders Ltd,
Jayant Narshbhai Patel and Rozina Jayant Patel , who are the first, second and
third appellants respectively, were defendants.
The respondent was claiming payment of specified sums of money arising
from an overdraft facility extended to the appellants. In the course of the hearing a consent
judgment was entered and the matter was adjourned for setting terms of
payment. Later the appellants instituted
Commercial Case No. 58 of 2001 in the Commercial Division of the High Court
claiming for the following reliefs:-
(a)
A declaration that the
plaintiffs (now appellants) were induced to execute the deed of settlement by
coercion/duress and undue influence and that the said deed of settlement is
null and void and it be adjudged cancelled.
(b)
A declaration that the
order of settlement given by this court was obtained due to factors in (a)
above and fraudulently and be therefore vacated.
(c)
An order that civil case
No. 279 of 1998 may proceed from the stage it had reached before the order of
settlement was recorded.
(d)
.............
(e)
............
In
its written statement of defence the respondent/defendant raised a preliminary
objection on the following points of law:-
(1)
That the suit was
improperly instituted and was an abuse of the court process.
(2)
That the court had no
jurisdiction to reconsider a deed of settlement already adjudicated upon by the
court with the consent of the parties thereto present and fully represented
before the said court.
(3)
That the court could not reopen, rescind or
otherwise vary its own decision by way of another suit.
After
considering rival submissions by learned counsel of both parties the learned
judge (Dr. Bwana J.) held the view that the appellants should have filed an
application for review under Order XLII rule 1 (a)(b) of the Civil Procedure
Act Cap 33 R.E 2002 in the same court (Main
Registry) before the same judge (The late Katiti J.) who had recorded the
consent settlement. The learned judge
further held the view that by ordering Civil Case No. 279 of 1998 to proceed
from the stage it had reached before the order of settlement was recorded, that
would amount to ordering Katiti J. to do so which, in his view, would be
improper as both of them were judges of the High Court with similar jurisdiction. The learned judge also held the view that since
Katiti J. had adjourned the case (No.279/98) for ruling on the appellants’
application for postponement of the payment schedule, that case was still
pending, and that in the circumstances it was improper to institute another
suit in another Division of the same
court. The preliminary objection was
sustained and the suit (No.58 of 2001) was dismissed. The appellants were dissatisfied with the
decision; hence this appeal. Before us
the appellants were represented by Mr. Marando, learned counsel, assisted by
Mr. Maira, learned advocate. The
appellants’ appeal is based on two grounds of appeal, namely:
1.
The
learned trial judge erred in law in holding that a consent order/judgment
allegedly procured through fraud, undue influence or coercion can only be
assailed by way of review and not by a separate suit.
2.
The
learned trial judge erred in law by holding that where a consent judgment/order
has been entered and subsequently parties approach the court for the purposes
of recasting payment schedule, the said suit is said to be pending in terms of
Order IV rule 3 of the Civil Procedure Code.
The
two grounds were argued seriatim by Mr. Marando. Arguing the first ground of
appeal Mr. Marando contended that, where a party is aggrieved by a consent
settlement which he alleges was procured through fraud or coercion, he may challenge
it by way of instituting another suit.
The learned counsel cited Mulla
Code of Civil Procedure 14th
Edition Vol.1 at page 581, and the decision of the Court of Appeal of Kenya
Arguing the second ground of appeal, the
learned counsel contended that, the learned judge erred in holding that Civil Case
No. 279 of 1998 was still pending. The
learned counsel pointed out that, since there was already a consent settlement
decree, the case had come to an end. It
was no more pending notwithstanding the pending schedule of payment. Mr. Marando observed further that, a consent
settlement is a contract and that it may be challenged in a Commercial Court
Responding to the submissions on the
first ground Prof. Mwaikusa, learned counsel for the respondent, asserted that,
there is no provision in the Civil Procedure Act allowing a consent judgment to
be assailed by way of instituting a separate suit. The learned counsel pointed out that, a
consent judgment may be assailed by way of a review by the same court and
before the same judge who recorded it or his successor in office as provided
for under Order XLII rule 1(a)(b). That
being the position of the law the learned counsel held the view that there is no
need to resort to Mulla on the
position prevailing in India
or on the Waisake case on the
position in Kenya Commercial Court
In
his rejoinder Mr. Marando asserted that, when the appellants went for the
consent settlement the coercion was already there and would not have been
considered as a discovery of new matters in a review. The learned counsel contended that, since the
appellants had an option for a review or a separate suit, the choice was
theirs, and there was no justification to restrict them to a review which they
considered to be inappropriate.
We have carefully considered the rival
submissions by learned counsel of both parties.
There is no doubt that in the case at hand the appellants signed a Deed
of Settlement setting out the terms of payment of the sum claimed in Civil Case
No. 279 of 1998, and later a settlement order was entered in the court file
embodying all the terms of the Deed of settlement. In other words, there is no doubt that a
consent judgment was entered into between the appellants and the
respondent. There is also no doubt that
no appeal shall lie to this court from a decree passed by the High Court with
the consent of the parties without leave of the High Court in terms of section
5 (2)(a)(i) of the Appellate Jurisdiction Act, 1979. Equally there is no doubt that a consent
judgment may be challenged by way of a review.
The crucial issue in this case is whether a consent judgment may also be
challenged by way of instituting a separate suit. We heard Mr. Marando arguing vehemently why
he believed a consent judgment may be challenged by way of instituting a separate
suit. He cited the above authorities in
support of his submission on this. We
also heard Prof. Mwaikusa’s submissions on why he believed institution of a separate
suit would not be appropriate in the circumstances of the instant case.
On our part, we must admit that we could
not come across a provision in the Civil Procedure Code stating specifically
that a consent judgment may be challenged by way of instituting a separate
suit. In India
A
consent decree can be set aside on any ground which would invalidate an
agreement, such as misrepresentation, fraud or mistake. This can only be done by a suit.
The
position appears to be the same also in Kenya Kenya
That there are alternative
procedures of how a party objecting to a judgment or order, recorded as having
been passed with the consent of the parties or their respective advocates, is
to go about setting aside or varying the consent judgment or order, namely, by a separate action brought to do so,
or it may be challenged in the same suit
itself by an application for review
under the order relating to that procedure, or by an appeal; any of these methods is possible, and which procedure is adopted must depend very much on the
circumstances of the case and on the manner by which the aggrieved party wishes
to present his case, as to what
witnesses have to be called, the nature of the grounds relied on for seeking to
set aside or vary the judgment, order, the
nature of the order sought, and so on
(Emphasis
supplied)
As
indicated above, in Tanzania Tanzania
Mr. Dustur then submitted that the proper
procedure to set aside a consent judgment was by separate suit and he cited a
number of Indian authorities to this effect.
Mr. Lakha was, however, able to cite an equal number of equally persuasive
authorities to the effect that a disputed compromise can be challenged in the
suit itself, and that this can be done by application in the suit and not necessarily
by separate suit. My own view is that,
Mr. Lakha’s submission on this point must prevail. Even if procedure by separate suit is the
proper procedure, and I am not convinced as to this, a court is not precluded
from giving effect to its decisions under its inherent powers, especially where
time and expenses can be saved.
Drawing
inspiration from these authorities, we are of the view that, in a proper case,
a consent judgment can be challenged by instituting a separate suit. The issue here is whether the instant case
was a proper one. There is no dispute
that in the plaint the third prayer (c) was for an order that civil case No.
279 of 1998 may proceed from the stage it had reached before the order of
settlement was recorded. This was in
effect a prayer that Dr.Bwana,J. from a Commercial Division of the High Court,
should order Katiti, J. from the Main Registry, to proceed with the case from
the stage it had reached before the order of settlement was ordered. Both Dr. Bwana,J. and Katiti, J. were judges
of the High Court with similar jurisdiction.
Granting such an order would not augur with good administration of
justice. Also in similar vein, for a
Commercial Division of the High Court to declare a consent settlement recorded
by the Main Registry of the High Court null and void thereby vacating it as
prayed for in prayers (a) and (b), would not augur with good administration of
justice as it would give a false impression that a Commercial Division of the
High Court can overrule a decision made by the High Court Main Registry.
For
the foregoing reasons, we agree with Prof. Mwaikusa that, in the circumstances
of the instant case, it was not proper to challenge the consent judgment by way
of instituting a separate suit.
We
accordingly dismiss the appeal with costs.
DATED at DAR ES SALAAM this 21st
day of December, 2007.
S.N KAJI
JUSTICE OF APPEAL
E.M.K RUTAKANGWA
JUSTICE OF APPEAL
N.P. KIMARO
JUSTICE OF APPEAL
I certify that this
is a true copy of the original.
I.P.
KITUSI
DEPUTY
REGISTRAR
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