Tanzania Ports Authority v. Pembe Flour Mills Limited, Civ App no 97 of 2007

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM:   NSEKELA, J.A., KILEO, J.A. And LUANDA, J.A.)

CIVIL APPEAL  NO. 97 OF 2007

TANZANIA PORTS AUTHORITY …….……………..... APPELLANT

VERSUS

PEMBE FLOUR MILLS LIMITED ..…………………. RESPONDENT

(Appeal from the Judgment and Decree of the

High Court of Tanzania at Dar es Salaam)

(Mihayo, J.)

dated the 25^th day of May, 2007

in

Civil Case No. 101 of 2005

--------------

RULING OF THE COURT

5 December, 2008 & 17 February, 2009

NSEKELA, J.A.:

        In High Court Civil Case No. 101 of 2005 at Dar es Salaam the plaintiff was Pembe Flour Mills Limited.  The Tanzania Ports Authority and the Presidential Parastatal Sector Reform Commission were the first and second defendants respectively.  In the same suit, the first defendant in its written statement of defence, included a counter-claim against the plaintiff.  The plaintiff succeeded in its suit and the first defendant’s counter-claim against the plaintiff was dismissed with costs.  The first defendant was aggrieved by this decision, hence this appeal.

        When the appeal was called on for hearing, we were obliged to first hear and determine a preliminary objection lodged by the respondent, Pembe Flour Mills Limited, in terms of Rule 100 of the Court of Appeal Rules.  The complaint was to the effect that the decree was fatally defective and therefore the appeal before the Court was incompetent and should be struck out.  Mr. E. Maro and Mr. W. Chipeta, learned advocates, represented the respondent.  The appellants were represented by Mr. Tadayo and Mr. Msuya, learned advocates.

        Mr. Maro challenged the validity of the decree on two fronts.  First, he contended that it does not contain the particulars of the counter-claim.  Second, that it does not specify the reliefs granted.  This, he submitted, offended Order XX Rule 6 (1) of the Civil Procedure Code  Act, Cap 33 RE 2002 (CPC).  Elaborating on the first complaint, the learned advocate submitted that the decree simply states that the cross-suit is dismissed.  The counter-claim contained five specific reliefs and one general relief, but the decree did not contain the particulars of the reliefs.  This, he added, was a clear violation of Order XX rule 6 (1) of the CPC.  On the second ground of complaint, Mr. Maro submitted that the extracted decree does not specify the reliefs granted in the judgment as well.  To bolster his case the learned advocate cited Uniafrico Limited and 2 Others v Exim Bank (T) Limited, Civil Appeal No. 30 of 2006 (unreported).  In view of this purported non-compliance of Order XX Rule 6 (1) of the CPC, the decree was not valid in law, citing Rashid Abdul Rashid El Sinani and Another v Mussa Haji Kombo and Another, Civil Appeal No. 103 of 1998 (unreported).  The inevitable consequence of this defective decree was to strike it out thus rendering the appeal before the Court incompetent.  This would be in line with the decisions of this Court under Order XX Rule 7 of the CPC, including Tanganyika Cheapstore v National Insurance Corporation (T) Limited, Civil Appeal No. 23 of 2003 (unreported); Jovin Mtagwaba and 85 Others v Geita Gold Mining Limited, Civil Appeal No. 109 of 2005 (unreported); Mkama Pastory v Tanzania Revenue Authority, Civil Appeal No. 95 of 2006 (unreported).

        On his part, Mr. Tadayo, learned advocate, very briefly submitted that the counter-claim, which was a cross-suit, had been dismissed in its entirety.  He added that the decree has already been executed and consequently, the validity of the decree cannot be questioned at this juncture.  The learned advocate questioned the relevancy of the cases referred to by Mr. Maro on the ground that the issue at hand was the contents of the decree itself and not the validity of the decree.

        It cannot be seriously contended that the decree as drawn up does not correctly state what the court actually decided and intended.  The decree did not represent the decision which the court had pronounced.  As far as we are aware, the Chief Justice has not prescribed forms for use in terms of section 101 (1) of the CPC. Consequently, we have to resort to forms in use in connection with proceedings under the Code of Civil Procedure, 1908, India.  This is permitted under section 101 (3) of the CPC which provides as follows –

(3)  All form (sic) heretofore in use in connection with proceedings under the Indian Code of Civil Procedure, 1908, as in force in Tanganyika, shall, where applicable and subject to such variations as may be necessary, be deemed to be forms approved by the Chief Justice for use in connection with proceedings under this Code until replaced by forms prescribed or approved by the Chief Justice under subsection (1).”

        It is therefore evident that the forms prescribed under the Indian Code of Civil Procedure, 1908 are applicable under CPC with appropriate variations.  This means that the decree herein had to be drawn substantially like Appendix D, Decrees, No. 1, Decree In Original Suit (O.20rr 6,7).  To this we may add to mention, section 25 (2) of the Interpretation of Laws Act Cap 1 RE 2002 which reads –

(2)        An appendix or schedule to or a table in a written law, together with any notes thereto, forms part of the written law.”

The form for a decree under Order XX rules 6 and 7 of the Indian Code of Civil Procedure 1908 runs as follows –

“DECREE IN ORIGINAL SUIT

(ORDER 20, RULES 6, 7)

TITLE

Claim for ……………………………………………………….

This suit coming on this day for final disposal before ………………………………. in the presence of ……………………….. for the plaintiff and of ………………………. for the defendant,

     It is ordered and decreed that …………………. and that the sum of Rs …………………… be paid by the ………………………….. to the …………………… on account of the costs of this suit, with interest thereon at the rate of ………………… per cent per annum from this date to the date of realization.

     Given under my hand and the seal of the Court, this day of ……………………..

Judge”

The decree, the subject-matter of the preliminary objection is in the following terms –

“DECREE

     The plaintiff prays for judgment and decree as follows:-

(i)  A declaration that the defendant owed a duty of care to the plaintiff’s cargo and the same was breached as a result the plaintiff has suffered loss.

(ii)    A declaration that the plaintiff is entitled to be compensated for part-loss and adulteration of its cargo by the defendant.

(iii)    Payment of US$ 1,074,961.69 being the total amount due as damages in respect of the part-loss and adulteration of its cargo by the defendant.

(iv)   Interest on the amount due in (iii) above at the commercial rate of 24% per annum from the date of default to the date of judgment.

(v)    General damages.

(vi)   Interest on the decretal sum at the courts rate of 12% per annum from the date of judgment to the date of full settlement thereof.

(vii)   Costs of this suit.

(viii)  Interest on the costs at the court’s rate of 12% per annum from the date of judgment to the date of payment in full.

(ix)    Any further orders that this Honourable Court may deem fit to grant.

       This suit coming for final disposal on 18^th day of May, 2007 before Honourable T.B. Mihayo, Judge in the presence of Mr. Msangi Advocate for the plaintiff and Mr. Kaluwa Advocate for the defendant.

THIS COURT DOTH HEREBY OFFERED (sic) THAT

Judgment and decree be and is hereby entered for the plaintiff with costs.  The cross suit is dismissed.

BY THE COURT

Dated this 18^th day of May 2007

T. B. MIHAYO

JUDGE

Extracted on 25.05.07.”

        The question we have to answer is, does the decree reproduced above agree with the judgment in terms of Order XX rule 6 (1) of the CPC?  In order to answer this question, we have to quote the relevant part of the judgment.  It provides as follows –

“The relevant result of what I have endevoured to say above is that the suit succeeds and the cross suit fails.  This means that the reliefs prayed for in the plaint succeed as follows:

(i)              I have found above that the defendant owed a duty of care to the plaintiff’s cargo which was breached and therefore the plaintiff is entitled to be compensated for the loss suffered.

(ii)            Payment of US$ 1,074,961.69 being total amount due as damages in respect of the part loss and adulteration of the plaintiff’s cargo.  This amount is calculated from the evidence of Fuad Edha Awadh (PW4).

(iii)        Interest on the amount due in (ii) above at 24% per annum from date of default to date of judgment.

(iv)       General damages for suffering, loss of business on the adulterated wheat.  Taking everything into account, I award general damages at TShs. 70 million (Seventy Million Tanzanian Shillings).

(v)            Interest on the decretal sums at court’s rate of 12% per annum from date of judgment to the date of full settlement.

(vi)       Costs of this suit.

Judgment for the plaintiff with costs, the cross suit is dismissed.

T. B. Mihayo

Judge”

        It is evident that the decree as drawn up did not represent correctly the judgment as pronounced.  The decree has not specified the reliefs granted.  In fact there is no mention at all of the reliefs granted.  All that was required was to copy Form No. 1, Appendix D of the Indian Code of Civil Procedure, 1908 with appropriate variations.  We are therefore in respectful agreement with Mr. Maro that the decree was defective.

        However, a failure to follow the language used in Form No. 1, Appendix D does not render the decree fatally defective as contended by Mr. Maro, and therefore liable to be struck out.  The validity of a decree depends upon the authority by which it is issued and the mandate that it contains and not upon the extent to which the language prescribed by the Code has been reproduced.  We should look rather to the substantial effect intended by the decree than to the precise form of the words used in the decree (see: Mahadev Parshad v Nst. Mungi d/o Pandit Sheo Baksh Rai and Another, AIR 1959 Punjab 565).  Order XX rule 6 (1) of the CPC requires that a decree shall agree with the judgment and shall specify clearly the relief granted or other determination of the suit.  The decree herein clearly did not comply with this requirement of the law.  In the case of Badrudin Hasham Lachani and Another v Pyarali Hasham Lakhani (1978) LRT n 26 the then East African Court of Appeal held that –

“Where a decree is inconsistent with the judgment, it must be amended accordingly to agree with the judgment.”

        To this we may, with respect, add the following observations made by their Lordships in In re Swire; Mellor v Swire (1885) 30 Ch D 239. Luidley, L.J. stated thus at p. 246:-

“This case has raised a discussion of some importance, because it was contended that when once the order of the Court was passed and entered it could not be put right, even although as drawn it did not express the order as intended to be made.  I protest against any such notion.  There is no such magic in passing and entering an order as to deprive the court jurisdiction to take its own records true, and if an order as passed and entered does not express the real order of the Court, it would as it appears to me,  be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal.”

And Bowen L.J. said at p. 247 –

“Every Court has inherent power over its own records so long as those records are within its power and it can set right any mistake in them.  It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister.  An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the Order was made, provided the amendment be made without injustice or on terms which preclude injustice.”

        The decree started with a repetition of the plaintiff’s nine prayers in the plaint.  The second part of the decree was in the following terms –

“This suit coming for final disposal on 18^th day of May, 2007 before Honourable T. B. Mihayo, Judge, in the presence of Mr. Msangi Advocate for the plaintiff and Mr. Kaluwa Advocate for the defendant.”

        This is in line with Form No. 1 of Appendix D of the Indian Code of Civil Procedure, 1908.  The third limb of the decree reads –

“THIS COURT DOTH HEREBY OFFERED (sic) THAT

Judgment and decree be and is hereby entered for the plaintiff with costs.  The cross suit is dismissed.

BY THE COURT

Dated 18^th day of May 2007

T. B. MIHAYO

Judge

Extracted on 25/05.07.

        It is evident from this operative part of the decree that no reliefs have been granted.  The reliefs in the decree are the ones to agree with the judgment.  By way of illustration, a glaring omission is the award of TShs. 70 million as general damages awarded in the judgment.

        In the result, we sustain the preliminary objection.  However, in line with Lakhani’s case, we order that the decree be amended so as to comply with section 101 (3) read together with Order XX rule 6 (1) of the CPC.  The appellant is condemned to pay costs.

        It is so ordered.

        DATED at DAR ES SALAAM this 13^th day of February, 2009.

H. R. NSEKELA

JUSTICE OF APPEAL

E. A. KILEO

JUSTICE OF APPEAL

B. M. LUANDA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

(P. B. KHADAY)

DEPUTY REGISTRAR

View other posts for your benefit...