NATIONAL BANK OF COMMERCE AND ANOTHER v AHMED ABDERHAMAN 1997 TLR 259 (CA)

 NATIONAL BANK OF COMMERCE AND ANOTHER v AHMED ABDERHAMAN 1997 TLR 259 (CA)

Court Court of Appeal of Tanzania - Tanga

Judge Makame JJA, Ramadhani JJA and Lubuva JJA

CIVIL APPEAL 18 OF 1995 B

26 September 1997

Flynote

Civil Practice and Procedure - Judgment - Consent judgment - Order XV Rule 1 C

-Headnote

The respondent had sued in the High Court for a declaration that an intended auction

of certain property belonging to him was illegal and/or unlawful and in the

alternative sought an order to avoid the guarantee agreements between himself and

the first appellant. The appellants failed to file their D written statements of defence

(WSD) and the matter was put before a judge who entered consent judgment against

the appellants on both the main and alternative issues. On appeal it was argued that

the judge had misdirected himself on the procedure of recording judgment on

admission. It was contended that as there was no WSD there could not have been a

first hearing. E

Held:

(i) In the absence of a WSD a judge could still ascertain admissions and

denials in a first hearing. The judge could be taken to have acted under Order XV

Rule 1 and had therefor given a consent judgment;

(ii) The judge had however erred in giving judgment in favour of the

respondent on both the F main and alternative legs of the relief sought: the advocate

for the appellant had conceded the first prayer only.

Case Information

Appeal allowed to the extent of the nullification of the intended sale.

Mramba for the appellants. G

Dr Lamwai for the respondent.

[zJDz]Judgment

Ramadhani, JA

The Uhuru newspaper of 1 May 1993 carried a notice of the instructions of the first

appellant, the National Bank of Commerce, to the second appellant, Ahmed Juma, to

auction certain property H belonging to the respondent, Ahmed Abderhaman.

Consequently the respondent sued for a declaration that the intended auction was

illegal and/or unlawful and, in the alternative, but without prejudice to the first

prayer, sought an order to avoid the guarantee agreements between himself and the

first appellant. I

1997 TLR p260

RAMADHANI JA

A The plaint was filed on 10 May 1993 and on 18 May the appellants were given up

to 26 May to file their written statement of defence (WSD). But that was not done.

So, on 27 May, time was extended to 16 June but again in vain. However, on 17 June,

Mr Akaro, learned advocate for the B appellants, asked the District Registrar to put

the matter before a judge `for orders on a prayer to be made which might end up the

proceedings immediately -- a probable settlement by consent is had in mind'. The

matter was put before Msumi, J as he then was, who gave the following order which

is the subject matter of this appeal:

C `In conclusion consent judgment is entered against both defendants. As

prayed it is hereby declared that the intended sale by auction of the plaintiff's

property to be illegal and unlawful. And consequent to this judgment plaintiff is

hereby relieved of any liability arising from the purported guarantee. Plaintiff is

entitled to his costs which D are to be taxed.'

The appellants have come with this appeal canvassing two grounds:

E 1. That the learned High Court Judge erred in law and fact by deciding on

and entering judgment on matters not specifically admitted by the first appellant.

2. That the learned High Court Judge erred in law by grossly misdirecting

himself on the F procedure of recording judgment on admission.

Before us the appellants were represented by Mr Mramba, learned advocate, and the

respondent was represented by Dr Lamwai, learned counsel. Mr Mramba started with

the second ground of G appeal and submitted that the procedure of recording

judgments on admission as set out in Ord XII Rule 1 if the Civil Procedure Code was

not followed. That order provides:

`Any party to a suit may give notice, by his pleading or otherwise in writing,

that he admits the truth of the whole or H any part of the case of any other party.'

As already said, the appellants have not, to this moment, filed their WSD and so, they

cannot be said to have admitted by their `pleading'. Mr Mramba merely made an oral

admission before Msumi, I J. Therefore, that provision was not followed, as correctly

ar-

1997 TLR p261

RAMADHANI JA

gued by Mr Mramba. However, the learned advocate conceded that he misled the

learned judge as A he did not, in the first place, submit his admission in writing.

Anyway that provision is there to be folowed.

Dr Lamwai, on the other hand, submitted that Ord XII Rule 1 was not applicable

because the B learned judge used the phrase `consent judgment' and that means he

dealt with the matter under Ord XV Rule 1 which provides:

`Where at the first hearing of a suit it appears that the parties are not at issue

on any question of law or of fact, the court may at once pronounce judgment.' C

Mr Mramba objected to that and pointed out that as there is no WSD then there

could not have been a `first hearing.' Dr Lamwai countered that by submitting that in

the vocabulary of the Civil D Procedure Code there is no such thing as `mention'

but that every meeting of the court is a `hearing'. The learned advocate submitted

that mention is a creation of the courts and not a requirement of the CPC.

Admittedly, the CPC does not talk of mention but, without going into a discussion

and determination E of when there can be a first hearing, we think that there can be

a hearing without a WSD having been filed. This is clear from Ord X Rule 1 which Dr

Lamwai cited in the alternative and/or in addition to Ord XV Rule 1. Now Ord XV

Rule 1 provides as follows: F

`At the first hearing of the suit the court shall ascertain from each party or his

advocate whether he admits or denies such allegations of facts as are made in the

plaint or written statement (if any) of the opposite party, and as are not expressly or

by necessary implication admitted or denied by the party against whom they are

made. The G court shall record such admissions and denials.' (The emphasis is ours).

It is obvious that in the absence of a WSD a judge can still ascertain admissions and

denials and that is done in a hearing, or to be precise in a first hearing. We, therefore,

agree with Dr Lamwai that H Msumi, J could be taken to have acted under Ord XV

Rule 1 and so, he gave a consent judgement.

However, that rule applies only where `the parties are not at issue on any question of

law or of fact'. Can the parties in this appeal be I

1997 TLR p262

RAMADHANI JA

A said not to have been at issue on any question of law or of fact? This takes us to

the first ground of appeal.

The appellants, in their first ground, complain that the learned judge erred in law and

in fact by entering judgment on matters not specifically admitted by the appellants.

Mr Mramba submitted that B they only conceded the first prayer of the respondent

which is an `order declaring the said announced intended sale by auction of the

plaintiff's properties, scheduled for 15 May 1993, to be illegal and unlawful'. It is

better, in order to appreciate fully this complaint, to reproduce what was said before

Msumi, J by Mr Mramba, learned advocate for the appellants, and by Mr Msakamari,

C learned counsel for the respondent.

Mramba:

`We wish to tell the court that we concede to the plaintiff prayers including

main one as contained in 8th paragraph of the plaint. Since the other prayers are in

the alternative, we submit that the same cannot be granted after we D have

conceded to the main prayer.

We have been forced to take this position because plaintiff was a guarantor to

loans taken from the first defendant's bank by M/s Mkwakwani Bazaar Ltd. Plaintiff

guaranteed the loans. The intended sale of the plaintiff's E mortgaged property was

made without issuing notice to the plaintiff as a guarantor. For this we feel that we

have no case against the plaintiff ...'

Msakamari:

F `In the plaint, we have already denied the alleged guarantee. So an order

should be made relieving the plaintiff of the said guarantee. And the consequence

should be that the title deeds which are currently in the possession of the first

defendant be restored to my client ...'

Mramba:

G `It is true that the plaintiff's title deeds are with the first defendant's bank.

Unless the plaintiff made the alleged guarantee, one wonders why the said documents

came into the possission of the bank. We concede that the intended sale of the house

was illegal as no notice was given to the plaintiff.'

H Dr Lamwai conceded that the appellants admitted the first prayer but argued that

Mr Mramba specifically told Msumi, J. `We wish to tell the court that we concede to

the plaintiff prayers including main one as contained in 8th paragraph of the plaint.'

Dr Lamwai pointed out that paragraph 8 of the I plaint is loud and clear in its denial:

1997 TLR p263

RAMADHANI JA

`... the plaintiff deny any liability arising from the claimed transactions stated

in paragraph 7 above and has already A communicated the said denial to the first

Defendant ...'

Paragraph 7 of the plaint provides:

`That the said intended sale by auction is stated to be occasioned by an

outstanding loan owed by Messrs B Mkwakwani Bazaar Limited to the bank, which

is claimed by the first defendant to have been guaranteed by the Plaintiff. The first

Defendant's letter Ref No NBC/54/10/214/Vol II dated 28 April 1993 forms Annexure

`B' to this plaint.' C

Dr Lamwai contended that the combined effect of paras 7 and 8 is an unequivocal

denial of liability under any guarantee agreement. So, he argued, when Mr Mramba

conceded to the prayer contained in paragraph 8, he was conceding to a declaration

that the guarantee agreements D between the appellants and the respondent were

void.

We must confess that we found the submission of Mr Mramba before Msumi, J not

easy to comprehend. Mr Mramba himself was not in a position to explain to us what

he had meant by some E of his utterances. With due respect to him, if he had done

what he now seeks to fault the learned judge for not having done, that is, if he had

followed Ord XII Rule 1 and had made his admissions in writing, he would have

marshalled his thoughts and would not have strayed into this muddle. So, we F now

have to figure out what was and what was not admitted.

As we have said, prima facie Mr Mramba could be taken to concede the avoidance of

the guarantee agreements. But that is what was contained in the second prayer: G

`In the alternative, and without prejudice to the aforesaid prayers; an order

declaring that the agreements between the plaintiff and the first defendant is void.'

Now, what the courts do when there is a main prayer and another prayer is asked in

the alternative, H is not to grant both of them but to grant one or the other. This is

why Mr Mramba said `Since the other prayers are in alternative, we submit that the

same cannot be granted after we have conceded to the main prayer'. The main prayer

being the declaration that the intended sale was illegal and/or unlawful. I

1997 TLR p264

RAMADHANI JA

A Admittedly, Mr Msakamari pointed out that the plaintiff has clearly denied in the

plaint the alleged guarantee and asked Msumi, J, to relieve him of the said guarantee.

However, Mr Mramba pointed out to the learned judge that `Unless the Plaintiff

made the alleged guarantee, one wonders why the B said documents came into the

possession of the bank'. This was after it was admitted that the bank was in possession

of the title deeds. Mr Mramba went further to emphasise to the learned judge that

`We concede that the intended sale of the house was illegal as no notice was given to

the plaintiff'. (Emphasis is ours).

C From that labyrinth before the learned judge, it emerges that Mr Mramba

conceded the first prayer only, that is, that the intended sale was illegal and/or

unlawful for the simple reason that notice of the sale had not been given to the

plaintiff. Mr Mramba did not concede to the avoidance of D the guarantee

agreements between the appellants and the respondent. Instead he left that as a

triable issue for the respondent to show why the appellants were in possession of the

title deeds. We, therefore, do not agree with the learned judge that `consequent to

this judgment plaintiff is hereby relieved of any liability arising from the purported

guarantee.' That was not part of the E consent judgment. We certainly do not agree

with the learned judge that:

`By conceding to the plaintiff's prayer for the nullification of the said sale,

inferably defendants must be taken to F concede to plaintiff's denial that he is liable

under the alleged guarantee.'

It is abundantly stated by the appellants that they conceded to the nullification of the

intended sale because no notice of sale was given to the respondent.

G Therefore, and with all due respect, we uphold only that part of the judgment

which declares the intended sale to be illegal and unlawful and we quash the rest. We

order that the case goes back to the High Court to proceed with the matter. Of course,

we are aware that the appellants have not filed their WSD and that the time given by

the court to do that expired before the proceedings of 8 H July 1993. However we

leave that matter to be dealt with by the court accordingly.

The appeal is allowed to the extend explained above. Costs follow the event.

1997 TLR p265

A