RAZA SOMJI v AMINA SALUM 1993 TLR 208 (CA)

 RAZA SOMJI v AMINA SALUM 1993 TLR 208 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

CIVIL APPEAL NO. 45 OF 1992

F 30 August, 1993

(From the decision of the High Court of Tanzania at Mwanza, Sekule, J.)

Flynote

G Civil Practice and Procedure - Appeals - Memorandum of appeal - Memorandum

of appeal makes no reference to undue influence and no leave of Court sought and

obtained to argue the issue on appeal - Whether the Court may entertain the issue suo

motu - Rights of the other party - Order 39 rule 2, Civil Procedure Code.

-Headnote

H The appellant and respondent entered into an oral agreement for an exchange of

residential premises. After executing the agreement the respondent sought to rescind

the agreement and the landlord acting under the orders of the Housing Allocation

Committee reinstated the tenancy to the respondent. The appellant filed a suit in the

District Court for specific performance of the agreement I and general damages

1993 TLR p209

for breach of contract. The court allowed the claim. The respondent appealed to the

High Court and A found that the respondent was justified to rescind the contract

because it was concluded by undue influence exercised on her by, inter alia, the

appellant. The appellant appealed to the Court of Appeal of Tanzania. Counsel for the

appellant argued that the issue of undue influence was not raised on the pleadings and

therefore by considering and making a finding on that issue the learned Judge erred

B for two reasons. First, he relied for his decision of the appeal on a ground which

was not raised in the memorandum of appeal or which was not raised with the leave

of the court during the hearing of the appeal. Secondly, the Judge did not afford the

appellant the opportunity to be heard on the issue. C

Held: (i) The ground of undue influence was, on the evidence, disclosed but was

not set forth in the memorandum of appeal. Rule 2 of order 39 of the Civil Procedure

Code empowered the learned Judge to raise it suo motu. However under the proviso

to that rule the Judge was enjoined to give the appellant the opportunity to contest

the issue before resting his decision on it as he did; D

(ii) The learned Judge failed to afford the appellant the opportunity to be

heard on the issue, as such he was clearly in error;

(iii) The provisions of rule 2 of order 39 of the Civil Procedure Code are

mandatory, their infringement is fatal, and thus the finding on the issue of undue

influence in this case was invalid. E

Case Information

Appeal allowed.

No cases referred to.

Magongo, for the appellant. F

[zJDz]Judgment

Kisanga, J.A., delivered the following considered judgment of the court:

The appellant and the respondent entered into an oral agreement for an exchange of

residential G premises. The appellant offered the respondent a house in Nyakato area

in exchange for a flat occupied by the respondent in the centre of the Municipality of

Mwanza. The appellant, in addition gave Shs 200,000/= to the respondent as

disturbance allowance upon her vacating the flat.

Pursuant to the agreement the respondent's landlord, the Registrar of Buildings, upon

the H respondent's request, acceded to the parties' wishes and duly allocated the flat

to the appellant, following which the appellant went into occupation and made

substantial renovations to the premises amounting to about Shs 2,000,000/=.

Subsequently, however, the respondent changed her mind and I sought to dishonour

or rescind the agreement. The landlord, the

1993 TLR p210

KISANGA JA

A Registrar of Buildings, acting under orders of the Housing Allocation Committee,

reinstated the tenancy to the respondent. Whereupon the appellant filed a claim in

the District Court for specific performance of the agreement and general damages for

breach of contract. The Court allowed the claim for specific performance and further

directed the return of the Shs 200,000/= to the appellant, B as it appeared that the

respondent was denying ownership thereof.

The respondent appealed to the High Court which set aside the order for specific

performance. In so doing the High Court found that the respondent was justified to

rescind the contract because she C was made to conclude that contract by undue

influence exercised on her by the appellant and possibly by her own husband. It is

from that decision that this appeal now arises.

Before us the appellant was represented by Mr Magongo, learned advocate, while the

respondent conducted the appeal in person.

D Mr Magongo filed four grounds of appeal which essentially raised two issues,

namely,

(a) Whether on the evidence there was any undue influence, and

(b) Whether it was open to the learned Judge to make a finding on that

issue which was not E raised on the pleadings.

We propose to consider ground (b) first. Mr Magongo rightly observed that the issue

of undue F influence was never raised on the pleadings. The crux of the respondent's

defence was couched in paras 4 and 5 of her written statement of defence in the

following terms:

`4. That it is not true that both the defendant/plaintiff are tenants of the

Registrar of Buildings at Plot No 10 Block G `R'. Defendant aver (sic.) that she does

not known the plaintiff in any way.

5. That contents of para 4 and 5 are a total lie as the defendant has never

seen the plaintiff before and hence no agreement could have been entered into

between them. The alleged contract, is purely a fraud and the H defendant would

prove it.'

The respondent was clearly asserting that the appellant was a stranger and that she

could not have entered into an agreement with such a stranger. She does not allege

undue influence. Nor was I undue influence one of the issues framed. The issues as

framed at the trial were:

1993 TLR p211

KISANGA JA

`ISSUES AGREED UPON AS FOLLOWS: A

1. Whether or not there was an oral agreement between the parties for

exchange of services.

2. Reliefs, if any, to which the parties are entitled.'

The learned Judge, however, found that the respondent in the course of her evidence

at the trial did B raise the issue of undue influence, and he criticised the Trial

Magistrate for failing to consider it. This is what he said:

As already said, the Trial Court did not touch on this issue i.e. undue

influence. It concerned itself only with the issue C of offer and acceptance. But the

appellant otherwise in my view clearly raised this issue in her testimony in defence.

In order to remedy the omission, therefore the learned Judge proceeded to consider

the issue and accordingly made a finding of it as shown above. D

Mr Magongo submitted that in considering and making a finding on that issue the

learned Judge erred for two reasons: First, he relied for his decision of the appeal on a

ground which was not raised in the memorandum of appeal or which was not raised

with the leave of the Court during the hearing E of the appeal. Secondly he did not

afford the appellant the opportunity to be heard on the issue. He relied for this

submission on the provisions of Order 39 rule 2 which provide that:

`2. The appellant shall not, except by leave of the Court, urge or be heard

in support of any ground of objection F not set forth in the memorandum of appeal:

but the Court, in deciding the appeal, shall not be confined to the grounds of

objection set forth in the memorandum of appeal or taken by leave of the court under

this rule: G

Provided that the Court shall not rest its decision on any other ground

unless the party who may be affected thereby has had a sufficient opportunity of

contesting the case on that ground.' H

The first leg of Mr Magongo's complaint is wholly justified. The respondent's

memorandum of appeal to the High Court makes no reference whatever to the issue

of undue influence, and there is no indication in the record that the respondent

obtained or sought leave to take that ground at the I hearing. The second leg of Mr

Magongo's complaint is equally justified. If the learned Judge was

1993 TLR p212

KISANGA JA

A of the view that the ground of undue influence was, on the evidence, disclosed

but was not set forth in the memorandum of appeal, we think that rule 2 of Order 39

empowered him to raise it suo motu. However, under the provisio to that rule he was

enjoined to give the appellant the opportunity to contest the issue before resting his

decision on it as he did. Mr Magongo who had also represented B the present

appellant in the High Court says that no such opportunity was afforded to his client.

Indeed according to him, he was taken by surprise when he read the High Court

judgment and for the first time noticed that the Judge had raised and dealt with that

issue there. In all this the learned C Counsel is supported by the record. Thus to the

extent that the learned Judge failed to afford the appellant the opportunity to be

heard on the issue, he was, with due respect, clearly in error.

Our understanding of rule 2 of Order 39 is that its provisions are mandatory and the

infringement D thereof is fatal. In the context of the present case this means that the

finding on the issue of undue influence is invalid and ought to be set aside.

On the remaining ground Mr Magongo submitted in effect that on the evidence no

undue influence E was disclosed. However, having held that the finding on that

issue was invalid, it would serve no practical purpose now to go further into the

matter. And since the decision of the learned Judge in this appeal was rested solely on

the issue of undue influence, the view we have taken on that issue also disposes of the

appeal itself.

F In the result the appeal is allowed. The decision of the High Court is set aside and

that of the District Court is restored.

As stated before, the Trial Magistrate ordered the return of the Shs 200,000/= to the

appellant because the respondent appeared to deny ownership of it. This was

somewhat strange because the G money which was put in a fixed deposit at the bank

was in her own name and she was keeping the fixed deposit certificate. However at

the hearing of this appeal she assured us that she has been renewing the deposit every

year, which clearly shows that she acknowledges the money to be hers. On that

account we reverse the order of the District Court in this regard and order that the

sum of H Shs 200,000/= be restored to the respondent.

The appellant is to have his costs of this appeal.

1993 TLR p213

A