| dc.description | EXIM BANK TANZANIA LIMITED VERSUS YAHAYA HAMISI MUSA (As the Administrator of the Estate of the Late HAMISI MUSA MOHAMED t/a MAPILAU GENERAL TRADERS
COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM
CIVIL APPEAL NO. 275 OF 2019
(Appeal from the Ruling and Drawn Order of the High Court of Tanzania (Commercial Division) at Dar es Salaam] (Fikirini J, A dated 13th day of August, 2019 in Commercial Case No. 13 of 2017)
CORAM: MUGASHA J, A, LEVIRA. J.A. and MWAMPASHI J, A
FLY NOTES
Contract Law-Appeal -breach of contract- Whether the trial judge was proper to dismiss the suit against the dead person
Appeal-breach of contract - Whether the Appellant may condemn to undergo costs on the dismissal of the suit against dead person.
BRIEF FACTS
The appellant is challenging the dismissal of its suit by the High Court of Tanzania (Commercial Division) in a Ruling dated 13/08/2019. This was after the High Court sustained a preliminary objection which was raised by the respondent. The background underlying the appeal is to the effect that; the appellant instituted a suit against Hamisi Musa Mohamed t/a Mapilau General Traders hereinafter referred to as the deceased. Theclaim was for payment of TZS. 2,567,302,918.89 being the principle amount of loan advanced to the deceased plus interest thereon as at18/09/2016, general damages for breach of contract and costs. This was pursuant to an overdraft facility of a total sum of TZS. 150,000,000.00 which was extended to the deceased between 10/12/2001 and 31/12/2002. The reliefs sought by the appellant included payment of the principal sum, interest, general damages and costs.
In the written statement of defence, the respondent as the administrator of estate of the deceased, denied the claim and raised a preliminary objection inviting the High Court to dismiss the suit for being incompetent on grounds that, one, it was time barred; two, it was instituted against a dead person; and three, it had abated in terms of Order XXII Rule 4 (1) and (3) of the Civil Procedure Code (Cap 33 RE. 2002). The High Court disposed the second point of preliminary objection and dismissed the suit having found that it was wrongly instituted against a dead person. Aggrieved, the appellant has preferred the present appeal.
When the matter came for hearing the appellant was represented by Mr. Gabriel Simon Mnyele, learned counsel whereas the respondent had the services of Mr. Daimu Halfani, learned counsel.Mr. Mnyele pointed out that the trial court was not proper to dismiss the suit but was required to struck it out, he went further that his client suffer for dismissal so he condemn to be paid costs. The respondent opposed the appeal and prayed for the Court to dismiss it with costs.
Appeal allowed.
ISSUES
1. Whether the trial judge was proper to dismiss the suit against the dead person
2. Whether the Appellant may condemn to undergo costs on the dismissal of the suit against dead person
HELD
1. In the light of the stated position of the law, although a suit preferred against a dead person is a nullity it is as well incompetent and not capable of being dismissed. Given the circumstances, the proper remedy herein was to strike out the suit instead of dismissing it so as to enable the appellant a chance to file a suit against the legal representative of the deceased.
2. It was thus, incumbent on the trial court before the preliminary objection was raised to engage parties on the propriety or otherwise of the suit instituted against a dead person so as to make necessary orders which was not the case. In the premises, it is our considered view that, it was not warranted to condemn the appellant to suffer costs following the dismissal of the suit which was in itself erroneous
STATUTORY PROVISIONS REFEERED TO;
Order 1 Rule 10 (1) of the Civil Procedure Code Cap 33 R:E 2019
CASE LAWS REFEERED TO;
1. Ngoni Matengo Cooperative Marketing Union Ltd. vs. Ali Mohamed Osman (1959) E.A. 577,
2. Juma A. Zomboko and 423 others vs. Avic Coastal and Development Co. Ltd. and 4 Others, Civil Application No. 576/17 of 2017 (Unreported).
3. Babubhai Dhanji vs Zainab Mrekwe [1964] I E.A 24.
4. Prestige Finance P Ltd vs Balwant Singh and Another, 1978 48 Compacas 459 Delhi (Unreported).
5. Cyprian Mamboleo Hizza vs Eva Kioso and Another; Civil Application No. 3 of 2010, (Unreported).
6. Joan Constantine vs Mohamed Sleym, Civil Application No. 25 of 2012, (Unreported).
7. Yahya Khamis vs Hamida Haji Iddi and two others, Civil Appeal No. 225 of 2018, (Unreported).
8.Tabu Ramadhani Mattaka v Fauzia Haruni Saidi Mgaya, Civil Appeal No. 456 of 2020 (Unreported).
Mr. Gabriel Simon Mnyele, learned counsel for the Appelant
Mr. Daimu Halfani, learned counsel for the respondent | en_US |
| dc.description.abstract | HELD
1. In the light of the stated position of the law, although a suit preferred against a dead person is a nullity it is as well incompetent and not capable of being dismissed. Given the circumstances, the proper remedy herein was to strike out the suit instead of dismissing it so as to enable the appellant a chance to file a suit against the legal representative of the deceased.
2. It was thus, incumbent on the trial court before the preliminary objection was raised to engage parties on the propriety or otherwise of the suit instituted against a dead person so as to make necessary orders which was not the case. In the premises, it is our considered view that, it was not warranted to condemn the appellant to suffer costs following the dismissal of the suit which was in itself erroneous | en_US |
