THE National Bureau of Statistics (NBS), an executive agency of the government, has succeeded to restore its suit for payment of over 1bn/- on alleged controversial withdrawal of some money in an account at the National Bank of Commerce (NBC).
This followed the decision of the Court of Appeal to allow an appeal the NBS, the appellant, had lodged against NBC and one Eva Shoo, the respondent, faulting the decision of the High Court, which had “struck out” the suit in question for failure to adhere to the speed set to determine the matter. “We accordingly allow the appeal.
We hereby quash the proceedings in respect of the lapse of the speed track and the resultant ruling and set aside the order striking out the suit,” Justices Shaban Lila, Lugano Mwandambo and Rehema Kerefu ruled.
They directed the trial court record to be remitted back to the High Court to proceed with the hearing of the suit according to the law from the stage where it had reached before the order of striking it out.
The justices held that the High Court Judge who heard the matter strayed into an error to strike out the suit because there is no provision in the Civil Procedure Code (CPC) authorising a course of action to reject a suit upon expiry of time set to determine the same under speed track arrangement.
According to them, the action she took was contrary to the dictates of the law. Instead, the justices said, the trial judge ought to have condemned the party who had contributed towards the delay which led to the lapse of the speed track to pay costs.
They noted that the spirit embraced in assigning a suit to a certain speed track is only to facilitate the expeditious disposal and management of the case and was not expected that failure to adhere to a scheduled speed track would have serious consequences of having a suit struck out.
Instead, the justices said, a judicial officer presiding over the suit is enjoined to ensure that substantive justice is done to the parties by affording them opportunity to be heard and the matter to be determined on merit.
Cognisant of that right, they were of the firm view that Order VIIIA of the CPC did not directly impose any legal consequence in the event the scheduled speed track expires.
“That said, we need not overemphasize that the inescapable inference and conclusion is that striking out a suit is not a resultant effect envisaged by the law, for, had it been the intention, it would have been expressly stated so,” the justices said.
Instead, they said, the trial court, either upon being moved by either of the parties or suo motu (own motion), has to amend the scheduling order and where the highest speed track is attained and yet the case is yet to be finalized to enlarge the time frame until the case is concluded.
The National Bureau of Statistics, the appellant, an executive agency of the overnment charged with the responsibility to compile, analyse both economic and social statistics, entered into a bankercustomer relationship with the NBC, an institution carrying out banking business.
Sometimes in 2000, the appellant opened and operated two accounts, that is, Collection Account and Expenditure Account at NBC’s Corporate Branch at Dar es Salaam.
On several occasions, the appellant noted differences between bank statements and actual balance in its books of accounts.
The appellant communicated the anomalies to the Bank, to which initially confirmed the problem, attributing it to technical errors on their part and promised to rectify the same.
However, the appellant claimed that the Bank refuted the appellant’s claims linking the transfer of funds from Collection Account to Expenditure Account and later withdrawal of the funds was with the fraudulent acts of the appellant’s officials.
The Bank’s response triggered the institution of the suit, praying for a declaration that the respondents authorized withdrawal of 466,861,381/- from the appellant’s accounts without his authority, and that they did not exercise due vigilance, diligence and care in handling the appellant’s accounts.
Furthermore, the appellant prayed for payment of the money in question owing to the Bank to him, other payment of 250m/-being the amount of costs, damages and loss incurred by the appellant in obtaining alternative revenue to facilitate the loss.
The appellant also pushed for payment of other 250m/- being advocate’s costs incurred as a result of blatant and negligent acts of the respondent, payment of 108,138,619/- being general, punitive and aggravated damages for negligence and breach of contract and costs of the suit.