20130225 TZHC Dar es Salaam 1

.J 1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 90 OF 2011 GEORGE WILLIAMSON TANZANIA LTD . . . . . . . . . . . . . . . . . PLAINTIFF/RESPONDENT vs. r ··- AFRICAN BANKING CORPORATION ' TANZANIA LTD . . . . . . . . . . . . . . . . . . . . . . . . . . DEFENDANT MOHAMED ENTERPRISES TANZANIA LTD . . . . . . . . . . . . . . . . INTERVENOR/ APPLICANT RULING Shangwa, J. The suit before this court was presented for filing on 23rd June, 2011. The plaintiff is George Williamson Tanzania Ltd and the defendant is African Banking Corporation Tanzania Ltd. On 15 th December, 2001, Dr. Lamwai filed a chamber application on behalf of MOHAMED ENTERPRISES 2 TANZANIA LTD to be joined in the suit as intervenor. In the same application, he applied for the departure and amendment of the Scheduling Order made on the 11 th October, 2011. The application was filed under O. VIII A r. 4 and 10 (2) of the Civil Procedure Code Cap. 33 R.E. 2002. On 17 th July, 2012, I ordered that the parties should file written submissions on the application and it was so done. Dr. Lamwai for the applicant has given the following reasons in support of his application. 1. That at the time when the Assignment Agreement was signed by one B.E. Shamji, the Chief Executive Officer of Tukuyu Tea Estates Ltd, he was aware of the fact that the company had been put under receivership after it had failed to pay its debts and that the company had been sold by the Receiver to the intervenor. 3 2. That the validity of the placement of the company under receivership and the subsequent acts by the Receiver such as the sale are a'subject of the ongoing Civil Case No. 33 of 2005 and Civil Case No. 20 of 2008. 3. That the rights of the intervenor as purchaser of the property are of crucial importance and have to be adjudicated upon in this suit in order to avoid a multiplicity of suits. On the other side, Mr. Mtanga for the Responden_t has .I given the fallowing reasons opposing the application for joining MOHAMED ENTERPRISES - TANZANIA LTD as intervenor:- 1. That the intervenor is not a party to this suit which relates to non performance of an agreement between the plaintiff and defendant. 4 2. That the intervenor is not a necessary party to dispose of the suit completely and effectively. 3. That the intervenor is not a par(y to the Memorandum of Understanding which is a babic document at issue. It is true as submitted by Mr. Mtanga for the Respondent GEORGE WILLIAMSON TANZANIA LTD that the intervenor is neither a party to the suit nor a party to the Memorandum of understanding which is a basic document. However, the intervenor is a necessary party to dispose of the suit completely and effJctively. Why is it so? I This is because the intervenor is a purchaser of Tukuyu Tea Estates Ltd which prior to its sale to the intervenor, it had a debt of USD 143,377 owed to the AFRICAN BANKING CORPORATION TANZANIA LTD (defendant) and that under the Memorandum of Understanding entered into between AFRICAN BANKING CORPORATION TANZANIA LTD and -GEORGE WILLIAMSON TANZANIA LT;D (plaintiff), the latter . 5 had expressed interest in having the aforesaid Tukuyu Tea Estates Ltd debt and Security documents assigned to it and it was agreed that upon payment, of the debt in full to I the AFRICAN BANKING CORPORATION TANZANIA LTD, the said Bank was required to assign and hand over to George Williamson TANZANIA LTD the debt and security documents relating to TUKUYU TEA ESTATES Ltd Loan namely seven certificates of Titles No. 1344, 1216, 12792, 5540, 1345, 1346 and 4951. At paragraph 9 of its plaint,1 George Williamson Tanzania Ltd is demanding for specific performance of the terms of agreement by African Banking Corporation Tanzania Ltd as contained in the Memorandum of Understanding. In my op1n1on, as the Applicant MOHAMED ENTERPRISES Tanzania Ltd has purchased Tukuyu Tea ~ Estates Ltd of whose Certificate of Titles are demanded by 6 GEORGE WILLIAMSON TANZANIA · LTD (plaintiff) from AFRICAN BANKING CORPORATION TANZANIA LTD (defendant), it 1s quite necessaey that MOHAMED ENTERPRISES TANZANIA LTD has to be added as intervenor in the suit for the purposes of defending his interests in these Certificates. Thus, I grant this application and order that the pleadings be amended accordingly. Amended pleadings to be filed on 12/3/2013. With regard to the departure arid amendment of the scheduling order made on 11 th October, 2011, I think it will be appropriate to do so after the amended pleadings have been filed. Mention on 20/3/2013. 25/2/2013! - ........... - -~ - ... -·- . , 7 Delivered 1n open court 1n th~ presence of Mr. M tang a for ff the Respondent holding brief of Dr. Lamwai, Advocate for the intervenor. 25/2/2013: