ameir mbaraka amer mbarak nahdi vs exim bank t ltd another 2023 tzhc 22627 13 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB - REGISTRY) AT MOROGORO LAND CASE NO. 23 OF 2022 BETWEEN AMEIR MBARAK @ AMER MBARAK NAHDI PLAINTIFF VERSUS EXIM BANK(T) LTD & ANOTHER DEFENDANT RULING 19'*^ Oct, & Nov, 2023 CHABA, J. Upon framing issues as tools to guide this court during hearing of the instant matter and determination of the entire suit as agreed upon by both parties on the 21^*^ August, 2023,1 adjourned the matter to October, 2023 and set the same for hearing. So, when the matter was called on for hearing on October, 2023, Mr. Jackson Liwewa, Learned Advocate for the Plaintiff informed the Court that, they were ready to proceed, but Mr. Zuriel Kazungu, Learned Advocate for the Defendants submitted that, the matter could not proceed for hearing on the following ground: 1. There was an application for injunction filed by the plaintiff in this Court and the same was pending before this Court (Mansoor, J.); and 2. He prayed the Court to implead the necessary parties namely, New Kimamba ■ Fibres Limited and the Managing Miyombo Systems to which the credit facility was advanced. ■ Page 1 of 12 Relying upon the provision of Order 1, Rule 9 and section 95 both of the 9 Civil Procedure Code [CAP. 33 R.E. 2019] (the CPC), Mr. Kazungu submitted that, New Kimamba Fibres Limited and the Managing Miyombo Systems, must be made parties to this Court for a reason that they are so connected with the matter at hand. In rebuttal, Mr. Jackson Liwewa, Learned Advocate for the Plaintiff submitted that, the matter which is pending in this court (Before Hon. Mansour, J.,) has nothing to do with the present case and cannot at any rate prejudice the Defendants. He prayed the Court to ignore his contention on the ground Of lacking merit. On the second ground, Mr. Liwewa contended that, the Plaintiff has filed the case against two parties that is. The Exim Bank (T) Ltd and Kishe Auction Mart Co. Ltd and Court Broker and not against New Kimamba Fibres Ltd and Miyombo System Ltd. He further stated that, the counsel for the Defendants has hot explained how the alleged necessary parties are connected to the matter at hand. It was the Plaintiff counsel's argument that, the said New Kimamba Fibres Limited is a company owned by the Plaintiff. The transactions made and resulted to the present plaint, did not include so-called New Kimamba Fibres Limited or was it involved in any way the Defendants. He asserted that, the Plaintiff borrowed the money on his own capacity and not otherwise. He urged the court to examine the records, the letter requesting the fertilizer (Mbolea), Page 2 of 12 the conditions thereof and the collateral used which shows that all are in the names of the Plaintiff. . In view of the above/ Mr. Liwewa submitted that the Defendants' prayers have no merits, and that the same have been brought in court against the law. Additionally, Mr. Liwewa accentuated that when the matter was called on for the first pre-trial conference on 15/12/2022, the counsel for the Defendants told the court that, there was no any other pending issues and worse still, he did not reserve his rights for further discoveries. In his opinion, anything that Mr. Kazungu intends to raise at this stage, are supposed to be in line with what was agreed during the first pre-trial conference. He stressed that, the same should reflect all that was done when conducting first pre-trial conference. He added that, if at all the counsel for the Defendants intended to depart from the scheduling order dated 15/12/2022, was duty bound to make his prayers relying on the provision of Order VIII, Rule 23 of the CPC. From the above submission, Mr. Liwewa was of the view that, the prayers put forward by the counsel for the Defendants is bad in Law and further that there are ho genuine reasons to join the purported necessary parties. He urged the court to proceed with the hearing of the matter as scheduled. By way of rejoinder, Mr. Kazungu reiterated his submission in chief and continued to argue that, the two parties he mentioned herein above are also stated at paragraph 10 of the plaint where there is a letter directed to Miyombo Systems and at paragraph 7 there is also an attachment indicating that New Page 3 of 12; Kimamba Ltd and other two companies were Involved to secure the loan. He ^ averred that, the letter mentioned by Mr. Liwewa dated 28/1/2003 was written by Kimamba Co. Ltd and directed to Exim Bank and the Principal Officer, the Plaintiff. A letter dated 22"^ November, 2003 was really made by Kimamba and not the Plaintiff. These letters are attached to the written statement of defence. He asserted further that, the Plaintiff was the principal officer to New Kimamba Co. Ltd as far as the tittle deed and mortgage deed are concerned. He said, as it is true that the names which are appearing on the documents are the names of the Plaintiff, thus it was him who mortgaged the properties and not otherwise. ; As to the question of adhering to the scheduling order as per first pre-trial conference, he admitted to have addressed the court to that effect, and by then there was no pending application. Mr. Kazungu urged the court'to invoke its powers vested by the law under sections 95 of the CPC and the principle of overriding objective. Concerning the issue of departure from the scheduling order, Mr. Kazungu was brief that, the same was a sleep of the mind and can be cured by invoking / applying the overriding objective principle. In the end, Mr. Kazungu prayed the alleged necessary parties be irhpleadedjn thiscase. ■ Having heard the contending oral submissions, in resolving the points raised by'the counsel for the Defendants, the issue for my determination is whether or hot this case should stay pending determination of the application Page 4 of 12 for injunction filed by the Plaintiff in this court (Mansoor, J.) and that the said 0 New Kimamba Fibres Limited and the Managing Miyombo Systems to which the credit facility was advanced must be impleaded in this case as necessary parties. From the parties' submissions and according to the records, it is not disputed that: one; currently there is an application for injunction filed by the Plaintiff against the defendants which is pending before my sister Flon. Mansoor, J., two; Mr. Kazungu, leaned counsel for the Defendants admitted the fact that, during conduction of the first pre-trial conference on 15/12/2022, he addressed the court that there was no further discoveries, interlocutory, applications, etc., three;. Mr. Kazungu admitted the fact that, the act of departure from the scheduling order, it was a sleep of the mind. In my view, the contentious issue on which parties locked horns is whether the persons mentioned by the counsel for the Defendants namely. New Kimamba Fibres Limited and the Managing Miyombo Systems to which the credit facility was advanced should be impleaded in this case as necessary parties. To determine the contentious issue, I find it apt to highlight and explain what the word implead means. According to Black's Law Dictionary, Eighth Edition by Bryan A. Gamer - Editor in Chief, the word implead means, to bring (someone) into a lawsuit, especially to bring (a new party) into the action. On the other hand, the term Impleader means, a procedure by which a third party is brought into a lawsuit, especially by a defendant who seeks to shift liability Page 5 of 12 to someone not sued by the plaintiff. In this case the Plaintiff, AMEIR MBARAK H @ AMER MBARAK NAHDI sued the Defendants, EXIM BANK (T) LTD AND KISHE AUCTION MART CO. LTD & COURT BROKERS for perpetual injunction, general damages for causing psychological torture and for'declaratory orders to all notices issued by the Defendants. As stated earlier on, when the matter came up for hearing oh the 19^^ October, 2023, Mr. Kazuhgu, counsel for the Defendants prayed the court under Order I, Rule 9 and section 95 both of the CPC (supra) to bring New Kimamba Fibres Lirhited and Maria'ging Miyombo Systems to which the credit facility was advanced into the instarit lawsuit as'necessary parties. On the other hand, Mr. Liwewa vehemently,resisted that contention, and stated that the said New Kimannba -,Fibres Umitedj is a company owned by the .Plaintiff and,,the transactions made therein resulted to the present plaint pnd further that did not include so-called New Kimamba Fibres Limited or involved in. any way by the. Defendants.,It was the,the Plaintiff who borrowed the. rnoney on his own capacity and mot ptherwisev- , Tfom the foregoing, the wrangle revolves around the' contending arguments is the issue'of bringing new parties into the action. At this juncture, Ifihd .it' appropriate to answer the qLiestioh who is a' necessaty party to the suit. Nevertheless,'the answer is' hot far-fetched. A necessary party is a person or entity'who ought to. have , been joined as a party and in whose absence no effective decree could be passed , at all by the court. The Court of Appeal of ' Page6.of 12' Tanzania was faced with akin: situation while dealing with a.revision matter in ^ the case Abdulatif Mohamed Hamis vs. Mehboob Yusuf Othman & Another (CivH Revision 6 of 2017)[2018] TZCA 25 (24 July 2018) (extracted from www.tanzlii.oro^ where the Court borrowed the description laid down in the Indian case of Baranes Bank Ltd. V. Bhagwandas, A.I.R. (1947) All 18, and observed that: -'Although there is no definite test to be applied in this connection, in the Indian case of Benares Bank Ltd.. v. . Bhagwandas,A.I.R.(1947)AH 18, the fuii bench ofthe High Court ofAiiahabad iaid down two tests for determining the^ questions whether a particular party is necessary party^ to the proceedings: First, there has to be a right of relief against such a party in respect of the matters involved in the suit and;second, the court must not be in a position to pass an effective decree in the absence ofsuch a party. The foregoing benchmarks were described as true tests by Supreme Court ofIndia in the case ofDeputy comr., Hardoi V. Rama Krishna, A.I.R.(1953)S.C. 521". In the end, the CAT concluded, at page 6 of the judgment, as hereunder: 'We,in turn, fuiiy adopt the two tests and, thus, on a parity ofreasoning, a necessary party is one whose presence is indispensable, to the constitution of. a suit and in whose Page 7 of 12 ■- Rl absence no effective decree or order can be passed. Thus, the determination as to who is a necessary patty to a suit would vary from a case to case depending upon the facts and circumstances of each particular case. Among the relevant factors for such determination include the particulars of the non-joined party, the nature of relief claimed as weii as whether or not, in the absence of the part]/, an executable decree may be passed". Reverting to the submission put forward by the counsel for the Defendants, he prayed the court to invoke the provision of Order I, Rule 9 of the CPC which touches on the issue of misjoinder and non-joinder of parties. The law provides that: "A suit shall not be defeated by reason ofthe misjoinder or noprjoinder ofparties, and the court may in every suit deal , ; ; ; with the matterJp controversy so far as regards the right . .^ ,. , and interests ofthe partiep actually befgre it".,^ And section 95 of the CPC. the law articulates that: "Nothing in.thig.Code shaii be deemedto limit or otherw.isp affect the inherent power ofthe court to, make such orders as may bepecessaiyfor the ends ofjustice or to prevent abuse ofthe process ofthe court". Page 8 of 12 Having considered the guiding provisions of the law, I fully subscribe to IP the applicable laws and the authority referred herein above that, the presence of a necessary party is, imperatively crucial depending on the circumstance of each case to enable the courts to adjudicate and pass effective and complete decrees. As I have stated earlier, the Plaintiff sued the Defendants for perpetual injunction, general damages for causing psychological torture and for declaratory orders to all notices issued by the Defendants as per paragraphs 4 of the plaint and the Plaintiff's prayers. As correctly submitted by the counsel for the Plaintiff, my perusal to the plaint and the annextures thereof, reveals that the alleged New Kimamba Fibres Limited is a company owned by the Plaintiff and the transactions made therein resulted to the instant case. The Plaintiff is the one who borrowed the money on his own capacity and that it is too hard to join the purported necessary parties as Defendants because as a matter of principle, determination as to who is a. necessary party to a suit would vary from one case to another depending upon the facts and circumstances of each particular case. Among the relevant factors for.such determination,include, the particulars of the.non-joined par^, the nature of relief cialmed as weil as whether or not, in the absence of the party, an executable decree may be passed. - Before I conclude, I would like to remind the parties to this case by way of passing that, as stated under Order VIII, Rule 23 of the CPC, no departure . from or amendment of such order shall be allowed, unless the court is satisfied Page 9 of 12 that such departure or amendment is necessary in the interests of justice as ^ expressed under section 95 of the CPC. The law clearly provides that: "where a scheduling conference order is made, no departure from or amendment of such order shaii be aiiowed uniess the court is satisfied that such departure or , amendment is necessary in the interests ofjustice and the . party in favour.of whom such departure or amendment is made shaii bear the costs ofsuch departure or amendment, unless the court directs otherwise". In this case, the cbuhsel for the Defendants did not ex^ why he decided to depart from the scheduling orders made by the court during first pre-trial conference dated 15^"^ December, 2022, apart from stating that it was a sleep of the mind and immediately rushed to urge the court to invoke its inherent powers and apply the overriding objective principle to cure the defect. In viev^'Of"what I have endeavoured to deliberate abovdv it 1s rhy holding that; the prayerS'Sought by'the counser fbr the Defendants Is untehable,'bad 'ih law and offending the relevant laws. In the result, the-plaint cannot be termed as incurably defective fdr the non-joinder of-the purported necessary orders as discussed herein above. - Accordingly,-'save for'the-first-prayer that as-an-application for injunction filed- bythe"-PlarMtrfP-'whlch-'1s-'p6hdin§' before this court(MahsGoryO;);The second pfayefs to' implead- the-purported-necessary parties namely/ Mew Kimamba PoRe 10 of 12. -■ , • '• •" ' V ? • Fibres Limited and the Managing Miyombo Systems to which the credit facility was advanced, is devoid of merits, hence dismissed with costs. Order accordingly. DATED at MOROGORO this 13'^^ ^jgy of November, 2023. M. J. Chaba JUDGE 13/11/2023 Page 11 of 12 Court: Ruling delivered under my Hand and Seal of this Court in Chamber's this 13^'^ day of November, 2023 in the presence of the Mr. Jackson Liwewa, Learned Counsel for the Plaintiff and in absence of Defendants. A. W. Mmban DEPUTY REGISTRAR 13/11/2023 Court: Rights of the parties to appeal to the CAT fully explained Mmbando DEPUTY REGISTRAR ■ /{^:7 Sl3/ll/2023 Page 12 of 12