19970613 TZHC Dar es Salaam2

• IN TH~ .!:UGH COUI~T OF 'I'J\.N7,M1IA AT DAR ES _'";.I\LAAi'-1 CIVIL CA~1 NOo 77 OF 1996 COASTAL STEEL IJ\TI)TJ.STRIBS J,TD ••••••••• o o •• o. o • • PLAINI'IFF

VE RS US \\/ADE AD!':NS CON::;TRUCTION --- OV~R$EAS LIMITED ••••••oooooooooooooonooooooooeRESPONl)ENT . . - RUL,I,N_G ; . ~I KAJI, Jo This ruling is in respect of preliminary objections which have been raised by the defendant's Counsel which are as follow:- (1) That the plaint is bad in law as it has been amended without leave of the courto (2) That the suit is incompetant as it has been filed prematurely (3) That the suit does not disclose a cause of action against .... . _. the 2nd defendant (P/\RASTAL PENSIONS FUND (4) That the plaintiffs have no Locus Standi. A brief account of this case is that on 20th March, 1996 the 1st plaintiff COAS'I·/\L STEEL INDUSTRISS LIMITED instituted a suit against the 1st defendant 1-JA:-)~ A0!.MS CONSTRUCTION OVERSEA,S LIMITED( IN LIQUIDATION) and the 2nd defendant PAR:\STATAL PENSIONS FUND for paument of the purchase price of USD 63,548 for Mosaic Til~$ supplied to the 1st defendant by SISCOo Or in the altermative for a declaration that the said Mosaic Yiles are the property of SISCO and that the 2nd defendant should. be ordered to deliver them to the 1st plaintiff. At the same time the 1st plaintiff filed a chamber application calling upon the court to restrain the 2nd defendant, their agents, contractor and/or workment from using the said Mosaic Tiles in v!hatsoever a manner until the determination of the rnain suit 0!1 30th April 1996 the

2nd defendant filed its written statement of Defence denying the cla.im and raising the following preliminary objection:•- 2 (a) That the suit is incopetent on the ground that it is premature (b) That the pl~int does not disclose a cause of action against the 2nd defendant (c) Tnat the plaintiff has no Locus Standi in the suit On 12th June, 1996 the 1st plaintiff's learned. counsel Mr. El-maamry was granted leave to file a11 application for production of Pow.er of Attorney of SISCO and that the sa.me to be filed oh or before 25th June, 1996~ But surprisingly, on that day the plaintiff's learned counsel filed a new plaint with the 2nd pl;:i.intiff PAUL CLITHBRO as holder of Power of Attorney of SLSCOa Apart from the addition of Paul Clithew there \vere no other major chanr;es in the plaint. Mr~ El-maamry filed ar.;ain his chambe1~ application for the temporary injunction, On 26th June, 1996 capt Kamoja for the 2nd defendant stoke from the Bar that he would ma.ke sure the 2nd defendant was not going to temper with the said Mosaic Tiles until determination of the main,suit. Following that assurance, on or around 12th July, 1996 the plaintiff's learned counsel withdraw his chamber application for a temporary injunction. In replying to_the new plaint the 2nd defendant denied the claim and raised the above preliminary objections. In reply to the preliminary objections the plaintiff's

learned counsel Hr. El-maamry replied that the ne\~ ·plaint is not bad in law in view order 1 Rule 10(2) and Ruie 9 of the Civil Procedure Code 1966 which allow joining of partieso He said by withdrawing his chamber application by consent of b0th learned counscl3 he was made to understand that the 2nd defendant's learned counsel had also abandoned his preliminary objections and that is why he did not seek for leave to amend his plainto Secondly he believed in good faith that the amendment under Order 1 Rule 10(2) CFC is automatic which does not require leave of the court. On the 2nd preliminary objection the learned counsel replied tha the suit was not premature because it was based on contractual relation whereby the lst defendant was·su.pplied with the said Mosaic Tiles but it failed to pay the purchase price as agreedo .,, 3 This applies·also to preliminary objection No. 3e '~ On preliminary object ion No. 4 the learned counsel replie_d that the 1st plaintiff's Locus Standi is based on contractual relationship•. That of the 2nd plaintiff is based on the Power of Attorney. The learned counsel went on replying that ...although the said Power of Attorney was not stamped with. a stamp duty and was not sworn before any proper authority yet '.it is valid as it is not·khown whether '..,th0se ;, ., ~ conditions are also Mandatory in Italy . ·• . . . ' ,.,,here that· P6t~er of

Attorn~Y \Jas. ma·cte·/": Also if ·it is defecti.ve·;the defect can ··: ' !,..~.. •. • '.· ·.,, :·f;,:· .- .. '";"'--=.:-.: ..;.:--.:,.:-.:: .• 'r"":. '!'!'"·'--~·::.:: ~ .. , :.,_: · . . ··· . --r--;--,.~·:: ;Jt_..~': -~. .:· be cused by. tlie proviso'. fn S~46 (l)(a). .of the Stamp Duty· Act 1972,; · . , :.. , . ..... ·.~ . .-.-... ;:.; l..,>l : , ... --·-;·-·---- ..· -~· ,._,. . ___ _ He therefore ~all~d upon the co~rt t~,. dismiss. tl1J p:i~lim.ina~y: : objections or alternati_vely to allow.. him to proceed f11ith_ the old plaint. ,;1,•· ', •'.l The 2nd deferid~nt ,-~ learned· coun?el gave a detailed ..submission in suppo~t ... -~'· . _., .'~.-··~\-~)' · . . •,,~•-.. ~ , p r of his pleli~inary objection as pan be se.en in his written submissions filed in the recordo In short that is the gist of the mattero I have considered carefully the arguments of the learned counsels. There is no doubt that the plaintiff's counsel did not seek and obtain leave by this court to add the 2nd plaintiff to his plaint. Joining of a party in a case or amending the plaint in any manner whether under Order 1 Rule 10(2) or order Vl Rule 17 CPC i,s not automatic. Those provisions If of the law speak hy themselves and I do not have to use magic words to charge their meaning. Preliminary objection No. 1 is therefore uphelda As far as preliminary No. 2 i.s concerned there is no dispute that the 1st

defendant is under liquidation. A suit again.'3t a company which is under liquidation normally includes the liquidator. n is not very clear whather by including the words "in liquidation"· ill the plaint the plaintiff's learned counsel meant the liquidator is also a party. At any rate a suit against a company in liquidation must follow the procedure laid down in the companies (,,finding up) Rules 1929 which include service of an affidavit verifying the claim to the liquido.tor as per tbc case o:f 'HLLIAM 1gurno & ;±,?2..2~~1l?..,_V3 cqq_PERS AND LYBRAND AS JOINT 1r9.q_~A'.!.10RS 7 Z1\.i'1iBIA TP~!L~A!_IA B~ _'3ERYICE3 LIDo CAT Civil Appeal No. 5 of 1995 (unreported). Mr El-Maamry complained that it was not easy to serve the liquidator as he resides in the United Kingdom. But as properly stated by the 2nd defendant's learned counsel in his reply to Mr. El~Maamry's submission Rule 90 of the companies (Winding up) Rules allows po;:;tinc; of the said affidavit to the liquidatoro Therefore Mro El-Haamry :i.s complainant is lame 0 . t· ..... ;· ··,,, i '1. = 4 = Also the rule requiring such service does not say it excJ.udes , liquidators who are residing outside this countryo This preliminary o bfe ct ion is . upj eld • .. t\.s far as the 3rd prelimi11ary objection is concer:r:ied, that is lack of cause of action, the plaintiff s claim -3:gain.st the 2nd defend1.-mt is I alleged ·1:o

be due to the fact ~ha.t the 1st defem\ant was supplied with those Mosaic Tiles b;[ the 2nd plain.tiff SISCO thr011gh th-2 J.st plaintiff ' .·., .·. who is SISCO' s representative in tbis country. -And further that the 1st defendant did not pay the purchose price a11d the said Mosaia Tiles at the time of the institution Qf :1i1i1:f .si,it 1Jer€) in the posses8ion of the 2nd d.efendanto Under those circumstances the plaintiff fire claiming to have ci. lieu on the said Mos3.ic Tiles. 3ut all this .is s11b'ject to proof by eviclence \-.rhi.9~1 can not be dealt with a ~equat<?ly at this stage with the few facts presento '··1 therefore''hastate to hold at this stB.ge that the 1st plaintfff .hcls no ;,caupe of ·action. ...Thi§ c,1im be dea.lt with properly at the -?·ppropriate stage., . I. But the.2nd plaintiff who was improperly added to the plaint has no cause of action due to that improperity., As far as the 4th preliminary ob.j ec_tion 1.s concerned, due to the lieu pleaded. by the 1st plaintiff it would be unsafe to hold at this s~age that the l.e;;t plaintiff has no locus standio But what is clear is that the 2nd· plaintiff who was imroperly added to the pla:i.nt has no locus stanch due to that improperity. It is -upon the above rca..sons that I dismiss the n,!\·J plri.int which was improperly ·riicdo There is a plea by Mr. El-Maamry that if' the 1;,orse comes to the worst then

th0 case should proceed i;rith tho old plaint.. i,Jith respect to the l0,;trn12d counse::. this·can not be proper oecouse prelimir..ary objection NO.• 2 (premature) vtas raised also in tho lJ..S.D. for the old. plain- a.nd the holdin;-::; of the court is the same aG abc;yye. Therefore the old plail'.'-' also dies a similar death.· .... . 5 - As far as the position of the Power of Attorney is concerned the said Power of Attorney which was not stamped \,rith a stamp duty and not attested by any proper authority is void oy virtue of Sol+6(1) of the Stamp Duty ./\ct 19720 Although it was made outside Tanzania and we are not sure whether those conditions are also mandatory ir. that country where it was made ( ie Italy), under S~25 of the Stamp Duty Act 1972 it was supposed to be 'i' stamped within 30 days from the date it \:]as received in this countryo It is upon the above r,;asons that I uphold the 2nd defendant's preliminary objections Nos 1 and 2 in the new plaint and preliminary objectio: No (a) in the old plaint and dismiss the suit \·Jith costso . ·:r-1·. • I '. .\ . s. t ICJ'.JI - JUDGE 13/6/1997 Court: Ruling has been delivered in the presence of Mr. El~Maamry learned counsel for the plaintiff and Capt Kameja for the 2nd defendant this 13th day of June, ,19970 . d I /i So t-f. KAJI ~ 13/6/1997