EAST AFRICA DEVELOPMENT BANK VS HOOD TRANSPORT AND CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT PAR ES SALAAM COMMERCIAL REVIEW APPLICATION NO.09 OF 2023 (Arising from Misc. Commercial Case No.52 of 2023) BETWEEN EAST AFRICA DEVELOPMENT BANK............................................. APPLICANT VERSUS HOOD TRANSPORT AND COMPANY LIMITED...................... 1st RESPONDENT MOHAMED HOOD ALJABRY................................................. 2nd RESPONDENT SAID MOHAMED ALJABRY................................................... 3rd RESPONDENT (Being an application for review of part of the Ruling of the high Court in Misc. Commercial Case No.52 of 2023 by Hon. Mr. Justice Nangela, J. dated 21st September 2023) RULING Date of last 0rder:31/05/2024 Date of Ruling: 07/06/2024 GONZI, J. The Applicant filed the present application on 19th October, 2023 beseeching this Honourable Court to review its own decision in Misc. 1 Commercial Application No.52 of 2023 dated 21st September 2023 as per Hon. Mr. Justice Nangela, J. In the Memorandum of Review which was brought under section 78(l)(a) and Order XLII Rules 1(a), (2) and (3) of the Civil Procedure Code, Cap 33, RE 2019, the Applicant advanced one ground of review namely: (A) There is an error on the face of the records in the ruling in that the court instead ofstriking the names of the 2Pd and 3d respondents, it went on to strike the whole application, regard being that the objection was about inclusion of the said 2Pd and 3d respondent only. The applicant therefore prayed for this Honourable Court to review the Ruling by restoring the application as against the 1st Respondent with costs. The genesis of the matter is in Misc. Commercial Application No.52 of 2023 between the same parties herein. The Respondents in that application raised preliminary objections to the effect that: 1. The Application is bad in law for improperlyjoining the 2Pd and 3d Respondents. 2. The Application is incompetent for being preferred under section 12(7) and 13(4) of the Financial Leasing Act. 2 3. That the Application is in itself untenable. After hearing the parties in that case on the 21st September 2023, this Court determined the application and the dispotive part of the Ruling, as it can be seen at page 11 thereof, stated that: On the other hand, I do agree with Mr. Mnyeie that, the application is filed as a separate matter under the Financial Leasing Act, Cap 417.R.E 2002. However, much as I agree with him on that point, I do find merit in the argument that, the 2Pd and 3rd Respondents being not parties to the Lease Agreement (Annexture EADB-1) cannot be made parties to the dispute between the Applicant and the 1st Respondent unless it is clearly shown how they are involved in the transaction. By merely stating that they are necessary parties does not suffice. For the reason above, I will uphold the objection and hereby proceed, as I do, to struck out the application. Having upheld the first objection, I see no need to address the second objection. The application is, thus, struck with no orders as to costs. The application before me was set for hearing whereby the Court granted leave to both sides to argue the application by way of written submissions. Both sides complied with the schedule given and duly filed their 3 written submissions. The applicant enjoyed the services of Mr. Gabriel Simon Mnyele, learned Advocate. The Respondents enjoyed the services of Majura M. A. Magafu and Elinas Kitua, learned Advocates. It was submitted by Mr. Mnyele, learned Advocate that the Applicant has no qualms with the Ruling that there was misjoinder of the 2nd and 3rd Respondents in Misc. Commercial Application No.52/2023 but that there was an apparent error in the consequential order by this Court striking out the entire application against all the 3 respondents instead of striking out the names of the 2nd and 3rd respondents only and leaving the application intact as against the 1st Respondent who was otherwise properly impleaded. Mr. Mnyele submitted further that the law under Order I Rule 9 of the Civil Procedure Code, provides that "no suit shall be defeated by reasons of misjoinder or nonjoinder of the parties, and the court may in every suit deal with the matter in controversy so far as regards to rights and interests of the parties actually before it." Therefore, the learned counsel for the applicant submitted that where the court finds that there is a misjoinder of parties, the consequences are to remove the party that has been mis-joined and leave the matter intact, unless the mis-joined party was the only party to the proceedings. He relied on the decision of the case of Sabri Muslim 4 Karim(formerly known as Sabri Ally Saad) versus Muslim Shivji and 3 others, Commercial Case No.54/2022 unreported where Hon. Nangela,!, held that: "As rightly stated by the learned counsel for the petitioner, as a matter of general principle, a misjoinder or non-joinder should not defeat the present petition. In the upshot of that, the only effect to be registered here and which arises from the finding that the 2Pd Respondent has been wrongly joined in this petition is that of extricating the name of the 2Pd Respondent from the recordas if she has never been made a party of this matter as it does not concern her". Mr. Mnyele, also referred this court to the decisions in Lweru Enterprises Co.Limited versus Massor Oil Industries Limited and 3 Others as well as the case of Yahya and Others versus Jessie Mnguto Liquidators Tanzania Sisal Authority and Others (2014)EA 472. Both cases have a similar rule that the fate of misjoinder of a party is not to defeat the suit. Therefore, Mr. Mnyele submitted that a similar fate should have visited the 2nd and 3rd Respondents in the Misc. Commercial Application No.52/2023 rather than striking out the whole application. He argued that 5 the word "suit" under Order I Rule 9 of the Civil Procedure Code has been interpreted broadly to include applications as well. In response, the learned counsel for the Respondent's counsel argued that the joinder of the 2nd and 3rd Respondents in Misc. Commercial Application No.52/2023 was made with ill motive of joining the 2nd and 3rd Respondents who were not parties to the lease agreement hence condemning the 2nd and 3rd Respondents unheard hence circumventing their right to be heard. The learned counsel for Respondents submitted that the arguments advanced now ought to have been advanced during the hearing of the Misc. Commercial Application No.52/2023. As the same were not raised, the applicant is now estopped from raising the arguments. The learned counsel argued that the Court was correct to strike out the incompetent application because that is the fate of an application being incompetent, that is, it should be struck out. They concluded their submissions that remedies are issued at the discretion of the court and that the present application does not deserve the exercise of the court's discretion in its favor. They prayed for dismissal of the application with costs. In rejoinder submissions, Mr. Mnyele, learned advocate for the applicant pointed out that in essence the Respondents are not disputing the 6 argument that the Ruling in Misc. Commercial Application No.52/2023 contains errors on the face of the record. After hearing the rival arguments by the learned counsel for the parties, I should state that the present case is not one for revision or appeal. It is an application for review. This court is called upon to review its own decision and rectify an error apparent on the face of the record. Ideally an application for review is done by the same judicial officer who gave the decision subjected to review. However, in circumstances where the respective judicial officer is not in the station due to reasons such as transfer or retirement, then a successor judicial officer steps in the shoes of the judicial officer who made the decision. The successor judicial officer has no more or lesser powers with regard to the decision under review than the predecessor judicial officer. In that regard, I adopted the decision of Hon.Nangela, J., as my own decision and proceeded to reconsider it in line with the ground of review presented and according to the applicable law. Does it fit within the parameters of review? The application is brought under section 78. -(1) (a) and (b) as well as Order XLII of the Civil Procedure Code. I reproduce Order XLII of the Civil Procedure. "XLII-(l) Any person considering himselfaggrieved- 7 (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply fora review ofjudgment to the court which passed the decree or made the order." In the case at hand, it was argued by the Applicant that this court has got powers to review its own judgment under section 78 and Order XLII(l)(a),4(2) of the Civil Procedure Code Cap 33 of the Laws of Tanzania. The ground of review, is that there was a manifest error on the face of record. As to what constitutes an error apparent on the face of the record, Mulla, Indian Civil Procedure Code, 14^ Edition Pages 2335 - 36, states that "AN ERROR APPARENT ON THE FACE OF RECORD MUST BE SUCH AS CAN BE SEEN BY ONE WHO WRITESAND READS, THAT IS, AN OBVIOUS AND PA TENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY 8 A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAYCONCEIVABLYBE TWO OPINIONS. " I asked myself whether the Ruling of this Court in Misc. Commercial Application No.52/2023 contains an error apparent on the face of record which can fit in the context described by Mulla in the above quoted excerpt? The relevant part of the Ruling is found at page 11 where this Court held that: " On the other hand, Ido agree with Mr. Mnyele that, the application is filed as a separate matter under the Financial Leasing Act, Cap 417.R.E 2002. However, much as I agree with him on that point, I do find merit in the argument that, the 2Pd and 3Fd Respondents being not parties to the Lease Agreement (Annexture EADB-1) cannot be made parties to the dispute between the Applicant and the 1st Respondent unless it is clearly shown how they are involved in the transaction. By merely stating that they are necessary parties does not suffice. For the reason above, I will uphold the objection and hereby proceed, as I do, to struck out the application. Having upheld the first objection, I see no need to address the second objection. The 9 application is, thus, struck with no orders as to costs." It should be borne in mind that the above ruling was in respect of the objection that: "7. The Application is bad in law for improperly joining the 2nd and3rd Respondents." The objection was specifically focused on freeing the 2nd and 3rd Respondents from Misc. Commercial Application No.52/2023 and that is the same objection which this Honourable Court upheld. The effect of upholding that objection however seems to have transcended its scope by defeating the entire application against all the parties to the application including the 1st Respondent who never protested her joinder in the application. That was an apparent and sharp irreconcilable contradiction between the reasoning and the outcome. It is so apparent without the need for long and protracted process of reasoning. Was it the intention of this Court that the effects of misjoinder of the 2nd and 3rd Respondents should have also vitiated the entire application even in respect of the 1st Respondent? I find it to be not the case. The chain of reasoning of the Honourable Predecessor Judge can be discerned from the sentence "I do find merit in the argument that, the 2nd and 3rd Respondents being not parties to the Lease Agreement (Annexture EADB-1) cannot be made parties to the dispute between the Applicant and the 1st 10 Respondent unless it is clearly shown how they are involved in the transaction." I find that from the very outset this Court was proceeding on the understanding that the objection on misjoinder of parties was with respect to the 2nd and 3rd Respondents only. In that regard the resulting order was intended also to be in respect of the 2nd and 3rd Respondents only. Hence, the correct and intended order was striking the names of the 2nd and 3rd Respondents from record thereby leaving Misc. Commercial Application No.52/2023 intact but with the 1st Respondent only as the proper and necessary party. By slip of the pen, the final order read that the application was being struck out instead of the names of the 2nd and 3rd respondents being struck off the record. This intention of the Honourable Predecessor Judge is gathered from his similar treatment of previous similar proceedings where, in Sabri Muslim Karim (formerly known as Sabri Ally Saad) versus Muslim Shivji and 3 others, Commercial Case No.54/2022 unreported Hon.Nangela,J., held that: "4s rightly stated by the learned counsel for the petitioner, as a matter of genera! principle, a misjoinder or non-joinder should not defeat the present petition. In the upshot of that, the only 11 effect to be registered here and which arises from the finding that the 2111 Respondent has been wrongly joined in this petition is that of extricating the name of the 2Pd Respondent from the recordas if she has never been made a party of this matter as it does not concern her". The above quoted holding cements the belief that the Honourable Predecessor Judge in determining the consequences of an application being bad due to misjoinder of a party, is of the unwavering position that the effect thereof only leads to striking off or rather "extricating" the names of the party improperly joined and whom the case does not concern; and leaving the case intact to proceed against the remaining party or parties who are properly joined. It is clear therefore that to the Honourable Predecessor Judge, the effect of misjoinder of a party is a matter over which there are no conceivably two opinions. At any rate, the Respondents' learned counsel in their written submissions in reply to the applicant's written submissions, have not shown any divided positions in law in respect of the consequences of a party being improperly joined in a suit, other than the unanimous position shown by the learned counsel for the applicant, which position is in accord with the relevant provisions of the law and for which there exists a 12 chain of consistent judicial decisions including the decision by Hon. Nangela,J., as shown above. It is impossible to enter the mind of the predecessor Judge and state with assured certainty what he had actually intended. However, like nature abhors vacuum, so does the law governing administration of justice. As the successor judicial officer, sincerely stepping in his shoes and adopting his line of argument and conclusion as shown above, it is clear to me that the Court in Misc. Commercial Application No.52/2023 intended to strike off only the names of the 2nd and 3rd Respondents by reason of their misjoinder, but due to an error or inadvertency, it ended writing that the application had been struck of, instead. Section 78 and Order XLII of the Civil Procedure Code, Cap 33 were enacted with the understanding of the fact that there is human fallibility. Hence the court has been given a tool, through a transparent judicial process, involving both parties, to rectify those errors which become apparent on the face of record. In the upshot, I allow the application for review. I make an order rectifying the record in-respect of the order of this Court dated 21st September 2023 in Misc. Commercial Application No.52/2023 between the parties herein to read: "For the reason above, I will uphold the 13 objection and hereby proceed, as I do, to strike-off the 2nd and 3rd Respondents from this application. Having upheld the first objection, I see no need to address the second objection. I make no orders as to costs." The effect of my Ruling is to restore Misc. Commercial Application No.52/2023 between the Applicant and the 1st Respondent so that the same can be determined by the Court. I allow this application without an order as to costs since the error was an inadvertent error of the Court not the respondents. It is so ordered. Ruling is delivered in Court this 7th day of June, 2024 in the presence of Ms. Salma Sungwi, learned Advocate for the Applicant and Ms. Clara Said holding brief for Mr. Elinas Kituwa, learned advocate for the Respondents. A.H. GONZ JUDGE 14