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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CIVIL REFERENCE NO. 22130 OF 2024 (Arising from the Ruling of the District Court of Kinondoni in Miscellaneous Civil Application No. 7565 of 2024 (Hon. Mbaba, RM) dated 19th August 2024) ___________________________ EFC TANZANIA MFC LIMITED (Currently known as MWANGA HAKIKA BANK LIMITED)……..………….…….………………..…….…. APPLICANT VERSUS HAMZA BYARUSHENGO..……………………………………RESPONDENT RULING Date of last order: 8th October 2024 Date of Ruling: 12th November 2024 MTEMBWA, J.: Under Order 7(7) of the Advocates Remuneration Order of 2015, the Applicant is seeking for an order to quash and set aside the decision of the District Court of Kinondoni in Miscellaneous Civil Application No. 7565 of 2024, dated 19th August 2024. The Application has been filed at the instance of the Applicant's legal department and is supported by an Affidavit of Mr. Cleophace James, the learned Counsel for the Applicant. Briefly, parties had previously litigated in Civil Case No. 133 of 2015, ending in the Respondent’s favor on 20th March 2017 with costs. It could appear that the Respondent did not file the Bill of Costs within the 1 prescribed days to recover his costs. Still undaunted to demonstrate his rights, under Order 68 of the Advocates Remuneration Order 2015, Section 14 (l) of the Law of Limitation Act, Cap 33 RE 2019 and Section 95 of the Civil Procedure Code, Cap 33, RE 2019, the Respondent successfully filed an Application for extension of time within which to file the Bill of Cost out of time. The Applicant was not amused at all. She has preferred this Application, seeking for an order to quash and set aside the said decision as prefaced earlier. Having been served with the Application, the Respondent raised the preliminary objections to the effect that; 1. The applicant has no locus standi to file and prosecute the application at hand in view of a public notice issued by the Bank of Tanzania (BOT) dated 25th August 2020. 2. The chamber Summons/application is incurably defective for not having been endorsed and stamped by the Registry officer. 3. The application for reference is misconceived for being based on interlocutory orders. When the matter came for orders on 8th October 2024, Mr. Cleophace James, the learned counsel, appeared for the Applicant while the Respondent appeared in person. By consent, the parties agreed to argue the raised objections by way of written submissions. Having passed through the records, I am satisfied that parties adhered to the agreed 2 schedule, which I recommend. At the outset, I wish to point out that the Respondent dropped the second and third preliminary objections. Arguing on the first preliminary objection, Mr. Ashiru Hussein Lugwisa complained that the Applicant has no locus standi to file and prosecute the application at hand. He added that at the beginning, the Applicant was known as EFC TANZANIA MFC LIMITED, and later, that name was changed to EFC MICROFINANCE BANK (TANZANIA) LIMITED. In September 2019, the Bank of Tanzania authorized MWANGA COMMUNITY BANK LIMITED to take over EFC MICROFINANCE BANK (TANZANIA) LIMITED. On 7th January 2020, MWANGA COMMUNITY BANK LIMITED amalgamated with HAKIKA MICROFINANCE BANK LIMITED to form a microfinance bank known as MWANGA HAKIKA MICROFINANCE BANK LIMITED. On 30th June 2020, the Bank of Tanzania issued a Licence to the new bank known as MWANGA HAKIKA MICROFINANCE BANK LIMITED and canceled the licenses to MWANGA COMMUNITY BANK LIMITED, HAKIKA MICROFINANCE BANK LIMITED and EFC MICROFINANCE BANK (TANZANIA) LIMITED. Mr. Lugwisa continued to note that from then on, all legal rights and obligations of the canceled banks were taken over by the new bank known as MWANGA HAKIKA MICROFINANCE BANK LIMITED. 3 Thus, on 25th August 2020, the Bank of Tanzania issued a Public Notice annexed to the Applicant's supporting affidavit as Annexure EFC-I. He added that the Applicant's allegation that EFC TANZANIA MFC LIMITED is currently known as MWANGA HAKIKA BANK LIMITED is unfounded. In his further note, the learned counsel observed that a company is a legal entity. It is born and dies, but the Applicant's existence is a mere assumption. A company has to acquire a legal personality; therefore, it has to be incorporated. There is nowhere in the Applicant's affidavit indicating that a certificate of incorporation is attached or such a certificate exists. The learned counsel insisted that the Applicant is a non-existent entity. He cited the case of EFC Tanzania MFC Limited vs. Hamza B. Byarushengo, Civil Reference No.6222 of 2024, where the Court referred the case of Singida Sisal Production & General Supply vs. Rofal General Trading Limited & 4 Others Commercial Review No. 17 of 2017 and observed that a valid legal action before a Court of law, parties must have an actual legal existence. The non-existing party does not have legs to stand, no hands to prosecute, no eyes to see, and no mouth to speak on her own or on behalf of any other person before any Court of law. 4 Based on the foregoing arguments and cited authorities, Mr. Lugwisa implored this Court to strike out this Application with costs. In response, Mr. Stephene Mayombo, the learned counsel, was on duty. He submitted that the Applicant had attached a public notice which reveals that EFC TANZANIA MFC LIMITED has been acquired by MWANGA HAKIKA MICROFINANCE BANK LIMITED. He admitted to have mistakenly omitted the word "Microfinance" in between. He considered the omission an oversight, which is curable because it does not affect the substance of this Application. Stretching further, he reminded this Court of the need to observe substantive justice rather than technicalities. To reinforce the argument, he cited the case of TPB Bank PLC (Successor in Title to the Tanzania Postal Bank) vs. Rehema Alatunyamadza and 2 others, Civil Appeal No. 155 of 2017 where the Court observed that; However, having considered all the circumstances of this appeal, we find that justice demands expeditious disposal of this appeal. Therefore, we shall not but strike out this appeal, instead in order to meet the better ends of justice we invoke the powers bestowed on us under rule 4(2(b) of the Rules and order the appellant to amend the notice and record appeal to reflect the appellant’s new name. The learned counsel observed further that since this application was filed on time and this court has jurisdiction to determine it, he invited this 5 Court to invoke its powers bestowed under sections 3(A) and 3(B) of the Civil Procedure Code, Cap 33, R.E 2019 and apply the principle overriding objective and order the Applicant to correct the Applicant’s name. Mr. Mayombo observed further that faulting the whole the Application as alleged by the Respondent will prolong the matte and in fact, the Respondent will not be prejudiced in any manner if the proper name of the Applicant is inserted to expedite the hearing of the matter on merit and uphold substantive justice to both parties. He cited the case of Bahati Musa Hamis Mtopa vs. Salum Rashid, Civil Application No. 112/07 of 2018, where the Court observed that; We, like in the above case, think that the error committed by the Applicant's learned counsel was purely human error. We think that if the application is granted, no serious damage will be done to the respondent. On the spirit of the submissions above and cited authorities, Mr. Mayombo beseeched this Court to allow the Applicant to correct the name of the Applicant by inserting a correct name to uphold substantive justice. Having dispassionately considered the parties' arguments and cited authorities to reinforce them, the question is whether the preliminary objection is meritorious. As said before, the Respondent abandoned the second and third preliminary objections. For this reason, I will only determine the substance of the first preliminary objection. 6 The point of contention is that on 30th June 2020, the Bank of Tanzania issued a Licence to the new bank, MWANGA HAKIKA MICROFINANCE BANK LIMITED, and canceled the licenses to MWANGA COMMUNITY BANK LIMITED, HAKIKA MICROFINANCE BANK LIMITED, and EFC MICROFINANCE BANK (TANZANIA) LIMITED. Mr. Lugwisa contended that all legal rights and obligations of the canceled banks were taken over by MWANGA HAKIKA MICROFINANCE BANK LIMITED, and on 25th August 2020, the Bank of Tanzania issued a Public Notice to that effect. He faulted the Applicant’s stance that EFC TANZANIA MFC LIMITED is currently known as MWANGA HAKIKA BANK LIMITED. Mr. Mayombo was not far from admitting that MWANGA HAKIKA MICROFINANCE BANK LIMITED has acquired EFC TANZANIA MFC LIMITED. He admitted to have omitted the word "Microfinance" in between. He considered the omission an oversight, which is curable because it does not affect the substance of this Application. From what I have endeavored herein above, the parties agree that MWANGA HAKIKA MICROFINANCE BANK LIMITED has acquired EFC TANZANIA MFC LIMITED. However, by human error, the Applicant admitted to have omitted to insert the word "Microfinance" in between. Mr. Mayombo implored this Court to allow the Applicant to amend the pleadings to insert the missing word. 7 While I agree that parties to the proceedings should be correctly cited to enable the Court to enter a particular verdict to the specific litigant properly named, with respect, I cannot agree with Mr. Lugwisa that such an error entitles this Court to throw away the whole Application. As correctly alluded to by Mr. Mayombo, which I find to be correct, the Court may order a correction of such an error on such terms as it deems fit considering the circumstances. The test would be whether, by such an order, the other party will be prejudiced and or whether the order will result into injustice to the other party. It would also be unhealthy if such an order changes the nature of the claim. In this case, the parties seem to be aware that MWANGA HAKIKA MICROFINANCE BANK LIMITED has acquired EFC TANZANIA MFC LIMITED. The omission to include the word "Microfinance" in between is only a human error that does not affect the substance of the Application. Throwing away the whole Application will not be a viable option and, in my conviction, will cause unnecessary costs and be time- consuming for the litigants. Besides, it will be repugnant to the overriding objective principle, which enjoins Courts to adhere to substantive justice rather than technicalities. With such remarks, I subscribe to the holding of the Court of Appeal of Tanzania in TPB 8 Bank PLC (Successor in Title to the Tanzania Postal Bank) (supra), which Mr. Mayombo correctly cited to me. Having so observed, the preliminary objection is hereby overruled. However, for proper recording, an order is hereby entered in favor of the Applicant to amend the Application to insert the word "Microfinance" in between. The amended application should be filed within ten (10) days from the date of this ruling. It is so ordered. DATED at DAR ES SALAAM this 12th November 2024. H.S. MTEMBWA JUDGE 9 10 11