CIVIL CASE NO 7126

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES- SUB-REGISTRY AT DAR ES SALAAM CIVIL CASE NO. 7126 OF 2024 ERNEST MALINDA NCHEYE ...................................... PLAINTIFF VERSUS BURQUE EAST AFRICA (PRIVATE) LIMITED………… DEFENDANT RULING MKWIZU, J The case's straightforward facts can be inferred from the pleadings. In February 2023, Plaintiff and Defendant established a solid and protracted commercial partnership. Respondent was a supplier of goods, and in exchange for an upfront payment, the Plaintiff received the given items in bulk, including cooking oil and sugar. The Defendant's habit of bringing the goods to the Plaintiff's store, Lupila Shop, in Mbagala Rangi Tatu Area, Temeke District, Dar es Salaam, further strengthened their trust. As the point of contact between the plaintiff and the defendant, Tumaini Hezron Mpogole, the defendant's former sales representative, oversaw the meticulous execution of the commercial arrangement. To ensure a seamless and effective cash transfer and demonstrate the business arrangement's thoroughness, this required processing payments issued by the plaintiff for specified commodities, which were subsequently deposited through NMB Bank, Equity Bank, or CRDB Bank agents close to 1 the plaintiff's shop. Plaintiff would give the various Bank agents the pertinent sums of money and provide them with permission to communicate with and collaborate with Ms Tumaini to handle the cash on behalf of Defendant. Nonetheless, the Depositor's name would appear as "Tuinaini" in the relevant transaction, and given the express authorisation provided by the Plaintiff for each batch of funds to be processed by the said Agent and deposited by the said Ms Tumaini, the Bank's agents all knew and were fully aware that the payer was the Plaintiff. It was Ms Tumain who would choose which bank to deposit the pay amount depending on her internal arrangement with the defendant. The assorted commodities that Plaintiff paid for would subsequently be delivered to Plaintiff's shop premises under the supervision of Ms. Tumaini, where they would be checked against the total payment amount. The Plaintiff paid the Bank's Agent a lump sum based on the designated commodity load, and the deposit was processed. The fore-referred arrangement ran relatively smoothly until sometime in October 2023 when, between 4th October 2023 and 30th November 2023, the Plaintiff paid a total of Tshs. 427, 104, 000/=; which was duly received into Defendant but for which no commodities for that particular value were supplied to Plaintiff as Defendant refused to deliver the goods despite several reconciliations resulting in an accumulated loss to plaintiff hence this suit where Plaintiff prays for judgment and decree against the Defendant as follows:- i. Declaration that Defendant has breached a contract for the supply of 4857 Pails of "Korie" Brand Cooking Oil as well as 1200 25-kilogram Bags of Sugar worth a total of Tshs. 427, 2 104, 000/ = for which the Plaintiff had paid to the Defendant. ii. For Orders that Defendant pay to Plaintiff a total of Tshs. 427, 104, 000/=, which is the money that Plaintiff paid to Defendant for the supply of 4857 Pails of "Korie" Brand Cooking Oil and 1200 25-kilogram Bags of Sugar worth a total of Tshs. 427,104,000/ “. iii. For Orders that the Defendant pay interest on Tshs. 427,104 000/= at the rate of 21% from 30 November 2023 until the date of Judgment. iv. For Orders of payment of interests on the Decretal Sums at the Court rate from the date of Judgment to the date of final payment. v. For Orders that Defendant pay the Plaintiff General Damages at a quantum to be assessed by the Court. vi. For costs of this Suit. vii. Any other order the Hon. Court will deem just and fit to grant. The defendant refuted the allegations and raised a preliminary objection asserting that – (i)The Plaint is bad in law for suing against a non- existing entity, BURQUE EAST AFRICA (PRIVATE) LIMITED, which cannot sue or be sued as she changed her name to BURQUE TANZANIA LIMITED. The preliminary objection was disposed of through written submissions. The defendant's lawyer argued that Burque East Africa (Private) Limited, the defendant in this case, is not a legally recognised entity and, therefore, cannot initiate or defend legal actions. Referring to the 3 Certificate of Change of Name issued by the Registrar of Companies of the Business Registrations and Licensing Agency (BRELA) that was attached to the WSD, he asserted that BURQUE EAST AFRICA (PRIVATE) LIMITED changed its name to BURQUE TANZANIA LIMITED on November 17, 2023. He further emphasised that the company is neither an individual nor a legal entity. He referred the court to the cases of CRDB (1996) Limited v. George Mpeli Khindu (As Administrator of George Mathew Kilindu), (Misc. Civil Application No. 405 of 2020) [2023] TZHC 15880 (17 February 2023) TANZLII and Coca Cola Kwanza Ltd v. Peter John Mkenda, Civil Appeal No. 111 of 2017,120181 TZHC 2815 (25 May 2018) TANZLII and Sebastian Abdallah Msola vs Njombe Regional Manager, TANROADS (Civil Case No. 3 of 2014) [2014] TZI1C 2305 (16 April 2014) TANZLII In rebuttal, the applicant's counsel countered that the assertion that the defendant has changed their name was made in a written statement of defence and d that supporting documentation for the Annexure would be required. He argued that even if the court determines that the Defendant is not a legal person, the Court still has the discretion and jurisdiction to order the removal of the incorrect former name used as the defendant and to require the insertion of the correct name in order to address the real issue in dispute between the parties under Order I Rules (1) and (2) of the Civil Procedure Code, Cap 33 (RE 2022). Christina Mrimi Versus Coca Cola Kwanza Bottlers Limited, Civil Application No. 113 Of 2011, and Alliance Life Assurance Limited Vs Elihuruma Ngowi, Civil Appeal No. 487 of 2021 (unreported)were also cited praying to have the objection overruled with costs. 4 I have thoroughly reviewed the submissions from both parties. The main issue is whether the defendant is a legal entity capable of being sued and whether the name of the non-legal entity listed as a defendant can be amended. It is settled law that a suit cannot be filed by or against a non- existing person or entity. As a result, a suit brought against an existing juristic entity is incompetent. This stance was stated in the case of Sebastian Abdallah Msola vs Njombe Regional Manager, TANROADS ((Supra) cited to me by the respondent's counsel, where the court held that; " ...by any stretch of the imagination, one cannot sue a defendant who does not exist in the eyes of the law ” In Fort Hall Bakery Supply Company v. Fredrick Muigai Wangoe (1959) EA 474, the Court also ruled to the effect that: "A non-existent person cannot sue, and once the Court is made aware that the Plaintiff is non-existent, and therefore incapable of maintaining an action, it cannot allow the action to proceed.” The Respondent's contention stems from the certificate of Change of Name issued by the Registrar of Companies of the Business Registrations and Licensing Agency (BRELA) attached to the WSD dated November 17, 2023. The certificate shows that the defendant, BURQUE EAST AFRICA (PRIVATE) LIMITED, changed its name to BURQUE TANZANIA LIMITED before the institution of this case. I am aware that in our jurisdiction, a company may change its name in accordance with company legislation, specifically Sections 31(3) and 4) of 5 the Companies Act. But apart from changing its identity to the new name following the name change, such a change does not affect the company's assets or liabilities. Before the court, the defendant is BURQUE EAST AFRICA (PRIVATE) LIMITED, which is not a legally registered entity. The plaintiff's counsel suggests amending the case by inserting the proper name. I have read the decision the plaintiff's counsel referenced with great attention. An error occurred in the respondent's name in Christina Mrimi Versus Coca-Cola Kwanza Bottlers Limited (supra); it should have read Coca-Cola Kwanza Ltd. instead of Coca-Cola Kwanza Bottlers Limited. The respondent believed adding "Bottlers" established a distinct entity in that instance. Although the Court acknowledged the existence of an omission, it downplayed its significance. It adopted the attitude that this was just a typo that could be cured through an amendment done at the instance of either party. In Alliance Life Assurance Limited Vs Elihuruma Ngowi( supra) , the Court of Appeal held: “If the change is in the form of a misnomer that is done inadvertently, the settled position is that the court enjoys the discretion of choosing to focus on the rights and substance of the parties and their case, rather than punitively truncating the proceedings through striking out of the cases. In arriving at such conclusion, the question which will be posed by the court is whether a reasonable defendant in looking at the document as a whole, and in all the circumstances, would conclude that they were, in fact, the defendant. If the answer is yes, courts are allowed to be tolerant and, in fitting 6 situations, to order amendment of the pleadings, especially where the error involves the name of a corporate personality of the person sued. The condition precedent, however, is that the corporate personality of the person sued should not be in doubt” The decision above confirms that the court must carefully assess the significance of errors or omissions when evaluating a party's name dispute. The critical question is whether the legal documents identify the party involved as intended in the case or as a separate entity unrelated to the dispute. Courts have the power to be flexible, and when appropriate, they can require amendments to the legal documents if it is found that the intended party was involved in the case and there is no doubt about their identity. I have assessed the pleadings and parties' submissions per the above principles. The defendant does not contest the alleged relationship with the plaintiff, which has led to the current legal claims. The main issue is that the defendant is currently using a different name. The defendant's WSD is apparent in this matter. The defendant denies the claim based on the plaintiff's failure to pay, not the absence of a supposed commercial relationship, meaning that there is assurance to the identity of the defendants except only on the changes of the name made. Therefore, I firmly believe the proposed change is feasible and will allow for a fair assessment of the dispute based on merit. As a result, parties are directed by this order to amend their pleadings by properly inserting the defendant's name. In the interest of justice and to 7 avoid delays, the amendment should be effected by ink pen here in court in the presence of both parties. To this end, the preliminary objection is overruled. However, considering the nature of the dispute and the resultant order, each party is ordered to bear its own costs. DATED at DAR ES SALAAM this 31st July 2024 E.Y. Mkwizu JUDGE 31/7/2024 8