first assurance company ltd vs ntoka company limited 2021 tzhccomd 3327 10 september 2021

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM MISC.COMMERCIAL APPLICATION NO. 80 OF 2021 (Arising from Commercial Case No. 44 of2021)

BETWEEN FIRST ASSURANCE COMPANY LTD...................APPLICANT

VERSUS

NTOKA COMPANY LIMITED Last Order: 18/08/2021 Ruling: 10/09/2021 UCINGY> a co^defendantY The Applicant is seeking the leave of this Court to^present and issue a third-party notice against the Respondent. In the main case, Commercial Case No. 44 of 2021, the Plaintiff therein (PLASCO LIMITED), a company incorporated under the laws of Tanzania, is jointly and severally suing the Applicant (as the 2nd Defendant) and Respondent (as the 1st Defendant), and has prayed for the following orders and reliefs from this court; Page 1 of 5 1. That this Honourable Court to declare that the failure by the Defendants to settle the outstanding amount as required by the Credit Agreements and Bond Gurantee was a breach of Agreement.

2. That this Honourable Court Orders Defendant jointly and severally to pay the Plaintiff the payment of TZS. 95,000,000/- being an outstanding amount from the goods supplied to tnej.5* Defendant.

3. This Honourable Court ^orders jbiir^/and. severally to the Defendants the oayment of , 4. W the interest at thexcommercial£rate on* the principal amount claimed asxfrom January ( { \\ 2020 to the date of judgment of this case. <\ W \> 4. This hon^rabl^^ou^orders jointly and /severally foxtheJJefendants the payment of interes^onJheT)ectretal amount at the rate xof 7%xper annum from the date of the till the date of full and final \\satisfaction of the Decree.

5. General damages as shall be assessed by the Court.

6. Costs of this suit 7. Any other reliefs) the Court deems fit and just to grant. Before the matter proceeded further, the Applicant filed this ex parte chamber Application on the 22nd June 2021. The same was filed by the way of chamber summons Page 2 of 5 supported by an affidavit of one, Regina Herman the Applicant's Advocate. In the chamber application the Applicant seeks for the following orders: 1, The Applicant be granted leave upon which to present and issue a third-party notice against the Respondent herein who is Co­ defendant in the main suit No. 44 qfk2021 2. Costs of this application be costin causeX /> 3. Any relief and or direction the Loul^shalrv^z deem fit to grant When this applicationxwas^Galled'"on for its hearing before me on 18th August 2021, Miss Regina Herman learned <\ \\ \\ \> counsel for the ^Applicant, appeared and, submitting in support of^tfie^pray^rsxsotFght; Miss Herman adopted the x\ ) Vs contents^ herCsuppordng affidavit as forming part of her subnissioXXXx \\ w She submitted that, this Court should be pleased to grant the prayers sought because the Applicant has no direct obligation to the main case, i.e., the Commercial Case No. 44 of 2021, and that, is even a stranger to the case. Having carefully considered the submission made by the learned counsel for the Applicant, and having looked at the chamber summons and its accompanying affidavit,

I note, as once observed in the case of Shiraz Pyrali Walji Page 3 of 5 vs ZamZam Oil Company Ltd and 5 others, Misc. Comm. Appl. No. 3of 2020 (unreported), that, principally, in any ex parte application, the Applicant must disclose, to the fullest possible extent, all material facts known to him/her, without any attempt to intentionally mislead the Court or intentionally starve it of the truth. As I noted herein, this Application was brought under Order 1 Rule 14 (1) (2) and (23) of the CWilsProcedure Code, Cap 33 [R.E 2019]. This Order provides a procedure that need to be followed when one Js seeking-Torleavej of this Court to allow him/her filed .aJhircKpartyvapplication to join to the main suit as third-pa^ wlwis-c|^^efgndant. Before determining whethena^Court should grant or refuse an applic^tionx^or leave^tb\fil>e a third-party Notice, it is trite law, .that, tne, Applicant/has to establish, on face of the record^of Jjlje^plea^ings, and upon his supporting affidavi^th^xrejs^entitled to contribution or indemnity from\that thfel^arty, in respect of the amount which the PlaintiffMFk^^piain suit claims in the event that the claim is successful. Upon reading the pleadings and on the basis of the submission made before this Court, I find that, the basis of seeking to join Respondent as third-party to the main case which is pending before this Court, if the fact that, as

the insurer of the Loan, the applicant has no direct agreement with the Plaintiff in the main suit. Page 4 of 5 In the upshot, I am satisfied that, the Applicant has exhibited, in the face of record of their pleadings, and, upon her supporting affidavit, that, there are sufficient grounds entitling her to seek indemnification from the intended third party who is also a co-defendant. All said and done, this Court finds it reasonable and proper to grant leave to the Applicant/ 2nd Defendant to present a Third-Party Notice to the Respondent/lst defendant. This ex-parte application is therefore hereby granted. I make no orders as to costs. It is so ordered. DATED AT DAR-ES-SALAAM ON THIS 10th SEPTEMBER 2021

DEO JOHN NAN GE LA 3H 1 *

JUDGE Page 5 of 5