godfrey consumer products ltd vs target international t limited 2022 tzhccomd 229 24 august 2022

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM MISC COMMERCIAL APPLICATION NO. 111 OF 2020 GODREJ CONSUMER PRODUCTS LTD…………………………APPLICANT. VERSUS TARGET INTERNATIONAL (T) LIMITED………………………RESPONDENT. RULING. Date of last Order: 1/8/022. Date of Ruling: 24/8/2022. MARUMA, J. The Applicant herein is seeking for orders among them a leave to amend the Plaint in Commercial Case No. 60 of 2019 to join one P.T Megasari Makmur as Co - Plaintiff and make such consequential and necessary changes thereto. He moved this Court by a way of chamber summons for the requested orders, the Applicant cited the provisions of Rule 2 (2), 24 (1) and (3) of the High Court (Commercial Division) Procedure Rules, 2012, Section 3A (1) and (2), 97 and Order 1 Rule 1 & 10 (1) of the Civil Procedure Code [Cap 33 RE 2019]. Before I proceed to the submissions made by party’s counsel for on the raised point of law subject to this ruling. I wish to give a brief sequence of events in this application to the effect that, this application has stayed pending in Court for quite some time since it was filed on 1 20th July 2020 and assigned to Hon. Fikirin, J (as She then was). On 26th October 2020 the Court ordered for the matter to be disposed by way of written submission upon the party’s request and the schedule for their submissions was set. Later on, Hon. Fikirin JA, was elevated to the Court of Appeal and the matter was re-assigned to Hon. Mteule, J on 4th August 2021. However, the presiding Judge was also transferred to Labour Court and hence the matter was re-assigned to me on 17th January 2022. Upon Mr. Kamuzora’s request and since the matter has been in Court for a long time since 2020, I ordered the hearing to proceed orally so not to prolong delays. On 18th May 2022, when the matter was set for hearing, Mr. Francis Kamuzora appeared for the Applicant and Mr. Gulam Hussein assisted by Ms. Hawa Turusia appeared for the respondent. In support of the application, Mr. Kamuzora made his submission in chief and the matter was adjourned to another date. On 1st June 2022, the matter was called on for continuation of the hearing where at this time advocate Francis Kamuzora, appeared for the Applicant and advocate Mpaya Kamala assisted by advocates Gulum Hussein and Hawa Turusia appeared for the Respondent. 2 Mr. Kamala before submitting to the substance of the application, he prayed to highlight some issue on the appropriateness of the application before the Court, the prayer which was objected by Mr. Kamuzora. However, the Court finds out that it is prudent to grant the prayer for him to do so as to the fact that point of law can be raised at any time as guided by several decisions of the Court of Appeal include the cases of Heritage Insurance Co. Ltd vs Abihood Michael Mnjokava, Civil Appeal No. 1 of 2020, the case of Commercial Bank of Africa (T) Ltd vs Patroba Adel Ademba, Commercial Case No. 2 of 2018 , Saving & Financial Commercial Bank Ltd vs Bideo Oils & Soap Ltd, Civil Appeal No.48 of 2012 and the case of NMB Bank Ltd vs Elizabeth Honorat Mbunda, Civil Case No. 9 of 2017. Highlighting on the issue of concern, Mr. Kamala submitted that in the chamber summons the applicant cites the provisions of rule 2(2) and 24 (1) and (3) of the Comm Court Rules and section 3A 1 and 2 and 97 and order 1 rule 10 (1) of the CPC. He submitted that rule 2 (2) of the Rules, brings into play where there is a lacuna on the former rules of which in this application is not told. He added that presume that the situation whereby order 1 rule 1 and 10 (1) of the CPC are 3 being brought into play is because under the Commercial Court Rules there is no specific provision of joinder of parties but there is Rule 24 (1) of the Rules provides for amendment of pleadings. So, there is a specific provision for amendment of pleadings under the Rules and the similar provisions or along the same lines as rule 24 appear under section 97 of the CPC. He submitted that if one would ask and at least they do is there a lacuna of the amendment of proceedings in the Com Court Rules. Their response in view of rule 24 there is no such lacuna. As such therefore it is only out of frivolity that a cause has been made to section 97 of the CPC in the same application. He also highlighted another dimension that the application being made under both order 1 rule 1 and rule 10. He submitted that the scheme of the two provide for different scenarios that, Order 1 Rule 1 apply to who may be joined as plaintiff. So, it is providing for who wants to apply to join in a suit, the person himself or for suit in name of wrong plaintiff. Two as to option to substitute or addition at the instance of the person who is in the case. He submitted that it is not proper to move the court under both rules as you cannot engage forward and the reverse gear at the same time. He prayed that this 4 application as it is cannot stands may be it is appropriate to be struck out with costs. Mr. Kamuzora responding to the submission made, he submitted that the point of law raised by the counsel was to the effect that the application was defective for citing provisions which were contracting or contradictory provisions of law and according to the submission by the counsel those provisions were order I rule 1 and Order 1 rule 10 (1) of the CPC. He clarified that it is an observation of the counsel for the respondent that the provisions cannot co-exist in the same application because according to their interpretation order 1 rule 1 should be used by a third party meaning a party not in the proceeding in order to join in the proceeding and, Order 1 rule 10 is used by a party to a proceeding in order to join a party who is not a party into the proceeding. He submitted that on that kind of understanding on the view of the counsel these provisions are contradicting and not co - exist in the same application. He wished to respond as follows, that the understanding which the counsel has applied to the relevant provisions in question is unduly limited in its scope. He submitted that they do not dispute the understanding which has been applied by the respondent’s counsel but they disputed the scope which has been duly 5 limited in the scope of order 1 rule 1 and Order 1 rule 10. He said their understanding is that the two provisions of the law which have been cited are properly cited if the they are to be considered in the full scope of the application. Clarifying that he started with order 1 rule 10 by submitting that this has been cited because the Plaintiff is seeking to join the 3rd party into the proceedings and is according to the facts which are deponed into the supporting affidavit. He clarified further that the need to join the 3rd party is because the subject matter of litigation in the main suit concerns the products which are manufacture by PT Megasari Makmur who is the manufacture of the products which are subject to the litigation to the underline suit, The applicant insisted that without the 3rd party the Court may not full realize the remedies which are sought in the main suit. He added that on the strength of order 1 R. 10 (1) which allows the plaintiff to apply either for substitution meaning that another plaintiff is coming instead of the existing plaintiff or to join the plaintiff. He clarified that they move to order 1 rule 1 guided by the marginal note on who may be joined as the Plaintiff. He submitted that Order 1 rule 1 has been cited in order for the Court to allow more than one person to be joined as co- Plaintiff and that is their understanding that 6 if the prayer according to order 1 R. 10 to join another person as co - Plaintiff order 1 R.1 provides guidance as to the circumstances under which two or more persons may be co plaintiff. He went further to submit that on that premise they do not see any contradiction on the way these provisions have been applied in the present application. It is their submission that the two provisions are complementary and not contradictory provisions. He further submitted that even if they were to agree that these provisions are contradictory for the sake of arguments the position of the law of this country is that when an application or court is moved by an application which cites multiple provisions some of which either contradict or are totally in applicable. The position of the law is that as long as there is applicable provision which has been cited then the application will survive and the court will properly be moved and will not rendered application incompetent simply because either the provisions are in contradicting or in applicable. He insisted that position was set by the CA in the case of Attorney General vs Jeremia Mtobesya, Civil Appeal No.65 of 2016. He elaborated that what were the issues in the cited case that the two provisions contradicted Article 26(2) which is public use interest publication were personal right of the petition has been violated. But the petition mainly suing in order 1 rule 1. Also cited 7 Article 30(3) of the constitution which is properly used. The court has been moved with two contradicted provisions. The Court ruled that one super flue pg 17 where a jurisdiction of the court is cited along in applicable the matter is deemed to have sufficient leg to stand in Court. He added that position has been applied also in subsequent litigations in the case of Joseph January Msoffe vs Elibarik Lekiria & Another, Land Application No.100 of 2019 Specifically on the last para of page 5. He wounded up that on the strength of the two cases they submitted that even if the present application which they disputed that there are contradictory provision, so long there is provision to move the court exist that is sufficient for the application to stand. He submitted that since there are multiple provisions cited the enabling provisions for the application do exists the observation raised has no merit and he prayed that they should continue to address the main issue in the application on the merit. Briefly Mr. Kamala rejoins that his colleague has correctly sumarrised their arguments as were made on the 1st of June 2022. He submitted that the counsel has so correctly stated that the two provisions apply to different situations and in their view, they are contradictory and the two cannot co-exist. He submitted that Order 1 8 rule 1 is available to a person who is not a party to a proceeding but wishes to be joined as a plaintiff. On the other hand, Order 1 rule 10 is not available to a person who is not a party to the proceeding rather it is available to the Plaintiff into the proceedings who seeks to join another person who is not a party to the proceedings to join or should come in substitution of the Plaintiff in the proceeding. So, it was their submission that the two provisions are mutually exclusive they cannot go along together. Thus, why they did submit it is a contradiction in terms to apply the two situations simultaneously as the two provisions are contradictory and not complementary. He further submitted that as it was submitted by his colleague in the alternative but assuming without admitting that the two provisions are contradictory, they would not affect the competence of the application in view of the two decisions supplied to this court. He submitted that in both decisions there is nowhere it was said that the citation of the contradictory provisions would not affect the competence of the application, there is none. He pointed out that the words used in the two are in applicable or super-fuse provisions, the word contradictory was not reflected anywhere and none of them support the contradictory provisions of the law. He argued that the counsel has complicated and compounded the situation but not owning up about this situation in which case at 9 least asked the court to disregard one of the two provisions either Order 1 rule 1 or Order 1 rule 10 (1). However, he is just throwing to the court to decide which one is applicable and not applicable. He concluded his submission by reiterated their earlier submissions. Having heard the arguments made by the counsel in respect to the appropriateness of the application before this Court. I appreciate the counsel submissions and authorities referred to support their positions on the point of law raised. Taking into account that both counsel have the same understanding of the two provisions of the law and their applicability in two different aspects. One, Order 1 rule 1 applies to join a 3rd party who is not a party in the proceeding and Order 1 rule 10 of the CPC gives a room for a party in the proceeding to join another person or replaced the plaintiff. The question remains to be determined by this Court is whether the two provisions can be co-exist in one application. It is the argument by Mr. Kamala, the counsel for the respondent that the two provisions cannot be used simultaneously in one application as they are contradictory to each other. As according to him since the two provisions cannot be applied in the same application 10 at the same time hence to affect the competence of the application before the Court. The argument by Mr. Kamuzora is to the effect that the two provisions are not contradictory and that kind of understanding is unduly limited in its scope. His understanding is that the two provisions of the law are properly cited as order 1 rule 10 by has been cited because the Plaintiff is seeking to join the 3rd party into the proceedings because the subject matter of litigation in the main suit concerns the products which are manufacture by PT Megasari Makmur who is the manufacture of the products which are subject to the litigation to the underline suit. While order 1 rule 1 by being guided by the marginal note on who may be joined as the Plaintiff, it has been cited in order for the Court to allow more than one person to be joined as co- Plaintiff and that is their understanding that if the prayer according to order 1 R. 10 to join another person as co - Plaintiff as order 1 rule 1 provides guidance as to the circumstances under which two or more persons may be co-plaintiff. It is in that view they do not see any contradiction on the way these provisions have been applied in the present application and the two are complementary and not contradictory provisions. However, Mr. Kamuzora was of the view that if they were to agree that these provisions are contradictory for the sake of 11 arguments still the position of the law of this country will not renders the application incompetent. He argued that court is moved by an application which cites multiple provisions some of which either contradict or are totally in applicable so long there is applicable provision which has been cited then the application will survive and the court will properly be moved made reference to the position set by the CA in the case of Attorney General vs Jeremia Mtobesya, Civil Appeal No.65 of 2016. Also, the case of January Msoffe vs Elibarik Lekiria & Another, Land Application No.100 of 2019. Based on the two decisions, it was the view of the applicant that so long there is provision to move the court exist that is sufficient for the application to stand since there are multiple provisions cited the enabling provisions for the application do exists. Therefore, the observation raised has no merit. To answer this, let me reproduce the provisions to appreciate the art of structuring and its rationale; Or.1 R. “…All persons may join in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if such 12 persons brought separate suits, any common question of law or fact would arise…” 10.(1)”… Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff the court may at any stage of the suit, if satisfied that the suit has been so instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just…” Reading the above provisions, I have to agree that the two have structured to save two different purposes as correctly clarified by the two counsel earlier. To go with Mr. Kamuzora’s argument that order 1 rule 1 is only guided who to be joined as plaintiff and order 10 rule 1 is to misconceive the rationale of the two provisions made to serve specific two situations. As clearly clarified by the counsel for the applicant that they move the court for leave to amend the Plaint in Commercial Case No. 60 of 2019 to join one P.T Megasari Makmur as Co- Plaintiff thus why he used Order I rule 10. Though admitting that order 1 rule I is applicable to the person who wants to join the proceeding, Mr. Kamuzora 13 submitted that they used Or.1 rule 1 as guidance on who to join as plaintiff based on the marginal note. At this juncture is where the confusion started as the two provisions are contradictory and cannot save the two different purposes. Since the purpose is for the applicant to join another person then order 1 rule 1 is inapplicable. Moreover, even if Mr. Kamuzora wanted to use it there should be a legal representation for the one wants to be joined but there is none on the record and the person to be joined is not a party to this application either. It is a settled law that a party seeking for a relief from the Court it should cite proper enabling provision so to move the court for the relief sought. Since the two provisions are enabling provisions to determine the relief sought by the applicant. It should not be left to the court to decide which provision to be applied. The position of the law relied by Mr. Kamuzora that even if the application has cited multiple provisions so long there is existing provision to move the court, the application will not be rendered incompetent. I am of the different view that this should not encourage because it will defeat the purpose of having those provisions of the law specific for respective reliefs. It is a duty of the party requesting the relief to ensure the court is properly moved to grant the relief sought. 14 I also take into consideration the argument by Mr. Kamuzora that the cited provisions are to move the court to grant a leave to join a person and his understanding the applicable rule. It is clearly shows that he is fully aware of the provision to be applicable and citing cocktail or inapplicable provisions is to ruin the sweetness of juice which was appealed itself to be entertained. However, even though Mr. Kamuzora presumed the arguments raised by Mr. Kamala have substance still he maintained his position that the two provisions are correctly applied to move the Court, in that stands this court has no basis to rule otherwise to choose the existing provision so to proceed with the determination of the application on merit. Besides I have gone through the two decisions which Mr. Kamuzora relied upon however, I failed to see where the court held or discussed that citing of multiple provisions will not render the application incompetent. Moreover, the citing of rule 24(1) and section 95 of the CPC (supra) could not serve the appropriateness of the application as they are supportive and not enabling provisions. At this juncture I have to differ with Mr. Mpaya position that the applicant was not supposed to apply order 1 rule 1 or order 1 rule 10 as rule 24 was sufficient for the applicant’s prayer. Reading rule 24 is fixed to allow amendment for the purpose of correction of some error or omission or the curing of some 15 defects in judicial proceeding. Therefore, it cannot be applied to add a 3rd party as requested by the applicant. The scope of amendment was discussed by the Court of Appeal in the case of Onesmo Nagole vs Dr. Steven Lemomo Kiruswa & 2 Others, Civil Appeal no 129 of 2016. At page 9 that; “ … Amendment- The correctness of some error or omission or the curing of some defects, in judicial proceedings” Amend -To improve. To change for better by removing defect or faults. To change, correct, revise…” On that basis the appropriate provisions are still one of the two either order 1 rule 1 or order 1 rule 10 of the CPC if could be cited correctly and be in support of rule 24 of the Commercial Court Rules(supra). However, the only issue is still the mixing of the two provisions which applied in two different situations. I am also aware of section 3A of the CPC which aimed at disposal of the matter on substance and not on technicality but I am of the view that this should not be a cure of everything including the parties’ choices which do not comply with the provided rules and procedures to be followed. In the present application apart from being aware on applicability of the two provisions, the counsel for the applicant still insisted that the two provisions are correctly cited and leave to the 16 court to choose the existing one so to determine the prayers sought. I think this should not accepted. With due respect at least the counsel for the applicant after being aware of the applicability of the two provisions, he could ask the court to proceed with the one of which he intended to move the court but this did not happen. In that basis, since the Court is not an ambulance to chase the victim and the overriding principle under section 3A of the CPC cannot cure the issue which was not considered or requested by the counsel for the applicant. This is also stated in the case of Mondorosi Village Council and 2 Others vs Tanzania Breweries Limited and 4 Others, Civil Apeal No. 66 of 2017. (Unreported) at page 14-15, the court of Appeal of Tanzania held that; “… Regarding the overriding objective principle, we are of the considered view that, the same cannot be applied blindly against the mandatory provisions of procedural law which go to the very foundation of the case…” Regarding the position above, since either of the order 1 rule 1 or rule is the one to move the court with the prayer thought. It should be stated specifically by the counsel taking into account he is aware of the applicability of the two provisions. 17 As for the aforesaid and observations made, I am of the settled view that this Court cannot proceed with what is not competent before it due to the cocktail provisions cited to move this court hence the incompetent application which leave the court with no option rather than to struck it out with costs. Dated at Dar es salaam this 24th day of August 2022 Z.A.Maruma. JUDGE 18