20110210 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 20 OF 1997 HIGHLAND SOAP AND ALLIED PRODUCTS LIMITED •••••••••• PLAINTIFF . :< VERSUS NATIONAL BANK OF COMMERCE,. ............ DEFENDANT BANK OF TANZANIA ••••••••••••••••••••• 3RD PARTY Date of last Order : . 26/11/2010 Date of Ruling .. 10/2/2011 RULING Shangwa, J. This is a Preliminary Objection against a suit which has been pending in court since 24 th January, 1997 when 1 it was presented for filing to the present day. Hearing of this suit commenced on 21 st April, 2004 before Mihayo, Judge (Rtd) who recorded four issues and partly heard the testimony of P.W.1 Shiraz Ladhu Jaffer. On 11 th February, 2010,learned counsel for the plaintiff, Mr. Mark Bomani prayed for the amendment of issues. I granted his prayer. Four amended issues were recorded. On 5 th July 2010, Mr. Mark Bomani prayed for the amendment of the plaint and its annexture "A". I granted his prayer. The amended plaint was presented for filing on 13 th July, 2010. Learned counsel for the defendant, Mr. Mchome presented his client's Written Statement of Defence to the amended plaint in which he raised four points of preliminary objection which are as follows: 2 r?-j I 1. That, the suit is incompetent as the same is against a non- existing defendant. 2. That, the suit is incompetent as it was filed without a resolution of Board of Directors of the plaintiff Company. 3. That, the suit is time barred. 4. That, the amended plaint is bad in law as the amendment has exceeded the scope of the order allowing amendment. On 26 th November, 2010, I ordered that the preliminary objection should be presented by way of written submissions and it was accordingly so done. In his written submissions, learned counsel for the plaintiff requested this court to dismiss the preliminary objection summarily on grounds that the objection is ridiculous and an attempt to defeat the cause of justice. He gave several reasons for saying that the objection is ridiculous 3 l and an attempt to defeat the cause of justice. I will mention these reasons herein below:- First, that the defendant's counsel has been involved in representing the defendant since 1997 until now. Second, that the defendant's counsel took part in framing the issues. Third, that the defendant's counsel has participated in talks with him and the BOT's Advocate trying to reach an out of court settlement. Fourth, that when the case was filed the defendant's counsel raised objection as to limitation which was dismissed. Sixth, that the amendment of the plaint was made to allow the admissibility of the Investment Agreement between the International Finance Corporation of Washington and the plaintiff. Seventh, that the suit has been pending in court close to 14 years with the defendant's counsel appearing all the time. 4 I entirely agree with counsel for the plaintiff that the Preliminary Objection is ridiculous and an attempt to defeat the cause of justice. It is true as stated by him that this case has been pending in court for about 14 years. The court has already started to hear it. So far, the court has already recorded part of the testimony of P.W.1 Shiraz Ladhu Jaffer. As already stated, at the commencement of the hearing of this case, counsel for the parties proposed the issues and the court recorded them. The court record shows that prior to the hearing of this suit, B. D. Chipeta Judge (Rtd) conducted mediation but it failed. The defendant's counsel Mr. Mchome participated in mediation e> proceedings. It is true also that the defendant's counsel has always been the same since when this case was filed on 24 th January, 1997 todate. Recently, he participated in talks 5 with Mr. Mark Bomani for the plaintiff and Mr. Mustafa for the Third party BOT with a view of reaching an amicable settlement out of court. Throughout, he did not raise any objection as to the competency of the suit. Now, how can he wake up today and state that the original plaint and the amended plaint is incompetent for continuing to proceed against a non existing defendant. Is it not ridiculous for him to state that all along he has been representing a party which does not exist. I think it is ridiculous for him to state so. I find therefore that his first point of Preliminary Objection has no merit. It fails. On the second point of preliminary objection, the defendant's counsel submitted that the pleadings do not show that · there was a resolution of the Board of Directors to file. the suit. He argued that the suit 1s incompetent on. grounds that it was filed without a 6 resolution of the Board of Directors of the plaintiff Company. In support of his argument, he cited the case of Bugerere Coffee Growers Ltd Vs. Sebadduka & Another (1970) E.A. 147, and the case of St. Bernard Hospital Company Ltd. Vs. Dr. Linus Maemba Mhula Chuwa Commercial Case No. 57 of 2004 (unreported). ,,' The former case decided that when the Company authorizes the commencement of legal proceedings, a resolution has to be passed either at the Company or Board of Director's meeting and recorded in the minutes. The latter case decided that the plaint should expressly reflect that there is a resolution authorizing the filing of an action. In my op1n1on, the second point of preliminary objection is farfetched. Both the original plaint and the amended plaint were duly signed and verified by the 7 Principal Officer of the plaintiff Company who was duly authorized to do so by the Management of the plaintiff Company. It is obvious therefore that behind the plaintiff company's pleadings there was a resolution passed at the plaintiff company to commence legal action against the defendant. This means that the plaintiff's suit was filed in accordance with the decisions which were made by the court in the above mentioned cases cited by Mr. Mchome, for the defendant. Thus, the second point of preliminary objection has no merit as well. It fails. On the third point of preliminary objection, counsel for the plaintiff, Mr. Mark Bomani submitted that the point of objection as to the limitation of time within which this suit ought to have been filed was dealt with by this court and dismissed. I have gone through this court's record and found that it is true as submitted by 8 Mr. Mark Bomani that the objection concerning limitation of time within which this suit ought to have been filed was considered by this court B. D. Chipeta, Judge (Rtd) and dismissed on 14 th July, 1999. I cannot therefore reconsider the same. Therefore, I hold that the third point of Preliminary Objection has no merit also. It fails. On the fourth point of Preliminary objection, the defendant's counsel submitted that· whereas the plaintiff's counsel Mr. Mark Bomani was given leave to amend the plaint by replacing annexture I to the plaint i.e (Agreement between the Plaintiff and IFC) which was not signed with a signed one, he has included other facts which go to show that the penalty was paid through a Japanese associate Nihon Kabushiki Kaisha. He contended that by so doing, he exceeded the scope of the 9 'l: . ' Order allowing amendment of the plaint and prayed this court to reject it. On the other side, Mr. Mark Bomani simply observed that this point of Preliminary objection is just baseless. I have gone through the proceedings of this court dated 5 th July, 2010 when the order to amend the plaint was given and found that the prayer by Mr. mark Bomani for the plaintiff was not limited to a mere replacement of annexture I to the plaint which was not signed with the signed one. It was a general prayer to amend the plaint itself and annexture I to the plaint. The reason to amend the plaint was not expressly given by him. What was expressly given by him is the reason to amend annexture I to the plaint. 10 . ' Due to the fact that the prayer to amend the plaint as a whole was granted, there is no wonder that whereas the original plaint has 10 paragraphs and 3 annextures, the amended · :plaint has 12 paragraphs and 6 annextures. I hold therefore that paragraph 10 of the amended plaint in which it is stated that the penalty mentioned in paragraph 9 of the amended plaint i.e USD 599,276 was finally paid by the plaintiff through a Japanese associate Nihon Kabushiki Kaisha does not exceed the scope of the order granting leave to amend the plaint. Thus, the fourth point of Preliminary Objection has no merit as well. It fails. In the final analysis, I overrule the preliminary . I objection raised by the defendant in its entirety with costs. 11 .' - A.Shangwa JUDGE 10/2/2011 Delivered in open court this 10 th day of February, 2011 in the presence of Mr. Mark Bomani for the plaintiff and Mr. Mafuru for Mr. Mchome for the defendant. ~ A.Shangwa JUDGE 10/2/2011 . Mr. Mark Bomani for the plaintiff: My lord, in view of this court's ruling we pray for another date of continuing with the hearing of our case. 12 ORDER: Further hearing of P. W. l's testimony is fixed on 9/3/2011. BOT (Third party)to be notified. ~ A.Shangwa JUDGE 10/2/2011 13