20030117 TZHC Dar es Salaam

r "' • ,, ;.,. __ ✓ ... IN TIIE: HIGH COURT OF TANZANIA AT DAH ES SAIJ-1AM ....... ~~ . - . . CIVIL CASE NO. 239 OF 1996 JMPACK GENE&'I.L /,GENCIES ••••·uoo•ooooo PLAINTIFF Versus THE N!1TION.l',L BJ1NK OF Ca1iMERCE ••••• " •• DEFENDANT _ R UL, ING . ~·- __..__~_,. On J0th August 1996 J.znp~ck .General ' Agencies filed a suit in this Court againf:it, the defunot Nation8l Bank of Commerce cleiming for pay- men ts amounting to TAS 1,.569,969 1 000/~ being principal sum as well as accrued interest at the time of· filing the suit. The plaintiff al.so ciaimed continuing interest accruing at the daily rate of US$ 1003 (or the equivalent of TAS 6o1 .Boo/:::i until judgment or sooner payment~ ~/ ) Costs of the suit as well as relief deemed jup.t and equitable to grruit were also prayed for. In its written statement of defence, the defendant denied the claim' contending among ethers the existence of no couse action against it by tre pl,intiff. In the course of the ple::2dings it becD.11e apparent th~t the defendont censed t0 exist by virtue of the provisions of Act No'o ? , of 1998 which c::ime effect in Morch 1998 vesting the oss0ts ond li~bilities of the N~tion,l Bcnk of Commerce to the Notion0l Bonk of Commerce Holding Corporation. In the event the p:i.rties were gl'Ont&d leave to rimend their ple.::idings to reflect th~ st~ttltory ch~nges. In the course o:f filing its amended pleo.cJings in compliance with the order of the Court• the defebdont discovered thnt the ! runmended plc.int wos not in form or cont~nt as outhorieed or ordered by the court on 13th March• 1998. 1'h.e, defend~nt then prayed th~t the omended plain-I: be at?"'l'lck. In his ruling Chipet,:1 J .. observe,a ond I quote: 1i The more serious bldnder, in my view, is thtt this ~ t permi tt~d the plaintiff, ]'1fP:.q,~-~-~1!?f~ A_G1£Nf.~, to o.mend its pL::d.nt. But the ::-mended pl,-,int is in o tot~ly different leg~l person n~mely ~lo~~ __f~g_~_]_ tj~ .~;QQ.~~ ;-i~.B,~r~.l }J!Jrl!,S,ifJ.S~• ll ••• -.0. ".•/2 ,. 2 Judge Th& ltiorned, further observed th::·t end I quote:- II . Q.lite cle:i:rly th~t b not the pnrty which thi.,., court permitted to c,mend t,w pbint .• I therefor<:: respectfully agree with le:irned counRel for th~ defendonts th~t the omend&d plrint is not in•the form and content ~s authorised or ordered by this court. For thl'lt re~son o.lon<::, the om0nd(;d pl'.:'int is lioble to be struck out. 11 As c. consequence the amended pl'.:dnt wcs struck out with costs ·on &ventuolity which h.ns given rise to en :ipplicotion for le·,ve to ~ppeol to th~ Court of Appa~l pursuant to Section 5 (1) (c) of the appell:ite Jv.risdiction Act, Rules 43 (A)· ~rid 44 of the T~n?:mfo Court of Appeol 1 Rules 1979. The affidovit of Dilip Kesorio Advocote in support of the o.pplic,:1tion for leo.ve to Dppaal depones in p.'.:'r:t 4 nnd 5 as follm-ring: " 4. The Hon Mr. Justice Chipetn h,'.:113 erred in his ruling in the following respects:- (o.) by finding thd the Court grontE:d the pl,:,intiff lea.ve to omond. r:11c1 pbintiff h:--d not applied to D.Inend the: plcin~. , ., '1c crcJ1;;r to ar.'litlenl vil'.\3 mtide by t:1e court on ··'.1s .::::ubmission of th0 d,.'·~1r~·1t 1 s counr,el. (b) the correct ~ttj;y of <·'1e pl ".'tint wr>.s introduced in the omended pbint to conso~idote wh.:-t t\1!lS previously plo:ided in the Reply to the written statement of Defonce. 'Il1e court h~.s the discretion to a.llow the S-'id .,mendment under Order 1 Rule ' 10 of the Civil Procedure Code 1966 either upon or without the applicction of either p,".'.rty. 5. In order to deterr.:ine the re~l m~tter in dispute, the Honourable Court r;hould :inve considered -l;he ommended pl~int ni:; o. whole, w,ith or without the runmondment of the pl,intiff 1 s identity. AG such tho Hon Judge should h~v& of his own metion allowed the ornmendment or oltern~tively dis.,110"1ed only such pt!rt of the mnmendmc:nt which eff~ndod the order to runrnend ~s opposed to st~iking out the ~mrnendod plnint in its entirety." ••• 0. - / 5 , On its port the defendont(s) h~ve opposed the opplicbtion for I let.:1.ve to oppectl on tha groun~ 1 nmong others, thot there ir:; no point of law for determin"ltion by the Cou:: '; of Appe~l. I have given cnreful con.sider::ition to the cpplic~tion for lecive to oppe::il .::is well o.s the ~ffid:wi ts for ~nd C!g':'.inf:t., In lily humble view the points r,'.:'.ised in p:;rc-gretphs 4 nnd 5 of the offidovi t in support of th0 opplic:ttion cont::,in v:-lid points for determin'.1tion by the Court of Appet>.l. Acco:rdingly I gront lecve to the o.pplicont to o.ppecil to the Court of J',ppeo.l of Tanznnfo ogc:>inst the .Ruling of Chipetc. J. c'loted 19th ,:irmu:iry 2000. .-;.,,m Costs to be costs in the co.use. JUDGE -········· 17/01/2003 "