JUVALE TRADING CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION)

AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 3823 OF 2024 (Arising from Misc. Commercial Application No. 169 of 2023 originating from Commercial Case No. 180 of 2017) JUVALE TRADING COMPANY LTD............................................ APPLICANT

VERSUS D.B SHAPRIYA &CO LTD............................................................................ 1stRESPONDE MINESTONE LIMITED............................................................................... 2ndRESPONDE DYNAMIC MOTORS LIMITED................................................................... 3rdRESPONDE KISHOR DHANJI SHARPRIYA.................................................................. 4thRESPONDE AMISHI SHARPRIYA.................................................................................. 5thRESPONDE BARCLAYS BANK (T) LIMITED.................................................................. 6thRESPONDE

ABDALLAH MAKATTA T/A SENSITIVE AUCTION MART & BROKERS............... 7th RESPONDENT OPTATUS CHRISSANTU NDONDE............................................................ 8thRESPONDE KAMAKA CO. LIMITED................................................................................9thRESPONDE

RULING Date of hearing: 05/08/2024 Date of ruling: 09/08/2024 AGATHO, J.: This ruling was set to be delivered on 16th August 2024 at 09:30 A.M. However, due to Judiciary of Tanzania's vision of speedy disposition of suits as part of timely access to justice it is delivered today 9th August 2024. i The applicant brought this application under the provision of Order I Rule 10 (2) and Section 95 of the Civil Procedure Code [Cap 33 R.E. 2019]. The application was brought by way of chamber summons and supported by the affidavit of Alex Fredrick. She moved the Court for the following Orders: (1) That this Court be pleased to join the Applicant as an interested party in Miscellaneous Commercial Application No. 169 of 2023 so that she can present, assert and defend her interest in connection with the said application; (2) Any other or further reliefs) as this Court shall deem fit to grant; and (3) Costs be provided for in favour of the Applicant. Having been served with copy of the application, the 1st to 5th respondents filed their affidavit in support of the application. However, the 6th and 9th respondents filed counter affidavits resisting the application. The 7th and 8th respondents never filed any counter affidavit despite being duly served through publication in Mwananchi Newspaper dated 19th July 2024. In terms of legal representation, the parties enjoyed services of learned

counsel. Killey Mwitasi represented the applicant, Roman Masumbuko appeared for 1st - 5th respondents, Mr. Mpaya Kamara represented the 6th respondent and Bakari Juma appeared for the 9th respondent. Hearing of the application was conducted orally on 5th August 2024. 2 Mr. Mwitasi began the submission by submitting for the applicant that through the application, the applicant seeks to be joined in Misc Commercial Application No. 169 of 2023 as an interested party. She also prays for any other relief the court will deem fit to grant. The application is supported by an affidavit of Alex Fredrick, a principal of the applicant and a reply to counter affidavits of 6th and 9th respondents. The applicants counsel submitted that the center of controversy in this matter is whether the purported public auction of the property of the 1st -3rd respondents as mentioned in paragraph 3 of the affidavit was conducted in accordance with the law or not. Mr. Mwitasi went on submitting that the applicant being among the persons who were keen to participate in the public auction announced by the 7th respondent and entitled to bid and get some of the properties which many assert to be denied the right to participate in the auction and purchase the property stated in paragraph 3 of the affidavit by non-occurrence of the public auction. The counsel submitted that the said public auction

never happened. That being the case, and being very interested to participate, the applicant made efforts to investigate over the matter to the court file as stated in the affidavit at paragraphs 5 and 6. It was Mr. Mwitasi's submission that from all these facts as widely stated in the affidavit, the applicant has moved this court under Section 95, Order I rule 10(2) of the CPC to have him joined in the pending application, Misc Commercial Application No. 169 of 2023 in which the 1st - 5th respondents also have the same complaints that the purported public auction never happened. It was Mwitasi's view that the sale should be declared illegal. The said transaction (the sale) is therefore 3 known to three parties (6th, 7th, and 9th respondents) which was done at unknown place and not at the public auction. The applicant's counsel submitted that the statutory law and case law allow an interested party to be joined in the case which form the same controversial issue to another case already pending in court. This is intended to avoid multiplicity of suits. Instead of the applicant filing another suit on the same cause of action, the law allows to have her joined in the pending suit instead of having a separate suit. To buttress his submission Mr. Mwitasi, referred to the case of Tang Gas Distributors Limited v Mohamed Salim Said and two others, Civil Application for Revision No. 68

of 2011 CAT at DSM in its ruling at pages 30- 32 in which the court explained extensively on joining of a party in a pending suit to avoid multiplicity of suits. The same was also held in 21st Century Food and Packaging Ltd v Tanzania Sugar Producers Association and two others, Civil Appeal No. 91 of 2003 CAT at Tanga, where the CAT at pages 9-10 held on the principles of Order 1 rule 10 of the CPC that if the issue in controversy is the same then a party interested be allowed to join in the pending suit. Mr. Mwitasi also submitted that it should be noted that the complaint is against the 7th respondent who has been served upon but refused to appear before this court. The learned counsel suggested that the inference should be drawn to that effect. He lamented that the 6th and 9th respondents have taken charge to step into the shoes of 7th respondent who has failed to appear in this court and that amount to admission of wrongdoing that the public auction was not conducted. He opined that such situation shows that 4 there was a collusion between the 6th, 7th and 9th respondents. He also cited paragraphs 9, 10 and 11 of the affidavit containing details of collusion. He in the end submitted that the applicant is interested to participate in the public auction and she is humbly praying to join in the pending application. For 1st - 5th respondents stood Mr. Masumbuko who submitted

that they are supporting the application. He submitted further that the 1st - 5th respondents are initiators of the Misc Commercial Application No. 169 of 2023 in which the applicant seeks to join. That application was filed under Order XXI rule 88 of the CPC basing on fraud and collusion during the sale. Those are the grounds. In his view, the real controversy is fraud and collusion which are featuring throughout the application, Misc Commercial Application No. 169 of 2023. It was his submission that the affidavit of Alex Fredrick proves the same issues in the Misc Commercial Application No. 169 of 2023 which is fraud and collusion coming from a third person. Thereafter he referred to Order I rule 10 (2) of the CPC which he regarded as not only for the applicant, even the court suomotu should incline to order a name of any person who is necessary for determination of the matter to be added. Mr Masumbuko argued that if one looks at the application there are several attachments showing communication between the court and the applicant regarding the sale. He even quoted annextures - J3 a correspondence between the court, court broker (7th respondent) and the applicant concerning the irregularity of the sale. Mr. Masumbuko submitted that even without an application under Order I rule 10(2) of the CPC, the court can join the applicant as a necessary party/interested party so as to

determine the real issues in controversy. 5 Addressing on the cases cited by the applicant's counsel, Mr. Masumbuko was of the view that they are applicable as they deal with joining of an interested party so as to determine the real issues in controversy. He also submitted on the counter affidavits by the 6th and 9th respondents. He shortly argued that these people cannot defend the auction. He decried that these are the beneficiaries. It was his view that it was the court broker who ought to have protested the application. He was also quick to point out that there is no prejudice to the 6th and 9th respondents. He concluded by praying that the applicant be joined so that the court can effectively determine the matter in controversy. And he proposed that the costs should follow the event. In a contrasting viewpoint, Mr. Kamara for the 6th respondent, categorically opposed the application on several grounds. His submission was also based on the affidavit of Frank Philemon Millanzi an in-house counsel of the 6th respondent. Mr. Kamara highlighted salient features of the counter affidavit attacking the affidavit in support of application. It was his submission that first, in its entirety the affidavit in support of application does not disclose the applicant's legal interest. As per Mr. Kamara, this is the criterion under Order I rule 10(2) of the CPC. He firmly argued that

not everyone can just come to court and say they want to join in a pending matter. There should be an interest, that is a legal interest, for that matter. There should also be dispositions that the presence of this party is necessary for the proper and final determination of the matter before the court. The learned counsel for the 9th respondent submitted that there is Misc Commercial Application No. 169 of 2023 in which the applicant seeks to join. 6 And the issue raised in Mr. Kamara's humble view should be answered in the negative, whether the former application cannot be determined, and rights declared in the absence of the applicant. The answer in his view is no. The application can be determined in the absence of the applicant. To counter the submissions by the applicant's counsel and even the submission in support by Mr. Masumbuko, Mr. Kamara was of considered view that they do not show any necessity of the applicant being joined. Another issue that Mr. Kamara stressed is whether the applicant has shown any legal interest to warrant-its joinder in the former application, Misc Commercial Application No. 169 of 2023. He submitted that a mere expression or interest to bid does not per se create a right in a bidder. That is particularly critical, when it comes to interest in immovable property. That interest must have been registered or if not, it must be registrable as

to amount to a legal interest. Mr. Kamara's view was that the applicant's interest is not registered, and no depositions have been made showing that it is registrable. On this point he referred to the case of Simba Developers Limited v Salim Said Salim and 8 others, Civil Application No. 1866/01 of 2021, CAT pages 1-2, 11 and 13-14. The case held that if the interest claimed is in immovable property, then that interest must be registered or registrable. However, Mr. Kamara conceded that they have no issue with the case law cited by Mr. Mwitasi. But he promptly added that those CAT decisions are distinguishable from the case at hand. He attacked the counsel for applicant's submission in that he never showed how the case at hand fits into the cited decisions. Mr. Kamara argued that in those cases there was 7 recognizable interest. He was of the view that the applicant is a busy body. He also reacted to the submission on prejudice. He submitted that the fact that there is no prejudice in bringing an applicant in this matter does not mean that everybody who qualifies to be a witness qualifies to be a party to the suit. He opined that the applicant could have come as a witness not as a party. Mr. Kamara continued to submit that in Misc Commercial Application No. 169 of 2023, there are some persons who have written letters, but they are mere witnesses. They are not parties. He

cautioned that if the court allows everybody to come as a party the sky will be the limit. To sum up his reply submission, Mr. Kamara submitted that Order I Rule 10(2) of the CPC ought to be read together and in the context of Order XXI Rule 88 of the CPC. He explained that under rule 88 there are three entities: (1) Decree holder; (2) any person entitled to share in the ratable distribution of the asset, or (3) or any person whose interest is affected by the sale. The counsel submitted that here the applicant is not a decree holder, not entitled to share in ratable distribution and he has no interest that has been affected by the sale. The interest here is as defined by the CAT in Simba Developers Limited' case(supra). Turning to Mr. Juma who appeared for the 9th respondent, his submission was that for an application of this nature to be granted by the court, it must firstly be decided that a party is a necessary party to the proceedings. Along with that, he submitted that there are two tests applicable in determining whether a party is necessary or not. These tests are: (1) there have to be a right of relief against such a party in respect of 8 a matter involved in the suit; and (2) the court must be in a position that it is incapable of passing an effective decree in absence of such a party. The 9th respondent's counsel submitted that these tests were discussed in the case

of Abdulatif Mohamed Hamis v Mehboob Yusuf Osman and Another, Civil Revision No.6 of 2017 CAT at pages 25-26. It was Mr. Juma's submission that the present application has not passed the said two tests. That is because, 1st, the applicant has not demonstrated enough the said two tests in her affidavit in support of application as well as in the submission of the learned counsel of the applicant. According to Mr. Juma, nowhere has it been shown that the applicant is a necessary party to Misc Commercial Application No. 169 of 2023. The counsel submitted that this Court can grant all prayers in the Misc Commercial Application No. 169 of 2023 in the absence of the applicant at hand because she is not a necessary party. Mr. Juma submitted that the CAT in afore cited decision at page 26 had an ample time to define who is a necessary party, that is a party whose presence is indispensable to the constitution of a suit and in whose absence no effective decree or order can be passed. The learned counsel posed a question whether this Court cannot pass an effective decree or order in Misc Commercial Application No. 169 of 2023 in the absence of the applicant? The answer in Mr. Juma's view is negative. He emphasized that this court could proceed to determine the Misc. application without joining the applicant. He then turned to the learned counsel for the applicant's submission on

the irregularity of the public auction and collusion of the 6th, 7th and 9th respondents. Mr. Juma was also intrigued by the applicant's counsel 9 submission which he regarded as being more on the merit of an application to set aside sale which is not an issue before this court at the moment. He closed his reply submission by hinting that the applicant's counsel failed to submit how the joining of the applicant is necessary. He eventually prayed that the application be dismissed with costs. In rejoinder submission, Mr. Mwitasi responded to Mr. Kamala's submission that the applicant should not be joined. In his view this is not a normal suit. It is rather an application which is heard by way of affidavits. The applicant's counsel protested, what if the applicant is not called as a witness, he will not have any recourse to this court. He argued that a person cannot force himself to be a witness in a matter. It is until he is summoned to testify. He critiqued citing of the case of Simba Developers Limited (supra) as it is totally distinguished from the case at hand. In addition, he submitted that the applicant is not asserting ownership of land. A concern here according to Mr. Mwitasi is on irregularity of auction. He observed that the issue of registered or registrable interest is not relevant here. Trying to expound the applicant's interest in this case under Order I Rule 10 of

the CPC, Mr. Mwitasi submitted that the applicant went to the place where the auction ought to have been conducted, he found nothing there, and that is the main issue the court has to determine. Mwitasi submitted that even the case of Abdullatif Mohamed Hamis (supra) it is distinguished from the present case. He argued that here the parties are not dealing with a decree. He went on submitting that the applicant is seeking an order as to whether the auction was properly done or not. She is not seeking an order as to who is the lawful owner of the property. 10 Mwitasi also reacted to submission on Order XXI Rule 88 of the CPC by submitting that the said provision cannot come into play because the court will not in the end issue a decree. It will rather order nullification of auction. He further rejoined to Mr. Juma, the counsel for the 9th respondent blaming the applicant's counsel that he has not demonstrated enough interest of the applicant. Mr. Mwitasi, asked how enough is enough. It was his view that Mr. Juma admitted that the applicant has shown her interest in the affidavit. He concluded his rejoinder by seeking this court to lay down principles of public auction. In the court's view the issues for determination are: first, whether this Court should order joining of the Applicant as an Interested Party in Misc Commercial Application No. 169 of 2023. But to answer that, we

ask has the applicant shown any interest in connection with the said application to warrant her joining in the matter? Reading the affidavit of Alex Fredrick in support of the application there is nothing tangible showing the applicant's interest in the pending Misc. Commercial application. It is surprising that what the applicant has demonstrated are the irregularities surrounding the public auction. That does not amount to interest in the matter pending in court. This Court finds substance in Mr. Kamara submission that the applicant has not shown any interest (legal interest). She is at best a busy body meddling in this matter in which she has no legal interest. Legal interest is legal right that is enforceable. Here the applicant has failed to demonstrate if she had a legal right enforceable at law. Mr. Kamara's proposition is quite appealing that Order XXI Rule 88 ought to be invoked in an application of this nature. A mere citing of Order I Rule 10(2) of the CPC will not be li sufficient. That is because Order XXI Rule 88 covers three entities: (1) Decree holder; (2) any person entitled to share in the ratable distribution of the asset, or (3) or any person whose interest is affected by the sale. We agree with the submission of 9th respondent's counsel that here the applicant is not a decree holder, not entitled to share in ratable distribution and he has no interest that

has been affected by the sale. However, I disagree with Mr. Kamara's view that the interest here is as defined by the CAT in Simba Developers Limited' case(supra) which is interest in immovable property requiring registration or a registrable interest. That will lead to narrowing the scope of the law to legal interest in landed property, which I do not think the law is such restrictive when it comes to individual's enforceable legal rights. Even if the property attached is movable (such as chattel) it can be sold in a public auction and there may be individuals with interest in the said property. That is what is prescribed in Order XXI Rule 88 of the CPC. Nevertheless, in the case at hand it is true that the disputed property is immovable. The second issue is whether the applicant is a necessary party in the Miscellaneous Commercial Application No. 169 of 2023? It follows that if the applicant had legal interest, then her presence in the pending Misc Commercial application was indispensable as the court could not issue an effective decree or order in her absence. That in law is a necessary party. At this juncture I agree with Mr. Juma that there are two tests to determine whether a party is necessary or otherwise. These as held in Abdulatif Mohamed Hamis v Mehboob Yusuf Osman and Another, Civil Revision No.6 of 2017 CAT at pages 25-26 are: (i) there has to be a right of

relief 12 against such a party in respect of a matter involved in the suit; and (ii) the court must be in a position that it is incapable of passing an effective decree in absence of such a party. As per these tests and evidence contained in the affidavit in support of the application, the applicant is neither a necessary party nor has legal interest in the pending Misc Commercial Application No. 169 of 2023. As an endnote, we turn to the question as to who should bear the costs of the application. But before that and considering the above analysis, the application lacks substance. It is dismissed. The 6th and 9th respondents shall have their costs. Order accordingly. Date:09/08/2024 Coram: U. J. Agatho, J For the Applicant: Killey Mwitasi, Advocate For the 1st and 5th Respondents: Nobert Tarimo, Advocate h/b Roman Masumbuko, Advocate For the 6th Respondent: Mpaya Kamara, Advocate For the 7th Respondent: Absent For the 8th Respondent: Absent 13 For the 9th Respondent: Bakari Juma, Advocate B/C: E. Mkwizu Court: Ruling delivered today in the presence of Killey Mwitasi, advocate for the applicant, Nobert Tarimo, advocate holding brief of Roman Masumbuko, advocate for the 1st - 5th respondents, Mpaya Kamara, advocate for the 6th respondent and Bakari Juma, advocate, for the 9th respondent. |llu. J/AGAT HO # JUDGE 09/08/2024 14