MS AFRIQ ENGINEERING AND CONSTRUCTION VS THE REGISTERERED COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CASE N0.60 OF 2018 M/S AFRIQ ENGINEERING AND ' CONSTRUCTION COMPANY LIMITED................................. PLAINTIFF VERSUS THE REGISTERED TRUSTEES OF THE ANGLICAN CHURCH OF TANZANIA (CONTRACTED' AS DIOCESE OF. CENTRAL TANGANYIKA THE ANGLICAN CHURCH OF TANZANIA............... .......... DEFENDANT RULING SEHEL, J. This is a ruling on five preliminary objections raised by the Defendant against the Plaintiff's suit. The five objections are:- 1. The suit is bad in law for non and/or wrong joinder of parties to the suit; 2. The suit is bad in law for the Plaintiff has sued a non existing person; 3. The Plaintiff has no cause of action against the Defendant; 4. The suit i s bad in law ■ as it is premature; and 5. The Court has no jurisdiction to entertain the matter. ~ i At the oral hearing of the preliminary points of law, the Defendant had the services of the learned advocate Gabriel Masinga while the Plaintiff was represented by the learned advocate George Shayo. For the first objection, it was submitted that the Plaintiff is not only claiming against the Defendant but also against a third party who is not a party to the present suit. He pointed out that prayer number (c) (iii), the Plaintiff i s praying for an order to be issued against Commercial Bank of Africa (Tanzania) Limited who is not a party to the present suit. He also said the Plaintiff i s describing the Defendant as the Registered Trustees of the Anglican Church of Tanzania contracted as Diocese of Central Tanganyika the Anglican Church of Tanzania who are . two distinct persons. The Counsel argued that the suit generally offends Order 1 Rule 3 and 7 of the Civil Procedure Act, Cap 33 (hereinafter referred to as "the CPC"). In support of his submission, he cited the case of Calico Textile Industries Ltd Vs. Tanzania Development Finance Co. Ltd (1996) TLR where the High Court allowed the appeal for non-joinder of the seller. Further the case of Juma B. Kadala Vs. Laurent Mnkande, Civil Appeal No. 6 of 1982 where Sisya, J held that non joinder is fatal to the proceedings. For the second objection it was submitted that there is no corporate name known as the Registered Trustees of the Anglican Church of Tanzania. He said Order VII Rule 1 (b) and (c) of the CPC requires a Plaintiff to state specifically the name, description and address so far as can be ascertained.^ 2 In respect of the third objection, the Counsel for the Defendant submitted that the contract in dispute was signed between the Plaintiff and Diocese of Central Tanganyika and not the Registered Trustees of Anglican Church of Tanzania (contracted as Diocese of Central Tanganyika The Anglican Church of Tanzania). He argued Order VII Rule 1 (e) of the CPC provides that a plaint has to contain among other things facts that constitute cause of action and when it arose and that according to Black's Law Dictionary, i for Edition the phrase "cause of action" mean "A group of operative facts giving rise to one or more bases for suing, a factual situation that entitle one person to obtain a remedy in Court from another person". By using this definition, the Counsel argued that the Plaintiff has no cause of action against the Defendant as the proper party is the Diocese of Central Tanganyika. The Counsel implored the Court to take the position taken in Tema Enterprises United Vs. Emari Provision Store, Commercial Case No. 136 of 2014 where Makaramba, J stated:- "Plaintiff therefore ought to have brought the present lawsuit against the Defendant in her own name trading as Emari Provision Store. The sole proprietorship owner having not been sued under her name as the Defendant, the Judgment and decree of this Court in respect of the present suit would become uneaforceebte" On the fourth preliminary objection, it was submitted that clause 40 of the contract for construction of Investment Building signed by the parties on 3rd July, 2018 requires parties to submit their dispute to the arbitral tribunal after expiry of 60 days for amicable settlement. It was argued that the filing . 3 of the suit eight (8) days after termination of the contract without resorting to amicable settlement makes the suit to be prematurely filed. On the fifth preliminary point of law, it was argued that the Court lacks territorial jurisdiction since the cause of action, subject matter including where the breach arose and witnesses which are all are at Dodoma City. He contended that Section 18 of the CPC requires the Plaintiff to file a suit where the Defendant reside and/or cause of action arises. In support he cited the case of Ferdinand Wanyantika Masha Vs. Attorney General, Civil Case No. 136 of 2001 where Manento, JK (as he then was) said:- "Therefore again, through the office are situated at Dar es Salaam, yet the cause of action did not arise in the territory High Court Registry of Dar es Salaam, it arise in the territory jurisdiction of District Registry of Mwanza. I ordered the suit be transferred to Mwanza High Court Registry, further ordered the party to be notified of the transfer, especially the plaintiff so that he can make a follow up at Mwanza District Registry". Counsel Shayo on his part replied that all the preliminary objection do not qualify to be pure point of law because they need the Court to ascertain facts and evidences. He cited the case of Benjamin P. Masota Vs. Mrs. Esther Maneno, Civil Appeal No. 84 of 2010 (unreported) where the case of Mukisa Biscuit Manufacturing Co. Ltd Vs. West End Distribution Ltd, [1969] 1 EA 696 it was cited in approval that:- ”/l preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all 4 the facts pleaded by the other side, are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion". For the first objection it was replied that there is no misjoinder of parties as the party sued is the proper party. He contended that even if there is misjoinder then in terms of Order I Rule 9 of CPC suit cannot be defeated by reason of the misjoinder. He cited the case of NBC Holding Corporation Vs. Shirika la Uchumi na Kilimo Ltd (SUKITA) and 63 others, Commercial Case No. 24 of 2001 where Bwana, J held a suit cannot be defeated for misjoinder of parties. The Counsel also made reference to the same case in respect of the third preliminary objection where it was held:- "It is trite law that in deciding whether a plaint discloses or cause of action or not, the Court needs to examine the issue within the four perimeters of the plaint and its annexures, if any, with any assumption in the process, that allegations made therein, be they factual or not, express or implied, are true. A Defendant may have a good defence but is not a determining factor at the state of the proceedings. A Plaintiff may have made up a story against a Defendant but that cannot be dismantled by preliminary objection". The learned counsel for the Plaintiff then showed case that the argument advanced regarding second objection that whether the Anglican Church of Tanzania exists or not requires evidence as stated in the Benjamin's case (Supra); whether or not there is a cause of action, merits 5 for the hearing of evidence as stated in NBC's case (Supra) and whether parties should adhere to the dispute resolution or not will require evidence. He thus contended that the 2nd, 3rdand 4th points of law are not pure point of law. For the fifth objection, he replied that pursuant to Rule 5 of the High Court (Commercial Division) Procedure Rules GN 250 of 2012 this court has jurisdiction to hear and determine Commercial disputes. He also said that the High Court has no territorial or pecuniary jurisdiction within Tanzania Mainland as held in the case of Karata Ernest and Others Vs Attorney General Civil Revision No. 10 of 2010. Having carefully followed the submissions made by the counsels, I wish to combine preliminary points of law number one, two and three together as they all boils down to the issue of joinder/misjoinder of a party. Before dwelling on the objections, let me state that the preliminary objection raised are pure point of law and they do not required any further evidence to establish them. Looking at the pleadings especially the annexures to the plaint, one will note that the plaintiff entered into a Contract for Construction of Investment Building with Diocese of Central Tanganyika. However, the plaint shows that the defendant is the Registered Trustee of the Anglican Church of Tanzania (Contracted as Diocese of Central Tanganyika the Anglican Church of Tanzania, or person or body corporate which had no legal relationship with the Plaintiff. I thus find there is a clear misdescription of the defendant which was plainly directed to the defendant as such can be corrected by an order of amendment.™^ 6 The defendant is also complaining that Commercial Bank of Africa (Tanzania) Limited has not been made a party while a claim is made against her. I do agree with the counsel of the defendant that looking at prayer number three (iii) the plaintiff is asking for the court to issue an order to the Commercial Bank of Africa (Tanzania) Limited not to honour any payment in favour of the recalled advance payment guarantee. Commercial Bank of Africa (Tanzania) Limited is not a party to the present suit. It is a general principle of law as succinctly stated by the Court of Appeal of Tanzania in the case of Tang Gas Distributors Limited Vs Mohamed Salim Said and 2 others, Civil Application for Revision No. 68 of 2011 (Unreported) that the plaintiff is entitled to choose the person or persons as defendants against whom he wishes to sue and thus cannot be compelled to sue a person whom he has no desire to sue. However, the Court of Appeal further stated ....... a court has power to add a person who is not a party to the suit as originally constituted as a defendant against the will of the plaintiff, either of its own motion or at the instance of the defendant or a non- party to the suit if it is necessary to do so in order to effectually and completely adjudicate and settle all the questions in the suit". The power to add a party to the suit is provided under Order 1 rule 10 (2) of the CPC. The Commercial Bank of Africa (Tanzania) Limited though not made as a party to the suit, the court if satisfied that it is necessary to do so in order to effectually and completely adjudicate and settle the dispute can make an order for the addition. As I said the plaintiff is asking for an order 7 against Commercial Bank of Africa (Tanzania) Limited but she is not a party. For this court to either issue or refuse an order against Commercial Bank of Africa (Tanzania) Limited it will have to accord her a right of hearing. Otherwise the court will not be in a position to effectually and completely adjudicate upon such a prayer. Having stated so, though I have powers to add Commercial Bank of Africa (Tanzania) Limited as a party under Order 1 rule 10 (2) of the CPC but exercising such a power would be futile because even the original defendant sued is not properly named. Of course a suit cannot be defeated by a reason of misjoinder of parties (See order 1 Rule 9 of CPC). In that regard, I make an order for amendment of pleadings. The amended plaint shall be filed within fourteen (14) days from today's ruling. Since the defendant will have to incur costs for filing a defence to the awarded pleadings then I order that the costs of the defendant for filing its defence shall be born by the plaintiff. It is so ordered. DATED at Dar es Salaam this 28th day of November, 2018. 8