national bank of commerce ltd vs renada minerals corporation ltd others 2002 tzhc 2056 9 october 2002

XN ( W U S ^ ' O ? '* AT ARUSHA MISC. CIYIIi APPLICATION NO, *21/2001 (Originating from HCOC 52/199,9) NATIONAL BANK OF COMMERCE LTD. ... ........... . APPLICANT - Versus ^ EENADA MINERALS CORPORATION LTD. NBC HOLDING CORPORATION ^ H .U . L I N G MSOffFjS, Jt This is an application under Order 1 Rule 10(2) of The ■— Civil Procedure Code, 1966 in which this Court*s Order is sought Ito strike out the name of the applicant and substitute thereto the name of the 2nd respondent. In the alternative, this Court is being asked*to extend time to the applicant to file a written statement of defence. The Alternative prayer is grounded on the provisions of Order VIII Rule .1(2} of Th£ Procedure fode* 1966 and >of The Law of Limitation Act, 19ff-« ’Mr. Magai learned advocate has filed a written «ubraission on behalf of the applicant. In a nutshell, the gist of the applica­ tion is that by virtue of S»10 of The National Bank of Commerte fRe+r^aniz^^yi ar& Vesting of Assets and Liabilitiesj Act,1997 *e amendsd tg^Ihe Written Laiw^ ’(Mlscellaneom Amendment) Act No T2/98 and further amended by the relevant‘provisions of Act 10/2001% to quote Mr# Magai, iall liabilities arising- from both • '• banking and non banking activities of which 'the cause of action arose prior to 1st October, 1997 were and ,are vested, in the N3C Holding 1 Corporation (now Consolidated Holding Corpo­ ration) and section"10 of the-Act as amended by Act No. 10 of 2001 expressly exclude the Applicant-from cl&ims which have their causes of action arose’before the effective dateM0 < ’ ■i-- y On the other hand, Mr* Ojare learned advocate has appeared 9 ; '' ,, •' and filed a written submission on behalf of the 1st respondent. Againv- in a nutshell,' he is of the view that the provisions of 0r3.er 1 Rule 10 (2) is limited in its application to a situation i* * • wfrere a patty has been improperly joined - a situation which doe*' * 4 not arise'here (i0e0 Civil Case No. 52/99) because the£e are no joint plaintiffs or defendants« And that the applicant who is the | j sole defendant, cannot claim to have been improperly joined and j therefore bring-itself -within-the provisions -of. Order 1 Rule 10{2)» j In this regard* Mr* Ojare'has cited the case of Daphne Parry v Murray • Alexander Carson 1962 J ^ £ arJ?i5, page 5±6 thus:- • .... "the application for dismissal was misconceived as 0.1 r*10(2) de'al't with-pkrties who have been wrongly • -jpined.^or who ought to be joined or added, to "join” or nadd" a party was noti synQnimous-with making a person <a party^ta a^suit*'<,T«.•.‘ t*. .T.11 Also at*-$ age 517 that:- "Unless the removal of the plaintiff' or defendant leaves the suit intact, 0.1 rule 10(2) cannot apply." Mr. Cjare, is also of the view that since the applicant has since filed a^written statement of defence in Civil Case No. 52/99 in V*. which there is a preliminary point cf objection that the plaint does not disclose a cause of action against it then the gistof this application can only be argued in the said objection,, ... ,, , Mr. Maruma learned advocate has also .filed a written sub- missdoiy. on behalf of the 2nd respondent* In his submission, yet again in a nutshell, it is not for the applicant to decide who the respondent:should sue. He went on to urge that the said res­ pondent hab freedom under the law to chose whom to sue. And that in exercise of that freedom it will then be upon the Court ulti­ mately to determine whether or .not a cause oJT action is disclosed from the plaint* He went on to urge that it is "otherwise unusual for- a Defendant tc come to Court and ask that they be removed from the suit and that a third party be brought in to take their place”0 In conclusion, he was of lr- view that should the applicant feel that there is no cause of action there is always an opportunity to •t ■r* raise.the matter as a preliminary point of law in the main suit. I must confess that I have read with keen interest thr J submissions for and against the application* In the «nd*I am .satisfied, that the application must fail for the fallowing reasons One, as correctly argued by Mr. Ojare3 the situation envisaged under Order 1 Rule 10(2") does not arise in this situation. The _ applicant as a sole defendant in the main suit could not claim to have been improperly joined. _ ' Two, since the applicant does4 not deny that a written statement of defence (with a preliminary point of objection under paragraph 1 thereof) has been filed, then it is only fair to say (as argued by both Mr. Ojare and Mr, Haxnrna) that the best place to canvass the point herein would be there and not here. Indeed this is where . • •» * the passage quoted to me by Mr. Ojare from Parry1s case at pa^e pl6 is relevant thus 5- “the couJ?t ccv..' 1 not Grdert that the defendant be ’’dismissed from the suit” without either holding that the plaint disclosed no cause of .action against him; or that, nn the face of the pleadings as a whole, the plaintiff had no chance of success as, to so hold would be to prejudice the pending suit itself; one of the issues i:;i vldsh was that the plaint disclosed no cause of acti further thsrfc has been no application for rejection of the plaint under O.VII r.ll as dis­ closing no cause of action.” The application lacks merit. It is dismissed with costs. J. H. M30FFE JUDGE 9/10/2002 Date: 9/10/2002 Coram: P* No Kente « Ac« D2 For Applicant - Mr, Masai -Absent* For 1st Respondent: Mr„ Ojare A&VDucace -- Absent- For 2nd. Respondent: Mr„ Maruma Advocate - « Present Court: Ruling delivered to Mr* Manjraa :ror the second respondent this 9th day of October, 2002* /! i : MJ K,TOB Ag. DISTRICT- X15GISTRAR a HUSE 9/10/2002