ncba bank tanzania limited and another vs patrick edward moshi 2021 tzhclandd 6738 25 october 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM MISC. LAND CASE APPLICATION No.701 OF 2020 NCBA BANK TANZANIA LIMITED APPLICANT COMMERCIAL BANK OF AFRICA 2"^° APPLICANT VERSUS PARTICK EDWARD MOSHI RESPONDENT Date of Last Order: 18.10.2021 Date of Ruling: 25.10.2021 RULING V.L. MAKANI.3 This ruling is in respect of the preliminary objections on points of law raised by the respondent as follows: 1. That the application No. 701 of 2020 is overtaken by event and an afterthought seeking to revive Execution No.47 of 2018 whose order of execution is already granted since 28/09/2020 by SIMFUKWE, DR. Warrant of attachment issued, and Court Broker appointed to execute the Order in favour ofthe 2f"'applicant. 2. That the 1^ applicant is not a iegai person and has no iocus standi to institute this application in Court in absence of a certificate of incorporation of the 1^ applicant. 3. The application is bad in iaw and fataiiy defective for want ofboard resolution authorizing LILIAN MNDEME to institute this application. 4. The application is premature in absence of winding up instrument ofthe 2P''applicant. 5. The application is fataiiy defective for being supported by an affidavit which has defective verification dause which does not describe facts in the knowledge of the deponent and matters of beliefs such as para 8 and 9 which are matters ofbeiief/opinion. With leave of the court the objections were argued by way of written submissions. Mr. Benedict Bahati, Advocate drew and filed submissions on behalf of the respondent; while Mr. Thomas SIpemba, Advocate drew and filed submissions in reply on behalf of the applicants. Submitting in support of the application Mr. Bahati said that the prayers sought to be granted to the applicant are overtaken by event since the execution proceedings sought to be continued in the name of the 1=' applicant in the place of the 2"'' applicant is no longer pending in court since 28/09/2020 and the court issued a warrant of attachment against respondent and one Mr. EL MALIK ABOUD t/s SANTANA INVESTMENT LIMITED was appointed a Court Broker to execute the order. That only the report of the Court Broker is being awaited in court. He said in such a situation the appiicant has no roie to pray at this stage where only the report is being awaited to be submitted in the name of the 2"^ appiicant. He invited the court to take judiciai notice of the existence of the execution order dated 28/09/2020. On the 2"*^ point of objection, he said paragraph 8 of the affidavit cleariy confirms that the appiicant is not yet born and yet to be vested with banking business, assets and liabilities of the 2"*^ applirant who is stiii into existence. He said that annexures are not evidence rather part of the pleadings. That they are merely informative of the intended merger which is yet to be completed. He said that looking from Annex NCBAl and NCBA3 talk of the intended transfer of business or intended merger and not a completed business. He said that NCBA2 gives conditions for the intended merger or transfer of business, that there is nowhere the annexure talk of the completed merger. He said that had the merger been completed the 2"^ applicant would not have on 28/09/2020 given instruction to Advocate Beatrice Soka to appear in court to execute the decree in the name of the 2"^ appiicant. That on 03/11/2020 the 2"^ appiicant would not have instructed East African Law Chambers to file a counter affidavit in Misc. Land application No.579/2020. He said that under those circumstances it is evident that the applicant is not a legal person and has no locus standi to institute this application in absence of the certification of incorporation evidencing her birth and cannot replace the 2"^ applicant who still exists as evidenced by the pleadings. On the third limb of objection Advocate Bahati said that, it is a settled law since 1916 that a company being a legal person cannot institute a suit in court unless there is clear authority of the company directors authorizing the advocate to institute the suit on behalf of the company. He relied on the case of Milo Construction Company Limited vs. May Florence Mtetemela & Another; In Re: Milo Company Limited or Acaste Corporation Limited [2016] TLR 254 where he said the court observed among other things that, only the Board of Directors of a Company has the authority to instruct an advocate to Institute legal proceedings for and on behalf of the company. He said that the 2"^ applicant in this application is allegedly said dead and sought to be replaced by also a non-existing company which has not shown its existence than a mere intended existence. All these, he said, is happening because the suits were allowed in court without the authority from the Board of Directors of the Company. He cited the case of Raymond D'Souza And Another Vs Jane Philomena Babsa & 3 Others, Civil Case No.28 Of 2011 (HC-Arusha) (unreported). He insisted that the application should be struck out. On the fourth point of preliminary objection, that the application is premature in absence of winding up instrument of the applicant, Mr. Bahati prayed to adopt the submissions in the Z"'' limb of preliminary objection. That the 2"'' applicant being in existence was not justified to seek leave to replace the P'applicant who still exists. On the fifth limb of preliminary objection. Counsel said that the supporting affidavit has a defective verification clause which does not describe facts in the knowledge of the deponent and matters of beliefs such as para 8 and 9 which are matters of opinion. He relied in the case of Peter Rwebangira vs. The Principal Secretary, Ministry of Defence & National Service & Attorney General, Civil Application No.548/04 Of 2018 (CAT)(unreported). He prayed for the application to be struck. In reply, Mr. Sipemba said that, the objection is Improper before the court as Counsel for respondent did not cite any provisions of the law which has been contravened. He sought assistance from the case of Mathias Ndyuki & 15 Others vs. Attorney General, Civil Application No.l44 Of 2015. He insisted that the 1=' ,2"" 3"^ and 4"^ points of preliminary objection raised by the respondent do not meet the established tests under the cited authority under the case of Mukisa Biskuits Manufacturing Company Ltd Vs West End Distributors Ltd (1969) EA 696. He added that the 1=^ ,2"", 3'"' and 4"^ preliminary objections require some other material facts and evidence to prove them and therefore they should be dismissed. Without prejudice to the above, Mr. Sipemba submitted on the point of objection that, the facts stated by the respondent that the application has been overtaken by events need to be ascertained by evidence and are the facts that can be argued in the main application and not on preliminary objection. He insisted that those are not matters of law to support preliminary objection. On the 2"'' point of preliminary objection, Mr. Sipemba said that the respondent has misdirected himself by arguing that the 1=' applicant is not a legal person and has no locus stand! to institute the present application in absence of Certificate of Incorporation. He said that this is not a point of law but rather points of facts which need proof and can be argued in determination of the main suit. Replying to the 3'^ point of preliminary objection that there is no Board Resolution authorizing Lilian Mndeme to Institute this application and depone affidavit, Mr. Sipemba said that these are also points of facts which need to be ascertained with evidence and do not qualify as points of law. That Lilian Mndeme is not the one who instituted the suit and there is no requirement that a deponent need a Board Resolution before deponing affidavit. That the suit was filed by East Africa Law Chambers a firm instructed to represent the applicants and represent the 2"*^ respondent in the main suit and therefore there were no need of Board Resolution to represent applicants in the applications. Replying to the 4^^ point of preliminary objection, that the application is premature in absence of the winding up instrument of the 2"^ applicant, Counsel reiterated his previous submission that it does not qualify to be preliminary points of objection as it based on facts which needs ascertainment. Mr. Sipemba on the 5^ point of preliminary objection that the supporting affidavit have defective verification clause said that, the respondent has not stated what he considers matters of belief or opinion. That in the complained paragraphs 8 and 9 there is no matters which are not on the knowledge of the deponent. The deponent being the Senior officer, Legal Services, was able and competent to depone on the facts of her own knowledge. Mr. Sipemba thus prayed for the preliminary objections to be overruled with costs. In rejoinder Counsel for the respondent reiterated the main submissions and added that the requirement to cite the enabling provision under which a notice of preliminary objection is filed is only applicable in the Court of Appeal not the High Court and subordinate courts. Having gone through submissions by the parties, the main is for consideration is whether the preliminary points of objection raised by the respondent have merit. 8 From the outset I wish to agree with the appiicant's counsei that the jst 3rd 4th points of preliminary objection as raised by the respondent does not qualify to be points of preliminary objection. I am so guided by the case of Mukisa Biscuits(supra) where at page 701 it was stated:- preliminary objection is in the nature of whatsaid to be a demurrer. It raises a pure point of iaw which is argued on the assumption that aii the facts pieaded by the other side are correct. It cannot be raised ifany fact has to be ascertained or what is the exercise ofJudiciai discretion. The above authority is to the effect that preliminary points of objection must be purely points of iaw which does not attract evidence to prove the same. Now applying the said principle to the case at hand, it is clear that the 1^, 2^^ 3^^ and 4^^ points of preliminary objection requires evidence for ascertainment of the facts. Starting with the 1^^ point of preliminary objection that the application has been overtaken by events, one needs to go through the documents pertaining to execution to establish whether this application has been overtaken by events. Going through documents or annexures amounts to ascertainment of facts and It is contrary to what was laid down in the case cited of Mukisa Biscuits (supra). This point therefore has no merit. On the 2"^ point of preliminary objection that the applicant has no legality of instituting this application, I am of the settled mind that the merger between the and 2"^ applicants can be witnessed by instruments and certificates. Counsel for the respondents submitted that the annexures do not talk of a complete merger. But when such annexures are mentioned, it means that evidence must be given to ascertain whether the merger between the and the 2"^^ applicant has been completed. And one cannot ascertain the said merger in consideration of two annexures alone without the other annexures. Such kind of ascertainment deprive the point of its validity as a preliminary objection. In that way the 2"*^ point of preliminary objection does not qualify. The 3^^ preliminary point of objection is that there is no authorization from directors of the company for an advocate to institute an application on behalf of the company. To establish whether there is authorization, obviously Board Resolution of the directors must be in place. To find the same, perusal must be made to the annexures to 10 see whether the same has been appended. To that extent the principles of the case of Mukisa Biscuits (supra) would have been already watered down since it requires no ascertainment of the facts or proof by evidence. This ground too is not fit as a preiiminary objection. The 4^^ point of preliminary objection advanced by Mr. Bahati is that the appiication is premature. Counsel stated that, a winding up instrument must be in piace. A complete winding up of the 2"^ appiicant must be estabiished through a winding up instrument. This at any rate cannot be stated to be a purely point of law. Without much waste of the time this point too does not qualify to be preiiminary point of iaw. On the final point of preliminary objection that the appiication is defective for being supported by an affidavit which has a defective verification clause, Mr. Bahati said that the deponent did not state matters in his knowiedge and matters of beiiefs. He referred to paragraphs 8 and 9 of the supporting affidavit, stating that the said paragraphs contains matters of opinion. To easiiy resolve this issue, I wish to re produce the two paragraphs: 11 8. That as the applicant will become vested with the banking business, aii the assets and the iiabiiities, it will be in the interest ofjustice and prudent disposal of the application and any appiications arising from the application to grant the leave for the applicant to continue the same in piace ofthe appiicant 9. That it is in the interest of the Justice that leave is granted to amend the parties to the application and any applications arising from the same to reflect the applicant in the piace ofthe applicant Now, who is the deponent? As per the paragraph of the supporting affidavit, Liiian Mndeme, the deponent of the complained affidavit is a Senior Legai Officer, Legal Services responsible for handiing iegal matters at the Company and is aiso in custody of the documents pertaining to the matter at hand. In essence paragraph 8 contain iegal knowiedge of the consequences of merger between the and 2"*^ appiicant and paragraph 9 speaks of the rationaie of joining the applicant in the application. Aii these are iegai issues ought to be in the knowledge of any Legai Officer of a Company. They are simply matters of knowiedge and not opinion. I therefore find no defect as regard to the verification ciause by the deponent. 12 Basing on the foregoing, I am of the settled view that the preliminary objections raised by the respondents have no merit and are hereby overruled. Costs shall be the cause. It Is so ordered. 6/ ■1 v.L. mak|ani JUDGE 25/10/2021 13