ncba bank t ltd vs salvatory lubeke mwandu 2023 tzhccomd 248 31 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 54 OF 2023 (Arising from Commercial Case No.33 of 2023) NCBA BANK TANZANIA LIMITED................................ APPLICANT VERSUS SALVATORY LUBEKE MWANDU............................... RESPONDENT RULING A.A MBAGWA J. This ruling is in respect of preliminary objections on point of law raised by the respondent. The applicant, under certificate of urgency, brought this application in terms of the provisions of Sections 68(b) & (c), 95 and Order XXXVI Rule (6) (a) & (b), 6(2), 7(1) and 8 of the Civil Procedure Code seeking the Court to grant reliefs in the following orders; i) The respondent appears before the Court to show cause why he should not furnish security to satisfy a decree which may be passed in Commercial Case No. 33 of 2023. ii) In the alternative, in case the respondent fails to show cause as to why he should not furnish the security required within the time fixed by the Court, the Court be pleased to order the attachment of the award/decree arising from Labour Dispute No. i CMA/DSM/ILA/R. 1237/16/77: Salvatory Mwandu vs Commercial Bank of Africa (T) Limited which granted the respondent TZS 89,059,615 pending hearing and determination of Commercial Case No. 33 of 2023. iii) That costs of this application be provided for; and iv) Any other order(s) as this Honourable Court may deem just and fit to grant. Upon service, the respondent filed a counter affidavit along with a notice of preliminary objections to the effect that; 1. That the applicant herein has no locus standi to sue the respondent. 2. That the applicant's affidavit in support of the application is incompetent for contravening Order XIX Rule 3(1) of the Civil Procedure Code. When the matter was called on for hearing of the preliminary objections, the applicant enjoyed the services of Dr. Onesmo Kyauke, learned advocate whereas the respondent appeared in person (unrepresented). The respondent being a lay man successfully prayed the Court to dispose of the preliminary objections by way of written submissions. Both parties duly complied with the filing schedule. Submitting in support of the 1st preliminary objection, the respondent said that he was employed by Commercial Bank of Africa (T) LTD which 2 terminated his employment on 13th day of December, 2016 and for that reason the applicant, NCBA BANK TANZANIA LIMITED is a stranger to him as it has never been his employer. The respondent continued that even the Labour Dispute No. CMA/DSM/ILA.R. 1237/16/77 whose award was delivered on 10/09/2018 was between the two persons namely, the respondent and Commercial Bank of Africa (T) Limited. The respondent lamented that there is no even a single statement in the applicant's affidavit explaining on how the applicant came about or any connection whatsoever between the applicant, NCBA BANK TANZANIA LIMITED and his former employer Commercial Bank of Africa (T) Limited. The respondent was thus opined that the applicant has no locus standi to sue the respondent. To support his position, the respondent cited the case of Peter Mpalanzi vs Christina Mbaruka, Civil Appeal No. 153 of 2019, CAT at Iringa. With regard to the 2nd preliminary objection, the respondent had it that the applicant's affidavit contravenes the provisions Order XIX Rule 3(1) of the Civil Procedure Code. He expounded that paragraphs 21 and 22 contain assumption, feelings, opinion and arguments. It was the respondent's view that the affidavit in support of the applicant is defective and for that case the application is incompetent hence liable to be struck out. In rebuttal, the applicant's counsel dismissed the respondent's preliminary objections saying that they are devoid of merits. Starting with the 1st 3 preliminary objection, the applicant's counsel argued that the applicant is a successor of the defunct Commercial Bank of Africa (T) Limited as clearly stated under paragraph 1 of the supplementary reply to counter affidavit. The counsel stressed that even the respondent is aware of this fact in that in Application for Execution No. 589 of 2021 which was instituted by the respondent, he joined the applicant, NCBA Bank of Tanzania Limited as the judgment debtor. Regarding the attack against the affidavit, the applicant's counsel submitted that there is nowhere the affidavit violates the provisions of Order XIX Rule 3(1) of the Civil Procedure Code. Finally, the counsel beseeched the Court to overrule the objections. I have keenly gone through the rival arguments and the depositions by the parties. To start with the 1st preliminary objection on whether the applicant has locus standi to sue the respondent, I have read the contents of the supplementary reply to counter affidavit. Paragraph 1 reads "That I am the Acting Manager Legal Services of the applicant (who formerly was known as Commercial Bank ofAfrica Tanzania Ltd and then acquired by NIC Bank Tanzania Limited before changing name to NCBA Bank Tanzania Limited) well versed with the factslam about to depose hereunder and duly authorized to swear this affidavit. 4 Copies of BOT approval and certificate of change of name are annexed hereto and collectively marked annexure NCBA-1A." Without further ado, the above paragraph sufficiently tells it all as to why the applicant is suing the respondent. It is well disclosed that the applicant is a successor of Commercial Bank of Africa Tanzania Limited, the former employer of the respondent. In the circumstances, the applicant has locus standi to sue the respondent. As such, I find the objection meritless and therefore I overrule it. Concerning the allegations that paragraphs 21 and 22 of the applicant's affidavit contains arguments and opinion, I have read the said paragraphs but I failed to note the alleged anomalies. To my opinion, the two paragraphs are purely based on facts as they are stating on unsecured status of loans advanced to the respondent and the amount which is still outstanding. As such, the 2nd preliminary objection is without merits as well. In the event, I overrule both preliminary objections. The application should proceed to be heard on merits. It is so ordered. A-A- Mbagwa JUDGE 31/07/2023 5