20050228 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 81 OF 2004 ORYX OIL COMPANY LTD ............................................ PLAINTIFF VERSUS . 1. TANZANIA ELECTRIC SUPPLY } CO. LTD.(TANESCO).- }........ RESPONDENTS 2. THE PARASTATAL SECTOR . REFORM } COMMISSION (PSRC) } I • RULING SHANGWA. J: This is yet another preliminary objection raised by the 2 nd defendant namely PSRC following several other similar • objections raised in differ~nt Civil Cases filed by the plaintiffs against Specified Public Corporations· in· which the 2 nd defendant is joined as one of the defendants. In this case like ~ in several other ca_ses, the 2 nd defendant is saying that the plaintiff has no cause of action against it because the claim of .. shs,46,420,560/= against the 1 st defendant namely TANESCO • 2 as damages for breach of contract is not a debt provable in bankruptcy. It was contended by M/S Lexglobe Associates on behalf of the 2 nd defendant that since the cause of action in this case is - not founded on a debt provable in bankruptcy, there is no legal justification to join the 2 nd defendant as a co-defendant. They ' submitted on behalf of the 2 nd defendant that there exists no laws which require a person who sues a Specified Public· Corporation to join the 2 nd defendant (PSRC) as a co-defendant. In their rejoinder to the plaintiff's _written submissions, they ". submitted that the 2 nd defendant PSRC· has no case to answer as it is not liable to the plaintiff's claim. They prayed the court to dismiss the suit as against it. The plaintiff's learned Couns~I M/S M. A. Ismail and Company .su_bmitted that their client has a cause of action against the 1 st defendant who breached the contract and the 3 2 nd defendant who is the 1 st defendant's Official Receiver. They further· submitted that both of them are jointly and severally liable for payment of due damages and or interest arising out of breach of contract by the 1 st "defendant amounting to shs.46,42O,56O/=. In my considered opinion, once the plaintiff wants to join ' PSRC in a suit against a specified public Corporation, it is not ,_, necessary that the plaintiff's claim in such suit should only ·' . (nvolve a debt w.hich is provable in bankruptcy. That is to say Ji • . that, even if the claim in a suit against a Specified Public Corporation does not involve a debt which is provable in bankruptcy, yet still, PSRC in its capacity as Official Receiver of a Specified Public Corporation which is being sued can be joined in such a suit. Generally . speaking, the plaintiff has a legal right to join two or more defendants in a suit from whom he or she thinks 4 can obtain redress. This is in accordance with the provisions of 0.1. r.7 of the Civil Procedure Code, 1966 which provide as follows and I quote: "Where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent may be determined as between all parties." ' It has always to be remembered that, as all Specified Public Corporations are under the official receivership of the 2 nd defendant, joining it· in all suits in which any of these corporations is involved, 1s quite inevitable until when it completes its duty of restructuring them and discharges them. I think that most litigants are interested in joining the 2 nd defendant (PSRC) in cases where specified public corporations are sued in order to safeguard their interests irrespective of whether the suit 1s or 1s not provable in 5 bankruptcy. They all know that these corporations were put under receivership due to· liquidity problems and they do not know what will happen to them before they are discharged from receivership or before their cases are settled in court. For whatever happens during the said period, they know that the 2 nd defendant who is supervising and monitoring them will ' assist to settle their claims once these corporations are found liable. . . The question as to whether or not the 2 nd defendant has a case to ans·wer or is liable ·cannot be determined at this stage before hearing ~he evidence to be adduced at the trial -~f the plaintiff's suit. Moreover, the plaintiff is pleading that both 'I defendants are jointly and severally liable. In view of this plea, this court cannot dismiss the suit against the 2nq defendant before trying it. Doing so will amount to a travesty of justice. ,· 6 • I therefore dismiss the 2 nd defendant's preliminary objection but I order that each party should bear its own costs. - ~ A.Shangwa JUDGE 28.2.2005 Delivered in open Court at Dar es Salaam this 28th day of February, 2005. ~-,_ A.Shangwa JUDGE 28.2.2005.