revs john mathias chambi and others vs registrar general registration insolvency and trusteeship and others 2021 tzhc 3519 4 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CAUSE NO. 21 OF 2020 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF THE DECISION OF REGISTRAR GENERAL (REGISTRATION INSOLVENCY AND TRUSTEESHIP AGENCY) MADE ON 4th OF AUGUST, 2020 AGAINST THE APPLICANTS BETWEEN 1. REV. JOHN MATHIAS CHAMBI 2. MAGRETH E. MBUTA 3. DANI R. NDUMIZI 4. GERVASE JOHN KAMULI 5. WILLIAM E, MACKSON 6. WAKOLE G. MABILA 7. JENU P. MAHONGE 8. JOHN TOMAS MAGAWE 9. ABRAHIM CAGELE 10. PETER A. KAPAMA 11. ISAAC GIDEON MWITA 12. JACKSON MADUHA APPLICANTS 13. RICHARD NYABU 14. SILAS MAYALA 15. SAMWEL EMMANUEL 16. PETRO LAZARO 17. PETRO LAMECK 18. TEREZA BUKWIMBA 19. YUSUFU ROBERT 20. ELIAS SITTA 21. THOMAS MANASE 22. JACOBO LUFEGA 23. DANIEL ELIAS MASUMBUKO 24. MARIA KASHINJE 25. WILISON MASORWA 26. BERINA MAGIDA 27. ASMOS KWEJA 28. ZAKARIA BULUBA 29. REV. BARNABA SAGULA 30. TIMOTHEO BAGORE 31. JOSEPHATI MATUNTU 32. JULIANA PAULO 33. THOMAS SHILINDE 34. JOHN MAKELEMO 35. ISAKA ELIASI 36. DAUDICHARLES 37. AYUBU SAMSON 38. RICHARD KWILEMYA LEONYA 39- MCH. YUSTA INYASI 40. MCH. FESTO SAMWEL 41. MCH. SAMWEL PASTOR 42. MCH. AMON OSWALD APPLICANTS 43. ISAKA OTTO 44. MCH. PATRICK 45. MCH. CHARLES MICHAEL 46. MCH.RAMECK RUANGEA 47. MCH. MARCO PHILIP 48. MCH. EMMANUEL NTAICHA 49. MCH.YOHANA MILEKWA 50. AKGERO ANDREA 51. REV. SOSPETER GAULILA 52. DR. DEUS MOSES MAHIRI 53. PETER RUZIGE 54. ISAAKA MARCO 55. PIUS ZAKARIA 56. METHROD MARCO 57. KAMACHUMU CHABONGO 58. PHILIPO EILLISMU 59. TUMAINI CHARLES 60. FARAJA MARCO 2 61. CHRISTOPHER BUKURU 62. TASIANA BARIBATE 63. DANIEL MISALABA 64. REV. ELISHA MAYEKA 65. REV. JOASH M. WAMBOGO 66. REV. ALFRED DEMISAMI 67. REV. YABED DANIEL 68. REV. SILAS SEHANI 69. REV. MATHIAS SHITUNGALU 70. REV. JAMES KALOLE 71. REV. MEDARD BUNDALA 72. MCH. RENATUS ZIRAHEWA 73. MCH. YOHANA MILEKWA 74. MCH. ELIYA AMONI 75. MCH. RANARO BUFASH 76. THOBIAS EDWARD CHUBWA 77. JAMES NKALI 78. MARIA ABELI 79. MICHAEL J. NGELELE APPLICANTS 80. EMMANUEL DAMINA 81. JACKSON BUJEGE 82. OBEDIANDREAS 83. JACKSON ZILIBONERA 84. SIMON MALISELI 85. LUCAS LEO 86. DAUD SHIKOME 87. YUSUPH KAKALA 88. SIPRIAN JOSEPH 89. ELISHA JOHN 90. MCH. YOHANA MLEKWA 91. REV.EMANUEL ANDREA 92. REV. LAMECK S. KAKOBE 93. REV. ROBERT NGAI 94. MCH. IBRAHIM MALIMI 95. MCH. IBRAHIM HUSENI 96. MCH. SIMON ZEFANIA 97. MCH. NYUKILIA GEORGE 98. REV.LENATUS ZILAHENDA 99. MCH. AGENS NTUNDUWA 3 100. REV. YEHANATYABA 101. REV. LUCAS ROBERT 102. REV. COSMAS CHARLES 103. REV. PAULO MAKOYE 104. REV. NICOLAUS I. KIHILA 105. REV. JACKSON KALULU 106. REV. STEPHEN SANGUA 107. MCH. MULU MAHANDE PETRO 108. MCH. LADISLAUS AUGUSTINE 109. REV. SYLIVESTER KAZILAHABI 110. MCH. SAVERA BONIPHACE 111. REV. AYUBU MALIWAKENDA 112. REV. JOSEPHINE KUBENA 113. REV. THOAMS NDALAHWA 114. REV. SIMON AKIBA 115. MCH. JOEL MASOME 116. MCH. AMOS KASWAHILI 117. MCH. DANIEL SIMON 118. REV. SIMON CHARLES 119. REV. ELIAS LUCAS SIMON APPLICANTS 120. REV. ERASTO LUCAS 121. MCH. YUSUPH LUGOMALALA 122. MCH. FRANSISCO NG'WANHALE 123. MCH. LAZARO ELIAS 124. MCH. ELIKANA PAULO 125. ONESMO ANDREA 126. NDALAHWA MAGANGA 127. JAMES DEUS 128. EMMANUEL MGANGA 129. CHARLES LAURENT 130. MUSA JULIUS 131. NEWTON R. SAIMON 132. SULEIMAN D. SIMON 133. KADUME I. IDUME 134. DEUS DAUDI 135. JOSEPH MASATU 136. SAMWEL MASASILA 137. DAUD MASOLWA 138. NEEMAN MARICK _ 4 139. BERTHA NYERERE MPONA 140. SOSPTER MOZES 141. KENERDI NDIGAHWA 142. DANIEL 0. SAI 143. SOEPSETER LIPENDO 144. ELIYA ATHON 145. LAZARO CHARLES 146. YUSUPH N. KIPNUKE 147. MOSES KASWAHILI 148. ELLY KAGOMBA 149. AMOS CREDU CHELAGA 150. SUZANA CHANZA 151. STEPHANO BENJAMINI 152. ISACK PENDEZA 153. MCH. SILYEVESTER DODO 154. MCH. ADAMU NTUMBA 155. VENANCE MSIKELA 156. MCH. YOHANA NATHAN 157. MCH. EZEKIEL KULONG'WA 158. MCH. PETER T. ISAWINGA r APPLICANTS 159. MCH. JAMES IBRAHIM 160. REV. YOHANA TYABA 161. REV. LUCAS ROBERT 162. REV. COSMAS CHARLES 163. REV. PAULO MAKOYE 164. REV. NICOLAUS I. KIHILA 165. REV. JACKSON KALULU 166. REV. STEPHEN SANGIJA 167. MCH. MMULU MAHANDANE PETRO 168. MCH. LADISLAUS AGUSTINE 169. REV. SYLIVESTER KAZIRAHABI 170. MCH. SAVERA BONIPHACE 171. REV. AYUBU MALIWAKENDA 172. REV. JOSEPHINA KUBEMA 173. REV. THOMAS NDALAHWA 174. REV. SIMON AKIBA 175. MCH. JOEL MAROME 176. MCH. AMOS KASWAHILI 177. MCH. MCH. DANIEL SIMON 5 178. REV. SIMON CHARLES 179. REV. ELIAS LUCAS SIMON 180. REV. ERASTO LUCAS 181. MCH. YUSUPH LUGEMALILA 182. MCH. FRANSISCO NG'WANHALE 183. MCH. LAZARO ELIAS 184. MCH. ELIKANA PAULO 185. SOSTHENES M. MIHAYO 186. DATUS DIONIS 187. MCH. THEDDEY W. KADEGE 188. MCHJOHN MACHANGA 189. REV. NICOLAUS EDWARD 190. PASCHAL GERVAS MALUGU 191. REV. LUCAS SELEA 192. REV. EMMANUEL SALU 193. REV. JOHN JOSPEH 194. MCH. MATHAYO M. CHALYA 195. MCH. MARIAM JOHN 196. REV. EDWARD KAGEHU APPLICANTS 197. MCH. ELIKANA KISENA 198. MCH. DAUD LUSINZA 199. MCH. PENDO MASAS 200. MCH. SAMWEL CLEMENT 201. MCHA. THOAMS MAYUNGA 202. MCH. RAHAB JOHN 203. MCH.YOHANA JAPHET 204. MCH.ROBERT ERASTO 205. MCH. VERONICA FRANCIS 206. MCH. JOPSEPH MAJUNGA 207. MCH. MAGRETH F. MINURO 208. EZEKIEL SHITUNGULU 209. DONARD MASALU 210. MAECO NYAKANGA 211. DEUS MEHADI 212. THOMAS CHARLES 213. PAULO SANGA 214. AMOS ISANGANGHA 215. ZABRON MANENO 216. BONIPHAS MILARY 6 217. LUKA MANEMBA 218. YOHANA ONESMO 219. PETRO MAFUELE 220. YOHANA JACOB 221. SADOCKI MASATU 222. DANIEL GEORGE 223. JOSEPHAT BAGOLE KAHABI 224. MUSA LUTOBEKA 225. GEROGE J. LUSANYA 226. FRANK MARCO 227. JOHN LUGAILA 228. MATHAYO LUKAS 229. JOHN MABULA 230. YOHANA LUKASI 231. YOHANA ZAKARIA 232. DEONAD SHINYANGA 233. MAGRETH I. MBILIZI 234. MASABA PETER APPLICANTS 235. JACTOMISIMONI 236. YOHANA ZAKARIA 237. YUSUFU VITO 238. GIDIONI MICHAEL MAJUA 239. EVELIN COSTANTINI 240. YOHANA NYALOSI 241. DANIEL NYALALI 242. EMANUEL MUSA 243. YAKOBO JHONAS 244. STANSLAUS MCHOMVU 245. THOBIAS JAMES 246. IBRAHIM KILION 247. ELIAS KASIGA 248. MOLIS PETER 249. CHRISTANT B. MWANDUZI 250. SILAS LUGWISHA 251. REV. BATHLEMEYO DAVID 252. SHADRACK MATAGANE 253. MCH. SIRIVESTA KAFULA 254. MCH. ENRNEST KIPETA 255. PASTAR EMANUEL MGENI 7 256. FULGENCE BANKORA 257. REV. JOSPEH S. KULOLLA 258. MCH. HOSWAD DAUD 259. MCH. PETER CHARLES 260. MCH. DOMITILA S. NDAKI 261. REV. JACKSON MNIKO 262. REV. MARKO MASHISHENGA 263. MCH. ALPHONSINA LUHIGUZA 264. MCH. ALPHRED OGUTI 265. MCH. JOHN MLANDA 266. MCH. EMA SAHANI 267. MCH.PAULO KWABI 268. REV. SIMON JOHN 269. MCH. ISSACK LAWI 270. MCH. OSWARD DAUD 271. MCH. JOHN SHAMU 272. MCH. DANIEL KULELA 273. MHC. JOHN MYANDA 274. REV. JULIAS MAKABE APPLICANTS 275. REV. JOSEPH MONGA 276. RICHARD CHRISTOPHER 277. MATHIAS K. LUTTA 278. SILAS SALAMBA 279. ELIYA PETRO 280. BOAZ KAZEBA 281. REV. JOHN NYANDA 282. REV. SIMON MWASUNGULWA 283. REV. ERASTO SHDA 284. REV. PETER MTOKAZI 285. OBADIA BUSUNA 286. ESTA CHILALA 287. RE. MOSES M. KASHINJE 288. REV. ANDREW MATEGWA 289. REV. WALTER BABU NYAIGA 290. REV. GEORGE ISHENGOMA 291. REV. FESTO TWARA 292. REV. ERENESTI KIPETA 293. MCH. GRACE JAMES 294. REV. ADREA CHACHA 8 295. REV. MICHAEL MASHISHANGA 296. JOSEPH MUGAMBO 297. MCH. VICTOR MWAKILASA 298. MCH. AMOS NIKOLAUS 299. MCH. MERY MAKANZA 300. MCH. DORICAS MASAGA 301. YUSUFUELI DUMA 302. PAULO NKWABI 303. CHARLESI BUGALAMA 304. PAUL BUGALAMA 305. NAOMISUNGA 306. MUSA LUPASHA 307. DAUDI KISHINA 308. STEPHANO NJUMBAN 309. IBRAHIM PAULO 310. BENARD LUTOBEKA 311. JAMES KALELEMA 312. LUKAS MAHUDU 313. MARTHA MANENO APPLICANTS 314. PETER M. THOMAS 315. REV. IBRAHIM SASI 316. EMMANUEL J. MUNOKU 317. REV. PATRICE MSETI 318. MCH. SAIMON MANKO 319. MCH. DAUD NYAKIRANDI 320. MCH. ISAYA BHOKE 321. MCH. R. BITURO 322. MCH.WILLIAM M. SAMWEL 323. MCH. JOHN ING'ARE 324. ALBERT 0. CAPIS 325. YOHANA KOYI 326. WILLIAM IGOGO 327. JOSEPH XAVERY 328. REV. JULIUS MBARAKA 329. REV. WILBARAKA 330. AGNES G. BRUNO 331. KENEDY RWAYA 332. DAUD ISABAYAYA 333. JAMES MSELUKA 9 334. REV. JOHN INGARE 335. JOSEPH WANGOTO 336. MICHAEL MNADA 337. REV. IBRAHISI SASI 338. EMMANUEL MUNOKU 339. REV.PATRICE MSETI 340. MCH. DAUD NYAKIRANDI 341. MCH. ISAYA BHOKE 342. MCH. R. BITURO 343. MCH. WILLIAM M. SAMWEL 344. MCH.JOHN ING'ARE 345. JACKSON MADELEMO 346. GIDEON LEBEJO 347. ABEL MTALULA 348. YOTAMU NDIGOMO 349. ISAYA LESILWA 350. MUSA CHALINYE 351. EMMANUEL ASHERI APPLICANTS 352. YARRED C. LESILWA 353. ROBERT C. MANGWELA 354. SAMSON MSASU 355. EZEKIEL MCHEMWA 356. STEPHANO MLIMBA 357. DAVID MITAMBANGA 358. IVAN CHIMWENDA 359. GIDEON J. MATENGI 360. LEONARD CHAMBI 361. DAUDI MSENGI 362. AZALIA MBENA 363. JOHN J. MSANJILA 364. DADIWAYA 365. LAZARO MADELEMO 366. SHIJA EMMANUEL 367. FESTO CHIBUGASI 368. PEKOSON LUSITO 369. FESTO MGONHWA 370. YORAMU GHWELESA 371. RICHARD NYAMBUYA 372. JOSEPHY MGENO 10 373. NIKOLASI MASIGAZWA 374. GODLISTEN D. DIAH 375. ELIYA MASHAKA 376. KASEA KISAUTI DAUDI 377. GEOFREYA. MWAMASYULA 378. YONA K. DOTO 379. EGON M. ISRAEL 380. PETER CHARLES KASWIZA 381. EZEKIEL CHARLES 382. ELIAS MATANA 383. JOSHUA TUNGU MUSEMBE 384. EMMANUEAL MAGAKA 385. PAUL LUBINZA 386. PAUL CHARLES LUTIMIZI 387. JOHN MASANJAIGOGO 388. JOHN MAGEMBE 389. PHILIPO JOHN KUSENA 390. MANASE MALULU 391. JULIUS MATAYO 392. YUSUFU SHANI - APPLICANTS 393. NIKODEMO MAKALA 394. DAUD KRISTOFA KAGUSA 395. JULIUS KIBELENGE 396. DAUDI SALEHE 397. ADOLFU PAULO 398. BONIFACE SAIPIONI 399. JOHN SNANGIE 400. CHAZOS MWANDU 401. ELISHA MASUMBUKO 402. VENAS SENGA 403. MCH. AYUBU KAMBOSHA 404. MCH. NOBERT NARKO 405. MCH. SIMON KASHINDYE 406. MCH. JONATHAN PETRO 407. MCH. STEVEN AMOS 408. MCH.JOHN MADUKA 409. JOSEPH PHILIPO 410. MCH.ZEDEKI KASHINYA 411. MCH. MELIKIA SAMSON 11 412. MCH. JOSPEH ANDREAAPPLICANTS 413. MCH. MATHAYO EDWARD 414. MCH. EZEKIEL RAMADHANI 415. MCH. ABEDINEGO NAKAMBEWA 416. MCH. AMOS MAIGE 417. MCH. THOMAS LUFEGA 418. MCH. MATHIAS PETRO 419. MCH. YUSSUPH ILUMBA 420. MCH. PETRO KAMBEJA 421. MCH. SEPHANIA PASKALI 422. MCH. EMMANUEL S. KIMBULU 423. MCH. JAMES G. GOROBANI 424. MCH. CONSTANTINE BUDAGA 425. MCH. JOSPEH MARK 426. MCH. FAUSTIN GEOFAS 427. MCH. YUSSUPH HUSSEIN 428. REV. PAUL BUSUNGU 429. MCH. SIGITRED P. SHIRIMA 430. MCH. JUSTINE KIHINGA APPLICANTS 431. MCH. GASTON PESA 432. MCH. NASHON BUNOME 433. MCH.ELISTHA A. SEBASTIAN 434. MCH. MELECKZECK CHARLES 435. MCH. MICHAEL MANGILIMA 436. MCH. JAMES MASUNGA 437. MCH. JACKSON OMARI 438. MCH.YOHANA R. MHONZOLO 439. MCH. RICHARD LUHUSA 440. MOSES STEVEN KASONGYE 441. MCH. JOSEPHAT NKOLA 442. MCH. SELEMANI MAFULU 443. MCH.JOSEPH MATAIFA 444. MCH. SAMWEL BUNDALA 445. MCH. ARONI BANGILI 446. MCH. JOSEPH PHILIPO 447. MCH. MARKO SHINGWENGWE 448. MCH. DENIS SAMWEL 449. MCH. REVOCATUS THADEO 450. MCH. MATHAYO EDWARD 12 451. EMMANUEL LUSHUGEMBE 452. DAMIEL MADAHA 453. SAMSON MASELE 454. MATHAYO ILUMBA 455. LAMECK MWANDU 456. EZEKIEL MAHONA 457. AMOSI JILALA 458. PETER MWIGA 459. KEFA KABAKUL 460. EMMANUEL ELFRED 461. MRS. AGNES MPEMBA 462. PETWE NJILE 463. MTEULE MASUDI 464. ELISHA NCHALI 465. PETWE MASANJA 466. CHARLES MANAMBA 467. AUGUSTINE MLOKOZI 468. DANIEL MANGA 469. JACOB MADAHA APPLICANTS 470. ANDREA SALU 471. EZEKIEL BUSENGWA 472. ALEX SEDEKIA 473. YOHANA SHIJA 474. JOSHUA DASON 475. STEVEN MAKONDO 476. PETWE KATAMBI 477. SOSPETERJOHN 478. NICODEMUS MHOJA 479. LUCAS LUDENDE NKUBA 480. JOSEPH MACHEMBA 481. MAIKO MSANGOWOLE 482. YOHANA M. KUSHILIMU 483. EMMANUEL KASHILIMU 484. SARA M. MILINILYU 485. MARIAM T. SAMBA 486. MARKO KOMANYA 487. FESTUS A. MUIMBWA 488. BARAKA KITA 489. DAUD SALAMBA 13 490. ISSA MWAIKOLE 491. DANIEL MAKENZI 492. LUCIA MAKENZI 493. ELIYA SIMBAO 494. CHARLES MAGANGA 495. DANIEL LIKISATA 496. DAUD NDIMISWA 497. JACKSON BULENGE 498. DAUDI JACOB KAYUNI 499. KENETH MTAMBO 500. GABRIEL MWAKALONGE 501. JAPHET MBWETE 502. RICHARD MWAKANYAMALE 503. REV. JAKOBO MIZENGO 504. REV. EMMANUEL SALAWA 505. REV. YOHANA MAGANYA 506. REV. HENERY LISAMBO 507. REV. ALOIS LINUS 508. REV. CHALES MAGANGA APPLICANTS 509. REV. DANILI KUKWAJA 510. REV. ELIA SIMBA 511. MCH. DAUDI NDIMISWAS 512. MCH. DANIEL MAKENZI 513. MCH. LUCY MAKENZI 514. SIMON Z. MATEMI 515. ISSA A. MWAIKOLE 516. MOSES NYENYEMBE 517. SAMWEL KIJALA 518. ASHARI KYAMBA 519. OBADIA MWAMBWALULU 520. ASED MWAMBETE 521. STEPHANO HALINGA 522. ELIA SHIBANDA 523. EMMANUEL KAMANGA 524. JOHN MWASHILIMBE 525. SUBIRA MWAMPASHI 526. ATUBWENE MWAISABILA 527. ADAM MSWELO 528. LAZARO MWAKATAGE 14 529. MUSA E. MWENGA 530. GODLUCK SIWALE 531. LACKSON SIAME 532. SHADRAKA MKINGA 533. FLANGSON NDIMWA 534. JOSEPH SIAME 535. JACKSON MIDUHA 536. RICHARD NYABU 537. SILAS MAYALA 538. SAMWEL EMMANUEL 539. PETRO LAZARO APPLICANTS 540. PETRO LAMECK 541. TELEZA BUKWIMBA 542. YUSUFU ROBERT 543. ELIAS SITTA 544. THOMAS MANANE 545. JACKOBO LUFEGA 546. DANIEL ELIAS MASHINDIKA 547. MARIA KASHINJE 548. WILSON MASOLWA 549. BERINA MAGIDA VERSUS REGISTRAR GENERAL (Registration Insolvency and Trusteeship)..... ^RESPONDENT HON. ATTORNEY GENERAL............................ 2ndRESPONDENT REV. JOSHUA B. WAWA.................................3rdRESPONDENT REV. CHRISTOMOO ISACK NGOWI................. 4THRESPONDENT REV. KENEDY KASUNGA.................................5™RESPONDENT REV. PETER MADAHA.....................................6™RESPONDENT RULING Date of last Order: 13/04/2021 Date of Ruling: 04/06/2021 15 MLYAMBINAJ One of the technical issues in this application is; whether the Court should apply "the doctrine o f finger litigatiori' or "the principle of misnomer" by allowing the Applicants to amend their pleading even after the preliminary objection on points of law has been raised. The Latin maxim is couched in the wording N ih il facit error nominis, cum de corpora constat meaning: An error as to a name is nothing when there is certainty as to the person. For the better understanding, I will start giving its brief meaning. The doctrine o f finger litigation is the doctrine under the law of misnomer, which means missing names, or correcting names. The principle was first developed by English Court of Appeal in the case of Davies v. Eslby Brothers. Ltd.1Lord Delvin at page 676 came up with litigation finger test as follows: Did the statement of daim point the litigation finger at the right Defendant, such that they would know it was meant for them despite the naming error ...would need to make other inquiries then the mistake is more than a misnomer and would be mis description. In UK, ever since then, the doctrine of finger litigation is used in the situations where the Defendant is improperly named in the statement of claim. The Court upon being asked to correct the name, must determine whether a reasonable Defendant in looking at the document as a whole and in all the circumstances, would conclude that they were, in fact, the Defendants. If the answer is in the affirmative, then the misspelling is known as a misnomer. If on the other hand the conclusion reached is that 1 [I960] 3 All ER 672 16 the Defendant would not reasonably be able to conclude it was meant for them and would need to make other inquiries then the mistake is more than a misnomer and would be a mis description. The Litigation finger test may assist the Plaintiff in such case if the test is satisfied, then the Plaintiff will be permitted to correct the mistake as misnomer, by amending statement of claim. The effect would be to substitute the proper Defendant's name in place of the incorrect named Defendant. If the test is not satisfied then the amendment will not be permitted as the error would be considered a misdescription. With the afore general brief, I will now proceed with the background of the matter, analysis of the submissions, and decision thereof. The Applicants in this case filed Chamber Summons supported by an Affidavit of John Mathias Chambi, sworn on his behalf and on behalf of the rest of the Applicants. The application was made under Section 17(2) and Section 19 (3) of the Law Reform (Fatal Accident and Miscellaneous Provisions) Act? and Rule 8(1) (a) (b) (2), (3), and (5) of the Law Reforms (FatalAccident and miscellaneous Provisions) (JudicialReview Procedures and Fees).3The Applicants sought for this Court to order: (i) That, the proceedings and decision of the Registrar General (Registration Insolvency and Trusteeship Agency) dated 4thAugust, 2020 registering and recognizing the 3rd ,4th 5th and 6thRespondent as Trustees of the Evangelical Assembles of God Tanzania (EAGT) be removed to the High Court. 2 Cap 310 [R.E.2019] 3 Rules of 2014 made under Section 19 of Cap 310 [R.E.2019] 17 (ii) That, the Proceedings and the decision of the Registrar General (Registration Insolvency and Trusteeship Agency) dated 4th August 2020 registering and recognizing the 3rd,4th,5th, and 6thRespondents as Trustees of the EAGT be quashed forthwith on their removal in the High Court. (iii) That, the l stRespondent be compelled by the order of Mandamus to remove the names of the 3rd,4th,5th and 6th, Respondents from the Register of Trustees of Evangelical Assemblies of God Tanzania (EAGT). (iv) That, the 3rd, 4th, 5th, and G^Respondents be prohibited from exercising their power and functions as Trustees of the EAGT. (v) Costs of and incidental to this application be provided for. (vi) That, the Honourable Court be pleased to make any other order as may necessary be made. The Applicants were competently been represented by learned Counsel Robert Rutaihwa. The first and second Respondents were judiciously represented by learned State Attorneys Xavery Ndalahwa and Cosmas Samwel Mtabazi, while the third to sixth Respondents were enjoying the service of learned Counsel Didance Kanyambo. When filling Counter affidavit in opposition to the application, the first and second Respondents raised a plea in limine litis namely that; the application is bad in Law for suing non existing party. The third to sixth Respondents also raised another set of plea in limine litis to the effect that; the third to sixth Respondents in this case have no locus standi since they are Registered Trustees but they have been sued in their personal names. Admittedly, the later plea in limine litis; meant that the Applicants 18 have no cause of action against the third to sixth Respondents. Both limbs of objection were orally litigated before the Court. On the first limb of objection, learned State Attorney Xavery Ndalahwa submitted that the first Respondent is the Registrar General (Registration Insolvency ^Trusteeship Agency). He submitted that, Executive Agency (Registration Insolvency and Trusteeship Agency) RITA was established in 2005.4It performs the duties that were performed by the Administrator General's Office in the Attorney General Chambers. In view of learned State Attorney Ndalahwa, basing on the relief sought by the Applicant, the ^Respondent ought to be RITA and not otherwise as done by the Applicant. So, the application cannot stand. He cited the case of National Oil v. Aloyce Hobokela,5 where the issue was; whether National OH was the same with National oil Tanzania Ltd. The Court ruled that, those were two different companies. Henceforth, the application was dismissed. Learned State Attorney Ndalahwa, also cited the case of The Registered Trustees of Chama cha Mapinduzi v. Mohamed Ibrahim.6 In the latter case, the issue was; whether the Registered Trustees o f Chama cha Mapinduzi and Naibu Katibu Mkuu CCM was the same party. The Court ruled out that those were two different parties. In the circumstances, the Court of Appeal set aside the High Court Judgment. State Counsel 4 Established under Government Notice No. 397 published on 2nd day of December, 2005, under the Executive Agencies Act Cap 394 5 Misc. Labour Application No 212 of 2013, High Court of Tanzania Labour Division at Dar es Salaam, (unreported) 6 Civil Appeal No. 16 of 2008 Court of Appeal of Tanzania at Zanzibar (unreported) 19 Ndalahwa winded up his submission by arguing that the matter is improper before the Court and it should be strike out with costs. In response, learned Counsel Robert Rutaihwa for the Applicants submitted that the plea in limine litis was raised as a matter of fashion. To him, this being an application for Judicial Review, it is governed by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act.7 In particular Rule 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Judicial Review Procedure and Fees Rules,8 which directs on which practice and procedure should be applicable in case the rules are silent. According to Counsel Robert Rutaihwa, where the name of a party has been wrongly cited, the Rules and the Act are silent but Rule 17 directs that the practice and procedure applicable in the High Court shall apply. He cited OrderI Rules 9 and 10 (1) of the Civil Procedure9which provides: No suit shall be defeated for non-joinder or misjoinder of parties. The remedy is to substitute or add the party who has not been properly cited. Counsel Rutaihwa submitted that, when filing this application, they relied under Section 14 of the Trustees Incorporation Act.w It refereed to the Registrar General. They were not aware of the amendments. So, to the Applicants, it was a bonafide mistake. Finally, the Applicants prayed the Court to allow them amend their pleading. He cited the Court of Appeal 7 Cap 310 (R.E. 2019) 8 Ibid 9 Code Cap 33 [R.E. 2019] 10 Cap 318 [R.E. 2019] 20 of Tanzania decision in the case of Christina Mrimi v. Coca Cola Kwanza Bottlers Ltd.11 Of interest to this ruling, Counsel Rutaihwa invited this Court to apply the finger litigation doctrine. He cited a MIMEO (unpublished Article): It Had to Be You: A Primer on the law of Misnomer in which the author points out that: Under Rule 26.01 of the Ontario Rules of Procedure o f 1994',12 the Court is mandated to grant leave to amend a pleading on such terms as are just, unlessprejudice would result that could not be compensated for by costs or an adjournment. Under Rule 5.04 (2) of the Ontario Rules of Procedure,13 the Court is permitted to "add, delete or substitute a party" or "correct the name of a party incorrectly named," under the same terms.14 The author goes on to observe the first step of the two-step test for misnomer in determining who the "litigation finger" is pointed at as follows: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: "of course it must mean me, but they have got my name wrong". Then there is a case of mere misnomer. If, on the 11 Misc. Civil Application No. 113 of 2011, Court of Appeal of Tanzania at Dar es Salaam, page 4 - 5 12 RPO 1990, Reg 194 13 Ibid 14 Ibid 21 other hand, he would say: "I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries", then it seems to me that one is getting beyond the realm of misnomer.7 According to Peter Heinen, a Plaintiff's pleading will be viewed as reflecting a correctible "misnomer" in respect of a Defendant where it is apparent: One, that the Plaintiff intended to name the Defendant; and two, that the intended Defendant knew it was the intended Defendant in relation to the Plaintiff's claim. If it is a case of misnomer, the second question to answer is; whether the Court should use its discretion under Rule 5.04 (2) of the Ontario Rules of Procedure.15 Basing on the above principle on the doctrine of finger litigation, Counsel Rutaihwa was of the view that, in as much as the pleading before the Court are very categorical referring to the Administrator General but wrongly referring in as Registrar General, under the Litigation Finger Doctrine, the remedy is to amend the pleading by substituting the mere name of Administrator General from the Registrar General. When probed by the Court on the importance of the doctrine o f finger litigation, Counsel Rutaihwa mentioned the following advantages: One, is to do away with technicalities. Two, it enhances the principle of overriding objective, meaning that, rather than dismissing or striking out the pleadings before the Court, to let the parties start afresh as the case may be, which may involve a prolonged procedure, resources to both parties 15 RPO 1990, Reg 194 22 and the Court. Three, such other purposes of which the overriding objective were brought in place. Counsel Rutaihwa, however, distinguished the case of National Oil on account of: First, the decision is not binding. It is merely a persuasive authority. Second, the decision when made did not take into account the decision of Christina Mrimi. Third, under the doctrine of stare decis, and the Christina Mrimi decision is binding to the High Court. Fourth, in the National Oil case the provision of Order 1 Rules 9 and 10 (l)16were not put into place. Therefore, in view of Counsel Rutaihwa, taking the test in Christina Mrimi, the National Oil decision remains redundant. In rejoinder, learned State Attorney Xavery Ndalahwa submitted that, since the Applicants have admitted that they wrongly joined the ^Respondent, the remedy is to struck out the application with costs. He distinguished the case of Christina Mrimi with this case by submitting that, in that case, the application to correct name was made while there was no any preliminary objection raised. Consequently, the Christina Mrimi authority does not help. Having gone through the pleadings and both Counsel's submissions, I find it authoritative and agree with learned Counsel Robert Rutaihwa for the Applicants on three facts: One, this is an application for Judicial Review governed by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act. In particular Rule 17 of the Law Reform (Fatal Accidents and Miscellaneous Pro visions) Judicial Review Procedure and Fees Rules17 whose Rule 17 mandates the practice and procedure applicable in the 16 Cap 33 [R.E.2019] 17 Cap 310 [R.E.2019] 23 High Court to be applied. Two, Order I and Rule 9 o f the Civil Procedure18 mandatorily prohibits defeat of suit on account of misjoinder and non­ joinder of parties. Three, Order I Rule 10 (1) o f the Civil Procedure Code)19 allows substitution of wrong Plaintiff in the suit or adding another Plaintiff. I further agree with Counsel Robert Rutaihwa that the case of National Oil is not binding to me. It is merely a persuasive authority. However, we are reminded by the Court of Appeal of Tanzania in the case of Ally Linus and 11 Others v. Tanzania Harbours Authority and Temeke20that it is a duty of a Judge not to dissent lightly. Their Lordships held: (ii) it is not the matter o f the courtesy but a matter o f duty to actjudiciously that requires a Judge not lightly to dissent from the considered opinion o f his brethren. I find Counsel Robert Rutaihwa has not given good reasons as to why the Court should dissent from its decision given in National Oil case. I further find that the objection raised is not a fashion. It is a pure point of law because neither Rule 9 nor Rule 10 o f the Civil Procedure Cod&1 does allow a Plaintiff to sue a wrong party. Therefore, the objection raised is a pure point of law in the light of the daily cited famous case of Mukisa Biscuit Manufacturing Co Ltd v. West End Distributors Ltd,22 in which preliminary objection was defined to mean that: 18 Code Cap 33 [R.E. 2019] 19 Cap 33 [R.E. 2019] 20District (1998) TLR at page 6 21 Cap 33 [R.E. 2019] 22 [1969] 1 EA 696 24 is in the nature of what is used to be a demurrer. It is a pure point o f Law which is argued on the assumption that aii the facts pieaded by the other side are correct In another case of Bank of Tanzania Ltd v. Devran P. Valambia,23 the Court observed on the rationale of a preliminary objection as follows: The aim of a preliminary objection is to save the time o f the Court and of the parties by not going into the merits of the appiication because there is a point ofiaw that will dispose of the matter summarily; It is abominable that the law imposes a duty to the Plaintiff to sue a proper party. In the case of Coseke Tanzania Limited v. Public Service Social Security Fund (Formally known as LAPF),24it was expressed that: In common knowledge the Plaintiff is expected that, prior instituting a suit in Court, she was required to make inquires or search to determine the correct entity to sue Failure to do so renders the whole procedure incompetent In the same Coseke case,25the Court quoted with approval the case of Thomas Ngawaiya v. The Attorney General & 3 Others,26 in which it was held that: 23 Civil Application No 15 of 2002 Court of Appeal of Tanzania (unreported) 24 Commercial Case No. 143 of 2019, High Court of Tanzania at Dar es Salaam Registry 25 Ibid 26 Civil Case No 177 of 2013, High Court of Tanzania at Dar es Salaam Registry 25 Wrongful institution of proceedings in Court renders the whole application incompetent Learned Counsel Rutaihwa for the Applicants prayed to this Court to adopt 'litigation Finger Doctrine"to rectify the situation because he was not aware of the amendments. I should observe that ignorance of the law has never been a good defence in this jurisdiction. It is even much worse when it is pleaded so by a sophisticated Counsel like of the Applicants. I do entirely agree with the stated advantages of applying the doctrine of finger litigation and enrich the following benefits: One, amendment of pleadings safeguards Court to conduct litigation not on a false hypothesis of facts hence reach in a just and correct decision not based on errors. This can be observed in the case of Ochieng & Others v. First National Bank of Chicago,27 as cited with approval in St Patrick's Hill School Ltd v. Bank of Africa Kenya Ltd 28 the Court of Appeal of Kenya on setting up principles governing the amendment of pleading held that: The power o f Court to allow amendments is intended to determine the true substantive merits of the case. Two, amendment of pleadings, saves time of the Court, prevents delay in dispensation of justice and avoid multiplicity of suits. As a result, it helps the court to evade huge backlog of cases. Requiring the party to start the case afresh, involves a prolonged procedure, and resources to both parties and to the Court. This was clearly stated in Ugandan case of 27 Civil Appeal No. 147 of 1991, Court of Appeal of Kenya at Nairobi (unreported) 28 Civil Case No. 7 of 2017[2018] KLR 26 Buffalo Youngster Inc. v. SGS Uganda Ltd29where the Court stated that: Multiplicity o f proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed. Three, amendment of pleading should be allowed because it is a mandatory right provided for under Order VIRule 17 o fthe CivilProcedure Code.30 Four, through the overriding principle, parties should be allowed to amend pleadings because the Court is guided by Civil Procedure Rules to deal with cases justly and at a proportionate cost. In the case of Magoiga Gicherev. Peninah Yusuph,31 it was stated that; with the advent o fprinciple o f overriding objective brought by the Written Laws (Miscellaneous Amendments?2 which now requires the Court to deal with cases justly and to have regard to substantialjustice. Five, Amendment of pleadings should be allowed for the interest of justice, since it defends the right of an innocent litigant. Six, amendment of pleadings helps parties to correct their mistakes in the pleadings because the objective against pleading is to protect the right of parties and not to punish them for the mistake made by them in the pleadings. 29 HCMA, No. 6 of 2012 30 Cap 33 [R.E. 2019] 31 Civil Appeal No 55 of 2017[2018] TZCA 222 “ (No.3) Act No 8 of 2018] 27 However, amendment of pleadings is discouraged on account of the following reasons: First, it is a hindrance to speedy disposal of the matter. Second, it has more possibilities and chances of violation of legal rights of other side. Third, sometimes it is difficult to find the real question of controversy between parties. Fourth, the controversy between amendment of proceedings and the limitation is still not settled. Fifth, any Applicant with the mala fide intention are filing the application for amendment. It is not easy for the Civil Court to establish maia fide intention of the parties. Regardless of the disadvantages, generally, it is the findings of this Court that amendment of pleadings is much beneficial than its disadvantages. However, in Tanzania, the law as it stands today does not allow pre­ empting a raised preliminary objection. In the case of Job Mlama and 2 Others v. Republic,33 the Respondent raised a preliminary objection, and the Applicant admitted but prayed to withdraw the Application so that they may refile afresh. The Court had this to say: On the basis of the above stated reasons, we uphold the preliminary objection and find the application incompetent. The Applicants hadprayed to withdraw their application with the view to refile a competent one. Theprayer is not tenable. It is now trite law that, a prayer which has the intention o f rectifying a defect in matter cannot be sustained after a preliminary objection has been raised. This is so because, to do so would amount to pre-empting the raised objection. 33 Criminal Application No 18 of 2013, Court of Appeal of Tanzania at Mwanza (unreported) 28 In Godfrey Enock Mkocha v. Twiga Paper Products Ltd and 2 Others,34 had this to say: We have considered the rival arguments by the learned counsel for the parties from their submission, it is apparent that they agree that it is fairly settled law in thisjurisdiction that, once a preliminary objection has been lodgedany course o f action that would amount to its being pre-empted would not be allowed. Similar view was reached by the Court of Appeal of Tanzania in the case of Thabit Ramadhan Maziku & Another v. Amina Khamis Tyela & Another.35 In that case, the Court held that: Once an objection is raised one cannot apply to amend, otherwise it will amount to pre-empting Respondents preliminary objection already raised. It is a trite law that, under Order VI Rule 17 o f the Civil Procedure Code,36 the Applicant had a right to amendpleadings at any stage o f the suit. However, that right ceased when the preliminary objection was taken against her by the Respondent. Once a preliminary objection is raised, the same must be disposed first before the case or Application continues. It is stated at Order XIV Rule 2 of the Civil Procedure Code. (Emphasis applied) 34 Civil Application No. 193 of 2013, Court of Appeal of Tanzania at Dar es Salaam (unreported) 35 Civil Appeal No 98 of 2011, Court of Appeal of Tanzania at Zanzibar (unreported) 36 Cap 33 [R.E. 2019] 29 The statutory position of the law is worded under OrderXIV Rule 2 o f the Civil Procedure Cod&7which provides that: Where issues both o f law and o f fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed o f on the issues oflaw only, it shall try those issues first, and for thatpurpose may, if it thinks fit, postpone the settlement o f the issues of fact until after the issues of law have been determined. Needless the afore position of the law, in order to deepen one's understanding, I will expound the doctrine offinger litigation ox misnomer by making a survey on how it is applied in various jurisdictions. 1. Applications of the doctrine of finger litigation/misnomer in Canada Finger Litigation test has been adopted by Ontario Canada and it has been summarized by the Court of Appeal in Ormerod v. Strathroy Middlesex General Hospital38as follows: The Law amply supports the preposition that where there is a coincidence between the Plaintiff intention to name a party and the intended party knowledge that, it was the Intended Defendant an amendment may be made, despite the passage o f the limitation period to correct the misdescription or misnomer. 37 Cap 33 [R.E 2019] 38 (2009) 97 OR (3d)321 at para 11 (CA) 30 In Ontario Canada, the litigation finger test has been expanded to the extent that, the Court is not limited to consider what the receiving Defendant would know, but may, in addition consider the knowledge of the intended party's representatives, including the knowledge or powers of their insurer, their lawyer and their superiors when they received and reviewed the statement of claim. However, in cases where pseudonyms (false names) are used or where there is doubt about the correct identity of Defendants, Plaintiff should ensure in order to meet the litigation finger test, that the allegation in the statement of claim are as particularized as possible so that the intended Defendants or their representatives would know, when reading the claim that the " Litigation finget" is pointing at them. The Court can exercise its residual discretion to refuse the correction of a misnomer under Rule 5.04 (2) o f the Ontario Rules o f Procedure,39 if the intended Defendant can demonstrate prejudice or if allowing the correction would lead to an unfair result. Rule 5.04 (2)40 provides: At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. It is accepted that to err is human and Plaintiffs sometimes do not have all the necessary information at the beginning of the case to properly identify all the Defendants. As such, finger litigation doctrine applies to 39 RPO 1990, Reg 194 40 Ibid 31 ensure fairness. The Court of Appeal for Ontario in the case of Lyooyd v. Clark41held: Where there is a coincidence between the Plaintiff's intention to name a party and the intended party's knowledge that it was the intended defendant, an amendment may be made despite o f the passage o f the limitation period to the misdescription or misnomer. The position through the case of Kamboj v Sidhu,42 is that a party seeking a correction after the limitation period has expired must satisfy the Court that the err is truly a misnomer rather than a substituting of a new party into the existing proceeding. Generally, the doctrine of finger litigation or misnomer is applied by the discretion of the court upon satisfaction that the err was human and there is no prejudice to the other party. If there is prejudice, it must be capable of being compensated by costs. At any rate, the Court retains residual discretion to refuse application of misnomer. 2. Applications of the doctrine of finger litigation/misnomer in Nigeria The Doctrine of Finger litigation is also used in Nigeria as the Law of misnomer or correcting names. In the case of Access Bank Pic v. Agege Local Governement And Another43 the Respondents instituted a suit by way of writ of summons and other originating 41 2008 ONCA 343 at para 4 42 20 13 ONSC 2478 (Master) at para 2) 43 (CA/L/649/2014) [2016] NGCA 35 (17 MAY 2016) (CA/L/649/2014) [2016] NGCA 35 (16 MAY 2016) 32 processes against the Appellant in the name of Agege Local Government and Chairman, Agege Local Government seeking several relief (s) against the Appellant. The Appellant filed a notice of preliminary objection before the trial Court and prayed for: One, an order dismissing or striking out in its entirety for want of jurisdiction on the ground that the claimants as constituted on the face of the Originating processes are unknown to law, not being a juristic person. Two, an order dismissing or striking out the suit in its entirety for want of jurisdiction on ground that the claimants as constituted on the face of the originating processes lack the requisite locus standi to institute and maintain the suit. The Appellant stated that the proper entity to be sued is Agege Local Government Council not Agege Local Government. The Respondent based on the law of misnomer that the Court can readily cure upon application for amendments. The Court considered whether the non-inclusion of the word 'council' to the names of the Respondents was a misnomer and whether the High Court was justified in dismissing the appellant's preliminary objection. The Supreme Court held that: The non-inclusion of the word 'council' was indeed a misnomer which stood to be amended with the Court's discretion. Once amended, it gave the High Court the right to dismiss the appellant'spreliminary objection. There is no other entity be it a human being or a legal entity that bears a name similar to Agege Local Government that it can be said to be a mistaken identity. It was not shown that there is in existence any such similar entity so the issue o f mistaken identity cannot arise. 33 The Court relied on legislation establishing the Respondents in order to identify their correct names and the Court stated that no other names could have been intended than those put forward by the Respondents. Generally, in Nigeria, their law is settled that a misnomer occurs when the correct person is brought to the Court under a wrong name. The doctrine of misnomer is used only when there is a mistake as to the name and not as to the identity oft the particular party to the litigation. In this situation, the Court allows application for leave to amend regardless of preliminary objection being raised. 3. Applications of the doctrine of finger litigation/misnomer in India In India the law of misnomer is also used in corrections of names of parties when there is misdescription. In the case of Alexander Montain & Co. v. Rumere Ltd44 it was held that: On the facts here before me, I have no doubt in me that it is the dearest possible case of misnomer or misdescription of the Defendant There can, in my opinion, be no difference on this account between a case o f misnomer or misdescription of the Plaintiff and a case of misnomer or misdescription of the Defendant lean discover no principle by which the Court will have no power to amend a misdescription of the Plaintiff but will have powers to amend a misdescription of the Defendant 44 [1948] 2 All ER 482 34 The Defendant was sued as a company and a person who are contending to appear in pursue to the writ state in the written statement that die Company is defunct band have come forward to oppose this Application. There is therefore no doubt about the Defendant the Plaintiff intends to mean or indicate. It was therefore a case of misdescription or misnomer o f the Defendant. I consider that the express and dear language o f Order I rule 10 (2) of Civil Procedure Codd15gives power to the Court to amend any misdescription o f the Defendant. Under that sub rule the name of a Defendant improperly joined as a Defendant or whose presence before the Court is necessary to enable the Court effectually and completely adjudicated upon and settle all questions involved in a suit, can be added by the Court... I find that, it is only a case of misnomer or misdescription of the Defendant and I am satisfied that, it is one of those special esses were amendment can be allowed Inspite of limitation. Therefore, in India, the Law of misnomer Applies with respect to Order 1 Rule 10 (2) as well as Order 6 Rule 17 of Civil Procedure Code of India. 4. Applications of the doctrine of finger litigation/misnomer in Australia 45Act No. 5 Of 1908 35 In Australia, mis-description by the addition or omission of a word of party's name, or as a result of a typographical error may be treated by Courts as 'misnomers' which are capable of correction (as a matter of contractual construction) without the need for rectification. In the case of New South Wales Land and Housing Corporation v. Australia and New Zealand Banking Group Limited,46the mis-description of a party's name in a contract was able to be corrected in this manner. NSW Land and Housing concerned a guarantee for indemnity issued by the Australia and New Zealand Banking Group Limited at the request of Nebax Constructions Australia Pty Ltd (In Liquidation). The New South Wales Land and Housing Corporation (ABN 24 960 729 253) claimed that it was the intended beneficiary under the guarantee despite the beneficiary being described in the guarantee as "New South Wales Land & Housing Department trading as Housing NSW ABN 43 754 121 940", an entity which, as described, did not exist. In finding that such an error constituted a misnomer, Kune J cited the following passage from Kingstream Steel Ltd v. Stemcor UK Ltd47 with approval: In our view the misdescription o f the guarantor in the first two documents is simply that, and an error of that kind is not fatal to the validity of the guarantee._Counsel for the Applicant argued that because of the misdescription in the first and second guarantees, those guarantees were executed by a non-existent company. He relied primarily 46 [2015] NSWSC 176 47 [2001] WASCA 138 36 on Black v Smallwood.48 That case concerned a proposed company that had not been incorporated at the date of execution of a document for the sale of land. The document was executed by the signatories in the belief that the company had been incorporated and that they were directors of it. The question that arose in that case was whether the signatories were personally liable in those circumstances. (Emphasis added) Kune J went on to express the test for a misnomer which can be corrected by construction as: Whether the misnomer was the product o fa mistake made in circumstances in which it would have been plain to all who are concerned with the relevant document as to who the party was that was referred to in the document According to Kune J, the Court will also look to avoiding absurdity in determining whether a misnomer can be corrected by contractual construction. Kune 3 in NSW Land and Housing affirmed the statement of principles as expressed by Leeming JA in National Australia Bank Ltd v Clowes49 (McColl and Macfarlan DA agreeing) as follows: In my view, the Bank's submission should be accepted because of the Bank's first point. In my opinion this is a clear case where the literal meaning of the contractual words is an absurdity, and it is self evident what the 48 [1966] HCA 2; (1966) 117 CLR 52 49 [2013] NSWCA 179 37 objective intention is to be taken to have been. Where both those elements are present, as here, ordinary processes of contractual construction displace an absurd literal meaning by a meaningful legal meaning. As this Court observed in Westpac Banking Corporation v Tanzone Pty Ltd,50 the principle is premised upon absurdity, not ambiguity, and is available even where, as here, the language is unambiguous. In general terms, Kune J found that the process of correction of an error, including a misnomer, is still an exercise in interpretation. The application of the principle requires an assessment of what the objective intention is to betaken to have been. The subjective intention is irrelevant. As such, there is no need to call the drafter of or signatories to the contract to give evidence, and a Court can resolve the issue by reference to an objective assessment founded upon principles of contractual construction. Matters that may be relevant include: One, whether there existed, at the time of execution of the contract, a party with the name in question (if not, it would be an absurdity to suggest that the parties intended a non­ existent party to be a party to the contract); Two, any other information by which the party in question can be identified, such as a unique ACN or ABN, or a unique address; 50 [2000] NSWCA 25; (2000) 9 BPR 17,521 at [21] 38 Three, the subsequent conduct of the parties in performing the contract (such as delivery of goods or services to the correct entity who has been mis-described in the contract. In Aon Risk Services Australia Ltd v. Australian National University,51 the High Court considered the factors relevant to a trial Judge's discretion to grant leave to file amended pleadings. The general guidance on the application for amendment can be discerned from paragraphs [97]-[103] of the joint judgment. The encapsulated relevant factors include: One, the nature and importance of the amendment to the party applying. These factors are to be weighed against the extent of the delay that may be caused and the costs associated with it, as well as the prejudice which might reasonably be assumed to follow. Two, the point the litigation has reached relative to a trial. The Court should consider whether a party has had sufficient accedes to applications made without adequate explanation or justification Having regard to all of the relevant factors, the amendment application should have been refused. In 3 Robertson & Co Ltd (in liq) v. Ferguson Transformers Pty Ltd,52the Defendant was named as "Phillips Electrical Pty Ltd (formerly Phillips Electrical Industries Pty Ltd)". The Plaintiff had dealings with a company of the latter name, but that company's name had been changed to "Phillips Industries Pty Ltd". Phillips Electrical Pty Ltd was a separate 51 (2009) 83 AUR 951; [2009] HCA 27 52 (1970) 44 AUR 441 39 company with whom the Plaintiff had had no relevant dealings. Walsh J held: There had been a mere misnomer and allowed the amendmento f the Defendant's name, notwithstanding the expiry o f the statute of limitations. In Bridge Shipping Pty Ltd v. Grand Shipping SA,53 Dawson J said (at 238-239) of such cases that: The correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed. In such a case, at least as a matter of theory, no question of defeating a statute of limitations arises. (Emphasis added) 5. Applications of the doctrine of finger litigation/misnomer in Uganda In Uganda, just like in other Counterpart Eastern African Countries, the doctrine of finger litigation or misnomer is not in use of common parlance. However, amendment of pleadings in Uganda is covered under Order VI Rule 19,20 and21 o fthe OvilProcedure Act ofUganda.54Order VI(supra) provides for the amendment of pleadings by either party to a suit. Amendment of pleadings is to enable a party to alter their pleadings so as to ensure that litigation between them is conducted not a false hypothesis of facts. It can either be done with leave of Court or without leave. 53 (1991) HCA 45-173 CLR 231 54 The Civil Procedure Rules made under Cap 65 of 1964, Revision Section 85 40 Amendment without leave from the Court is supposed to be done within 21 days from the date of issue of summons. If it is being done by the Defendant, it is done 14 days from the date of filing the written statement of defence. This is provided for under Order VIrule 20. Order VIrule 2155 further provides for 28 days after the filing of a counter claim. Amendment can also be done with leave of Court. There are certain conditions that must be fulfilled for leave to be granted. Order VI Rule 19?6 provides that the amendment should be just and necessary. Order VI Rule 19, 20 and 2157 provides as hereunder: 19. The court may, at any stage of the proceedings, allow eitherparty to alter or amend his or herpleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 20. A plaintiff may, without leave, amend his or her plaint once at any time within twenty-one days from the date of issue o f the summons to the defendant or, where a written statement of defence is filed, then within fourteen days from the filing o f the written statement o f defence or the last of such written statements. 21. A defendant who has set up any counterclaim or setoff may without leave amend the counterclaim or 55 Ibid 56 Ibid 57Ibid 41 setoff at any time within twenty-eight days of the filing o f the counterclaim or setoff, or, where the plaintiffflies a written statement in reply to the counterclaim or setoff, then within fourteen days from the filing o f the written statement in reply. Also, Order I Rules 9 and 10 of the Civil Procedure Rules of Uganda58 is in pari materia with Order 1 Rule 9 and 10 of the Tanzania Civil Procedure Code.59 Rule 9 prohibits defeat of a suit on misjoinder and non joinder of parties while Rule 10 (1) (2), (3), (4) and (5) allows amendment or substitution of wrongly joined Plaintiff or Defendant. The Ugandan case of Gaso Transport (Bus) Services Ltd v. Obere,60 discusses the principles guiding the amendment of pleadings as follows: The amendments should not cause injustice to the other party. An injury that cannot be compensated by the award of costs is treated as an injustice. In Buffalo Youngster Inc. v. SGS Uganda Ltd HCMA,61 the amendment was being sought in bad faith to defeat the defence. The Court was of inter alia findings that: One, multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed. Two, an application that is made mala fide should not be granted. Three, no amendment should be allowed where it's expressly or impliedly prohibited by any law. Amendment should not “ Ibid 59 Cap 33 [R.E. 2019] 60 EA 88 1990 SCCA No.4 61 No 6 of 2012 42 change cause of action. In Lubowa Gyavira & others v. Makerere University,62 it was held that a Court will not exercise its discretion to allow an amendment which substitutes a distinctive cause of action for another to change by means of amendment. Further, Order XV Rule 2 of the Civil Procedure Rules o f Uganda is in pari materia with Order XIV Rule 2 o f the Civil Procedure Code of Tanzania.^That means, if there is a point of law and point of facts, the point of law must be determined first. Therefore, it is clear that the law is flexible enough to allow parties to rectify errors in their pleadings. However, it is also strict to avoid the manipulation of the process by the litigants. In event there is a preliminary objection, it has to be determined prior points of facts. 6. Applications of the doctrine of finger litigation/misnomer in Kenya In Kenya, just like in Uganda, the doctrine of finger litigation or misnomer is not in use of common phrasing. However, amendment of pleadings is provided for under Order 1 Rule 9 and 10 of the Civil Procedure Rules of Kenya65 which provides: 9. No suit shall be defeated by reason o f the misjoinder or non-joinder ofparties, and the Courtmayin everysuit deal with the matter in controversy so far as regards the rights and interests o f the parties actually before it. 62 HCMA 471 of 2009 63The Civil Procedure Rules made under Cap 65 of 1964, Revision Section 85 64 Cap 33 [R.E. 2019] 65 Made under Section 81 of Cap 21 [R.E. 2010] (Legal Notice 151 of 2010, Legal Notice 22 of 2020) 43 10. (1) Where a suit has been instituted in the name of the wrong persons as Plaintiff, or where it is doubtful whether it has been instituted in the name of the right Plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute to do so, order any other person to be substituted or added as Plaintiff upon such terms as the Court thinks fit (2) The Court may at any stage o f the proceedings, either upon or without the application ofeitherparty, and on such terms as may appear to the Court to bejust, order that the name of any party improperlyjoined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have beenjoined, whetheras Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. (3) No person shall be added as a Plaintiffsuing without a next friend or as the next friend of a Plaintiff under any disability without his consent in writing thereto. (4) Where a Defendant is added or substituted, the plaint shall, unless the Court otherwise directs, be amended in such manner as maybe necessary, and amended copies of the summons and of the plaint shall be served on the new 44 Defendant and, if the Court thinks fit, on the original Defendants. Further, Order 8 Rules 3 and 5 (1) of the Civil Procedure Ruietf6allows amendment as follows: (3)(1) Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4,5 and 6 and the following provisions o f this rule, the Court may at any stage of the proceedings, on such terms as to costs or otherwise as may bejust and in such manner as it may direct, allow anyparty to amend his pleadings." 3 (5) An amendment may be allowed under sub rule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause o f action arises out o f the same facts or substantially the same facts as a cause o f action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment 5 (1) For the purpose of determining the real question in controversy between the parties, or o f correcting any defect or error in anyproceedings, the Court may either of its own motion or on the application ofanyparty order any documents to be amendedin such manneras it directs and on such terms as to costs or otherwise as arejust In Ochieng & Others v. First National Bank of Chicago,67 as cited with approval in St Patrick's Hill School Ltd v. Bank of Africa Kenya 66 Ibid 67 Civil Appeal No. 147 of 1991 Court of Appeal of Kenya at Nairobi (unreported) 45 Ltd68the Court of Appeal set out the principles governing the amendment of pleadings as follows: a) Thepower ofthe Court to allow amendments is Intended to determine the true substantive merits o f the case. b) The amendments should be timeousiy applied for; c) Power to amend can be exercised by the Court at any stage o f the proceedings. d) That as a general rule however late the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side. e) The Plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the Defendant would be deprived of his right to rely on limitations Act subject however to powers of the Court to still allow and amendment notwithstanding the expiry o f current period o f limitation. In Harrison C. Kariuki v. Blue Shield Insurance Company Ltd69 the Court referred to the Court of Appeal decision in Central Kenya Ltd v Trust Bank Ltd70 and held that: The guiding principle in applications to amendpleadings is that die same will be liberally and freely permitted, unless prejudice and injustice will be occasioned to the opposite party. There will normally be no justice if the other party can be compensated by an appropriate award of costs for 68 [2018] KLR 69 [2006] KLR 70 [2000] EALR 365 46 any expense, delay or bother occasioned to him. The main this is that it be in the interests of justice that the amendments sough be permitted in order that the real question in controversy between the parties be determined. In that case, the Plaintiff listed the following reasons/grounds in support of its application for leave to amend plaint: i. The need to implead how the use of the word 'Country Clock'has led to confusion with the Plaintiff's mark. ii. The need to include specific details relating to the Plaintiff's advertising units. Hi. The need to particularize the claim relating to confidential information. iv. The need to have the Court effectively determine the real questions/issues in controversy. On their part, the Defendants listed the following grounds for opposing the application: - a) That the application has been brought late in the day and is an afterthought. b) That there is an appeal that has been filed against the decision by the Tribunal which the Plaintiff seeks to rely upon. c) That the Plaintiff seeks to introduce a claim relating to an employment dispute. d) That the application is not brought in good faith. 47 While noting true that the application has been brought at least 4 years after the filing of the suit, the Court found that the delay could not be wholly attributed to the fault of the Plaintiff because a perusal of the Court file shows that the parties herein at some point attempted mediation process as a way of resolving the dispute. It was inter alia clear that it was not until 23rd October 2019 that the Court was informed of the failure in mediation and the matter thereafter listed before the Deputy Registrar for Case Management. In its decision, the Court found that the proposed amendment of the plaint will not prejudice the Defendant's case as they will still have the chance to amend their pleadings should they deem it necessary. 7. Applications of the doctrine of finger litigation/misnomer in Tanzania In Tanzania, as a general rule, the doctrine of finger litigation or misnomer is not applied in its strict sense. However, amendment of pleadings is allowed by avoiding technicalities and vagaries of pleadings through Order I Rules 9 and 10 of the Civil Procedure Code,71 which is in pari materia with order 1 Rules 9 and 10 o f the Kenya Civil Procedure Rules/2 and Order I rule 10 (2) of the Indian Code of Civil Procedure/3 Order I Rule 10 (1) of the Civil Procedure Code74 provides as follows: 10.-(1) Where a suit has been instituted in the name of the wrong person as Plaintiff or where it is doubtful whether it 71 Cap 33 R.E 2019 72 Made under Section 81 of Cap 21 [R.E. 2010] [Legal Notice 151 of 2010, Legal Notice 22 of 2020] 73Act No. 5 of 1908 74Cap 33 [R.E. 2019] 48 has been instituted in the name of the right Plaintiff the Court may at any stage o f the suit, if satisfied that the suit has been so instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as Plaintiff upon such terms as the Court thinks just (2) The Court may, at any stage of the proceedings, either upon or without the application o f eitherparty and on such terms as may appear to the Court to bejust, order that the name ofanyparty improperlyjoined, whether as Plaintiffor Defendant, be struck out, and that the name o f any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added\ Tanzania's Courts have been dealing with cases of corrections of names, where an existing entity is being sued in a wrong name. This can be observed in the case of National Bank of Commerce Limited v. Alfred Mwita,75in which the Court had this to say: In our considered view, the complaint on missing middle name of the Respondent in the Notice of Motion militates against him. We say so because he was not prevented from filing the affidavit in reply, the written submissions and entering 75 Civil Application No 172 of 2015 Court of Appeal of Tanzania at Dar es Salaam 49 appearance in Court. As such, we agree with Mr. Nyika that, the Respondent was not prejudiced by the missing middle name. The case of Christina Mrimi v. Coca Cola Kwanza Bottlers Limited,76 cited by Mr. Mgare, is no longer good law. Therein, the names of Respondent were interchangeably referred to as "Coca Cola Kwanza Bottles" and Coca Cola Kwanza Bottlers": The Court initially struck out the appeal having declined to accept that those names referred to one and same entity. However, in Christina Mrimi v. Coca Cola Kwanza Bottlers Limited;77 the Court reviewed and reversed earlier decision having accepted that after all there was no confusion over names because Coca Cola Kwanza was the only company in Tanzania which manufactured sprite, the drink that was subject of the tortious suit. Thus, the Court said: "We are satisfied that it is just to correct the name of the Respondent from Coca Cola Kwanza Bottlers to Coca Cola Kwanza Ltd in the decision of the Court dated 19th February 2009 in Civil Appeal No 112 of 2008.78 The review is accordingly allowed. In the light of the above stated authorities and position of the law, as observed earlier in the instance case, the doctrine of finger litigation or misnomer is not used in its legal parlance in Tanzania. Although amendments are allowed at any stage, case law with the aid o f OrderXIV 76Civil Application No.113 of 2011Court of Appeal of Tanzania at Dar es Salaam (unreported) 77 Ibid 78Court of Appeal of Tanzania at Dar es Salaam 50 Rule 2 of the Civil Procedure CodeP have established that amendment cannot be entertained after the preliminary objection has been raised. It is the humble view of the Court that, with the advent of overriding objective principle, the doctrine of finger litigation or misnomer can safely be cherished in Tanzania upon amendment of the law or upon getting a new guidance by the Court of Appeal. The law should allow amendment of the pleadings on misnomer even if there are preliminary objection raised especially in circumstances where the amendment will serve the six advantages stated at page 26 and 27 of this ruling. In any aspect, as the law stands today, it is clear that, allowing the prayer to use the doctrine of finger litigation at this stage will be to pre empty the preliminary objection. On the part of the 3rd to 6thRespondents, the learned Counsel Didace Kinyambo submitted that, 3rd up to 6thRespondents were appointed to be the Member of Trustees on 28thJune, 2019 for the Evangelical Assemblies of God of Tanzania. They were formerly or officially registered in the Administrator General's Office on 4th August, 2020. That was in compliance with Section 2 of the Incorporation Actw as revised, after the incorporation, they formed a Body Corporate known as the Registered Trustees of the Evangelistic Assemblies of God Tanzania as required under, Section 6 (2) of the Incorporation Act?1So, they have the power to sue or be sued in their corporate names. He submitted that 3rd to 79 Cap 33 [R.E. 2019] 80 Cap 318 81 Ibid 51 6thRespondents were not supposed to be sued by their names. So, he prayed this matter to be struck out. In reply, learned Counsel Robert Rutaihwa for the Applicants was of submission that, the question whether a party has locus standi or not is not supposed to be raised as preliminary objection in view of the decision in Mechmar Corporation (Malaysia) Benchard (in Liquidation) v. VIP Engineering and Marketing Ltd and 3 Others.82 Thus, he submitted that, the 2nd preliminary objection is not a pure point of objection because ordinarily the Applicant is the one who should be called to have no locus standi but here it is the Defendant who is purporting to have no locus standito be sued. He was of the view that the preliminary objection was supposed to be on the point that the Applicant has no cause of action against the Respondents. He finally prayed the Court to overrule the objections, and then, the Applicant be allowed to substitute the names of the ^Respondent, and costs at the discretion of the Court. From the afore submissions, the issue as regards the second preliminary objection is; whether the 3rdto S^Respondents had locus standi. It has to be noted that locus Standi \s a common law principle which requires that a person bringing a matter to Court should be able to show that his right or interest has been interfered with. On this point, the Court wishes to cite Section 8 (1) (b) of Trustee Incorporation Ad?3 which provides for capacity to sue and be sued. It expressly states that: 82 Consolidated Civil Applications No. 190 and 206 of 2013 Court of Appeal of Tanzania at Dar es Salaam pp 10-13. 83 Cap 318 52 8. (1) Upon the grant of a certificate under subsection 1, ofSection 5, the Trustee or trustees shall become a body corporate by name described in the certificate and shall have (a) NA (b) Power to sue and be sued. Further in the case of Lujuna Balozi, Senior v. Registered Trustees of Chama cha Mapinduzi,84This case expressed that: Locus standi is governed by common Law according to which a person bringing a matter to Courtshould be able to show that his right or interest has been breached or interfered. In another case of Kanisa la Anglikana Ujiji v. Abel Samson Heguye,85 it was stated that: In law there are two types ofpersons who can sue or be sued. These are the natural and legal (artificial) persons. The artificial persons Include Companies and the Registered Trustees. They can also be referred to as incorporated bodies. It was further stated that: Legalpersons are incorporated under differentlaws. In case of Trustees, their incorporation is governed by the Trustees' 84 [1996] TLR 203 HC 85 Labour Revision No. 5 of 2019 High Court of Tanzania at Labour Division 53 Incorporation Act.86 The requirement for incorporation as a body corporate is stipulated under Section 2 (1) of the Act while the capacity to sue or be sued is provided for under Section 8 (1) (b) of the same Act.87 In Nigerian case of Fawehinmi v. Nigeria Bar Association,88 it was stated that: As a generalrule, only naturalpersons, that is to say human beings and juristic or artificial persons such as bodies corporate are competent to sue and be sued before any law Court. In other words, no action can be brought by or against any party other than a natural person or persons unless such a party has been given by the statute expressly or Impliedly or by common law either a legal personality under the name by which it is sued or it sued or a right to sue by that name. Similar situation was observed in another Nigerian case of Agbonmagbe Bank v. General Manager G. B Olivant Ltd and Another,89 in which it was held: This is the law because the suit is in essence, the determination of legal rights and obligations in any given situation. Therefore, only such natural/ juristic persons in whom the rights and obligations can be vested are capable o f being proper parties to law suits before Courts of law. 86 [Cap. 318 R.E. 2002] 87 Ibid 88 (No.2) (1989) 2 NWLR (PT. 105) 558 at 595 89 (1961) ALL NLR 116; (1961) 2 SCNLR 317 54 Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise this fact as a preliminary objection which if upheld, normally leads in the action being struck out. In Tanzanian case of Kanisa la Anglikana Ujiji v. Abel Samson Heguye Labour Revision {supra) the Court made the findings that: The Applicant is a religious institution. Religious organization is required by law to be registered as societies under the Societies Act.90The requirement is under Section 12 (1) o f the said Act?1 The procedure is well described under the Societies (Application for Registration) Rules,92 upon being issued with a certificate of registration, the organization are required under Section 2 o f the Trustees Incorporation Acd1to be incorporated and be issued with a certificate of incorporation stipulating its name which under Section 5 of the same Act shall include the words "Registered Trustees" Once the certificate is issued; the religious organization or association is deemed to have been incorporated, therefore, can sue or be sued in its incorporation name only. At the end it was pronounced that, "the Anglican Church or its Branch cannot be sued in its registered name as the 90 [Cap.337 R.E. 2002] 91 [Cap. 318 R.E. 2002] 92 GN. 119 of 1958 93 [Cap 318 R.E. 2002] 55 registered name Cannot give it a legal personality, so the Respondent sued a legally non-existent entity. (Emphasis added). In present case, the Applicants sued the 3rd to 6thRespondent in their personal capacity while they had knowledge that, those Respondents are registered entities. This is evidenced in their affidavit in paragraph 14, they discovered that, On 4th Day August 2020 first Respondent acknowledged 3rdto 6thRespondents as Registered Trustees of EAGT, hence legal entity, and per Section 8 (1) (b) of Trustee Incorporation Act?* they can be sued in their Legal capacity only. It was clearly stated in the case of Access Bank PLC v. Agege Local Government and Another (supra): Simplyput, a nonjuristic person cannotsue nor be sued. It is also agreed that the naming o f a non-juristicperson as a claimant in a suit makes the suit out rightly incompetent. Therefore, basing on Section 8 (1) (b) of Incorporation Act?s and the authorities above, this Court comes to the conclusion that Applicants sued the non-existing entities. The issue of misjoinder and non-joinder only cater for parties who existed Legally but not made party of the suit or wrongly made part of the suit, Coeseke Tanzania Limited v. Public Service Social Security Fund {supra). In the end, the ratio that emerges out of the legal survey on the Doctrine of Finger Litigation or Misnomer is that it applies at any stage of the 94 Cap 318 95 Ibid 56 proceedings regardless of preliminary objection being raised or being time barred. However, as the law stands today, it cannot apply in Tanzania till when the call I make is welcomed. The countervailing considerations of applying the doctrine of finger litigation in our jurisdiction is based on its benefits. Consequently, both limbs of objection are sustained. The application stands struck out. Considering the legal input enhanced by Counsel Robert Rutaihwa for the Applicants in developing our jurisprudence, I find it significant to waive costs. Ruling delivered and dated 4thJune, 2021 in the presence of learned Counsel Robert Rutaihwa for the Applicants, learned State Attorney Xavery Ndalahwa for 1st and 2ndRespondent and learned Counsel Didace Kanyambo for the 3rd to 6thRespondents. 57