20008004 TZHC Dar es Salaam

JN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION)

AT DAR ES SALAAM CIVIL CASE NO. 30 OF 2000 SURY AKANT D. RAMJI. .................. PLAINTIFF

VERSUS SAVINGS AND FINANCE LlMITED ................ 15 T DEFENDANT JUTHALAL VELJI LIMITED ....................... ... 2No DEFENDANT JOSEPH SJNDE WARIOBA Receiver Manager Of FAHARI BOTTLERS LIMITED .................... 3Ro DEFENDANT RWECHUNGURA Receiver Manager \ Of J.V. TEXTILES AND GARMENTS LIMITED .. .4THDEFENDANT

RULING KALEGEYA, J: Upon filing a suit against the Defendants the Plaintiff proceeded and filed a chamber summons praying: " (a) This Honourable Court may be pleased to issue an order.for temporary injunction restraining the Respondents. their agents and/or workmenji·om harassing and evicting the Applicant/P/aintifff,-om the suit premises knmvn as Flat No. 9 situated at Plot No. 33 Ali Hassan lvfwinyi Road, Upanga Area within the City of Dar cs Salaam pending the final determination of the suit.'' The application is supported by his own affidavit. l\·1r. Magafu appeared for plaintiff while Mr. D. Kesaria defended the Defendants' plight. In suppo1i of the application, both by the affidavit and the-oral submissions, the applicant through his Counsel vehemently argued th,1t as he is interested in the property 2 itself and not money, if the order is not given and the property is subsequently sold, the patiies being under Liquidation, he will suffer irreparable loss. He insisted that he has a good case against Defendants; has no alternative accommodation for himself and his family, and that in any case he was not given sufficient notice. Mr. Kesaria arguing and voicing a reply on behalf of Defendants. forcefully retaliated by the first launching a preliminary objection that the subject matter not being a commercial dispute should not have been allowed to knock at the doors of

the Commercial Court in the first place. He argued that this is a mere question of Employer/Employee relationship centering on arrears of salaries. As to the prayer for temporary injunction, Mr. Kesaria insisted that it should not issue because Plaintiff/Applicant has not established a prim a facie case; has not established that he ,vill suffer irreparable loss if not granted, and that neither has he established, on a balance of convenience, that he stands to suffer more if the prayer is refused than will the Defendants if granted. Expounding further on his submissions Mr. Kesaria insisted that the Plaintiff's employer was Fahari Bottlers Ltd which is under Liquidation and that the plaintiff has already filed his claims with the Provisional Liquidator; that Fahari Bottlers has never been the owner of the disputed premises as much as it has no connection with the rest of the Defendants which are separate entities; that the 1st Defendant, the Bank, has a right to enforce its security. Mr. Kesaria tendered letters shcyi.ving correspondences between Plaintiff and 2 nd Def~ndant over the flat; a report on a search conducted in the Land Registry which shov,'s that the property in dispute is in the name of the Company for which 4 th Defendant was appointed and a copy of the plaintiff's claim lodged with the Fahari Bottlers Ltd's Liquidator. In reply Mr. Magafu insisted that the

definition of what a "Commercial Case" is 3 is very wide, covering the present dispute and that the demand lodged with the Liquidator does not include the TShs.30 Million deducted from Pia inti ff's salary arrears and applied as payment for the flat. J will start \vith the preliminary objection. I should out-rightly state that contrary to Mr. Kesaria's objection, this dispute fits well in the definition of a "Commercial Case'·. The eleven categories enlisted under Rule 2 of the High Court Registries (as amended by GN 141 of 1999) defining what a "Commercial Case" is arc not exhaustive as amply portlayed by the opening paragraph thereof running as under, "Commercial case means a Civil Case involving a matter considered to be of Commercial sign[ficance, including but not limited to ... "(emphasis mine). The rule then goes on to enumerate the eleven categories. With respect to Mr. Kesaria, he cannot be heard to say that so long as a dispute does not fall under the eleven categories then it is not a Commercial Case. The underlined words above do not need any interpolation. They are clear. There are other disputes falling under the definition though not enlisted. And, indeed, for an evolving law applicable in the modern world with continuing business involvements and innovations a closed definition would have been undesirable if not impossible. So each case has to be looked at on

the basis of its own particular facts. Now, the Plaintiff has come to us saying, "I was employed by so and so. I was allocated a flat by my employer in my capacity as his employee. We then entered into an agreement by which I purchased the said flat not by direct payment of the purchase price but through retention by the Employer of my salary arrears. Though the deductions of my salary arrears amounting to the purchase price were made no transfer of the said property was made;" What would this transaction amount to? Would it be, as Mr. Kesaria tries to impress, an Employer/Employee dispute? 4 With greatest respect to Mr. Kesaria I cannot associate myself with his reasoning. This \Vas purely a business contractual relationship by which one party sold property and the other purchased. The mode by which the purchase price was obtained is irrelevant. As defined in the Black's Law Dictionary, (6 th Edition, Page 270) the word "Commercial is, a "generic term for most all aspects of buying and selling", and here the transaction alleged (alleged because evidence is yet to be led) to have taken place between the Plaintiff and his employer cannot be said to have been anything else save commercial. Thus, I hold that the dispute before us being commercial it is legally before this Court. The preliminary objection on this is dismissed. Let us turn to the application for temporary

injunction. The Counsel are agreed as to the ruling principles guiding the Courts in issuance of a temporary injunction. These include the following:- the plaintiff should establish that there is a serious question to be tried on the facts alleged with a probability that the plaintiff will be entitled to the relief asked for; that the Court's interference is necessary to protect the Plaintiff from the kind of injury which may be irreparable before his legal right is established, and that on the balance of convenience the plaintiff will suffer more if the injunction is refused than the Defendant will suffer if granted (Attilio vs Mbowc 11969] HCD 284; Giclla v Cassman Brown & Co. Ltd [1973) E.A 358 - although I should go further and say that the requirement that "there should exist a probability that the matter would be decided in the plaintiff's favour" should not be exaggerated and taken to unproportional limits otherwise that would tantamount to giving verdict prematurely and in any case the Court would not be in possession of full evidence at that stage: the controlling limb should be the existence of a serious triable issue-American Cyanamid vs Ethicon [1975) A.C 396 stands persuasively on this). We should now subject the facts before us to the said principles. I should however start by reiterating that at this point we don't have the full evidence before us. What we are

relying upon is the plaint, the affidavit as filed in support of the application and the Counsel's submissions and therefore the standard of proof required would be somehow below that which is generally required upon full trial. 5 The plai,~tiff's allegation is that he was employed by Fahari Bottlers Ltd (whose receiver is 3 rd Defendant) and that the said company. and .T.V. Textiles and Garments Ltd, put under receivership of the 4th Defendant are wholly owned subsidiaries of the 2 nd Defendant; that by contract with Fahari Bottlers Ltd he purchased (the mode of purchase or otherwise at this stage is not relevant as that will be subject of evidence) the disputed flat; but that the flat was not transferred to him instead it was mortgaged to the I st Defendant who has appointed a receiver who is currently threatening to evict him. Having carefully considered the facts, the submissions and the law I am satisfied that the application for temporary injunction should be granted. As I said earlier on, what is basic is that there should be in existence a serious triable issue between the parties; a looming danger of irreparable injury to plaintiff, and, on a balance of convenience, the existence of more sufferings by plaintiff if the injunction is refused than would be the case with Defendants if granted. The plaintiff alleges the existence of the contract - that allegation stands

as presented - of course awaiting to be established by evidence but at this stage it remains upright as it is yet to be countered. This is a serious triable issue. The dispute relates to a flat. The first Defendant is threatening to evict plaintiff and sell the flat in satisfaction of the debts by the Company under the 4 th Defendant's receivership. Clearly, here the question is not whether there is available alternative accommodation but whether the plaintiff will get the disputed property in the event he succeeds. If injunction is not issued and the 1st Defendant enforces its security the flat will be disposed of Then, if, in the end the plaintiff succeeds the maximum he will realise is the equivalent in monetary terms (a factor which in the circumstances, is not even certain as the Employer is under Liquidation) which may not be on equal footing in importance and as per his interest with the premises itself. On the other hand, if the injunction is granted the only party that may st suffer injury will be the 1 Defendant for late enforcement of its security but this can easily be atoned by way of damages. Between the two therefore the plaintiff stands to lose more if the injunction is refused. 6 Mr. Kesaria very strongly argued that the flat in question is J.V. Textiles and Garments Ltd's property as per search Report and that Fahari Bottlers Ltd has nothing to do ,vith the 2

nd Defendant and J.V. Textiles and Garments Ltd as they are separate entities and that therefore plaintiff has no cause of action either against them or 1st defendant. Agreed, the property may be in the name of .T.V. Textiles and Garments Ltd. However, the plaintiffs allegations are that Fahari Bottlers for which 3rd Defendant was appointed and the said J.V. Textiles and Garments Ltd for which the 4 th Defendant was appointed are wholly owned subsidiaries of the 2 nd Defendant and that they were all aware of the contract regarding the purchase of the disputed premises. As earlier on pointed out these are just allegations in the pleading. They are not yet proved but at the sametime are yet to be disapproved. Mr. Kesaria's contrary oral submissions cannot be taken for the latter. Again, though 1st Defendant is clearly not a party to the contract between plaintiff and Fahari Bottlers Ltd it is drawn into the web of dispute by the facts that its receiver is the one threatening to effect the Plaintiffs eviction from the disputed flat in satisfaction of a liability incurred by the Company for which 4 th Defendant was appointed. When instituting an action to protect what he considers to be his interest in the disputed flat there is no way plaintiff could have left out a person who threatens to dispose of that vc;-y prope11y. As to who can be joined as a party to a suit the legal

stand is very clear: the plaintiff may decide to join both proper parties and necessary parties. Whik a plaintiff cannot avoid joining the latter it is within his discretion as regards who should be fished from the former category. A necessary party in litigation is the one against whom the relief is sought or without whom an effective decree cannot be passed by the Court, and those whom the law requires to be impleaded. On the other hand, proper parties are those whose presence enables the Court to decide effectively and finally the dispute presented before it, and these include those who in one way or another, are interested in or connected with the reliefs being asked for as against others. Invaluably, the plaintiff would implead the latter to plug in fissures that may be created in the ultimate decree that may be secured or guide against possible future litigations. • 7 On the fa~ts of this case;as regards the application for temporary injunction, the 1st Defendant is a necessary party because if left out the official receiver may execute the security as he is now threatening, making Plaintiffs success in future, if any, superfluous. The interconnection of the other Defendants needs no orchestration. Mr. Kesaria's argument alleging non-existence of a cause of action on some of the Defendants based on a principle of misjoinder cannot therefore stand. In conclusion, for reasons discljssed, tlierefore the application for temporary injunction stands allowed. L.B. KALEGEY A

JUDGE , Certify that to.is ,s a tru, an tne origiUl/order Jadge .,en, - i';'io __. 0(1 __ ••. ··•·····-~ aep!Crar Commercial Cour Ba es Sala .. oatod o'l-{99..:V