Transnovation v Willy Enterp

1 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA COMMERCIAL DIVISION AT DAR ES SALAAM COMMERCIAL CASE NO. 18461 OF 2024 TRANSINOVATION MOTORS TANZANIA LIMITED…………………… PLAINTIFF VERSUS WILLY ENTERPRISES LIMITED...……………………………………….. DEFENDANT RULING November 28th, 2024 & December 19th, 2024 Morris, J The plaintiff instituted this suit against the defendant for payment of TZS. 106,568,124/= allegedly paid as VAT to the Tanzania Revenue Authority (TRA); general damages, interests and costs of the suit. Nonetheless, the defendant in his written statement of defence raised a preliminary objection (PO) premised on two grounds, namely; 1. The suit is bad in law for failure to sue necessary party who is Tanzania Revenue Authority (TRA). 2. The plaintiff’s suit is an abuse of the court process as on the 1st day of June 2023, the plaintiff withdrew Commercial Case No. 133 of 2022 with a view of joining Tanzania Revenue Authority (TRA) in the suit, 2 however it has refiled Commercial Case No. 18461 of 2024 without joining TRA in the suit. Therefore, this ruling is in respect of the said PO. Hearing of the same was by written submissions. Both parties were represented by learned counsel. For the defendant and plaintiff were Messrs. Philemon Mutakyamirwa and Frank Kifunda, respectively. Submitting in support of the first ground of the PO the defendant’s counsel maintained that, the same is grounded on reliefs and averments in the plaint (particularly paragraphs 3.1 and 6). Under the former paragraph, the plaintiff claims payment of TZS. 106,568,124/= as VAT she paid to TRA in favour of the defendant. Further, paragraph 6 asserts that the purchase price of six (6) units of brand-new Sinotruck Tractors included VAT payment and the same was settled by Stanbic Bank Tanzania Limited on behalf of the defendant. Therefore, to the defendant, this Court is invited to determine an obvious question as to whether TRA received double payment of VAT from both the plaintiff and defendant. As such, joining TRA in this suit as necessary party is indispensable. To buttress this position, he made 3 reference to the case of Abulatif Mohamed Hamis v Mehboob Yusufu Othuman & Another, Civil Revision No. 6 of 2017 (unreported), on the importance of joinder of a necessary party for effective and complete decree. On the second ground of the PO, the defence counsel swiftly cited the case of TBL v Edson Dhobe, Misc. Application No. 96 of 2006 (unreported). His emphasis therefrom was hinged on holding of the Court as quoted below. “Courts orders should be responded and amplified with. Courts should not condone such failures and to so is to set a bad precedent and invite chaos. The Court should exercise the firm control over the proceedings.” Also, he made reference to the case of Athumani Kungubaya and Another v PSRC and TTCL, Misc. Civil Appeal No. 9 of 2001 (unreported). Therein, it was held that allowing “a party to any proceedings to do things contrary to Court orders not only shows disrespect to the Court but also creates chaos to the entire process or administration of justice.” Thus, in light of such position, the defendant’s counsel asserted that, on the 15th December 2022, the plaintiff instituted Commercial Case No. 133 of 2022 claiming against the defendant the same reliefs he claims in the instant suit. 4 However, on the 1st June 2023, having seen that the suit could fail for failure to join TRA; the plaintiff lodged a prayer to withdraw the said suit with liberty to refile it by impleading TRA. That, after elapse of one year and two months, the plaintiff has instituted this suit but still omitted TRA. This omission, according to the defence, is a total abuse of the Court’s process. Thus, he conclusively prayed for dismissal of this suit with costs. Replying on the first ground of the PO, the plaintiff’s counsel argued that, circumstances of this case do not require joinder of TRA as a necessary party since the plaintiff does not have any cause of action against him. In regard to the second ground of the PO, he maintained that the same requires evidence hence not a pure point of law. On this position, reference was made to the celebrated case of Mukisa Biscuits Manufacturing Company v West End Distributors Limited [1969] E.A. 696. He further insisted that, since the plaintiff was allowed by this court to refile this case, then he is not in abuse of court process howsoever. In rejoinder, the defendant’s counsel adopted his submissions in chief. In addition, he reproduced contents of alleged two e-mails from Stanbic Bank to the plaintiff. 5 Upon careful consideration of the plaint, the PO and the parties’ submissions, the determinant issue is whether the PO has merits. On the first ground of the PO, it is the defendant’s contention that TRA ought to have been impleaded in this suit as the necessary party. The reason behind this argument is the plaintiff’s pleadings and prayers. In essence, the defence argued that the whole suit is predicated on the amount allegedly paid to TRA by both parties. That is, per paragraph 3.1 of his plaint, the plaintiff alleges that he paid TZS. 106, 568,124/= VAT to TRA in favour of the defendant. On this basis, the defendant argues that, TRA should be joined in this suit as the necessary party so as to ascertain payment of the alleged amount. On the other hand, the plaintiff maintains that, there is no need to join TRA because he does not have any cause of action against them. I have given due consideration the arguments from both parties in this regard. I am also in agreement with the position in the case of Abulatif Mohamed (supra) regarding the definition and rationale of the necessary party in a suit. The same is in line with the provisions of Order II Rule (1) of the Civil Procedure Code, Cap. 33 R.E 2019 (the CPC); that enjoins a 6 party to befittingly frame the suit “so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them”. Notwithstanding the above concurrence in the perspective, I hold the view that, circumstances prevailing in this suit do not call for joining TRA as necessary party. This is for obvious reasons. One, the relief in the plaint upon which this point is based is not against TRA but the defendant singularly. Two, be that as it may, I find no justification in the argument that if this Court passes a decree against the defendant, the same may not be executed without TRA. The plaintiff’s claim in respect of the said relief is to be refunded by the defendant his VAT amount that he alleges that he paid to TRA on behalf or in favour of the defendant. Three, I decline to subscribe to the defendant’s view that TRA must be joined herein as necessary party to ascertain the alleged VAT payments. The task to prove and disprove the allegations in the suit are upon the respective parties. With adequate respect to the learned counsel, I think that is not the rationale behind joinder of a necessary party in a suit. As already stated in Abulatif Mohamed’’s case (supra); the intent of joining the 7 necessary party in a suit is to enable the court to pass effective and complete decree and not otherwise. In this connection, whoever will satisfactorily prove his allegations will have the decree in his favour. The strategy which will be used by the party to achieve such victory should not, in my view, be dictated by the Court. Therefore, this ground of PO is overruled for lacking merit. I now turn to the second ground the PO. Under it, I have noted a few undisputed points, that: this suit was previously instituted in this court as Commercial Case No. 133 of 2022; the plaintiff withdrew it with view to refiling and joining TRA; this court granted leave to the plaintiff to refile this suit; the plaintiff has refiled this suit basing on the leave previously granted by this Court; and the plaintiff, yet still, has not joined TRA in the present suit. It is the defendant’s contention that, the abuse of Court process is solely based on failure to join TRA as previously prayed. He has gone further to assert that court orders must be respected. I agree with him totally. Court orders are not for cosmetic purposes. They serve the values of justice and integrity of the whole justice system. However, in this matter, there is no 8 evidence that this court, when granting leave to the plaintiff to withdraw the suit; compelled him to join TRA. Had that been the case then, perhaps this court would have ordered for amendment of pleadings to that effect instead. Afterall, the plaintiff was given liberty to refile this suit. This means, he had liberty to refile it as it suited him in future pursuant to the law. That is, after withdrawing the suit, there was nothing that remained in Court in such regard. He went back to the drawing board and was free to reconsider his litigation stratagem afresh. The law guarantees the liberty of the plaintiff in respect of who he should sue; on what basis; and for what reliefs. In other words, being the dominitus lits, the plaintiff is not to be obligated to sue the person against whom he considers to maintain no claim; unless provided otherwise by the law. See, Order I Rule 3 of the Civil Procedure Code, Cap. 33 R.E 2019; Tang Gas Distributors Limited v Mohamed Salim Said and Others, Civ. Appl. for Rev. No. 68 of 2011; and George Ndege Gwandu and 19 Others v Kastuli Safari Tekko and Another, Civ. Appeal No. 255 of 2018 (both unreported). As this suit was filed under the sanction of this court; and 9 the plaintiff exercised his freedom to choose the defendant, I find no abuse of court process on his part. Under the circumstances and reasons given above, the Court is in no position to establish favourable values from this ground to the defendant as well. I hence, proceed to overrule it. For the foregoing analysis and reasons, the framed issue is negated and the PO is consequently overruled in its entirety. Costs of to follow the outcome of the suit. It is so ordered. C.K.K. Morris Judge December 19th, 2024 10 Ruling delivered this 19th day of December, 2024 in the presence of Mr. Benedict Mayani and Ms. Jeddnes Jasson, Learned Advocates for the plaintiff and defendant respectively. C.K.K. Morris Judge December 19th, 2024