yokohama used spare parts another vs willy ngoya others 2015 tzhc 2211 16 september 2015

IN THE HIGH COURT FOR ZANZIBAR HELD AT VUGA CIVIL CASE NO. 08 OF 2014 1. YOKOHAMA USED SPARE PARTS..........) 2. ELISARIA AKIRWA AYO ......................) PLAINTIFFS VERSUS 1. WILLY NGOYA ......................) 2. WILNA INTERNATONAL ......................) 3. DELMAS ......................) DEFENDANTS 4. ALI SHEHA SALIM ......................) RULING HON. ABDUL-HAKIM A. ISSA, J. This ruling arises out of the preliminary objection on the points of law raised by the 4th Defendant that: a) The plaint is bad in law for wants of resolution of the plaintiff to sue the Defendants, instructed signatory and procedure of Company law. b) There is no cause of action against the 4th Defendant. c) The 2nd Defendant has got no locus standi. The background of this case is that the plaintiffs Yokohama Used Spare Parts and Elisaria Akirwa Ayo filed a Civil suit against four Defendants, Willy Ngoya, Wilna International, Delmas and Ali Sheha Salim. The Plaintiffs are claiming specific damages against the Defendants jointly and severally for the sum of TZS 126,000,000 being for the value of plaintiffs' container which contained four vehicles, which the 1st and 2nd Defendants deliberately sold it to the 3rd Defendant. In the hearing of the preliminary objections only the plaintiffs and 4th Defendant were involved as the 1st, 2nd and 3rd Defendants failed to file their WSD on the time fixed by the Court, and the Court ordered the matter to proceed against the 4th Defendant. During the hearing of preliminary objections the 4th Defendant was represented by the learned advocate Ms. Mbuki Allen and the plaintiffs were represented by learned advocate, Mr. Gilman Mlaki. The learned advocate for 1st and 2nd Defendant, Mr. Abdalla Juma was also present. Ms. Mbuki started by arguing the first preliminary objection that the plaint is bad in law for failure to follow the procedure laid down in Order XXXIII of the Civil procedure Decree, Cap. 8 of the laws of Zanzibar. This order was violated as the plaint was signed by the advocate contrary to that order which provides that the plaint should be signed by the Director or Secretary. She submitted that different cases have held that since the Company is a legal entity, it has the power to sue or being sued. The Company itself has to file the suit. She cited the case of Buaerere Coffee Growers Ltd V. Sebaduka and Another C1970] EA 147 where it was held that Secretary or the Director has to sign the plaint. The learned advocate seemed to have abandon the first part of her preliminary objection which talks about Board resolution which she did not argue. With respect to the point raised, Mr. Gilman argued that under Order XXXIII there is no requirement of Board Resolution. He submitted that the plaint was also signed by 2nd Plaintiff who is also the director of the 1st plaintiff, hence, this is not a default as the plaint was signed by the Director and it is not necessary to be signed by the Secretary. To determine the first preliminary objection we have to look at order XXXIII rule I which reads:- "In suits by or against a corporation, any pleading may be signed and verified on behalf o f the Corporation by the Secretary or by any director or agent of the 2 Corporation who is able to depose to the facts of the case." Looking at the plaint, it is clear that the 1st plaintiff is a company making business in Dar es Salaam and the 2nd plaintiff is a director of the 1st plaintiff. The plaint was signed by the plaintiffs advocate as well as the 2nd plaintiff but the verification was done by the 2nd plaintiff alone. Looking at Order XXXIII rule 1 it is very clear that the first part has been violated. But does this violation amounts to preliminary objection accordance with the guidelines set by Mukisa Biscuits Manufacturing Co Ltd V. West End Distribution Ltd (1966) EA 696. This Court answers in the negative. According to Takwani C.K. on Civil Procedure , 3rd edn. (1994) on page 114- 114 "A defect in the matter of signing and verification of pleadings is merely an irregularity and can be corrected at a later stage o f the suit with the leave of the Court and a suit can not be dismissed nor an order be passed against a party on the ground o f defect or irregularity in signing or verification of plaint or written s ta te m e n t It is submitted that this is also our position of law. With respect to the 2nd preliminary objection Ms. Mbuki argued that there is no cause of action against the 4th Defendant. There is no where in the plaint where there is a connection of 4th defendant and the suit. Mr. Gilman on the other hand argued that paragraph 16 of the plaint shows that the name of consignee was changed from Yokahama to Ali Sheha Salim who is the 4th defendant. Also paragraph18 shows how the bill of lading was changed to 4th defendant's name. The rights of plaintiffs were infringed by 4th defendant. He cited the case of Mashado Game Fishing Lodge Ltd and 2 others. V. Board of Trustees o f Tanganyika National Parks (2002) TLR 319 which explains about the case of action. This Court agrees with the finding of the Court regarding cause of action. The Court held "a person is said to have a cause o f action against another where that person has a right and 3 another person has infringed or breached that right with the result that the person with the right suffers material loss or any other loss". After reading the plaint particularly paragraph 16 and 18 this Court sees no mention of 4th Defendant. Those paragraph mention 3rd defendant. The 4th defendant was only mentioned in the cause title and on paragraph which is the address for service. Hence, this Court agrees with the learned advocate for the 4th defendant that there is no cause of action against the 4th defendant as there is no right which could be infringed by the 4th defendant. Hence, the plaint in respect of the 4th defendant is rejected. Coming to the last preliminary objection, Ms. Mbuki submitted that the 2nd plaintiff has no locus standi as the Company is the legal entity and the suit has to be filed by the Company. Mr. Gilman, on the other hand submitted that the 2nd plaintiff has a locus stand. He took support from the case of Josiah Balthazar Baisi and 138 other V. AG. (1998) TLR 331 where the Court gave a scope of focus standi which has been expanded to include "sufficient in t e r e s t Anyone with sufficient interest may seek remedy. He submitted that Annex EAA I has a name of the 2nd plaintiff in the receipt. There are transactions made by 2nd plaintiffs and other made by 1st plaintiff which also has a name of 1st plaintiff. He submitted that the preliminary objection did not raise a pure point of law. This Court agrees with Mr. Gilman that the point raised is not a pure point of law and is also subject to proof by other material facts. Hence, this preliminary objection did not pass the test laid down in Mukisa Biscuits where the Court held: "a preliminary objection consist o f a point of law which has been pleaded or which arises by clear implication out of the pleadings, and which if argued as a preliminary objection may dispose of the suit 4 Examples are an objection to the jurisdiction o f the Court, or a plea of limitation, or a submission that the parties are bound by the contract giving to the suit to refer the dispute to a r b it r a t io n For the foregoing reason the third preliminary objection is dismissed. It is also ordered. (Sgd) ABDUL-HAKIM A. ISSA, JUDGE 26/ 8/2015 16/ 9/2015 COURT: The ruling was delivered on chamber on this 16th day of September, 2015 in the presence of Ms. Elizabeth for applicants and in the absence of all Respondents. (Sgd) ABDUL-HAKIM A. ISSA, JUDGE 16/ 9/2015 I certified that this copy is a true from original. REGIS DURT /HALLY/ 5