Exim Bank Tanzania Limited vs Elnasr Export & Import Co. Limited & Others (Consolidated Civil Appeals No. 1159 & 3008 of 2025) [2026] TZCA 376 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: SEHEL, J.A.. ISSA. 3.A.. And ISMAIL, 3.A.1 CONSOLIDATED CIVIL APPEALS NO. 1159 AND 3008 OF 2025 EXIM BANK TANZANIA LIMITED ................................... . ...............APPELANT VERSUS ELNASR EXPORT & IMPORT CO. LIMITED . ............................ 1 st RESPONDENT BAY INVESTMENTS LIMITED .......................................... 2 nd RESPPONDENT ONYX VILLA LIMITED........................................................3 rd RESPONDENT LAKE HOLDINGS LIMITED.................................................4™ RESPONDENT BAY INVESTMENT LIMITED .............................................. 5™ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (MrumaJL) dated the 29th day of February, 2024 in Civil Case No. 129 of 2019 JUDGMENT OF THE COURT 2n d December, 2025 & 27th March, 2026 ISSA. J.A.: The dispute between the parties to this appeal is centred on two issues: one, the interpretation of interpleader suit according to section 63 (now section 69 R.E. 2023) and Order XXXIII of the Civil Procedure Code, Cap. 33 (the CPC) and two, whether a counter claim can be filed in an interpleader suit. The background facts leading to this appeal are that, the i

appellant, Exim Bank Tanzania Limited has been a bonafide tenant in Plot No. 747/39 along Samora Avenue in Dar es Salaam City (Plot No. 747) since 1995, She rented the said premises through an agent of the 1s t respondent and was similarly paying rent to the said agent until 2012 when part of the outstanding rent arrears was returned by the 1s t respondent's agent. From that moment, the appellant received claims for the rent arrears from different agents claiming to represent the 1s t respondent. In addition, the appellant received claims from different companies including the 2n d to 5th respondents claiming payments of rent arrears which arose out of different agreements between them and the 1s t respondent. Finding itself in this quagmire, the appellant instituted an interpleader suit against the 1s t to 5th respondents in search of lawful payee of the rent arrears which has accumulated to the tune of USD. 640,000.00. At the outset, the appellant declared that she had no interest on the said subject matter except by way of an interpleader suit for rightful payment of the outstanding amount of USD. 640,000.00. Each of the respondents filed her Written Statement of Defence (WSD) while the 5th respondent also raised a claim by way of a counter-claim in

which she claimed from the appellant USD. 850,000.00 as rent arrears for the Plot No. 747 occupied by the appellant. The appellant filed a reply to each of the WSD of the respondents and in particular she filed WSD to the counterclaim filed by the 5th respondent and raised a preliminary objection to the effect that, the counter claim was misconceived and bad in law as it cannot be raised in an interpleader proceedings under Order XXXIII of the CPC. As a normal practice, the trial court (Mlyambina, 1) determined the preliminary objection first and delivered its ruling on 16th March, 2020 to the effect that there is nothing wrong in entertaining a counter claim in the interpleader suit. Finally, the trial court determined the interpleader suit together with the counter-claim in favour of the 5th respondent. It declared that she was the rightful recipient of rent arrears in respect of Plot No. 747 and the appellant together with the 5th respondent were entitled to costs of the suit. Aggrieved, the appellant instituted the instant appeal predicated on nine grounds of appeal. For the purpose of disposing this appeal, we find it prudent and convenient to reproduce only two grounds of appeal which go thus: 3

1. That the learned trialjudge erred in law and fact by failing to discharge the plaintiff in an interpleader suit as required under rule 4(1) and 4(3) of Order XXXIII o f the Civil Procedure Code Cap. 33 R.E. 2019
2. That the learned trial judge erred in law and fact by entertaining a counterclaim filed by the 5th defendant in an interpleader suit and contrary to the provision of rule 3 of Order XXXIII of the Civil Procedure Code Cap. 33 R.E.2019. The 1s t and 2n d respondents were also aggrieved by the decision of the trial court and each lodged a notice of cross appeal. For the same reason mentioned earlier we find it unnecessary to reproduce their grounds of cross appeal. The 4th respondent, on his part, filed a separate appeal (Civil Appeal No. 3008 of 2025) against the appellant and the 1s t, 2n d , 3r d and 5th respondents. The 4th respondent, before the hearing could start in earnest, implored the Court to consolidate the two appeals and hear them together. The appellant and all other respondents joined hands in the proposal to consolidate the two appeals. Therefore, in terms of rule 110 of the Tanzania Court of Appeal Rules, 2009, the Court consolidated the two appeals into Civil Appeals No.1159 and 3008 of 2025.

Reverting to the appeal filed by the 4th respondent, it was predicated on eight grounds of appeal of which the 1s t ground was relevant in the disposal of this appeal and it goes thus: "The learned High Court Judge erred in law by entertaining and deciding an interpleader suit as if it were an ordinary civil suit, in contravention o f the provisions of Order XXXIII Rule 4 (a) o f the Civil Procedure Code , Cap. 33 R.E. 2019, thereby rendering the proceedings in Civil Case No. 129 of 2019 a nullity." At the hearing of the appeal, the appellant was represented by Mr. Libent Rwazo who appeared in Court and Mr. Roman Masumbuko who was heard through video conferencing link from Dar es Salaam. The 1s t respondent had the services of Mr. Shehzada Walli, learned advocate, while the 2n d , 3rd and 4th respondents were represented respectively by learned advocates Mr. Killey Mwitasi, Mr. Shuma Waiwani Kissenge, and Messrs. Anthony Mark and Sabas Shayo who were heard through a video conferencing link. The 5th respondent had the services of Messrs. Slyvatus Mayenga and Stephen Mosha, also learned advocates.

Mr. Masumbuko started the ball rolling as he adopted his written submissions filed earlier on with respect to the above two grounds of appeal. He submitted that what was filed before the trial court was an interpleader suit which is special in nature as the plaintiff who is the present appellant had no interest in the litigation except for the costs. Therefore, he submitted that the appellant was supposed to be discharged by the trial court after depositing USD. 640,000.00 in court, but the trial court retained her because of the counter claim of the 5th respondent. He added that the trial court did not give an order to treat the interpleader suit as the normal suit. In fact, he objected but the trial court proceeded with the trial of the suit though it termed it as an interpleader suit as seen on page 1944 of the record of appeal. Further, Mr. Masumbuko submitted that the confusion was caused by the trial court when it ordered the appellant to deposit the money and then entertained a counter-claim. He argued that, if the trial court took it as a normal suit then the order to deposit the money should have been vacated. He concluded that, it was wrong for the trial court to entertain the counter claim as Order XXXIII rule 3 of the CPC provides that if there is any claim, the claim should be stayed and treated separately. Once the rightful recipient

has been determined in the interpleader suit the trial court should have proceeded with the counter claim as a normal suit as provided by Order VIII rule 9 of the CPC. To support his arguments, he cited the Court's decisions in National Investment Company Limited and 2 Others v. National Microfinance Bank Pic [2015] TZHC 3353, PrayGod Mbaga v. Government of Kenya and Another [2021] TZCA 3555 and Wellworth Hotels and Lodges Limited v. East Africa Canvas Company Limited and 4 Others [2023] TZHC ComD 197. Mr. Masumbuko concluded that the proceedings were vitiated from the moment the trial court ordered the deposit of money. Therefore, he prayed for the nullification of the proceedings, Mr. Walli and Mr. Mwitasi both adopted their written submissions filed earlier on and joined hands with the submission made by advocate Masumbuko to the effect that the interpleader suit should have proceeded and it was wrong for the trial court to entertain a counter-claim from the 5th respondent. Mr. Kissenge, on his part, supported the appeal lodged by the 4th respondent. He submitted that it was not correct for the trial court to declare two winners in one case. The 1s t respondent was declared by the trial court

to be the rightful owner of the premises in question, but at the end of the trial the court deprived her of her entitlements. He prayed for the appeal filed by the 4th respondent to be allowed. Mr. Mark who represented the 4th respondent also subscribed to the submissions made by advocate Masumbuko. He added that the appellant showed no interest in the case and the case was an interpleader suit, but to the contrary the trial court made the appellant an adversary. He argued that was a mistake and a departure from the laid down procedures. Further, he argued that Order XXXIII Rule 4 of the CPC provides that a plaintiff should be discharged from the case. Finally, he concluded that raising of counter claim cannot convert an interpleader suit into a normal suit. Hence, the trial court erred in that respect. Mr. Mosha, on his part, had a different view. He submitted that an interpleader suit is like any other suit in Civil Procedure Code. It was not a special suit; the special suits have been laid down in Order XXXIV of the CPC. Therefore, Order XXXIII of the CPC did not bar the filing of a counter-claim. Further, he added that there is nothing in Order VIII rule 9 to 12 of the CPC which says one cannot file a counter-claim in the interpleader suit. Therefore, the trial court was right to entertain the counter-claim. 8

In addition, Mr. Mosha submitted that Order XXXIII rule 4(1) of the CPC gives discretion to the court to discharge the appellant in the interpleader suit, but in the instant case the appellant was retained because of the counter-claim. He concluded that the counter-claim was proper as the appellant came with less amount. In the rejoinder, Mr. Masumbuko submitted that the trial court admitted that, an interpleader suit is a special suit and ordered that mediation should not be done in that respect, but to the surprise of everyone it allowed the raising of a counter-claim. He concluded that the trial court was creating the law which was not there. It is now the Court's time to examine and analyse the rival arguments of the legal counsel representing the parties. The first ground of appeal calls for the Court to interpret the provisions governing interpleader suits, but before we embark on this journey, we think it is opportune to recapitulate the law governing the interpleader suits which is section 69 and Order XXXIII of the CPC. Section 69 provides: "69. Where two or more persons claim adversely to one another the same debt, sum of money or other property,, movable or Immovable, from another

person who claims no interest therein other than for charges or cost and who is ready to pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself: Provided that, where any suit is pending in which the rights o fparties can property be decided, no such suit of interpleader shall be instituted." Section 69 is found in Part V of the Civil Procedure Code which is titled Suits in Particular Cases. This part covers suits against public officers, suits against aliens and foreign states and interpleader suits. Therefore, there is no flicker of doubt that that interpleader suit is a special suit and CPC has laid down special procedures for its determination. Our next enquiry is what is the meaning of interpleader suit. Unfortunately, the term interpleader suit has not been defined in the CPC, however, Black's Law Dictionary, 9th edition, page 894 defined the term as: "A suit to determine a right to property held by a [usually] disinterested third party (called a stakeholder) who is in doubt about ownership and 10

who therefore deposits the property with the court to permit interested parties to litigate ownership. Typically, a stakeholder initiates an interpleader both to determine who should receive the property and to avoid multiple liability." Further, the Court in PrayGod Mbaga v. Government of Kenya (supra) had an occasion of dealing with similar matter and it adopted a definition from Mulla, the Code of Civil Procedure, 19th Edition, Vol. 1 where at page 904 defined interpleader suit as follows: "An interpleader suit is one in which the real dispute is between the defendants oniy and the defendants interplead, that is to say plead each other instead of pleading against the plaintiff as an ordinary suit In every interpleader suit there must be some debt or sum of money or other property in dispute between the defendants only , and the plaintiff must be a person who claims no interest therein other than for charges or costs and who is ready to pay or deliver it to such of the defendants as may be declared by the court to be entitled to it." From the above definitions, it is clear that an interpleader suit is one in which the real dispute is not between the plaintiff and the defendant, but

it is rather between the defendants only, who interplead against each other. The hallmark of an interpleader suit is the fact that, the plaintiff is not really interested in the subject matter of the suit. The primary and the foremost object is to have the claims of rival defendants adjudicated for. The plaintiff is in a position of impartiality. The status in the instant case is not different, the appellant as stated earlier, had no interest on the subject matter which is USD. 640,000.00 which is the rent arrears which she holds. Her interest is to find the rightful payee of the said amount. Therefore, the suit was an interpleader suit. The next question is whether the procedure was followed in the determination of the suit. The record is clear that, the appellant lodged the interpleader suit by filing the plaint and later on amended it by including the 5th respondent. What happened afterwards is that, each of the five respondents filed Written Statement of Defences (WSDs) in reply to the plaint and the 5th respondent, in particular raised a counter claim. Responding to those WSDs and counter claim, the appellant filed replies to the WSDs and with regard to the reply to the 5th respondent in particular, she raised a preliminary objection which was determined first by the trial court. 12

Order XXXIII of the CPC lays down the procedure to be followed in interpleader suits. It provides:

1. in every suit o f interpleader, in addition to other statements necessary for plaints, state- a) That the plaintiff claims no interest in the subject matter in dispute other than for charges or cost; b) The claims made by the defendants severally, and c) That there is no collusion between the plaintiff and any of the defendants.
2. Where the thing claimed is capable of being paid in court, or placed in the custody of the court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit
3. Where any of the defendants in an interpleader suit is actually suing the plaintiff in respect of the subject matter o f such suit, the court in which the suit against the plaintiff is pending shall, on being informed by the court in which the interpleader suit has been instituted to stay the proceedings against him, and his costs in the suit so stayed may be provided for in such suits, but if, and in so far as, they are provided for in that suit, they may be added to his costs incurred in the interpleader suit
4. (1) At the first hearing, the court may- 13

a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or b) where it thinks thejustice or convenience so requires, retain all parties until the fmai disposal o f the suit, (2) Where the court finds that the admission of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed. (3) Where the admission of the parties does not enable the court so to adjudicate, it may direct a) that an issue or issues between the parties be framed and tried, and b) that any claimant be made a plaintiff in lieu o f or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner. (5) N/A (6) N/A" Rules (2) and (4) of Order XXXIII of the CPC are particularly relevant to this matter. Once the appellant deposited USD. 640.000.00 at the trial court, the court had discretion to discharge him and award her costs or retain her to the final disposal of the case. In the instant case the trial court opted for the latter; the appellant was retained to the final disposal of the case. Rules (2) in addition requires the court to adjudicate the claims based on the 14

admission of the parties and if it fails to do so like in the instant case, where there were rival claims from the 1s t, 3rd , 4th and 5th respondents rule (4) kicks in and requires the trial court to frame issues and make one of the respondents a plaintiff in place of the original plaintiff who has no interest in the subject matter of the case. Then, the court can proceed with the suit in the ordinary manner. Unfortunately, the trial court erred in this respect as it did not make one of the respondents a plaintiff and in fact, no plaint was filed. As mentioned earlier, one of the cardinal principles in interpleader suit is that, it is the defendants who interplead against each other and not to answer the plaintiff. Therefore, the trial court misdirected itself by making the appellant a plaintiff and proceeded with the matter as a normal suit with the original plaint of the appellant who had no interest on the subject matter of the case. Therefore, the pleadings in the instant matter were incomplete and the procedure was flawed. The infraction is fatal and vitiates the whole proceedings. This issue is sufficient to dispose of this matter and the Court will not belabour with the second issue. In fine, we allow the appeal, quash and set aside the proceedings of the trial court after the filing of the counter claim. Consequently, we remit 15

the court record to the trial court for retrial in accordance to law before another judge. The costs shall follow the events. DATED at DODOMA this 26th day of March, 2026. The Judgment delivered virtually this 27th day of March, 2026 in the presence of Mr. Roman Masumbuko, learned counsel for the Appellant, Mr. Shehzada Wally, learned counsel for the 1s t Respondent, Mr. Kitey Mwitasi, learned counsel for the 2n d Respondent, Mr. Shuma Kisenge, learned counsel for the 3rd Respondent and holding brief for Mr. Anthony Mark, learned counsel for the 4th Respondent, Mr. Sylivanus Mayenga, learned counsel for the 5th Respondent and Mr. Nelson Novati Court Clerk; is hereby certified as a tru -------- f u'— B. M. A. SEHEL JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL 16