Joeff Group Tanzania Limited vs African Banking Corporation Tanzania Limited (Civil Appeal No. 1239 of 2024) [2026] TZCA 373 (27 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: SEHEL. J.A.. ISSA. J.A., And ISMAIL. J.A.^ CIVIL APPEAL NO. 1239 OF 2024 JOEFF GROUP TANZANIA LIM ITE D ........................... . ................ APPELANT VERSUS AFRICAN BANKING CORPORATION TANZANIA LIMITED..... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Magoiga, 3 .) dated the 22n d day of May, 2024 in Civil Case No. 152 of 2023 JUDGMENT OF THE COURT 5th December, 2025 & 27th March, 2026 ISSA, J.A.: The dispute giving rise to this appeal originated from the decision of the High Court at Dar es Salaam (Magoiga, J.) (the trial court) in Civil Case No. 152 of 2023. The background facts of the case are not complicated. The respondent and the appellant are a banker and customer and their relationship started in 2012. The appellant was operating two accounts: one for Tanzania Shiliings and the other one for United States Dollars. The appellant who was engaged in transportation business had a contract with Strabag International Business GMBTT (STRABAG), a company based in Dar es Salaam, to transport its building materials. On 2n d January, 2014 the appellant delivered to STRABAG invoice no. 101 claiming TZS. 30,587,778.28 for transporting cement consignment from Tanga to STRABAG'S site at Korogwe. To effect the payment, STRABAG instructed her banker, CRDB Bank to pay through swift transfer the sum of TZS. 30,587,778.28 to the account no. 1352605512 of JOEFF GROUP at the African Banking Corporation Tanzania Limited (the respondent). CRDB Bank complied to the instructions and transferred the money to the respondent and the respondent simiiariy complied to the instructions as it credited the said amount to the designated account of JOEFF GROUP. It happened that the respondent had an account of the appellant in the name JOEFF GROUP TANZANIA LIMITED and had another account in the name of JOEFF GROUP. When the appellant reconciled her account in 2016, she discovered that, STRABAG did not pay the invoice no. 101. She approached STRABAG with the claim of nonpayment, but STRABAG insisted that she had paid the said invoice. Upon making a follow up at the respondent bank, the appellant found the truth that the payment was made by STRABAG, but the instruction was to credit the said money in the account of JOEFF GROUP. Frustrated with that finding, the appellant instituted a suit at the trial court against the respondent claiming TZS. 30,587,778.28 as well as damages, imputing that the respondent was negligent and acted fraudulently in the handling of that transaction. The trial court heard the parties and determined the case in favour of the respondent. The allegation of negligence and fraud were dismissed for lack of merit. For the sake of clarity, we let the decision speaks for itself: "In answering the first issue which was whether the defendant was negligent in handiing payment transaction relating to payment of invoice no. 101 with an amount o f Tsh. 30,587,778.28. Having dispassionately considered this issue alongside the evidence on record, in particular, the contents of exhibits P9rf I find this issue must be answered in the negative I will explain. One, upon reading the content of exhibit P9r which is the source o f all this dispute, I noted that the amount in dispute was not only directed to be paid to Jeoffgroup but even the account number of the beneficiary was written account number 1352605512 which number is not the account ofJoeffgroup Tanzania limited. Two, where did strabag got the account number ofJoeffgroup as initiator ofpayments and inserted exactly the number o f the account and name different from that of the plaintiff, this court was not told and it remains unanswered. Three, it is unfortunate that in this case without strabag who is necessary party which was issuer of instruction to CRDB Bank to pay to the account indicated in the exhibit P9r no way one can say safely that the plaintiff was negligent in handling the transaction because the defendant was obliged to pay in accordance to the instructions o f the message input in the swift transfer. Four, PW1 's testimony involved much an opening of the account in dispute but forgotten to remember that no evidence was led to establish that this account was solely open to achieve this transaction. In the absence ofsuch evidence, lam constrained to find and hold that despite the defects noted but are far remote to the way the transaction was handled by the defendant Five , the content of exhibit P9r indicated that strabag with ait intents intended to pay Jeffgroup in account number 1352605512 and strabag was a necessary party in this suit Why was she not joined in this suit the court was not told. Six, the argument by the plaintiff thatplaintiff was negligent in handling the transaction, in my considered opinion, sound good but do not connect the defendant in any way in handling the instruction because the defendant paid as instructed by the CRDB Bank after getting swift message which was created by Strabag. In the foregoing, issue number one must be and is hereby answered in the negative that the plaintiff was not negligent in handling the transaction in dispute. "(Emphasissupplied)." The appellant was not amused, she lodged her appeal to this Court predicated on twelve grounds of appeal, but before the hearing started she abandoned the 2n d , 3rd , 4th , 5th , 6th , 7th , 9th , and 12thgrounds of appeal. She remained with the 1s t, 8th , 10th and 11th grounds of appeal which we rearranged and renumbered thus: "1. That, the Honourable trial judge erred in fact and law in holding that, a necessary party was not joined in the suit, whereas the suit and reliefs sought were specifically related to the respondent 2. That, the Trial Judge erred in law and fact for his failure to frame issues according to the pleadings and evidence adduced during the trial. 3. That, the Trial Judge totally misdirected himself by partially considering Exhibit P9r, which led him to a wrong conclusion. 4. That, the Trial Judge erred in law and fact by his failure to properly evaluate and analyse both documentary and oral evidence adduced by witnesses at the trial." At the hearing of the appeal, the appellant was represented by Mr. Nafikile Elly Mwamboma, learned advocate, whereas the respondent had the services of Mr. Alex Felician Mianga, also learned advocate. Starting with the 1s t ground of appeal, Mr. Mwamboma conceded that STRABAG was a necessary party because she was the one who instructed the CRDB Bank to transfer the money to the respondent, but STRABAG was not joined and was not even called as a witness. Further, he lamented that, the trial court was aware that STRABAG was a necessary party and could have ordered to be joined in the case, but it did not do that. Responding to this ground of appeal, Mr. Mianga submitted that the controversy in this case is the loss of money, but the evidence shows that the appellant was not the intended beneficiary. In the swift transfer the money was intended to be paid to JEOFF GROUP and there is no communication from CRDB Bank to stop the respondent from paying JEOFF GROUP. He added that STRABAG is the person who could say why she gave the instruction and where she got the account number of JEOFF GROUP, hence, he concluded that STRABAG was a necessary party and this is the case of non-joinder of necessary party. He prayed for the appeal to be struck out. In the rejoinder, Mr. Mwamboma did not have much to say on this ground of appeal. The controversies we have been called to determine in the 1s t ground of appeal are whether STRABAG was a necessary party and what is the effect of the failure to join her in the case before the trial court. The word "necessary party" has not been defined in the Civil Procedure Code, Cap. 33 (the CPC), but according to Black's Law Dictionary, 9t h edition, 2000 at page 1232 the term necessary party has been defined as follows: "a party who, being closely connected to a law suit, should be Included in the case if feasible, but whose absence will not require dismissal o f the proceedings." Expounding on the term "necessary party" in Tang Gas Distributors Limited v. Mohamed Salim Said and 2 Others [2011] TZCA 583, Abdullatif Mohamed Hamis v. Mehboob Yussuf Osman and Another [2018] TZCA 956 and Juliana Francis Mkwabi v. Lawrent Chimwanga [2021] TZCA 645 (All reported in TANZLII) the Court laid down the meaning and the test to be used to find who is a necessary party. In Tang Gas Distributors Case, the Court adopted the findings from Annual Practice, 1955 (UK), Amon v. Raphael Tuck & Sons Ltd [1956] 1 All ER 273 and the Departed Asian Property Custodian Board v. Jaffer Brothers Ltd [1999] EA 55 (SCU). In the latter authority, the Supreme Court of Uganda stated: "/ ha ve not Iaid my hands on any reported decision in East Africa directly on the point o f criteria for determining that the presence o f a person is necessary under Order 1, rule 10(2) o f the Civil Procedure Rules... However, taking leaf from authorities in otherjurisdiction having similar, and even identical rules of procedure, I would summarise the position as follows. For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement o f all questions involved in the suit one o f two things has to be shown. Either it has to be shown that orders, which the plaintiffseeks in the suit would legally affect the interest o f that person, and it is desirable, for avoidance of multiplicity o f suits, to have such person joined so that he is bound by the decision o f the court in that suit Alternatively, a person qualifies, (on application o f Defendant) to be joined as co defendant, where is shown that the Defendant cannot effectually set up a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person." The Court then developed a clear principle to be applied. It stated: "... an intervener, otherwise commonly referred to as a NECESSARY PARTY, would be added in a suit under this 8 rule even though there is no distinct cause o f action against him, where a) In a representative suit, he wants to challenge the asserted authority of a plaintiff to represent him; or b) His proprietary rights are directly affected by the proceedings and to avoid multiplicity o f suits, hisjoinder is necessary so as to have him bound by the decision o f the court in the suit; or c) In actions for specific performance of contracts, third parties have an interest in the question o f the manner in which the contracts should be performed; and/or d) On the application o f the defendant, is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is called as a co-defendant. "(Emphasis supplied) Further, in Abdullatif Mohamed Hamis (supra) the Court stressed: "The determination as to who is a necessary party to suit would vary from a case to case depending upon the facts and circumstances o f each particular case. Among the relevant factors for such determination include the particulars o f the non-joined party, the nature of relief claimed as well as whether or not, in the absence of the party, an executable decree may be passed ." Being guided by the above authorities and having reflected on the matter at hand, it is crystal clear that STRABAG is a necessary party who ought to have been joined in the proceedings. This is so because in the circumstances of the case, the subject of this appeal, STRABAG, was an indispensable party for two reasons: One, the case involved the loss of money, but the contract which resulted in the transfer of that money in the respondent bank was entered between the appellant and STRABAG. Two, the appellant claims that STRABAG has not paid invoice no. 101, but the record of appeal clearly shows that there is Exhibit P5(a) which is a copy of invoice no. 101 which has been endorsed by STRABAG that the payment was paid through Cheque No. 00087 on 7th March, 2014. STRABAG is the only person who can confirm the payment and issuance of that cheque. Three, during the trial the respondent advanced a defence that she has committed no wrong, as she complied to the instructions given by STRABAG and conveyed to her by CRDB Bank through swift message to credit TZS. TZS. 30,587,778.28 in account no. 1352605512 held in the name of JOEFF GROUP. The said swift message was tendered and admitted in evidence as Exhibit Pr9. STRABAG is the only person in a position to admit or deny issuing that instruction to the CRDB Bank. Further, she could explain her relationship with JEOFF GROUP and how she got her account number. Therefore, in either way, STRABAG was the necessary party in the case before the trial court. Hence, the learned trial judge was correct in his observations he made in the judgment excerpt which was produced earlier that, STRABAG was a necessary party. But he misdirected himself as Order 1 rule 10 (2) of the CPC vests powers in the court to join a party in the case at any stage of the proceedings. Order 1 rule 10 (2) of the CPC provides: "The court may at any stage of the proceedings, either upon application or without the application o f either party, and on such terms as may appear to the court to bejust, order that the name o f any party improperly joined, whether as plaintiff or defendant, be struck out, and 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 adjudicate upon and settle all questions involved in the suit, be added." (Emphasis supplied) Having found that STRABAG was a necessary party who ought to have been joined in the instant case, but was not joined, we are of the view that the 1s t ground of appeal is meritless and we dismiss it. The consequence of non-joinder of necessary party is fatal and the proceedings are vitiated. Therefore, we nullify and set aside the proceedings of the trial court and we order a re-trial before another judge after joining STRABAG as a necessary party in accordance with the law. This ground is sufficient to dispose of the appeal and there is no need to canvass the remaining grounds of appeal. In the circumstances we make no order as to costs. DATED at DODOMA this 26th day of March, 2026. B. M. A. SEHEL JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered virtually this 27th day of March, 2026 in the presence of Mr. Nafikile Eily Mwambona, learned counsel for the Appellant, Mr. Alex Mianga, learned counsel for the Respondent and Mr. Ne ............. .. 1 . .................... . ' ■ "" ~ i true copy of the original.