Auto Sokoni Ltd v NBC (1997) Ltd (Commercial Case No. 32 of 2000) [2000] TZHC 684 (20 September 2000)

192 TANZANIALAW REPORTS [2002]T.L.R. A With all these, it is very clear that had the objection proceedings been assigned to a proper Magistrate, the order for attachment and sale would have been lifted as had been prayed for. It was not assigned to proper Magistrate in the sense that, since the Magistrate who had B ordered the attachment and sale of that house was still there, it should have been assigned to him. It was improper to assign it to another Magistrate under those circumstances, because he would be incompetent to grant the order prayed for as doing so would amount to overruling C his fellow Magistrate who was still there. That would only have been proper if the former Magistrate would have ceased jurisdiction. It is upon the above reasons that I do hereby direct that the order for attachment and sale of the said house be lifted, and Mrs Nuru D should look for other properties of the judgment debtor Nurdin (if any) for execution of her decree, or look for other legal means of satisfying her decree. This direction is to be forwarded to the Trial Court for compliance in terms of Order XLI, rule 3 of the Civil 1 Procedure Code, 1996. Costs if this Reference to be in the cause as per Order XLI, rule 4 Civil Procedure Code 1966. AUTO SOKONI LTD v. NBC (1997) LTD. HIGH COURT OF TANZANIA G (Commercial Division) AT DARES SALAAM (Bwana, J.) h COMMERCIAL CASE No. 32 OF 2000 Banking - Banking and non-banking business - Whether proper party to be sued is NBC Ltd or NBC Holding Corporation - Section 10(l)(e) National j Bank of Commerce (Re-organization and Vesting of Assets and Liabilities)Act 23 of 1997.

_____________________ AUTO SOKONI LTD v NBC (1997) LTD. __________________ 193 The plaintiff filed this suit praying for relief arising from a banking transaction that took place at the NBC Foreign Branch. The defendant raised a preliminary objection that it was wrongly impleaded, and that under section 1 0( 1 )(e) of the Nation?.; Hank of Commerce (Reorganization and Vesting of Assets and Liabilities) Act the proper party should have been the NBC Holding Corporation. Held: The subject matter of this case is a banking transaction since it involved the issuing and processing of cheques issued by the plaintiff, and as such the suit was properly brought against the plaintiff. Preliminary objection overruled Statutory provisions referred to:

1. National Bank of Commerce (Re-organization and Vesting of Assets and Liabilities)Act 23 of 1997, sections 4, 6(l)(a)-(e), 10(l)(a), 1G< l)(e), 3(1)
2. Civil Procedure Code, Order 1, rule 9: Order i, rule 10(1); Order 1, rule 10(2) and Order 1, rule 10(4) Mr M Massawe, for the Plaintiff Mr LT Kalunga, for the Defendant RULING (Dated 20 September 2000) Bwana, J.: On 26 July 2000 the plaintiff filed this suit praying for several reliefs arising from a banking transaction that took place at the NBC, Foreign Branch on 12 September 1997. Together with denying liability, the defendant has raised a prehminary objection thus: The defendant avers that it has been wrongly impleaded. Under section 10(1 )(e) of the National Bank of Commerce (Reorganisation and Vesting of Assets and Liabilities Act 23 of 1997, the proper party should have been the NBC Holding Corporation

194 TANZANIA LAW REPORTS [2002]T.L.R. A Therefore the defendant prays the case be struck out with costs. The defendant goes on to cite the provisions of the said section 10(1 )(e) of Act 23 of 1997 to which I will return later on in this ruling. JO In his written submission in reply, the plaintiff relies on the provisions of section 10(l)(a) (but not (e) ) of the said Act as being relevant since that issue concerns banking transaction of his Account at the Foreign Branch of the NBC. In the alternative, the plaintiff submits c that this Court ’ s attention be brought to the following provisions of the Civil Procedure Code namely: Order 1, rule 9: Order I, rule 10(1); Order 1, rule 10(2) and Order 1, rule 10(4). The plaintiff asks, if necessary, to be allowed to amend the plaint by adding a new party to wit: NBC Holding Corporation. Section 10(l)(e) of the said Act states: Consequent upon the split of the former bank into the company, the NMB E and the corporation, all assets and liabilities relating to banking business, to which the former Bank was entitled or subject, immediately before the vesting date shall, with effect from the 1 October 1997 by virtue of this section and without further assurance: F (a) - (e) in respect of non-banking assets and liabilities and businesses of the former bank not transferred and vested by paragraphs (a), (b) (c) or (d) of this subsection be transferred to and vest in the G corporation ... [Emphasis Supplied] Under section 3 of the Act Company means the NBC (1997) limited as established by the NBC (1997) Ltd Incorporation Act 1997. Corporation, H on the other hand, means the NBC Holding Corporation, established by section 4 of Act 23 of 97 On the part of the plaintiff, he relies on Section 10(l)(a) of the Act which states: I

AUTO SOKONI LTD v, NBC ( I 997) LTD. 195 (l)(a) ... (b) in respect of the banking business in the specified branches constituting the Company, be transferred to and vest in the company, [emphasis supplied] In the instant case, the plaintiff ’ s account was as stated earlier, with the Foreign branch of the NBC in Dar es Salaam as specified in the First Schedule to the Act The subject matter of this case is, to me, a banking transaction since it involved the issuing and processing of two cheques issued by the plaintiff payable to the Internal Revenue Officer. Dar es Salaam. What are non banking assets and liabilitities as used under section 1 0( 1 )(e) then? Section 3(1) of the Act defines what assets are. They include: Property, real and personal of every kind including: (a) rights under contract and agreement. (b) Money, books, books of accounts, records and goodwill (c) All other rights, interest and claims in or to real or personal property whether liquidated or unliquidated. .. Liabilities means: debts, charges, duties and all obligations of every description under contract or agreement ... To me, therefore non banking assets and liabilities are those which are not covered under paragraphs (a)to(<7) of section 10(1). However, the issue at hand is, as»stated earlier, covered under section 10(1) (a) of the Act it having been a banking transaction in a specified branch. It was therefore transferred to and vest in the Company. It is equally important to note that the NBC Holding Corporation does not deal with banking transactions as such. Its functions are provided for under section 6 of the Act as follows: Section 6(1).

TANZANIA LAW REPORTS [2002] TLR. A As from the effective date, it shall be the duty of the Corporation: (a) to carry on, in relation to the company and NMB, the business of a holding company and the business of an investment company; to acquire and hold, on behalf of the Treasury Registrar, controlling and other interests in the share or loan capital in the company and in the NMB and in the Bureau; (c) to take over the assets and liabilities and continue the business of the former bank which are not vested in the company or the NMB or the Bureau; (d) to receive and discharge all claims against the former bank which are not vested in the company or the NMB; (e) to do any other act or thing which the Minister may, upon advice by the Committee, by notice in the Gazette determine as being a function of the Corporation. E All the foregoing (section 6(1 ) are not, in my view, relevant to the issue at hand. As such, the corporation cannot be sued, instead die Company (for example NBC (1997) Ltd, is properly sued. Accordingly, the preliminary objection is dismissed.