Ramji v Savings and Finance Limited and Others (Civil Case No. 30 of 2000) [2000] TZHC 674 (4 August 2000)

SURYAKANT D. RAMJI v. SAVINGS AND FINANCE _____________________________ LIMITED and OTHERS ___________________________ J2I to the suit and to prevent such a defendant from employing delaying tactics and in the process, postpone the day of reckoning. I am of the settled view that Order XXXV is self contained in so far as it relates to suits stipulated thereunder. If a defendant defaults in filing the defence after obtaining leave to appear and defend the suit, as was the case herein then in terms of Order XXXV, rules 2(2): ... The allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled ... [emphasis supplied] According to Black ’ s Law Dictionary (6 ed ) the word “ deem ” means - ... to hold; consider; adjudge; believe; condemn; determine; treat as if; construe. This means that since the defendant defaulted in filing the defence, the bank ’ s allegations in the plaint shall be adjudged to be admitted and the bank will be entitled to Judgment. There will be no need for the Bank to prove the suit according to the standard required by law. Under the circumstances I do hereby enter judgment for the Bank as prayed with costs. It is accordingly ordered. SURYAKANT D. RAMJI v. SAVINGS AND FINANCE LIMITED AND OTHERS HIGH COURT OF TANZANIA {Commercial Division) AT DARES SALAAM (Kalegeya, J.) CIVIL CASE No. 30 OF 2000 Landlord and Tenant - Flat allocated by employer to applicant as employee - Employee contracts with employer to purchase the flat - Whether dispute arising from that contract is a commercial dispute.

122 TANZANIA LAW REPORTS [2002]T.L.R. A Civil Practice and Procedure - Grant of temporary injunctions - Ruling principles guiding Courts in issuance of temporary injunctions. Civil Practice and Procedure - Parties - Parties - Misjoinder of parties - Meaning of proper party and necessary party. B Upon filing a suit against the defendants the plaintiff filed an application for temporary injunction to restrain the respodnents, their agents or workmen from harassing and evicting the applicant from the suit premises pending the final determination of the suit. Counsel for the respondents, in turn, raised a preliminary objection that the subject matter not being a commercial dispute should not, in the first place, have been filed in the commercial Court. Counsel also insisted that the prayer for temporary injunction was bad in law. D Held: (i) This dispute fits well in the definition of a commercial case; the dispute, being commercial, is properly before this court; (ii) What is basic (in granting temporary injunction) is that there should be in existence a serious triable issue between the parties, a looming danger of irreparable E injury to plaintiff and, on a balance of convenience, the existence of more sufferings by plaintiff if the injunction is refused than would be the case with the defendants if granted; between the two, therefore, the plaintiff stands to lose more if the injunction is refused; F (iii) The plaintiff may decide to join both proper parties and necessary parties; in litigation, a necessary party is one against whom the relief is sought or without whom an effective decree cannot be passed by the court, and all those whom the law requires to be impleaded and, on the other hand, proper parties are those whose G presence enables the court to decide effectively and finally the dispute presented before it, and these include those who in one way or another are interested in or connected with the relief being sought against others; (iv) The first defendant is a necessary party because, if left out, the official II receiver may execute the security as he is now threatening, making the plaintiff ’ s success in future, if any, superfluous. Temporary injunction granted I

SURYAKANT D. RAMJI v. SAVINGS AND FINANCE LIMITED and OTHERS 123 Cases referred to:

1. Attilio v. Mbowe [1969] HCD 284
2. Giella v. Cassmon Brown and Company Ltd [1973] EA 358
3. American Cyanamid v. Ethicon [1975] AC 396 Mr Magafu, for the Plaintiff Mr Kesaria, for the Defendant RULING (Dated 4 August 2000) Kalegeya, J.: Upon filing a suit against the defendants the plaintiff proceeded and filed a chamber summons praying. (a) This honourable Court may be pleased to issue an order for temporary injunction restraining the respondents, their agents and or workmen from harassing and evicting the appellant plaintiff from the suit premises known as Flat Number 9 situated at Plot Number 33 Ali Hassan Mwinyi Road. Upanga Area within the City of Dar es Salaam pending the final determination of the suit. The application is supported by his own affidavit. Mr Magafu appeared for plaintiff while Mr Kesaria defended the defendants ’ plight. In support of the application, both by the affidavit and the oral submissions, the applicant through his Counsel vehemently argued that as he is interested *n the property itself and not money, if the order is not given and the property is subsequently sold, the parties being under liquidation, he will suffer irreparable loss. He insisted that he has a good case against defendant; has no alternative accommodation for himself and his family, and that in any case he was not given sufficient notice. Mr Kesaria arguing and voicing a reply on behalf of defendants, forcefully retaliated by first launching a preliminary objection that

124 TANZANIA LAW REPORTS [2002]T.L.R. A the subject matter not being a commercial dispute should not have been allowed to knock at the doors of the Commercial Court in the first place. He argued that this is a mere question of employ er/employee relationship centering on arrears of salaries. B As to the prayer for temporary injunction, Mr Kesaria insisted that it should not issue because plaintiff/applicant has not established a prima facie case; has not established that he will suffer irreparable loss if not granted and that neither has he established, on a balance C of convenience, that he stands to suffer more if the prayer is refused that will the defendants if granted. Expounding further on his submission Mr Kesaria insisted that the plaintiffs employer was Fahari Bottlers Ltd which is under liquidation D and that the plaintiff has already filed his claims with the Provisional Liquidator: that Fahari Bottlers has never been the owner of the disputed premises as much as it has no connection with the rest of the defendants which are separate entities: that the first defendant, the Bank has a E right to enforce its security. Mr Kesaria tendered letters showing correspondences between plaintiff and second defendant over the flat a report on a search conducted in the Land Registry which shows that the property in dispute is in the name of the Company for which fourth defendant was appointed and a copy of the plaintiff ’ s claim lodged with the Fahari Bottlers Ltd ’ s Liquidator. In reply Mr Magafu insisted that the definition of what a “ Commercial case ” is very wide covering the present dispute and that the demand G lodged with the Liquidator does not include the TZS. 30 million deducted from plaintiff salary arrears and applied as payment for the flat. I will start with the preliminary objection. I should out-rightly H state that contrary to Mr Kesaria ’ s objection, this dispute fits well in the definition of a “ Commercial Case ” . The eleven categories enlisted under rule 2 of the High Court Registries (as amended by GN 141 of 1999) defining what a “ Commercial Case ” is are not I exhaustive as amply portrayed by the opening paragraph thereof running as under.

SURYAKANT D. RAMJI v. SAVINGS AND FINANCE LIMITED and OTHERS 125 Commercial case means a Civil Case involving a matter considered to be A of Commercial significance, including but not limited to ... [emphasis supplied]. The rule then goes on to enumerate the eleven categories. With respect to Mr Kesaria he cannot be heard to say that so long as a dispute B does not fall under the eleven categories then it is not a commercial case. The underlined words above do not need any interpolation. They are clear. There are other disputes falling under the definition though not enlisted. And, indeed, for an evolving law applicable in c the modem world with continuing business involvements and innovations a closed definition would have been undesirable if not impossible. So each case has to be looked at on the basis of its own particular facts. Now, the plaintiff has come to us saying. “ I was employed by so and so. I was allocated a flat by my employer in my capacity as his employee. We then entered into an agreement by which 1 purchased the said flat not by direct payment of the purchase price but through retention by the employer of my salary arrears . Though the deductions s of my salary arrears amounting to the purchase price were made no transfer of the said property was made ” . What would this transaction amount to? Would it be, as Mr Kesaria tries to impress, an employer/ employee dispute? ? With greatest respect to Mr Kesaria I cannot associate myself with his reasoning. This was purely a business contractual relationship by which one party sold property and the other purchased. The mode by which the purchase ^rice was obtained is irrelevant. As defined G in the Black ’ s Law Dictionary (6 ed), page 270) the word “ Commercial ” is a “ generic term for most aspects of buying and selling ” , and here the transaction alleged (alleged because evidence is yet to be led) to have taken place between the plaintiff and his employer cannot ft be said to have been anything else save commercial. Thus, I hold that the dispute before us being commercial it is legally before this Court. The preliminary objection on this is dismissed.

126 TANZANIA LAW REPORTS [2002]T.L.R. A Let us turn to the application for temporary injunction. The Counsel are agreed as to the ruling principles guiding the courts in issuance of a temporary injunction. These include the following:- the plaintiff should establish that there is a serious question to be tried on the B facts alleged with a probability that the plaintiff will be entitled to the relief of injury which may be irreparable before his legal right is established, and that on the balance of convenience the plaintiff will suffer more if the injunction is refused than the defendant will ( suffer if granted Attilio v. Mbowe (1); Giella v. Cassmon Brown and Company (2). I should go further and say the requirement that “ there should exist a probability that the matter would be decided in the plaintiff ’ s favour ” should not be exaggerated and taken to D unproportional limits otherwise that would tantamount to giving verdict prematurely and in any case the court would not be in possession of full evidence at that stage; the controlling limb should be the existence of a serious triable issue American Cyanamid v. Ethicon (3) stands persuasively on this. E We should now subject the facts before us to the said principles. I should however start by reiterating that at this point we don ’ t have the full evidence before us. What we are relying upon is the plaint, F the affidavit as filed in support of the application and the Counsel ’ s submissions and therefore the standard of proof required would be somehow below that which is generally required upon full trial. The plaintiff ’ s allegation is that he was employed by Fahari Bottlers G Ltd (whose receiver is third defendant) and that the said Company and JV. Textiles and Garments Ltd, put under receivership of the fourth defendant are wholly owned subsidiaries of the second defendant; that by contract with Fahari Bottlers Ltd he purchased (the mode of H purchase or otherwise at this stage is not relevant as that will be subject of evidence) the disputed flat; but that the flat-was not transferred to him instead it was mortgaged to the first defendant who has appointed a receiver who is currently threatening to evict him. I

SURYAKANT D. RAMJI v. SAVINGS AND FINANCE LIMITED and OTHERS 127 Having carefully considered the facts, the submissions and the a law I am satisfied that the application for temporary injunction should be granted. As I said earlier on, what is basic is that there should be in existence a serious triable issue between the parties: a looming danger of irreparable injury to plaintiff, and on a balance of convenience b the existence of more sufferings by plaintiff if the injunction is refused than would be the case with defendants if granted. The plaintiff alleges the existence of the contract - that allegation stands as presented - of course awaiting to be established by evidence c but at this stage it remains upright as it is yet to be countered. This is a serious triable issue. The dispute relates to a flat. The first defendant is threatening to evict the plaintiff and sell the flat in satisfaction of the debts by the company under the fourth defendant ’ s receivership. » Clearly, here the question is not whether there is available alternative accommodation but whether the plaintiff will get the disputed property in the event he succeeds. If injunction is not issued and the first defendant enforces its security the flat will be disposed of. Then if g in the end the plaintiff succeeds the maximum he will realize is the equivalent in monetary terms (a factor which in the circumstances, is not even certain as the employer is under Liquidation) which may not be on equal footing in importance and as per his interest with F the premises itself. On the other hand if the injunction is granted the only party that may suffer injury will be the first defendant for late enforcement of its security but this can easily be atoned by damages. Between the two therefore the plaintiff stands to lose more if the injunction is refused. Mr Kesaria very strongly argued that the flat in question is JV Textiles and Garments Ltd ’ s property as per search Report and that Fahari Bottlers Ltd has nothing to do with second defendant and IV K Textiles and Garments Ltd as they are separate entities and that therefore plaintiff has no cause of action either against them or first defendant. Agreed, the property may be in the name of TV Textiles and Garments Ltd. However, the plaintiffs allegations are that Fahari Bottlers for

128 TANZANIA LAW REPORTS [2002]T.L.R. A which third defendant was appointed and he said JV Textiles and Garments Ltd for which the fourth defendant was appointed are wholly owned subsidiaries of the second defendant and that they were all aware of the contract regarding the purchase of the disputed premises. As B earlier on pointed out these are just allegations in the pleading. They are not yet proved but at the same time are yet to be disapproved. Mr Kesaria ’ s contrary oral submissions cannot be taken for the latter. Again though first defendant is clearly not a party to the contract c between plaintiff and Fahari Bottlers Ltd it is drawn into the web of dispute by the facts that its receiver is the one threatening to effect the plaintiffs eviction from the disputed flat in satisfaction of a liability incurred by the company for which fourth defendant was appointed. D When instituting an action to protect what he considers to be his interest in the disputed flat there is no way plaintiff could have left out a person who threatens to dispose of that very property. As who can, he joined as a party to a suit the legal stand is very clear - the _ plaintiff may decide to join both proper parties and necessary parties. u While a plaintiff cannot avoid joining the latter, it is within his discretion as regards who should be fished from the former category. A necessary party in litigation is the one against whom the relief is sought or without whom an effective decree cannot be passed by the court, F and those whom the law requires to be impleaded. On the other hand proper parties are those whose presence enables the court to decide effectively and finally the dispute presented before it, and these include those who in one way or another, are interested in or connected G with the relief being asked for as against others. Invaluably, the plaintiff would implead the latter to plug in fissures that may be created in the ultimate decree that may be secured or guide against possible future litigations. H On the facts of this case, as regards the application for temporary injunction, the first defendant is a necessary party because if left out the official receiver may execute the security as he is now threatening, making plaintiff ’ s success in future, if any, superfluous. The 1 interconnection of the other defendants needs no orchestration. Mr

KIGANGAAND ASSOCIATES GOLD MINING COMPANY LIMITED v. , „ UNIVERSAL GOLD NL 129 Kesaria ’ s argument alleging non-existence of a cause of action on some of the defendants based on a principle of misjoinder cannot stand. In conclusion, and for the reasons discussed therefore, the application for temporary injunction stands allowed. KIGANGAAND ASSOCIATES GOLD MINING COMPANY LIMITED v. UNIVERSAL GOLD NL HIGH COURT OF TANZANIA (Commercial Division) AT DARES SALAAM (Kalegeya, J.) COMMERCIAL CAUSE No. 24 OF 2000 £ Civil Practice and Procedure - Suits - Withdrawal and re-filing of a suit - Court grants leave to withdraw a suit and re-file it on terms that the applicant pays the costs of the suit withdrawn - Whether payment of those costs is a pre-condition for re-filing the suit. 1 Civil Practice and Procedure — Pleadings - Verification of pleadings - Verification of pleadings by companies - Who may verify company pleadings and how

• Order XXVIII, rule 1 and Order VI rule 15 of the Civil Procedure Code. Civil Practice and Procedur?-Decisions - Desirability of uniformity of decisions. Civil Case Number 126 of 1999, filed in the General Registry of the High Court, was withdrawn with leave to re-file it in the Commercial Division “ granted on terms that the applicant pays the costs of the suit ” to the respondent. The case was later re-filed in the Commercial Division, verified with the words: “ Principal Officer of the plaintiff conversant with the facts of the case ” endorsed at the end. There was also in the verification the words “ and belief ’ without stating the grounds thereof. The defendant raised two preliminary objections: first, that the plaintiff could not re-file the suit without $