Parties to Suit (Final Paper)

MZUMBE UNIVERSITY.

(Chuo Kikuu Mzumbe).

FACULTY OF LAW;

CIVIL PROCEDURE;(LAW; 324)

LECTURES NOTES;

Themes;

A. Parties To Suits.

B. Joinder Of Parties Generally.

C. Joinder Of Plaintiffs.

D. Joinder Of Defendants.

1. PARTIES TO SUITS;

AN OVERVIEW;

The phrase “Party To Suit” derives its meaning from the combination of two terms namely; “Party” and “Suit”. However, neither of the terms is defined by the Civil Procedure Code (Cap. 33 R.E 2002) which is the main statute governing civil procedure in Tanzania.

A party to suit may also be referred to as a party to court proceedings. The phrase “Party To Court Proceedings” may therefore be illustrated as a character or personality in court proceedings, be it criminal or civil. But for the purposes of this address, we are more concerned with Civil Proceedings.

Civil proceedings, in most cases have characters in two opposing sides, such characters are; a plaintiff on one hand and a defendant on the other in a suit, but in an application we may have an applicant on one side and a respondent on the other, the same way in an appeal we have an

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appellant on one hand and a respondent on the other. All these personalities mentioned above constitute parties to the respective proceedings. The plaintiff, the applicant and the appellant are persons who institute the respective proceedings against the defendant or respondents depending on the nature of the proceedings, in view of seeking some remedies, orders, directives etc.

WHAT IS A SUIT?

It must however, be noted here that court proceedings mentioned above differ from one another. The main concern here is on proceedings in respect of suits as differentiated from applications and appeals. It is thus important for a lawyer to know the legal meaning of the term “Suit” before he knows about a party to a suit.

Once again, the term “Suit” is not defined by Cap. 33. The High Court however, in MUSSOMA TOWN COUNSEL v. KASSAM1 made a good attempt in defining the term in the following effect; that it entails of proceedings commenced either by presentation of a plaint or which is commenced in any manner prescribed by the rules of the Civil Procedure Code. At least this definition differentiates a suit from an application which is normally commenced by way of filling a Chamber Summons (or by an oral prayer) and an appeal which is launched by filling a memorandum or a petition of appeal.

WHO MAY BE A PARTY TO SUIT;

Order I of Cap. 33 governs matters relating to parties to suits, and according to Rules 1 and 3 of the Order, a party to suit, must be a person and not any other creature. Again, the term “Person” is not defined by Cap. 33, but S. 4 of the Interpretation of Laws Act2 defines the term as follows;

“…any word or expression descriptive of a person and includes a public body, company, or association or body of persons, corporate or unincorporated”.

1 . [1971] HCD. N. 188 (at page 129-130).

2. (Cap. 1, R.E. 2002).

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The term “Person” may also have the following ordinary expressions, i. e. People (in most general contexts), a human being regarded as an individual, an individual characterized by a preference or liking for a specified thing, an individual’s body, a character in a play or story etc.3

Following the above suggested definitions a human being is a person and thus can be a party to suit. Also some institutions, though not natural persons can be considered as legal persons and thus can be parties to suits, they can sue or be sued in their own names. Entities like Co-Operative Societies/Unions are an example of such institutions. In RAMADHANI KINYAKALI & 2 OTHERS v. ABDU MUSSA BOKERA4 it was held that suing leaders of a Co-operative union in their own names and Capacities (instead of suing the body itself) is improper in law.

In another occasion it was held to the effect that suing leaders of legally recognized groups in their own names on behalf of the group is an error, see JUMA B. KADALA v. LAURENT MNKANDE. 5 Again, it was emphasized in NATIONAL DISTRIBUTION LTD v. NATIONAL UNION OF TANGANYIKA WORKERS6 that institutions like Trade Unions can sue or be sued in their own names.

As to firms, the law is to the effect that a suit can be filed in the name of a firm only if the firm is registered under the Business Names (Registration) Ordinance,7 otherwise it must be filed in the parties (owners of the firm) own names, see AKENA ADOKO’S CHAMBERS v. MOHAMED MAGANGA.8 As to villages (or Ujamaa villages), the law is to the effect that, If a village is not proved to be having a legal personality, a

3 . Concise Oxford English Dictionary (Tenth Edition), Oxford University Press, Great Clarendon Street, Oxford OX2, 2DP, UK (On CD-ROM, 2001, Version 1.1.)

4 . HC.CIV. APPEAL NO; 57of 1988, AT DAR ES SALAAM. (unreported).

5 . [1983] TLR 103 (HC)

6 . (1971) HCD. 12.

7 . (now The Business Names (Registration) Act, Cap. 213 R.E. 2002),

8. (1980) TLR. 134.

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suit cannot be maintained against it in its own name; see MBARIKA UJAMAA VILLAGE v. NYANDA MALIMI.9

In the same vain, the Government of Tanzania (the Central Government) may sue or be sued in its own name or through the Attorney General as per the procedure provided for under the Government Proceedings Act.10 Also Local Government or Urban Authorities may sue or be sued in their own respective names.

In case the legally recognised institutions cease to exist (e. g. Political Parties) while it has a pending matter in court, justice requires that interested members be notified of the motion before the court and be afforded an opportunity to be heard, see REV. CHRISTOPHER MTIKILA & ANOTHER v. THE HON. ATTORNEY GENERAL & ANOTHER, 11.

CAPACITY OF A PARTY TO SUE;

Though the law says a party to suit must be a person, there is an exception to this general rule, not every person qualifies to be a direct-party to suit; some persons are disqualified from being direct-parties to suits in themselves unless some conditions are met first. A person of unsound mind for example, cannot sue on himself unless he does so through a next friend, but proof that he is of unsound mind must be made, otherwise the suit is liable for dismissal, see J (ORSE B) (BY HER NEXT FRIEND) V J.12

Minors are also incapacitated parties to suits, the law is to the effect that a minor can sue by his next friend or wait until he reaches the age of majority, see GATI MARWA v. KISIRI KUBYO.13 The decision in JOHN MAGENDO v. N.E.GOVANI14 not only underscores this stance of the law

9. (1975) LRT. n. 63.

10 . Cap. 5 R.E. 2002.

11 . COURT OF APPEAL CIV. APPEAL NO; 28of 1995, AT Dar es Salaam. (unreported).

12 . [1952] 2 ALL ER 1129.

13 . [1977] LRT. n. 13.

14 . (1973) LRT. 60.

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but also provides for the procedure in which a minor can sue through his next friend.

Another group of persons to remember here is that of Administrators for Estates of deceased persons, an administrator can sue or be sued on behalf of a deceased person only if a letter appointing him administrator is proved, see; JOHN PETRO v. PETER CHIPAKA.15

INTERESTS OF A PARTY TO SUIT;

The law does not give a free room for any body to pose as a party to suit; a party to suit must be a person interested in the subject matter of the suit. A person who intends to file a suit for example, must firs be legally interested in the subject matter of the suit, or he must have what the law refers to as a locus standi (i .e he must show that his interests have been interfered), see the High Court decision in LUJUNA. S. BALONZI, SENIOR v. REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI.16

It was also underscored in PHILIP ANANIA MASASI v. RETURNING OFFICER NJOMBE NORTH CONSTITUENCY & 2 OTHERS17 that to be joined as a party to a legal proceedings a person must have a legal interest, that is to say; an interest which the law recognizes in the subject matter of the proceedings, the PHILIP ANANIA MASASI’S case followed an English decision in Re. T. G. FARBANINDU STRIE A. G. AGREEMENT.18

It follows therefore that, an uninterested person to the subject matter of the suit cannot in law become a proper party to the suit, in BARNABAS ALPHONCE v. MELKIORY MLERA.19 In cementing this stance, the High Court was of the views that, where court proceedings are conducted by a

15 . HC CIVIL APPEAL NO;81 of 1996, AT MWANZA. (unreported)

16 . [1996] TLR 203.

17 HC. MISC. CIV. CAUSE NO; 7 of 1995 AT SONGEA. (unreported).

18 . (1943) 2 ALL E.R. 523].

19 . HC. PC. CIV. APPEAL NO; 7of 1992, AT ARUSHA. (unreported).

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person who lacks locus standi, then the proceedings becomes a nullity and must be quashed.

2. JOINDER OF PARTIES GENERALLY;

AN OVERVIEW;

A party to a suit, be it plaintiff or defendant can stand alone in the conduct of the suit or may act in conjunction with another or others, when the latter proposition is applicable then the law considers the situation as a joinder of parties to the suit. There may, therefore, be a joinder of plaintiffs and or a joinder of defendants in civil proceedings depending on the circumstances of each case.

AIM OF THE RULES IN FAVOUR OF JOINDER OF PARTIES;

The rules in respect of joinder of parties are targeted to avoid inconveniences, especially multiplicity of suits in respect of the same parties and subject matter. This view was envisaged by the Court of Appeal in PROVINCHANDRA MOHANLAL MEVDA & 2 OTHERS v. MUHIMBILI MEDICAL CENTER & ANOTHER20 in which said decision the Court observed that; if an application to be joined in a suit is necessary for avoiding multiplicity of suit, it is granted by the court.

Courts of law however, are cautioned to properly observe the procedures in respect of joining parties to court proceedings so as to avoid unnecessary inconveniences to other persons. In one occasion for example, a subordinate court just examined a person (resisting to release deceased property in probate proceedings) who was in attendance in court and then made him a respondent to the proceedings before it (the court), it was held on an appellate stage that such joined party to proceedings was not properly joined, see MARIAM ALLY v. YUSUFU MPEMBELE. 21

JOINDER OF PARTIES ON APPEALS.

20 . CIVIL REFERENCE NO;6 OF 2003, AT DAR ES SALAAM. (unreported)

21 . HC, EXT. JURIDICTION CIVIL APPEAL NO; 46 OF 1996, AT DAR ES SALAAM (unreported)

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Once a person is not a party to suit, he remains in that position unless he applies to the court and obtains leave to be joined as a party. The law is to the effect that, such a person, a non-party to the suit, cannot be joined as a party on an appellate stage. In MAGU DISTRICT COUNCIL AND ANOTHER v MHANDE NKWABI22 the High Court made remarks to underscore this attitude, it said; No provision of the law allows the joining of a party as appellant in appeal proceedings who had not been a party to the original proceedings whose judgment and decree were the subject of the appeal;

JUDGEMENT IN SUITS INVOLVING JOINDER OF PARTIES;

The fact that there is a joinder of parties in a suit does not in law necessitate a similar decision by the court in respect of the joined parties of the same competing side, under this situation one or more plaintiffs may loose the case while another or more may emerge winners, the same way, a defendant or more of them may be found liable while another or others may be held not liable. This is the spirit embodied into the provisions of Order 1 rule 4 of Cap. 33.

REPRESENTATIVE SUITS;

An Overview;

Where more than one person to suit is to be involved in an action, the law permits a style in which one or more party to suit may sue or defend the suit on behalf of all other interested persons. This kind of a suit is technically known in law as “a Representative Suit” [Order 1, rule 8 (1) of Cap. 33)]. This procedure is an alternative to the common procedure, in which said procedure each party prosecutes or defends his interests in the case. In other words the technique in respect of “a Representative Suit” in a way allows the conduct of the suit by proxy.

Aim of the Rules;

Practically, it is an obvious fact that a suit involving several parties will need more time and costs than a suit involving one party in each of the competing sides. In a multiparty party-suit, more time and costs will be required in drafting necessary documents, service of the documents and 22 . [1997] TLR 286

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summonses, production of evidence etc. This rule is therefore intended to avoid inconveniences, costs and wastage of time on the part of both the court and parties to the suit.

Conditions for Invoking the Rules ;

The rules in respect of the method of Representative suits, will not apply in a suit unless some major conditions are met first, the conditions must be met cumulatively and not alternatively, and these conditions are;

a. The intended representative/s and the person/s to be represented must have the same interest/s in the subject matter of the intended suit.

b. That the court must first give permission (leave) to the representation, hence a person intending to represent others must first apply and obtain the leave before he proceeds to represent the others. The normal procedure for applications should be followed in an application for the purposes of this rule [i. e. by filling a chamber summons supported by an affidavit or by an oral application as provided for under Order XLIII (2) of the Cap. 33]

c. The representative/s must be suing or defending the case not on his/their own but on behalf or for the benefit of all persons so interested in the suit.

d. Notice of the institution of the suit must first be given by the court to all persons to be represented either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.

Legal Effect for Failure to Meet the Conditions;

Any failure to comply with the conditions stipulated above is fatal to the suit and will vitiate it, see, CHRISTOPHER GASPER AND OTHERS v TANZANIA HARBOURS AUTHORITY.23Again, in KIRIGITI SASI v. 23 . [1997] TLR 301 (HC).

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GENKURU VILLAGE MANAGER & 6 OTHERS24 it was observed that filing a representative suit is not a matter of right, one must first obtain leave of the court and the court must give notice to all the interested persons to the suit, be it plaintiffs or defendants. The KIRIGITI’s case followed the decision in PIUS MSIGWA AND 2 OTHERS v. THE SECRETARY OF KIJIJI CHA UJAMAA MAROCHA.25

The applicability of the conditions in respect of filing representative suits extend to employment disputes, hence the failure to comply with the conditions in this nature of proceedings is likewise, lethal to such proceedings; see the observation by the Court of Appeal in K.J. MOTORS AND 3 OTHERS VS. RICHARD KISHAMBA AND OTHERS.26

Rationale of the Conditions for Filling a Representative Suit;

There is justification in the conditions stipulated above because in a representative suit, the court deals with rights of persons who are not before it, there is thus a need for the court to be strict in allowing the filling of such suits so as to properly safeguard the rights of the represented persons, see the envisaging in of the High Court in ADELINA CHUGULU AND 99 OTHERS v. THE NATIONAL EXAMINATION COUNCIL OF TANZANIA AND THE ATTORNEY GENERAL.27 The High Court in ADELINA CHUGULU’s case following the decision in LUJUNA.S. BALONZI, SENIOR (supra).

Again, the Tanzania Court Of Appeal, in K.J. MOTORS AND 3 OTHERS (supra), gave further grounds for vindicating the conditions under the rule when it said through Kisanga, JA. (as he then was) and I quote;

“ The rationale for this view (meaning the contents of Order 1 Rule 8 Of The Code) is fairly apparent. Where for instance, a person comes forward and seeks to sue on behalf of other

24 . HC. MISC. CIV. APPL. NO; 74 of 2003, AT MWANZA. (unreported).

25 . .(1979) LRT. N. 13.

26 . CIVIL APPEAL NO; 74 OF 1999, AT DAR ES SALAAM (unreported).

27 .HC, MISC. CIVIL CAUSE NO; 55 OF 2005, AT DAR-ES-SALAAM. (unreported).

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persons, those other persons might be dead, non-existent or otherwise fictitious. Else he might purport to sue on behalf of persons who have not, in fact, authorised him to do so. If this is not checked it can lead to undesirable consequences. The court can exclude such possibilities only by granting leave to the representative to sue on behalf of person whom he must satisfy the court that they do exist and that they have duly mandated him to sue on their behalf” (bold emphasis is mine).

A Court Before Which To Lodge an Applications for Leave to File a Representative Suit;

In seeking the leave for filling a representative suit, the intended representative/s must file the application in a court which will entertain the intended Representative Suit and not in any other court, see MUSA HAMISI SHAH & 2 OTHERS v. DAR-ES- SALAAM CITY COUNCIL.28

The logic behind this requirement is that, the court which inquires into the application and grants the leave will be in a better position to conceive the atmosphere which necessitated the institution of the Representative Suit than the court which would determine the actual suit without first inquiring and granting the leave.

Rights of the Represented Parties to be Re-Joined as Direct Parties to the Representative Suit

Where a representative suit has been accordingly filed, the represented persons become, in a way, indirect-parties to the suit. However, the law does not close the doors against them in case they wish to be re-joined as direct-parties to the suit, such persons are at liberty to apply to the court to be re-joined [Order 1 rule 8 (2) of Cap. 33].

MISJOINDER AND NON-JOINDER OF PARTIES TO SUITS;

An Overview;

A misjoinder of parties to suit is a situation where parties to a suit are improperly impleaded or joined, and a non-joinder of a party to suit is an omission to implead or join a necessary or proper person as a party to suit. 28 . [1996]TLR 201

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Effect of Misjoinder and Non-joinder of Parties;

The effect of both, misjoinder and non-joinder of parties is in most cases not fatal enough to vitiate the suit. Order 1 rule 9 of Cap. 33 provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it. The decision in DR. MWIKWABE M. MAGERE v. THE ATTORNEY GENERAL29 underscore this stance.

There are some exceptions in this general rule however; i. e. where a non-joinder of a party to suit may occasion difficulties in deciding the real controversy between the parties in the suit, then the non-joinder becomes a serious irregularity to the suit. In JUMA B. KADALA v LAURENT MNKANDE (supra) for example, it was held that in a suit for recovery of land sold to a third party, the buyer should be joined with the seller as a necessary party (defendant); and further that a non-joinder will be fatal to the proceedings.

Objection To Misjoinder and Non-Joinder Of Parties;

The law is to the effect that objections to Misjoinder or Non- joinder of parties (if any), shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement unless the ground of objection has subsequently arisen; and any such objection not so taken shall be deemed to have been waived (Order 1 rule 13 of Cap. 33). This rule is practically very significant because it enables speedy determination of suits by keeping away from unnecessary dilatory objections on grounds of mis-joinder or non-joinder of parties.

The law is further to the effect that, where there is a genuine objection on grounds of mis-joinder or non-joinder and it is sustained, the court should not dismiss the suit, it may order amendment of the pleadings by striking out the improperly joined names or by joining into the suit the names left behind by the pleadings.

COURT’S POWERS IN MIS-JOINDERS AND NON-JOINDERS.

29 . HC, CIVIL APPEAL NO;11/1994;AT MWANZA. (unreported).

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As observed above, the law empowers the court to order that the name of any party to suit (plaintiff or defendant) improperly joined, be struck out, and that the name of any person who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. The court may exercise these powers at any stage of the suit, and it can do so suo motu or upon an application by either party. In exercising these powers, the court does so on such terms as may appear just to it [Order 1, rule 10 (2)].

APPEARANCE OF PARTIES BY REPRESENTATION;

Where there are more than one party (plaintiff or defendant) in a suit, any one or more of them may be authorized by any other of them to appear, plead or act for such others in any proceeding [Order 1 rule 12 (1) and (2) of Cap. 33].

According to this rule, there are conditions precedents to be met before parties to suit enjoy this option, these include;

a. There must exist an authority for one or more parties to represent another or others.

b. The authority to represent others must be in writing.

c. Such an authority must be signed by the party or parties giving it.

d. The Authority for the representation must be filed in court.

A distinction must however, be notable between the proposition under Order 1 rule 8 of Cap. 33 (in respect of Representative Suits) on one side and the proposition under Order 1 rule 12 (1) and (2) of Cap. 33 on the other. While the former rule provides the procedure for instituting a suit in a representative fashion, the latter governs a situation where a suit involving several parties (plaintiffs or defendants) has already been filed by them jointly in a normal procedure (apart from the Representative Suit style), but not all the parties intend to act in respect of the conduct of the suit, so they opt to be represented by one or more of them.

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In the former rule therefore, the representation begins from the stage of instituting the suit while in the latter rule, the representation comes a bit latter, i. e. after the suit has been instituted by all the parties jointly.

Illustrative example; i; Where A, B, C, D and “E” are entitled to sue against “F”, and “A” alone seeks and obtains leave from the court to file and conduct the suit on behalf and for the benefit of all the intended plaintiffs named above, “A” will be acting according to the terms of Order 1 Rule 8 of Cap. 33, and the resulting suit is indeed a Representative Suit in law.

Illustrative example; ii; Where A, B, C, D and “E” are entitled to sue against “F”, and they all file the suit jointly, but latter they find it proper to let “A” conduct the case on behalf and for the benefit of all the plaintiffs, in which said case the rest give authority to “A”, then the group of plaintiffs will be acting according to the melody of Order 1 rule 12 (1) and (2) of Cap. 33. This matter may not be termed as a Representative Suit in law.

3; JOINDER OF PLAINTIFFS;

AN OVERVIEW;

Order I rule 1 of Cap. 33, provides that all persons may join in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if such persons brought separate suits, any common question of law or fact would arise. The distinction between plaintiffs suing jointly on one hand and severally on the other must be clear.

CONDITIONS FOR JOINDER OF PLAINTIFFS;

According to the rule cited above, some conditions must be met cumulatively before plaintiffs are joined in one suit, a foreign decision in STROUD v. LAWSON30 underscores the conditions as follows;

30 . (1898) 2 Q. B. 44

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a) Each of the plaintiff must be entitled to sue the same defendant/s

b) The right to the remedy in respect of each plaintiff must be arising from the same act or transaction or a series of transactions.

c) There must be a common question of law or fact to the extent that if they filed separate suits any common question of law or fact would arise

The conditions envisaged above can be easily conceived by considering the following illustrative examples;

Illustrative example; i ; “A” negligently discharges ammunitions from his gun, as a result “B” and “C” get injured, then “B” and “C” can be properly joined as plaintiffs in a suit against “A” for damages, this is so because all the conditions branded a) - c) above have been cumulatively met.

Illustrative example; ii; “A” negligently discharges ammunitions from his gun, as a result “B” and “C” get injured. A month latter “A” fires his gun in the same manner and injures “D”. Under the circumstances “D” can not be properly joined with “B” and “C” as plaintiffs in a suit against “A” for damages, the grounds being that, only the conditions named a) and c) (above) have been met while the condition labelled b) has not been achieved.

COURT POWERS IN JOINDER OF PLAINTIFFS;

As remarked before, a court of law is vested with powers to make some orders for the sake of justice as far as joinder of plaintiffs in a suit is concerned, examples of such powers of the court are found in the following situations;

Joinder Of Plaintiffs Causing Embarrassment And Delay Of The Suit;

Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may put the plaintiffs to

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their election or order separate trials or make such other orders so as to expedite the finalization of the suit (Order I rule 2 of Cap. 33). Apparently this rule underlines the subsistence of inherent powers clothed to the Court by S. 95 of Cap. 33.

Suit In Name Of Wrong or Doubtful Plaintiff

According to Order 1 rule 10 (1) of Cap. 33, the court is vested with powers to order any other person to be substituted or added as plaintiff upon such terms as the court thinks just where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff.

The court may exercise these powers at any stage of the suit so long as it is satisfied that the suit has been so instituted through a bona fide mistake and it is necessary for the determination of the real matter in dispute so to do. Once more, this rule is a testament of the powers of the court under S. 95 of Cap. 33.

CONSENT OF PERSONS TO BE JOINED AS PLAINTIFFS OR NEXT FRIENDS.

Despite the powers vested to the court under Order 1 rule 10 (1) of Cap. 33, a person cannot be joined to a suit as plaintiff or Next Friend of the plaintiff unless he consents [Order 1 rule 10 (3)]. This rule underscores the stance of the law that; to be joined as a party to legal proceedings a person must have a legal interest in the subject matter of the proceedings; see PHILIP ANANIA MASASI v. RETURNING OFFICER NJOMBE NORTH CONSTITUENCY & 2 OTHERS (supra). This rule is therefore an exception to the general rule prescribed under Order 1 Rules 2 and 10 (1) of Cap. 33.

4; JOINDER OF DEFENDANTS;

AN OVERVIEW;

According to Order. 1 rule 3 of Cap. 33, all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative where, if separate suits were

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brought against such persons, any common question of law or fact would arise.

The provisions of this rule (in respect of joinder of defendants) are apparently similar to those of Order 1 rule 1 of Cap. 33 (in respect of joinder of plaintiffs), hence the procedure in respect joinder of plaintiffs (discussed herein above) applies mutatis mutandis to joinder of defendants.

INTERESTS OF DEFENDANTS IN A SINGLE SUIT;

We observed earlier that no person shall be joined to a suit if he is not interested, the law however adds that; it shall not be necessary that every defendant shall be interested as to all the relieves claimed in any suit against him (Order 1 rule 5 of Cap. 33). The meaning envisaged by the law here is that, in a suit involving more than one remedy sought by the plaintiff, in which said suit two or more defendants are joined , it is not necessary that each defendant is interested to all the remedies sough by the plaintiff. One defendant may be interested in one or more relieves sought and another may be interested in the rest of the relieves.

The following illustrative examples may explain this stance of the law better;

Illustrative Example; i; “A” intends to sue “B”, “C” “D” and “E” in a single suit claiming for remedies 1, 2, 3, 4 and 5 against them. Under the circumstances it suffices to join the four defendants if “B” is interested to remedy 1 only, while “C” is interested to remedies 2 and 5 only, and in the same time “D” and “E” are interested to all the 5 remedies.

Illustrative Example; ii; “A” intends to sue “B”, “C” “D”, “E” and “F” in a single suit claiming for remedies 1, 2, 3, 4 and 5 against them. “B” is interested to remedy 1 only, while “C” is interested to remedies 2 and 5 only, and in the same time “D” and “E” are interested to all the 5 remedies. However, “F” is not interested to any of the 5 remedies. Under the circumstances, the uninterested “F” cannot be joined as co-defendant into the suit while all other defendants can be properly joined as co-defendants.

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DEFENDANTS LIABLE ON SAME CONTRACT;

Where a contract is involved in a suit and more than one defendant are liable, the plaintiff is entitled in law to choose which defendant to sue (Order 1 rule 6 of Cap. 33). Under this rule the plaintiff may, at his option, join as parties to the same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.

JOINDER OF DEFENDANTS AS A RESULT OF DOUBTFUL PLAINTIFF;

Again, the plaintiff is privileged by the law to join two or more defendants in a single suit where he is in doubt as to the person from whom he is entitled to obtain redress. Under these circumstances he will file the suit against all of them in order that the question as to which of the defendants is liable, and to what extent, may be determined by the court as between all parties (see Order 1 rule 7 of Cap. 33).

The law adds here that; in private litigations the question of joinder is essentially discretionary although a litigant is advised to join as defendants all persons against whom any right or relief is alleged to exist where if separate suits were brought against such parsons a common question of law or fact would arise, see DR. MWIKWABE M. MAGERE v. THE ATTORNEY GENERAL.31

The plaintiff should however, exercise this option carefully otherwise he may end up paying costs for an unnecessary dragging an indifferent defendant to court, this is because the rule does not exonerate the plaintiff from paying costs of the suit in case he looses the case.

AMENDMENT OF PLAINT UPON ADDING DEFENDANT TO THE SUIT;

It is the law that in case a defendant is added as a party to suit, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary; and the amended copies of the summons and of the 31 . HC;CIVIL APPEAL NO;11/1994;AT MWANZA. (unreported).

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plaint shall be served on the new defendant and, if the court thinks fit, on the original defendant [see Order 1 rule 10 (4) of Cap. 33]. The rationale of this rule rests on the fact that it is according to justice to notify the additional defendant who is evidently strange to the suit on the nature of the suit against him by serving upon him the summons and the amended plaint.

TIME LIMITATION IN RESPECT OF ADDED DEFENDANT

Order 1 rule 10 (5) of Cap. 33 provides that, Subject to the provisions of section 22 of the Law of Limitation Act (Cap. 89), the proceedings as against any person added as defendant shall be deemed to have begun only on the service of the summons. The rationale of this rule is that, the additional defendant is taken to have been ignorant of the existence of the proceedings against him until when he is formally informed of the same by the service of the summons. Time could not thus run against him before he was served with the summons, otherwise that would amount to nothing else than a serious injustice arising from adjudging him unheard. It must be noted here that the time limitation referred to under this rule is mostly in respect of the conduct of the suit already filed, such as in respect of filling necessary documents, e. g. the Written Statement of Defence etc.

The provisions of S. 22 of Cap. 89 mentioned above are couched thus;

“In computing the period of limitation prescribed for a proceeding the institution, continuance or conclusion of which has been stayed by injunction or order, the time during which the injunction or order remains in force, shall be excluded”.

The additional defendant has thus, under the situation a double relief as far as time limitation is concerned upon being joined in the suit, the first being provided by the provisions of Order 1 rule 10 (5) of Cap. 33 and the second being the one prescribed under the provisions of S. 22 of Cap. 89.

SUING THE DEFENDANT IN REPRESENTATIVE CAPACITY;

Where a defendant is sued in representative capacity, he will remain a representative of the represented person, the plaintiff is precluded from

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seeking to make him personally liable on appeal; see NYANZOBE KADELYA v. MAYOGE DAUD.32

One may thus, for the sake of legal argument, compare and contrast the situation under this particular stance of the law on one hand and the situation suggested under Order 1 rule 8 of Cap. 33 (Representative Suit) and Order 1 rule 12 (1) and (2) of Cap. 33 (appearance on behalf of others).

5; OTHER READINGS;

EUROCROSS SALES LTD AND ANOTHER V CORNHILL INSURANCE PLC.33

BANQUE DES MARCHANDS DE MOSCOU (KOUPETSCHESKY) AND ATTORNEY-GENERAL V MIDLAND BANK LTD. 34

BENDIR AND OTHERS V ANSON. 35

BURNSIDE V HARRISON MARKS PRODUCTIONS LTD.36

BENTLEY MOTORS (1931) LTD V LAGONDA LTD.37

MITCHELL V HARRIS ENGINEERING CO LTD.38

K C U MATEKA V ANTHONY HYERA.39

32 . (1976) LRT. n. 24.

33 . [1995] 4 ALL ER 950.

34 . [1939] 2 ALL ER 364

35 . [1936] 3 ALL ER 326

36 . [1968] 2 ALL ER 286

37 . [1945] 2 ALL ER 211

38 . . [1967] 2 ALL ER 682

39 . [1988] TLR 188 (HC)

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B. D. CHIPETA , A Magistrate’s Manual.40

D. F. MULLA , The Code of Civil Procedure Act V of 1908 (With

Explanatory Notes and Commentaries). 41.

J. H. K. UTAMWA.(D/REGISTRAR)

THE HIGH COURT OF TANZANIAAT MBEYA.

(Part Time Lecturer).MZUMBE UNIVERSITY

MBEYA CAMPUS;November, 2007.

40 . TMP. Book Department, Tabora, Tanzania, (P.157-159).

41 . 10th Edition, The Eastern Law House, Calcutta, 1934, (P. 447-479).

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