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Mpungwe v Sykes (Civil Appeal No. 67 of 2000) [2005] TZCA 21 (11 May 2005)

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IN THE COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM

(CORAM: MROSO, J.A., NSEKELA, J.A., And KAJI, J.A.)

CIVIL APPEAL NO. 67 OF 2000

BETWEEN

AMI MPUNGWE……………………………………………….. APPELLANT
VERSUS
ABAS SYKES…………………………………………………. RESPONDENT

(Appeal from the Ruling of the High Court of
Tanzania at Dar es Salaam)

(Bubeshi, J.)

dated the 10th day of September, 1999
in
Civil Case No. 97 of 1999
------------
JUDGMENT OF THE COURT

NSEKELA, J.A.:

         The appellant, one Ami Mpungwe, is the plaintiff in High Court Civil Case No. 97 of 1999. The five defendants are: (1) The Managing Editor of Mtanzania; (ii) Habari Corporation Limited; (iii) Printech Limited; (iv) Abbas Sykes and (v) Air Tanzania Corporation. The essence of the case against the defendants can be gleaned from the following paragraphs in the plaint, and we quote ?

g 7. On the front page of 8th December 1998 issue of the Mtanzania newspaper, written and managed by the first defendant, owned and published by the second defendant, and printed by the third defendant there appeared in print, published, under the heading gWakubwa wadaiwa kuikumbatia allianceh, the following words relating to the plaintiff, that is to say:

         gMwenyekiti wa Bodi wa wakurugenzi ya Shirika la Ndege (ATC) Abbas Sykes, amewatuhumu baadhi ya viongozi wa Serikali kwa kulikumbatia Shirika la Ndege la Alliance. Akizungumza kwenye kikao cha watendaji wakuu wa ATC --- Sykes alisema kwamba baadhi ya viongozi wa Serikali akiwamo Balozi wa Tanzania nchini Africa Kusini, wameweka mbele maslahi binafsi kuliko taifa.h

         And going further, the newspaper went on to quote the fourth defendant as saying:

         gBalozi wa Tanzania nchini Afrika Kusini ni mtoto wetu --- lakini ameacha kutazama interest zetu ---. Siku hizi watu hamna dhamira ya utaifa ndani yetu, tunaweka mbele matakwa yetu binafsi.h

                  8. ------------------

9. The words so written, printed and published as stated in the foregoing two paragraphs originating from the fourth defendant who uttered them publicly at a meeting of the management team and heads of key departments of the fifth defendant, which was held at Kilimanjaro Hotel, in Dar-es-Salaam, on 7 December, 1998. The fourth defendant uttered the said words in his capacity as Chairman of the Board of Directors of the fifth defendant and is joined in this action to answer for the utterances made by the Board Chairman.h

         On the 17.5.99 the fourth defendant filed a chamber summons under Order 1 Rule 10 (2) of the Civil Procedure Code, 1966 (the Code), seeking, inter alia, an order ?
                  gto strike out the name of the 4th defendant and                            substitute it with that of Chairman, Air Tanzania                          Corporation.h

         The matter came before Bubeshi, J., who on the 10.9.99 granted the application as prayed. Aggrieved by this decision, the plaintiff (now appellant) preferred this appeal to this Court. The memorandum of appeal contains two grounds, namely ?

g1. The learned judge in the court below erred in law in granting the respondentfs application to strike out the name of the respondent and substitute it with that of the Chairman, Air Tanzania Corporation.

2. The learned judge in the court below erred in law and in fact in holding, as she did, that suing the respondent as Abbas Sykes is the same thing as suing the Chairman, Air Tanzania Corporation.h

         At the hearing of the appeal, Prof. J.T. Mwaikusa, learned advocate, represented the appellant. The respondent was absent and unrepresented. The court record however shows that the learned advocate for the respondent, Mr. G.M. Kilindu, was duly served with notice on the 23.3.2005. Under the circumstances, the Court proceeded to hear the appeal in terms of Rule 105 (2) of the Court Rules, 1979.

         Prof. Mwaikusa argued the two grounds of appeal together. The learned advocate submitted that the appellant instituted the suit against five defendants including the respondent, Abbas Sykes. It was not for the respondent to decide who the appellant should sue. In addition, he submitted to the effect that the respondent is a primary tortfeasor and he was sued in his personal capacity and not as Chairman of Air Tanzania Corporation. The fact that may be at the end of the day, some other person may be vicariously liable for the respondentfs alleged defamatory utterances, was of no consequence. To bolster up his case, the learned advocate referred to two cases: Ismail G. Lazaro v. Josephine Mgomera (CAT) Civil Appeal No. 2 of 1986 (unreported); Christopher Mtikila v. The Editor, Business Times and Another (1993) TLR 60.

         A convenient starting point is to consider and determine under what conditions is Order 1 Rule 10 (2) of the Civil Procedure Code, applicable. It provides as follows ?

g(2) The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of 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 to adjudicate upon and settle all questions involved in the suit, be added.h

         The decision as to who to sue was essentially that of the appellant. The paramount consideration is whether the party concerned is necessary for the effectual and complete adjudication of all the questions involved in the suit. Order 1 rule 10 (2) is concerned with parties who have been wrongly joined, or who ought to be joined or added. Parties who have been wrongly joined can be struck out under this provision. The learned judge considered this issue and stated, in part, as follows ?

gc . Suffice hereto say that in the case at hand all what the 3rd defendant (sic) is praying for is the change of title, so to speak; from (if you like) Ambassador Abbas Sykes to that of Chairman, Air Tanzania Corporation. In other words the plaintiff will still have amongst the defendants the 3rd defendant (sic) in the name and style of Chairman, Air Tanzania Corporation.h

         With respect, we think that reference to the 3rd defendant must be an error. It must be the 4th defendant, the respondent. More important however, the learned judge did not discuss whether or not Order 1 rule 10 (2) was applicable to the facts before the Court. In the case of Daphne Parry v. Murray Alexander Carson (1962) EA 515, Sir Ralph Windham, C.J. stated as follows at page 517 ?
                  gRule 10 (2) empowers the court to order that the name of any party improperly joined whether as plaintiff or defendant to be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, ---- be added.h

The learned Chief Justice continued ?

gThe rule is thus concerned with parties who have been wrongly joined, or who ought to be joined or added. To gjoin or gaddh a party is not synonymous with making a person a party.h
        
         A question we ask ourselves, was the respondent          Abbas Sykes improperly joined as a defendant?    Prof. Mwaikusa, learned advocate, has in our view,       correctly submitted that the respondent was the          primary tortfeasor and cannot therefore escape the       primary responsibility to resolve the dispute before     the court. Without the respondent , it will not be       possible for the court to effectually and completely     adjudicate upon all the questions involved in the        suit. This Court in Civil Appeal No. 2 of 1986 I.G.      Lazaro v. Josephine Mgomera (unreported)         stated as under ?
                  gIn matters of tort, a tortfeasor, the person who commits a       tort, is always primarily liable. An employer is vicariously liable      if his servant commits a tort in the course and within the scope         of his employment. That does not absolve the liability of the    servant for the tort committed.h
        
                  It is therefore obvious to us that the respondent Abbas Sykes is a necessary party in High Court Civil Case No. 97 of 1999. It was therefore wrong for the High Court to strike out the name of the fourth defendant (the respondent).

         Before we wind up, there is also need to consider Order 1 rule 3 of the Civil Procedure Code. It provides as follows ?

g3. 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 brought against each such persons any common question of law or fact would arise.h

         Under rule 3 above, all persons may be joined in one suit as defendants where the following two conditions co-exist, namely ?

i)      
where any right to relief alleged to exist against them arises out of the same act or transaction; and

ii)     
where, if separate suits were brought against such persons, any common question of law or fact would arise.
        
         As regards the first test, we are of the considered      view that the right to relief against each of the        defendants in Civil Case No. 97 of 1999 is based         upon the same act, namely, the utterance by the          respondent and subsequent publication in         Mtanzania newspaper. And as regards the second   test we are equally of the view that if different suits          were instituted, common questions of fact would          arise, whether or not the purported defamatory   words were in fact uttered and published as claimed      in plaint. Consequently, this is another ground for      holding that Civil Case No. 97 of 1999 was properly      constituted in conformity with Order 1 rule 3 of the     Civil Procedure Code, 1966. We therefore find that       the fourth defendant/respondent was properly     joined as a defendant under Order 1 rule 3 of the        Civil Procedure Code.


The second ground of appeal concerned a prayer that the Chairman, Air Tanzania Corporation, to be joined as a defendant. In the plaint, the fifth defendant is Air Tanzania Corporation, a public corporation in terms of its establishment Order. It is a body corporate. Is this proposed gdefendanth a necessary or proper party? The presence of this defendant will only be necessary if the adjudication of the real controversy between the parties on the record cannot be done without impleading him. The allegations in the plaint do not, in our view, warrant this gdefendanth who incidentally is not a legal person, to be joined as a defendant under Order 1 rule 10 (2).

In the result, this appeal is allowed with costs.

DATED at DAR ES SALAAM this 11th day of May, 2005.
J.A. MROSO
JUSTICE OF APPEAL


H.R. NSEKELA
JUSTICE OF APPEAL


S.N. KAJI
JUSTICE OF APPEAL

         I certify that this is a true copy of the original.


( S.M. RUMANYIKA )
DEPUTY REGISTRAR